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The decision handed down by the High Court in Bugmy v The Queen is incredibly important. And it has already been the topic of a great deal of discussion, both amongst Criminal Lawyers and the community generally. But to understand it you need to appreciate some of the background.
It is common knowledge that Aboriginal people are imprisoned at shockingly high rates. According to the ABS 1.9% of the Aboriginal population of Australia is in gaol.
By comparison, the number of non-Aboriginals is 0.13% – 14 times less. By any measure, those are shocking numbers.
Unsurprisingly, the causes are complex and resistant to change, especially when the power to change is controlled by politicians generally disinterested in anything that takes more than 3 years to fix.
An essential and commendable thing that the government has done is to fund the Aboriginal Legal Service, in NSW and across the country. The lawyers employed there are horrendously underpaid and overworked, and slave day in and day out providing legal services to disadvantaged Aboriginal people.
I have several friends and a large number of acquaintances who work for the ALS, and they truly are doing incredible things. They deserve more support and a great deal more funding than they receive, for their work truly is amongst the most thankless in the criminal justice system.
There are also a large number of what you can loosely call “social programs” that seek to lessen the rate of Aboriginal offending. Some are more effective and intelligently targeted than others, but on the whole they do a fantastic job of recognising that criminal offending does not come out of nowhere, and a dollar spent on prevention can save ten dollars in clean-up.
The Judiciary has an important role to play too. In short, the law has long recognised that Aboriginal offending often has different causes to other offending, and different considerations are called for. That doesn’t mean that Aboriginal offenders get a pass-out – rather, the offence that has been committed needs to be seen in the context of that person’s Aboriginality, and in particular the social setting in which the offender grew up.
In NSW, we have what are called Fernando Considerations. They are named after Stanley Fernando, an Aboriginal man who was sentenced by Wood J in the NSW Supreme Court. He said the following:
(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
TL:DR? Basically, alcohol abuse and violence in Aboriginal communities is very real and demands more “subtle remedies”. It does not “mitigate punishment” but may rather “explain or throw light on the particular offence”.
In other words, if your father was a violent alcoholic and beat your mother to death, that may well have a great deal to do with you committing a particular offence, and should be a factor considered by a sentencing judge. It is a recognition of the profound disadvantage and disfunction that many (particularly rural) Aboriginals grew up amongst, and that criminal punishment needs to be considered in that light.
These sentencing principles appeared well settled until earlier this year and the decision of the NSW Court of Criminal Appeal in Bugmy.
Mr Bugmy was originally sentenced in the District Court for very serious assaults against 3 Correctional Services Officers whilst in custody in Broken Hill. Essentially he pelted them with pool balls after a planned visit did not go ahead. One of them was struck in the eye and seriously injured – so much so he has completely lost sight in that eye.
In the District Court he was sentenced to 6 years 3 months imprisonment, with a non-parole period of 4 years 3 months. The Court took into account Bugmy’s Aboriginality in sentencing him, noting the violence he witnessed as a child when his father stabbed his mother, as well as Bugmy having commenced abusing alcohol and cannibis before he was even a teenager.
Dissatisfied with the severity of the penalty, the Crown appealed to the Court of Criminal Appeal. For reasons unrelated to the findings on Aboriginality, the Court allowed the appeal and increased the sentence to 7 years 9 months with a non-parole period of 5 years 3 month.
The interesting and important part of the judgment was this quote:
I agree that with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish. This is particularly so when the passage of time has included substantial offending.
What that short passage suggested was that, after a while, the degree to which a court should take into account a person’s disadvantage as a child should be reduced.
Rightly concerned about that statement and the manner it might affect future judgments, the ALS appealed the decision to the High Court where it was considered by the full bench of 7 judges.
In its decision, the High Court unanimously allowed the appeal and sent the matter back to the Court of Criminal Appeal. The Court said:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
It is difficult to understate the importance of the High Court making these findings. It confirms that Courts can and must take these factors into account, and Aboriginal offenders who grew up amongst poverty and violence are not suddenly expected to be “cured” of those ills once they reach a certain age.
There has been a lot of commentary about the Bugmy decision this week. As with any Aboriginal issue, the perspectives have been “broad”, to say the least.
But what is clear is that the Court system is doing its best, within the constraints of justice and law, to ensure that Aboriginal people who commit crimes are dealt with intelligently. That is a good thing, and should be commended. We don’t have a separate court system for Aboriginals (although many people suggest that perhaps we should), and until we do judges are going to have to work hard to ensure that they recognise the profound and crushing backgrounds of some Aboriginal offenders.
But, of course, that is only one small part of the puzzle. There are no easy solutions, no one-step fixes. Moreover, the solutions we have available are expensive and often politically unpopular.
I don’t have all the answers. But I know the High Court has taken a an important step in confirming how the Courts are to deal with their part of the problem, and for that I am grateful.
A lot of people (yours truly included) were impressed with this piece from Annabel Crabb that was published earlier this …
So there’s been a lot of talk about the Senate recently. I think its fair to say that many people have some pretty strong feelings about the rag-tag bunch of randoms that will be wielding a massive amount of power in our Upper House come 1 July 2014.
The Motoring Enthusiasts Party and the Sports Party are essentially single issue parties who will now be voting on the wide range of legislation that comes before the Senate. They were elected based on the preference farming that many minor parties engage in, funnelling votes to the candidate most likely to win by way of the group ticket voting.
The Liberal Democrats were a particularly interesting example – they were far left on the NSW Senate ballot paper (irony of ironies) at Group A, and have a name that is easily confused with the Liberal Party.
Indeed, the only way to explain the massive vote the Liberal Democrat Candidate in NSW (compared to the other states) is a combination of the similar name and the spot on the far left, meaning that many (if not most) of their votes were intended for the Liberal party.
As per usual, a lot of people have had suggestions for fixing the problems. Some people have very sensible pieces pointing out that just “not liking” the people elected is not a reason for changing the system. That’s true. But there is certainly a problem when people are getting elected despite being virtually unknown and simply by working the preference system.
One further thing to make clear at the start – the reports about people being elected with only X.XX% of the vote is intentionally misleading. It is a preference system, and we are electing 6 senators in each state. Simply pointing out how many first preferences a party had not helpful – it’s better to look at the level of support these parties or independents have, and weighing that against the amount of power they are being gifted.
But let’s have a look at the various solutions that have been proposed.
Access to the ballot
There are a number of different suggestions that essentially revolve around making it harder to get on the ballot in the first place. Some relate to the price (presently $500), some relate to the number of members those parties need (presently 500) and still others are about governance (presently all that is required is a constitution).
Raising any of these limits is probably not going to make a huge difference. Money is little object, in my view. Just a little bit of printing will far exceed the cost of registration.
The members suggestion is helpful when it comes to trimming down the size of the ballot paper. I don’t see why increasing the number of members each party needs is anti-democratic, since the party is being required to prove that they actually have a base of people who support the candidacy. But to suggest it will eliminate the minor parties is a fantasy.
I suspect, however, that some of the other suggestions I have below that eliminate group voting tickets and other electoral fiddling will be far more effective in reducing the number of candidates on the ballot paper
This is an important issue. If person A is an executive member of multiple parties, I think it safe to assume that all is not right. I imagine that if he was asked he would say that he has diverse interests and goals – I’m pretty sure everyone else recognizes that there is something fishy going on.
Many people have spoken and written about how parties have been brought into existence merely to funnel preferences towards other parties. That may be overstating it slightly, but what other explanation can there be for parties that have no problem with their most senior members working for a party that is meant to be a competitor?
It shouldn’t be allowed.
Group tickets were introduced in the 1980’s because of an avalanche of informal votes in the Senate as the ballot paper got bigger and bigger. Some of the other suggestions here should should deal with that problem to some extent.
The difficulty with these tickets is that almost no one lists their preferences on the group tickets on idealogical grounds, but rather based on what lazy journalists always call “backroom deals” – trading, shuffling, and carefully arranging preferences to have the votes flow where they want them to.
If parties are dealing with the group voting ticket in this way, then we should do away with them. I would rather have 20% informal than having 95% of the votes preferenced at the absolute discretion of the parties with little or no consideration given to the actual intentions of the voters.
Listing of candidates
I have no idea why we are given the option to preference candidates from the same party in a particular order. Only 5% of people vote below the line. I would hazard a guess that a very small proportion of those do anything other than, essentially, rank each GROUP in order, rather than each individual candidate. So why on earth are we required to number every box? It makes voting below the line difficult and time-consuming.
We should be able to preference above the line and have those numbers extrapolated below the line. Those of us who have particularly strong feelings about individual candidates can still go below the line and “send a message”. The rest of us will be able to get out of there quicker without having to bequeath our vote to the party in question. Even better, we could do away with below the line entirely and just preference groups above the line.
The rules about what constitutes an informal vote need to be loosened. If someone has voted 1, 2, 3, 4 and then quit, why should their vote not be counted at all? Essentially, the vote should be given the best possible chance to survive and be counted. If some of the other changes I have suggested work as I expect they will, the problem will disappear somewhat.
The only reason we don’t have this now is because, with a paper 1m wide, people would find it impossible to find their party. If we eliminate the names of all the candidates and just list the parties and independents (as suggested above), we could probably put the list on an A4 page with a sensible font size. The tickets can then easily be randomised and the advantage of a particular spot on the ticket disappears.
Why we are not already doing this for the lower house seats utterly baffles me.
This relates to the next point as well
A lot of people have suggested that we should be able to stop preferencing people once we get past those we actually want elected. The logic goes that, if we only like Labor and the Greens then we should be able to prevent our vote going to other parties.
This doesn’t really make a lot of sense. Let’s say we have 10 candidates.
9 Racist NutBag
10 Racist NutBag
The suggestion is that we should be able to cease our preferences after option 5 and “not help to elect any of the other candidates.” The problem is that is if our preference gets down to number 6, candidates 1-5 have all been elected or eliminated, and the contest is down to candidates 6-10. Your preference, in electing one of the NutBags, will prevent the Racist NutBag being elected.
I think people’s votes should still count if they stop preferencing half way – but the suggestion that it will prevent NutBags being elected is plain wrong.
So. How should we vote for the Senate?
We should do away with the ability to vote for individual candidates – essentially I would like to see ONLY the above the line on my ballot.
If individuals want in then they are welcome, if they have enough support to meet strict rules for appearing on the ballot.
When voting you preference ALL the parties and individuals. If you quit half way, that’s fine – your vote flows up to that point. Those persons are somewhat disenfranchised, but less so than if we simply chuck their vote in the bin, and certainly less so than allowing them to vote above the line.
If you only tick one box, that’s fine – but that’s where your vote stays.
Every party that has a “quota” of votes has a member of their choice elected, and their vote reduced by that quantity.
Then, every party or independent that has under a certain percentage is eliminated – we will need to work out what that margin is – but say 3%. Their preferences are handed out to the first of their preferences still in the race.
We then eliminate more and more parties or individuals that have the lowest number of votes, and hand out their preferences as indicated on the tickets until we have six elected senators.
You know it makes sense.
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