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Law Society Journal - Customary law and international human rights: The Queen v GJ

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August 2006 page 42

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Customary law and international human rights: The Queen v GJ

By CHRISTINE FOUGERE

Christine Fougere is a senior lawyer at the Human Rights and Equal Opportunity Commission



THE ROLE THAT ABORIGINAL customary law has, or should have, in the criminal codes and sentencing acts of the Commonwealth, states and territories has been the subject of detailed consideration for some time.1

Recent debate appears to have been sparked by the Northern Territory case of The Queen v GJ, although much of the attention seems to have focussed on the original sentence imposed,2 rather than the outcome on appeal, in which the NT Court of Criminal Appeal significantly increased the period of imprisonment to be served by Mr GJ.3 The Human Rights and Equal Opportunity Commission (the Commission) attempted, ultimately unsuccessfully, to intervene in the appeal proceedings.

The facts

Mr GJ was charged under the Criminal Code Act (NT)with committing an unlawful assault against a child under the age of 16 years,4 and with having sexual intercourse with the same child for which the maximum penalty was 16 years imprisonment.5 Consent is not an element of this latter offence and Mr GJ was not charged with the more serious offence of sexual assault without consent under s.192 of the Criminal Code (NT) that carries a maximum penalty of imprisonment for life.

Mr GJ, a 55-year-old traditional Aboriginal man, pleaded guilty to both charges and the transcript of proceedings reveals the way in which the issue of customary law was taken into account by the sentencing judge. Both the prosecution and judge accepted that, based on Mr GJ’s understanding of traditional law as it applied in the Ngarinaman community, he believed that intercourse with the child was acceptable because she had been promised to him and had turned 14 years of age.

It was also accepted that based on Mr GJ’s understanding and upbringing in his traditional law, notwithstanding the child’s objections, he believed that the child was consenting to sexual intercourse. A sentence was imposed of 24 months that was suspended after serving one month’s imprisonment.

It is significant to note that the Sentencing Act 1995 (NT) does not single out customary law as a factor to which a court must have regard in sentencing an offender. Rather, like a range of other factors, it is considered within the context of “any other relevant circumstance”.6

Commission seeks to intervene

The Commission decided to seek leave to intervene7 or to appear as a common law amicus curiae8 in the appeal against the sentence lodged by the Crown. In its written submission to the Court of Criminal Appeal ( the CCA),9 the Commission stated that any consideration given to Aboriginal customary law in the sentencing process should be carried out consistently with human rights principles that are recognised in the international treaties to which Australia is a party.10

While the offender’s understanding of traditional customary law in this matter was relevant to the sentencing process,11 the Commission submitted that the weight given to this factor had to be outweighed by the rights of the child where the offence against the child was as serious as the offence committed in this case.

This approach accords with the position in international human rights law that, while all attempts should be made to reconcile the rights of individuals with the rights of Indigenous peoples to retain and enjoy their culture, individual human rights, particularly those of children recognised by the Convention on the Rights of the Child, must ultimately prevail and must be accorded due weight in any sentencing process.

The Commission submitted that in this case, the correct balance was not achieved between the accused’s traditional beliefs and the rights of the child.

Decision

In its written reasons for the decision published on 22 December 2005,12 the CCA allowed the Crown’s appeal, set aside the sentence, and a new sentence of three years and 11 months imprisonment was imposed, to be suspended after serving 18 months.13

The CCA refused the Commission’s application to appear as an intervener on the basis that it may not have power to grant leave to third parties to intervene in criminal proceedings but that, in any event, the Commission did not have sufficient legal interest in the matter such that it would be appropriate for it to be granted leave to intervene.

It was accepted that the CCA has the power to admit counsel as amicus curiae, but it was not satisfied that the court would be significantly assisted by the submissions of the Commission because the case was not one in which it was proper to take into account international human rights conventions to which Australia is a party.

While the Commission’s attempt to intervene was unsuccessful, the outcome of the appeal and comments made by members of the court indicate that the principles upon which the human rights treaties mentioned above are based are matters about which the court is clearly cognisant.

Strong statements were made about the role of the criminal laws of Australia protecting women from violence with the implicit recognition that “such violence has an extremely deleterious effect on the mental and physical integrity and dignity of women [and] that it may well have the consequence, if women are not protected, of maintaining them in subordinate roles and preventing them from the equal enjoyment and exercise of their positive human rights and freedoms”.14

ALRC view

In a recent report of the Australian Law Reform Commission on the sentencing of federal offenders, the ALRC also recommended15 that while federal sentencing legislation should contain a general legislative endorsement of the practice of considering traditional laws and customs when sentencing, it is important that those courts have regard to relevant international human rights principles and do not impose sentences that derogate from these principles.

Appeal refused

Mr GJ’s application for special leave to appeal to the High Court was refused on 19 May 2006.16


ENDNOTES

1.  For example, in 1986 the Australian Law Reform Commission released its report into Aboriginal customary laws (ALRC 31 (1986)). Since then, a number of other Australian law reform bodies have considered issues relating to Aboriginal customary laws and sentencing such as the NSW Law Reform Commission (Sentencing: Aboriginal Offenders, Report 96 (2000)), the NT Law Reform Committee (Report of the Committee of Inquiry into Aboriginal Customary Law (2003)) and the Law Reform Commission of Western Australia 2005 (Aboriginal Customary Laws, Project 94, Discussion Paper (2005)). Most recently, the April 2006 report of the Australian Law Reform Commission (Same Crime, Same Time: Sentencing of Federal Offenders (ALRC 103, 2006)) has considered the way in which the traditional laws and customs of Indigenous Australians may be taken into account in federal sentencing legislation. See, in particular, paragraphs 29.40-29.73.

2.  See the sentencing remarks at http://www.nt.gov.au/ntsc/doc/sentencing remarks/2005/08/gi 20050811.html

3.  The Queen v GJ [2005] NTCCA 20. Available at http://www.nt.gov.au/ntsc/doc/judgements/2005/ntcca/ntcca020.html

4.  Section 188(2) of the Criminal Code Act (NT).

5.  Section 127(1)(a) of the Criminal Code Act (NT).

6.  Under s.5 of the Sentencing Act (NT), ss.(1) lists the purposes for which sentences may be imposed and ss.(2) list the matters the court must have regard to in sentencing an offender including, in sub-paragraph (s), “any other relevant circumstance”.

7.  The Commission has a statutory function of intervening under s.11(1)(o) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act) that allows HREOC, where it considers it appropriate to do so, with the leave of the court hearing the proceedings and subject to any conditions imposed by the court, to intervene in proceedings that involve human rights issues. The expression ‘human rights’ is defined at s.3(1) of the HREOC Act to mean those rights and freedoms recognised in the International Covenant on Civil and Political Rights (ICCPR), the Declaration on the Rights of the Child, the Declaration on the Rights of Mentally Retarded Persons, the Declaration on the Rights of Disabled Persons, and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. The Commission has a similarly worded intervention function in the other federal legislation that it administers that allows it to seek a court’s leave in proceedings that involve racial discrimination issues, issues of sex, marital status, pregnancy or potential pregnancy discrimination, and discrimination involving sexual harassment, issues of disability discrimination, issues of age discrimination and issues of discrimination in employment or occupation.

8.  As distinct from the ability of individual Commissioners to seek leave to appear as amicus curiae in discrimination matters under s.46PV of the HREOC Act.

9.  The Commission’s written submission was filed on 19 October 2005 and is available at http://www.humanrights.gov.au/legal/submissions_court/intervention/queen_gj.html

10.  These treaties include the ICCPR, the International Convention on the Elimination of All Forms of Discrimination Against Women and the Convention on the Rights of the Child.

11.  It should be noted that the grounds of appeal filed by the Crown addressed the weight given to the respondent’s traditional beliefs and not the validity, or otherwise, of the correctness of the accused’s understanding of those customary laws (Notice of Appeal filed 31 August 2005, para 5(iii)). The Commission therefore did not seek to make any submission about the content of the customary law relied on by Mr GJ, other than to note that the content could not be given such weight as to detract from the principle of equality of women or the protection of vulnerable children.

12.  See note 2 above.

13.  Mr GJ’s release after 18 months was also made subject to the condition that he has no contact with the victim for a period of two years and five months from the date of his release and his sentence was backdated to when he first went into custody.

14.  The Queen v GJ [2005] NTCCA 20, Southwood J [69].

15.  See note 2 above at [29.71].

16.  In brief reasons for decision for the refusal of leave, Justice Kirby noted that ‘[a]lthough the issues of the relevance of Aboriginal customary laws, if proved, for the general criminal law are important, we are not convinced that this is a suitable case in which to explore those issues further. Nor are we convinced that, in the circumstances of this case, an appeal would succeed in reducing the custodial sentence of the applicant’. The transcript of proceedings is available at http://www.austlii.edu.au/au/other/HCATrans/2006/252.html