On Monday Justice Steven Southwood of the Northern Territory Supreme Court handed down his decision in an appeal to his court from the decision of NT Magistrate Michael Carey in the matter of the Aboriginal Areas Protection Authority v S & R Building & Construction.

As Crikey has noted previously here and here, this matter concerns the construction of a pit toilet by employees of S & R Building on a sacred site at Numbulwar in the NT’s remote Gulf country.

As is apparent from Justice Southwood’s decision, this matter was “inextricably linked” to the Howard/Brough Northern Territory Intervention:

“In the second half of 2007, Indigenous Business Australia awarded a contract to NT Link to build a Government Business Manager facility in the Aboriginal Community of Numbulwar which is located in the Gulf of Carpentaria 570 kilometres east-southeast of Darwin. NT Link is the business name of a privately owned company based in the Northern Territory. NT Link subcontracted part of the construction works to the Respondent [S & R Building]. The respondent was retained to connect the facility to the local electricity, water and sewerage services.”

Arrangements had been made for S & R Building’s employees — Marc Renshaw, Ross Pearce and Nathan Bongiorno — to use toilet and shower facilities at a local community centre. However, for reasons no fault of their own, these facilities were unavailable and they made alternative arrangements:

“As a result, the respondent its servants and agents decided to build a pit toilet behind the containers so there was a toilet which they and others could use. Sand was dug out of the area where the pit toilet was located with a shovel. A hole about one metre deep was dug and a portable toilet seat was placed over the hole. Unbeknown to the men, the land on which the toilet was located was part of a sacred site.”

It is worth noting that, while NT Link had arranged for permits to enter the Aboriginal land at Numbulwar to construct the Government Business Manager’s accommodation, no such permission had been sought by or granted to S & R Building or its employees Renshaw, Pearce or Bongiorno.

Neither the Commonwealth statutory authority Indigenous Business Australia nor NT Link had obtained site clearances for the construction as required under the Northern Territory Sacred Sites Act, under which S & R Building was prosecuted and that is administered by the Aboriginal Areas Protection Authority (AAPA).

Apparently the need for permits and clearances didn’t overly concern those charged with the implementation of the NT Intervention.

As Dr Ben Scambary, chief executive of AAPA told Crikey late last year:

“The key thing about this event at Numbulwar is that it wouldn’t have happened if the federal government had engaged in the processes of the Sacred Sites Act at the outset of the intervention. We had many discussions with senior NT intervention staff about doing exactly that and they elected not to do so. It wasn’t as if they did not have prior warning. We advised them at every turn that they should be getting site clearances. All of those early works were done without any reference to the Sacred Sites Act.”

AAPA’s appeal against the decision of magistrate Carey was made on three grounds, first that magistrate Carey’s sentence (no conviction and a fine of $500) was manifestly inadequate and that he erred by failing to properly address two sections of the NT’s Sentencing Act.

That Justice Southwood dismissed AAPA’s appeal is (relatively) uncontroversial. He rejected AAPA’s submissions on the adequacy of Magistrate Carey’s sentence and found that magistrate Carey had exercised his discretion within the bounds of the relative sections of the Sentencing Act.

For mine the most important part of Justice Southwood’s decision concerns the application of the provisions of section 91 of the Commonwealth’s NT National Emergency Response Act (the NTER Act).

Referring to a submission by AAPA’s counsel that the damage caused to the sacred site was “permanent and irreparable” (see in this regard the Victim Impact Statement tendered to the Court at first instance) Justice Southwood noted that pursuant to the provisions of s. 91 of the NTER Act:

“… a sentencing court must not take into account any form of customary law or cultural practice as a reason for aggravating the seriousness of the criminal behaviour to which the offence relates. The fact that these matters cannot be taken into account in a case such as this re-emphasises the comments I made about s 91 of the Northern Territory National Emergency Response Act in R v Wunungmurra.”

Justice Southwood is well placed to consider issues on the application of s. 91 of the NTER Act. In R v Wunungmurra he delivered the most thorough analysis of its application to date, noting that by enacting the provisions in s. 91:

“… the Australian Parliament intended to alter the well established sentencing principles applying in the Northern Territory accordingly. So much is irresistibly clear from the express terms of s 91 of the Emergency Response Act and the context in which the legislation came to be enacted.”

That s. 91 amounts to a distortion of long-established judicial practices and sentencing principles is irrelevant, the court is bound by the legislation — however:

“… unreasonable or undesirable [it may be] because it precludes a sentencing court from taking into account information highly relevant to determining the true gravity of an offence and the moral culpability of the offender, precludes an Aboriginal offender who has acted in accordance with traditional Aboriginal law or cultural practice from having his or case considered individually on the basis of all relevant facts which may be applicable to an important aspect of the sentencing process, distorts well established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences, provides no sufficient basis for not interpreting s 91 of the Emergency Response Act in accordance with its clear and express terms.  The court’s duty is to give effect to the provision.”

But the real evil in the effect of s. 91 — particularly in relation to the Numbulwar toilet case, is that parliament’s intent, as noted by the Parliamentary Library’s Explanatory Memorandum, was in part to:

“… ensure that no customary law or cultural practice excuses, justifies, authorises, requires, or lessens the seriousness of any criminal behaviour with which the Crimes Act is concerned.”

That s. 91 of the NTER Act can now be used to deny consideration the hurt and suffering felt by the custodians of the sacred site at Numbulwar is surely a bizarre — and hopefully unintended — consequence.

As Kim Hill, the chief executive of the Northern Land Council, which is responsible for the administration of the Aboriginal Land Rights Act in the Top End of the NT, noted:

“If the desecration had occurred in relation to a Greek Orthodox Church, any Territory or Australian Court could receive and properly consider evidence about the effect of the desecration had on the Greek community, but because of s 91, no such consideration can be given to the level of cultural harm inflicted on Aboriginal peoples.

“The intervention was supposed to improve the lives of Aboriginal peoples living in the Northern Territory, but here we have yet more evidence of how it’s failing them badly. An immediate review of s 91 of the Northern Territory National Emergency Response is needed — as, in its current state, the law is obviously discriminatory,” he said.

Clarification: In the email version of this article a comment was attributed to the AAPA. That comment was incorrect and was unauthorised by AAPA. The following is an authorised statement from AAPA:

“AAPA is disappointed with Justice Southwood’s decision, and the implications of S91 of the NTER Act and also broadly the NT’s Sentencing Act.  While this is a setback, the AAPA will continue to prosecute offences under the Sacred Sites Act and will be discussing how best to ensure the proper protection of sacred sites with both the Commonwealth and Territory Governments in light of this decision.”

*Bob Gosford was employed as a legal adviser by the Northern Land Council from September 2007 to September 2008.