[Many years ago, under the Bjeleke-Petersen street march ban, Frank Brennan wrote a book, Too much Order, Too little Law; Andrew Boe takes up the theme again, liberal ideas don’t change much].
ANDREW BOE Andrew Boe, a Queensland barrister, has represented indigenous clients in landmark cases during the past two decades.
The Australian 11 October 2013
ON Tuesday, Gary Johns wrote about a recent High Court case involving my client, Ernest Munda, who killed his wife in 2010. He provocatively argued that ‘‘if Aboriginal culture is recognised in the Constitution, do not be surprised if the likes of Ernest Munda get lighter sentences’’.
Of course, Johns is allowed to have his own agenda — stopping cultural recognition. But he should not attempt to advance it by making a dash for relevance on the back of a decision that has nothing to do with that agenda.
It is difficult to respond to a thesis that is disjointed and elusive. Johns concluded his article in this way: ‘‘Presently, judges have discretion in sentencing. If you want to look after the Ernest Mundas of the world, go ahead and vote yes for ‘cultural’ recognition. If you are for human rights, then vote yes for ‘historic’ recognition.’’
Overall, there is implied criticism of the fact Munda’s case was before the High Court at all. There was also some suggestion that the case sought to seek differential treatment on the basis of culture and it was seemingly asserted that, somehow, someone was going to argue that the case should inform the discussion about the amendments to the preamble to the Constitution.
Yet some basic facts are in order. First, the appeal by Munda to the High Court had at least enough merit to warrant the grant of special leave to appeal to that court; a feat that any lawyer will tell you is rare (about 6 per cent are granted leave).
That was, no doubt, because it involved at least two other legal issues that were of importance to the administration of justice — neither of which had anything to do with issues concerning Aboriginality, culture or race.
Second, the High Court had not examined the relevance of an offender’s Aboriginality (and more precisely the issues of deprivation that often but do not always attend such a situation) and there were disparate voices in the various states and territories about this issue.
Johns’s lament for the same law to be applied to all Australians surely includes a consistent (and not idiosyncratic) regard for these issues by sentencing judges. The law as now propounded in this case, and the allied case of Bugmy, will now assist in the overall administration of justice in the country for Aboriginal offenders and victims.
Third, on behalf of Munda it was never sought to seek any discount of his sentence on the basis of his culture (race) alone. This much was overtly recorded in the majority judgment. It was argued that the original sentencing judge was entitled to take into account deprivations suffered by Munda while growing up in an isolated community, as a significant mitigating factor in fixing the original sentence.
The state of Western Australia appealed this sentence attacking that premise. It was then argued by Munda in the High Court that the dilution of these matters by the intermediary Court of Appeal was premised on factors that were not permissible. The majority of the High Court in part agreed but also found that the original sentence was just too low and that the intervention by the Court of Appeal was otherwise unexceptionable.
Fourth, what any of this has to do with the preamble to the Constitution, as Johns argued, remains obscure. The lawyers in the Munda appeal collectively have worked at the coalface of indigenous issues for more than half a century.
Some have championed issues concerning the plight of indigenous women subjected to domestic violence more than a quarter of a century ago in landmark cases.
Indigenous disadvantage is often the product of the social policy implemented by politicians. None of these lawyers, to my knowledge, has agitated for any alteration to the Constitution, a subject not mentioned in argument of the case.
Johns is not alone in this view; Andrew Bolt echoed the same sentiment. The discussion this week on Radio National’s Law Report on the Munda and Bugmy cases was also fomenting misinformed discussion. No one associated with the Munda appeal is blind to the need to protect women and children from violence, especially in dysfunctional communities.
Reasonable minds will differ on how that might be achieved in this context. Yet state and federal governments must take some responsibility for the state of the deprivation in these communities and for the consequences of failed social policy experiments.
Perhaps more important, a significant number of the offenders who will benefit from a clear appreciation of the regard to be given to these circumstances of deprivation are in fact women and children. These issues are difficult, sensitive and deserving of rational discussion.
Ultimately, Aboriginal disadvantage is too serious an issue to seek to just rest on ‘‘the vibe’’, as Dennis Denuto memorably argued in The Castle.
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