Chief Justice Brian Martin

South Australian Press Club– 15 September 2006

Thank you for the invitation to join you today.

This is a particularly interesting time to be attending such a gathering because as an Australia-wide community we are at a critical stage in the evolution of our values and the development of our policies with respect to our system of criminal justice. This evolution has followed the wanton destruction of lives in 2001 when the Twin Towers in New York were destroyed. Prior to September 2001 terrorism had existed in various forms for many years throughout parts of the world, but in Australia we had been relatively isolated from the impact of such terrorism. The destruction of the Twin Towers began a revolution of thinking in our part of the world about how to deal with terrorism and that revolution gained impetus in the wake of the Bali bombings and subsequent events.

Today we are experiencing a vigorous debate about where to strike that precarious balance between laws which will best achieve the objective of protecting the wider community, while avoiding the catastrophe of an innocent person being wrongly convicted and, in addition, while protecting individuals against the unjustified use of the power of the State through various law enforcement authorities.

We have entered a new era in which the State is claiming special powers are required to combat terrorism. These are powers which override rights we have always regarded as fundamental to our democratic way of life: rights so fundamental that, as a community, we have taken them for granted.

In the United States of America these special powers include detaining “suspects” offshore in Cuba. Whatever David Hicks did or did not do, and we have no idea because evidence has not been presented, it is totally foreign to our understanding of proper treatment of citizens in a civilised community to incarcerate a person for many years without charge and without independent judicial supervision in the conditions to which Mr Hicks has been subjected. As Fyodor Dostoevsky, the Russian author, said in the 1800’s:

“A society should be judged not by how it treats its outstanding citizens, but by how it treats its prisoners.”

In America this belief in the need for special powers is so strong that it has apparently extended to secret prisons run by the CIA and “alternative interrogation techniques”. What a delightful euphemism for “torture”. And, of course, these “techniques” are justified by the political leaders of that country on the ground that they unearthed information that prevented further terrorist attacks “against the American homeland”. The ends justify the means. I wonder whether such techniques would have been justified if they unearthed no useful information or they happened to be applied to an innocent person?

In Australia we now have control orders which severely curtail the rights of an individual to move freely about our community. Make no mistake, these control orders are far removed in principle and effect from bail conditions or restraining orders. Bail conditions only exist while a person is charged with a crime. They cease if the person is acquitted. Restraining orders are made on complaint and evidence satisfying a court that there is a risk of harm to an individual or that individual’s property. They are directed at restraining conduct toward an individual. They do not otherwise restrict the right of a citizen to move freely about the community.

Should we in Australia support secret security agency prisons or torture or something less? Should we support control orders and other features of the terror legislation? Or should we insist on maintaining those rights previously regarded as fundamental? Where should we strike the balance?

The debate that is occurring is a healthy debate. It is an essential feature of our democracy that such a debate involving polarised views can occur freely and openly. What we need, however, is a debate without half-truths and spin-doctors. Political interests should be set aside. It is a debate that requires a strength of leadership and a willingness of our leaders to stand up for fundamental rights which might not be perceived as popular and to lead the discussion in a way that ensures that we do not override fundamental rights for popularist political reasons. As a society, we need to tread warily and weigh very carefully the competing interests to ensure that we are not panicked into measures that we will later regret.

Please understand that in mentioning these changes and the evaluation of the debate, I am not expressing personal views. I do not intend to enter the fray and discuss the merits of the various views. I mention these matters because they provide a setting for the mood in the Australian political scene and wider community about law and order generally. That mood has had an impact upon the debate in an area I have been asked to discuss, namely, the place of customary law in the criminal justice system.

Let me begin with a few observations about the difficulties associated with Aboriginal customary law. I will try to raise issues for your consideration while avoiding expressing personal opinions.

Nanette Rogers of the Alice Springs office of the Northern Territory Director of Public Prosecutions recently highlighted, and very properly so, the appalling violence, including sexual violence, that exists in some Aboriginal communities. I stress, some communities. It has been said, with considerable justification, that within such communities there is a “culture” of violence by Aboriginal men against Aboriginal women and children in those communities. We should, however, be careful about the use of the word “culture”.

The type of alcohol-fuelled violence with which the criminal courts are constantly concerned is not presented to the court as related to or justified or condoned by traditional Aboriginal customary law. It is not advanced as part of an accepted “culture”. Nor is the abuse of young boys as part of an initiation ever presented to a court as related to traditional culture or customary law. As many Aboriginal leaders have recently pointed out, genuine traditional Aboriginal culture and customary law does not support or condone these types of violence and abuse.

We should also bear in mind that Aboriginal customary law is not a single set of laws that has or does apply to all Aboriginal communities across Australia. It is a bit like suggesting that before the days of the European Union there was one set of laws that governed Europe. No doubt there are common themes, but there are also significant differences across this huge continent.

I do not pretend to be able to even scratch the surface, but I and others gained an insight into the operation of the laws of certain clans of the Yolgnu people through a visit to Elcho Island last year at the invitation of the clans involved. The particular clan nation had held its Ngarra, the Chamber of Law, and we were given a very small insight into the workings of their legal system. In substance, their Parliament had been in operation. Not very much different from Anglo-Saxon and European parliaments; involved in education, social structures, commerce and laws. This particular clan nation had, historically, and still has a process for resolving disputes which involves the appointment of persons independent of the disputing parties who are given the job of investigating, reaching decisions and determining and inflicting punishment. The important underlying element was and is the independence of the investigator, trier of fact and deliverer of punishment.

So, to return to the point I made earlier, this was a small glimpse of the operation of the Parliament of this particular clan nation. But it does not represent the operation of the laws of a different clan nation.

In addition, like the Anglo-Saxon laws, the customary laws of the clan nations have evolved over the years and changed in the face of the operation of the wider laws of Australia and the changing world in which they live. For example, in many communities traditional punishments which are unacceptable under Territory and State laws have been either abolished or modified to a significant degree in order to comply with the wider law.

We must not overlook the importance of traditional laws to many of these communities, not just in connection with crime and punishment, but in connection with the fundamental social structure of those communities. In addition, just like many millions around the world are bound together by their religious beliefs and laws, Aboriginal spiritual beliefs developed over thousands of years have bound their communities together and given Aboriginal persons a purpose in life and a place in their world. But their beliefs are challenged by the new world order and its laws. It is a difficult transitional period and, in comparison with the same transition undertaken in other parts of the world, it is occurring in a relatively short period.

Can the wider legal system applicable across Australia co-exist with Aboriginal customary law? The answer to that question must be yes. Although the transition is difficult, in many respects the systems already co-exist without undue difficulty.

Traditional punishment is a good example. Courts upholding and administering the wider law cannot and do not condone or facilitate unlawful violence. However, adult offenders can consent to a certain level of lawful violence being applied to them just as boxers consent to being punched. If it is the wish of a community, including the victim and victim’s family, and if an adult offender consents to the infliction of specified punishments, provided those punishments are not unlawful according to the wider law, that punishment can be carried out and will be taken into account by the criminal court in arriving at an appropriate sentence. It does not mean that the traditional punishment has usurped or overridden the role of the criminal court. But the fact that an offender has undergone punishment that accords with the wishes of the victim and the particular community is relevant in determining the appropriate level of punishment under the wider system of criminal justice.

There is nothing unusual in this. It is not a case of applying two laws. There is one law that applies to all persons. Under that single law, the court takes into account numerous circumstances including whether the offender has, for one reason or another, suffered punishment following the commission of the crime. It might be financial through the loss of employment or damage to a business. It might be the breakdown of a family relationship or the public loss of reputation. A victim or a victim’s friends may have administered physical retribution. These “punishments” are taken into account in the same way as punishment administered according to the particular customary law.

The weight given to all forms of such “punishment” varies according to many circumstances including the seriousness of the offending and severity of such “punishment”. Within Aboriginal communities this form of restorative justice can be very effective in achieving not only punishment, retribution and protection of the community through deterrence, but satisfaction for the victim and the victim’s family.

The other potential way in which Aboriginal customary law has a role to play concerns the moral culpability of the offender. If the unlawful conduct was carried out in the belief that it was, by reason of customary law, lawful and appropriate, such a belief formed for that reason relates directly to the moral culpability of the offender. How much weight can be given to the influence in this regard must depend upon the circumstances of the offending, particularly the gravity of the crime. This will range from very little weight in the case of extremely serious crimes to, perhaps, quite significant weight when minor crimes are committed. It is a matter of balance.

Again, this is not to create a special law for Aboriginal people. Nor is it to permit ignorance of the law to excuse criminal conduct. The one law requires the court to take into account the moral culpability of an offender in arriving at an appropriate sentence. If there is a factor which reduces moral culpability, then that is taken into account. The source of the factor might be found in the mental state of a particular offender, perhaps through some form of mental infirmity. It might be the immaturity of the offender. But the fact that one offender is able to claim a degree of leniency for some such reason and another offender is unable to claim it does not mean that they are being treated differently under different laws.

Similarly, moral culpability might be affected by cultural factors influencing the behaviour of persons from countries other than Australia. Insults of particular types hurled at an Anglo-Saxon person raised in Australia without any impact whatsoever might, in other circumstances and directed against other persons of different cultural backgrounds, be regarded as highly insulting and provocative. A person of a particular cultural background might be influenced in their behaviour by the degree of insulting provocation in a way that would have no impact upon others not influenced by that background. Again, this goes directly to the moral culpability of that particular offender. But that offender is not being treated differently under a different law from the person unaffected by the particular insult. The law recognises, and properly so, that we are a nation of people with a multitude of cultural influences that may affect our moral culpability.

Ultimately, the critical task is to balance the many competing factors and get the balance right.

What has gone wrong? Why does this violence exist? Have the authorities failed people in these communities, particularly children?

Again, speaking very broadly, the answer to the last question must be yes. We have a totally unacceptable level of violence, particularly violence against women and children, in sections of our community. It does not matter what section of the community we are discussing. If women and children are being violently abused, it means that we, as a community, have failed in our responsibility to ensure that throughout our community all our citizens, particularly those who are vulnerable, are able to live a peaceful co-existence free from crime generally, but more especially free from crimes of violence.

To say that the authorities have failed is not to condemn any particular part of our system. The causes of violence, including sexual violence, throughout Australia and, in particular, in these Aboriginal communities, are wide and varied. Attacking these causes includes addressing loss of self-respect, employment, health, education, living conditions, social infrastructure and law and order.

A particularly difficult area to address is the emerging and disturbing influence of pornography upon males in these communities for whom no boundaries of appropriate behaviour have ever been set. Features of Aboriginal customary law and traditions may also have had a role to play in developing a tolerance within some Aboriginal communities to violence and in creating what can very loosely be described as a “culture of silence” surrounding such violence. Vulnerable victims and others need assistance to overcome the intense pressure to remain silent.

As to the role of the criminal court, for many years courts across Australia have repeatedly condemned alcohol-fuelled violence in these communities, but it is well recognised that the law is a “blunt social instrument” and that there is a limit to the effectiveness of sentences of imprisonment in preventing this type of violence. At times, sentences have been too lenient, but it would be naive and simply wrong to suggest that if heavier penalties had been imposed the level of violence would be less than it is today or that heavier penalties are the answer to preventing the continuation of such violence. “Blind drunk” offenders who have grown up and live in violent, deprived and dysfunctional circumstances do not think rationally or at all about the consequences of their actions.

What of the future? There can be no doubt that establishing law and order at an appropriate level in these troublesome communities is an important consideration. Penalties have already increased without significant impact. Courts across Australia will continue to condemn violence of all types against women and children wherever it occurs in our community. In particular we will continue our endeavours to get the message out to men in Aboriginal communities that this type of violence will not be tolerated and will be met by significant terms of imprisonment; at times, severe terms of imprisonment.

While law and order and appropriate penalties are important, they do not address the root causes of the violence about which we are all so concerned. Directing courts to ignore customary law considerations will, in effect, operate unfairly upon a relatively small number of offenders in Aboriginal communities and upon other offenders whose criminal conduct is influenced by their cultural background or beliefs. Significantly, it will have absolutely no impact whatsoever on the root causes of the crimes in the affected communities. In particular, as the vast majority of crimes of violence in these communities are fuelled by alcohol and have nothing to do with customary law, abolishing considerations of customary law will have no effect whatsoever on this violence which is so prevalent.

I quote from an article by Professor Larissa Behrendt, Professor of Law and Indigenous Studies at the University of Technology, Sydney:

“The proposal to legislate to exclude customary law from the factors that can be considered in sentencing is dangerous. Like any attempt to restrict a judicial officer’s capacity to weigh up all the relevant factors when sentencing, the inability to consider customary law at all will impede the capacity to ensure that a just sentence is given in each particular circumstance before the court. It is also a serious infringement on the judicial process by the legislature and as such has implications for the principle of the separation of powers.

But pointing the finger at the judiciary is an easy way for politicians to grand-stand and score quick political sound-bites. Judges who hear criminal cases where violence has been committed against Aboriginal women and children are dealing with the symptoms of a far more complex social problem. And it is politicians, not the judiciary, who have the most power to profoundly influence the root causes of cyclical violence and the breakdown of the social fabric in Aboriginal communities.”

Instead of such heavy attention being given to the occasional sentence which is too lenient, and instead of persons in positions of influence and authority waiving their hands from their comfortable seats in capital cities blaming the lenient sentences and rushing to promote the simplistic idea of abolishing customary law considerations, those persons should be hard at work at the fundamental level of attacking the root causes. Importantly, they should be providing appropriate facilities and personnel to achieve rehabilitation of offenders while they are incarcerated.

Because I am speaking in South Australia, and I am aware of recent controversies and debates about law and order, I want to emphasise that I am not criticising the South Australian or any other government across Australia for taking a stance of being tough on crime. Nor am I suggesting anyone should “apologise” for being tough on crime. That is a matter of policy for the government to determine. I am urging governments across Australia to tackle the fundamental causes and to put the necessary resources into rehabilitation. We want and need offenders rehabilitated. All but a very few are released at some time. Longer sentences will not, in themselves, achieve rehabilitation. In many instances they will have the reverse effect of hardening the offender into a recidivist with little prospect or hope of a lawful future. Similarly, an extra few years will not influence others against committing crimes. As a community we need to address these other critical areas in practical ways with the necessary funds and personnel.

Finally in connection with addressing these major problems in Aboriginal communities, permit me to advance a practical idea for attracting the necessary personnel. This is not my idea. It is an idea that my wife, Leigh, has been pushing for some years. And I note it was recently suggested in another area.

Many of these communities are in remote and harsh areas. Working in such areas within difficult communities is not an attractive proposition for many young graduates. These communities desperately need teachers, nurses, doctors, social workers and tradespersons. We need to offer real incentives to attract young graduates to these communities.

The suggestion is that graduates who are prepared to work within these communities for a reasonable period will have their entire HECS debt waived and that the waiver of the HECS debt will not be regarded as taxable income. Tax cuts do not have the direct positive impact for young graduates that payment of large debts within a short time will have provided the payment is not treated as taxable income.

I need to add this. It will mean young persons working out in the bush without much practical experience. Some may criticise the proposal for that reason. Is it better to have a young doctor who is fully trained, but with little experience, than no doctor? These days many of the communities are linked through satellite communications to larger centres which can enable the young practitioner to obtain the necessary advice and supervision from a senior practitioner in a larger centre.

I urge our leaders not to react negatively to new ideas and to think outside the square in positive ways.

Speaking of negativity leads me to the second topic concerning the media and the courts generally, or more particularly the criminal courts. It is common knowledge that the courts and the media have always had an uneasy relationship and I do not intend to attempt to explore the historical causes for the unease. I would be at severe risk of upsetting both sides. But the negativity that exists on each side toward the other is a matter of concern.

It does not help when the News Limited Chairman and Chief Executive, John Hartigan, accuses the judiciary of being “secretive and self-serving”.

Courts are not secretive. Almost everything is done in open court, including the giving of evidence that is suppressed. Rarely is a court closed to the public. What is in issue is wider publication.

Other than on rare occasions, courts are not self-serving. When a court places restraints upon the media through suppression orders, it is not for the self-interest of the court. While the media have a legitimate point that some judicial officers are too cautious and grant suppression orders too readily, those orders are made not for self-interest, but in the interests of individuals before the court and the community at large. The interests favouring publication and those favouring suppression are frequently in conflict and the court must engage in a balancing exercise in order to reach a view as to the appropriate course.

I have used Mr Hartigan’s observation as an example because it typifies the negative attitude that pervades reporting of judicial affairs and the operation of our system of justice, particularly criminal justice. This is an area of considerable concern. I readily acknowledge that attacks on judicial officers, courts generally and individual sentences have been occurring for many years and the courts have survived. But the nature and persistence of the attacks across Australia, many of which are ill-informed or biased in a particular direction, must be a cause for concern. In some States the sources of those attacks add to that concern. We are witnessing an ongoing and insidious process of undermining public confidence in both our system of justice and the judicial officers who administer it.

The Australian community needs a strong, independent and competent judiciary which is fully accountable and in which the public has confidence. More than ever the courts are endeavouring to inform the community of their work through the Internet, media liaison and education programs. But more is needed. Politicians and the media should recognise this need and, when appropriate, be willing to promote public confidence in the judiciary and the system. The importance of this positive support from the media and leaders of our community should not be underestimated. It is this positive support for the judiciary and the system as a whole which will play an increasingly important role in maintaining public confidence in the criminal justice system and the judicial officers who administer it.

In making those observations, I do not mean to imply that individual decisions, or Judges, or our system of justice generally should be immune from criticism. Nor am I suggesting that criticism should be withheld or tempered where such criticism is justified. The operation of the courts in public, the giving of reasons and informed criticism are all healthy aspects of our judicial system and the wider democratic processes.

However, criticism should be informed and balanced. Criticism of individual sentences should not be elevated to an attack upon the system generally. Nor should criticism in an individual case descend into a personal attack upon the judicial officer concerned.

Having mentioned the negativity of the media towards the court, I hasten to add that it is not a one-way street. There can be no doubt that there is a negative attitude within significant sections of the judiciary to the media. Again, this is not the occasion to explore the reasons, but judicial officers need to understand the role of the media and be willing to facilitate a greater degree of assistance to the media than has occurred in the past. Judicial officers need to appreciate that, in the main, the media take a very responsible attitude to complying with court practices and orders.

Journalists face a difficult job. Most are not trained in the reporting of court proceedings. They have time limits and often are confronted with very little opportunity to read and understand transcripts of sentencing remarks. It is fair to say that in recent years many Judges have moved to a style and content in their judgments and reasons which is likely to be more readily understood by a person not trained in the law. We endeavour to assist by publishing our judgments and sentencing remarks on the court websites soon after delivery. Perhaps greater use should be made of summaries.

In trials involving significant media interest, courts should be prepared to provide additional facilities to cater for the needs of the media. In particular, a focal point for media inquiries and advice about the individual trial which is separate from, but in close communication with the trial Judge and the Judge’s staff, can be of great assistance. This was particularly evident in the trials of Bunting and Wagner in South Australia and Murdoch in the Territory. The system worked well and the media were given clear directions as to what was permissible or otherwise.

We have significant interests in common. I hope in the future that the constant negativity can be replaced by informed criticism and healthy respect. This may be a forlorn hope because when it comes to the question of suppression the courts and the media will never be in entire agreement. I am confident, however, that we are in complete agreement that whatever is done should not undermine the fundamental right of every accused person, regardless of the charge and their personal circumstances, including their ethnic background and religious beliefs, to a fair trial.

It is the responsibility of the entire community to ensure that those who have been charged with crimes, either terror related or otherwise, are afforded their fundamental rights, including the right to a fair trial. The court is the instrument of the community for this purpose. The media and politicians are also part of the community and a particularly significant part because they possess the capacity to undermine this fundamental right. It would indeed be unfortunate if media organisations and politicians possessing such power took the view that they should be unrestrained by community interests, or interests of those within the community, which are in conflict with their own popular causes.

What of the future? The internet has and will pose significant problems. It has reached the point where it is an offence in two States for jurors to access the internet in connection with a particular case. Divergent views have been expressed as to whether jurors should be specifically advised not to access the internet because of the risk that the very giving of the advice will put the idea into the heads of jurors and tempt them to disobey the instruction.

In my view, there is no question that we should be giving the appropriate instruction to the jury, but together with an explanation as to why it would be inappropriate and unfair for the jury to access the internet. This should include advice as to the consequences of disobeying the instruction. I have likened it to gaining information from outside the court from any source and used the example that occurred in New South Wales where convictions for rape were set aside because of independent enquiries made by jurors at the relevant scene. When this is drawn to the attention of jurors and they are informed of the unfairness to the accused and the consequences to the victim and other witnesses, it is readily apparent from the faces of the jurors that they understand the serious nature and unfairness of the consequences to the accused and witnesses. Jurors take their responsibilities very seriously. While we can never prevent rogue jurors from disobeying instructions, in the main it is my experience that jurors are conscientious and comply with the instructions and their oath.

Cameras in court is obviously an area that needs careful consideration. We know what has happened in high profile cases in America and how undesirable it would be to permit such circuses to occur in Australia. We need to remember that most witnesses are ordinary people who, through no fault of their own and certainly through no desire of their own, find themselves under the spotlight in court. Of course, some enjoy it. The vast majority find it traumatic to varying degrees. Witnesses are in court to do their best to remember events and convey the events accurately to the court. They need every assistance and we should try to avoid exacerbating the pressure under which most witnesses feel when giving evidence. Cameras in court create a significant risk in this regard.

On the other hand, when it comes to delivering pre-prepared judgments and sentencing remarks, I do not see any cogent reason why the delivery should not be filmed. I can, however, anticipate difficulties in opening up the busy days of Magistrates to cameras as a matter of course, but it is an area worth investigating.

Finally, I recently read an article suggesting that lawyers for parties should be able to talk to the media during trials because they would provide the community with “a much better understanding of how the legal process works in a serious criminal case” by explaining each day what went on in court. Permit me to strongly disagree. In reality, such processes would be used primarily to provide the parties with the opportunity of advertising and barracking for their causes. It is idle to suggest that the parties would be interested in enhancing the understanding of the public about court processes or that media interviews with lawyers acting for the parties would have that effect. The dangers to the fair administration of justice are real and experience in the United States graphically demonstrates the undesirability of advancing down that slippery path.