the and do not appear in section 91 or “Notably, words ‘Aboriginal’ ‘Indigenous’ section 16AA: on its face, the new provision applies to all Northern Territory offenders. But the unavoidable implication, given its statutory context in the legislative package of the Intervention, is that the reference to culture and custom is aimed primarily at yapa [Aboriginal people]: kardiya [non– Aborignal people] it would have a standpoint which has been characterised as seem, don’t “culture”, the of never for what many ‘majoritarian privilege noticing [oneself]’. So much had imagined had by now become the received wisdom of multiculturalism, as enshrined in section 16A of the (Cth) passed with bipartisan Crimes Act 1914 support only a few years previously, providing that a sentencing court take must into account the of an “cultural background” offender.” In fact, there are which cannot be properly re– very few “cultural practices” characterised in more general, non– culturally specific human terms. (For example an offender who breached the terms of his suspended sentence by failing to report in circumstances where he had a cultural obligation to attend a ceremony, could also, and just as validly, be said to have been attending to important family obligations.) Moreover, although customary law and cultural practices cannot be taken into account for the purposes set out in s 16AA, they can be taken into account for other sentencing purposes such as assessing the of rehabilitation. The major impact offender’s prospects of s 91 and s 16AA would therefore seem to be a psychological one the sending of a – clear message that the Commonwealth legislature has no respect for Aboriginal cultural practices or customary law and categorises them as having no worth worse, as having – negative worth. In a jurisdiction where large sections of the community owe their primary loyalty and allegiance to Aboriginal culture and law, this can only be described as unhelpful. As already noted, cultural practices and customary law can evolve and are evolving. – If they are to evolve in directions which are in harmony with the mainstream legal this will need to occur in partnership between respected and system’s values, knowledgeable members of the various Aboriginal communities and non–Aboriginal leaders, law– makers and policy– makers and there can be no partnership, and no where there is no respect.
“Notably, the words ‘Aboriginal’ and ‘Indigenous’ do not appear in section 91 or section 16AA: on its face, the new provision applies to all Northern Territory offenders. But the unavoidable implication, given its statutory context in the legislative package of the Intervention, is that the reference to culture and custom is aimed primarily at yapa [Aboriginal people]: kardiya [non– Aborignal people] it would seem, don’t have “culture”, a standpoint which has been characterised as the ‘majoritarian privilege of never noticing [oneself]’. So much for what many had imagined had by now become the received wisdom of multiculturalism, as enshrined in section 16A of the Crimes Act 1914 (Cth) passed with bipartisan support only a few years previously, providing that a sentencing court must take into account the “cultural background” of an offender.” In fact, there are very few “cultural practices” which cannot be properly re– characterised in more general, non– culturally specific human terms. (For example an offender who breached the terms of his suspended sentence by failing to report in circumstances where he had a cultural obligation to attend a ceremony, could also, and just as validly, be said to have been attending to important family obligations.) Moreover, although customary law and cultural practices cannot be taken into account for the purposes set out in s 16AA, they can be taken into account for other sentencing purposes such as assessing the offender’s prospects of rehabilitation. The major impact of s 91 and s 16AA would therefore seem to be a psychological one – the sending of a clear message that the Commonwealth legislature has no respect for Aboriginal cultural practices or customary law and categorises them as having no worth – worse, as having negative worth. In a jurisdiction where large sections of the community owe their primary loyalty and allegiance to Aboriginal culture and law, this can only be described as unhelpful. As already noted, cultural practices and customary law can evolve – and are evolving. If they are to evolve in directions which are in harmony with the mainstream legal system’s values, this will need to occur in partnership between respected and knowledgeable members of the various Aboriginal communities and non–Aboriginal leaders, law– makers and policy– makers and there can be no partnership, and no where there is no respect.