Last Updated: 26 July 2011

Commentary on cultural background, customary law and cultural practice

1. In 2006, the Crimes Amendment (Bail and Sentencing) Act 2006 was passed. It made a number of amendments to sections 15AB, 16A and 19B of the Crimes Act 1914 (Cth).

2. The amendments do not apply uniquely to Indigenous Australians. The Second Reading Speech highlights that:

all Australians are equally subject to the law and that Australians can expect the same protection under the law. [1]

3. Following the amendments, the phrase 'cultural background' was deleted from s 16A(2)(m) Crimes Act 1914 (Cth). A court is no longer expressly required to consider an offender's cultural background in determining an appropriate sentence.

4. However, the court may still consider antecedents of the federal offender.

5. The term 'cultural background' was also deleted from s 19B(1)(b)(i) Crimes Act 1914 (Cth). Cultural background is no longer a factor to which the court may have specific regard in deciding to dismiss a charge or discharge a person without proceeding to conviction.

Customary law and cultural practice specifically precluded

6. The Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) inserts sub-s 2A into s 16A and an identical provision into s 19B Crimes Act 1914 (Cth). The inclusions of Sections 16A(2A) and 19B(1B) precludes a court from considering customary law or cultural practice as a mitigating or aggravating factor.

7. An identical provision, s 15AB(1)(b), was inserted  into s 15 AB. This section deals with bail applications of federal offenders.

8. The terms ‘customary law’ and ‘cultural practice’ are not defined in legislation.

9. While the provisions in sections 16A(2A) and 19B(1B) apply only to federal offenders, the amendments were intended to provide leadership and encouragement to the States and Territories in incorporating similar provisions into their sentencing schemes. [2]

10. The amendments apply only to offences committed after the Crimes Amendment (Bail and Sentencing) Act 2006 (Cth) entered into force (13 December 2006).