Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

Labor have always fought to protect children in Australia and overseas from abuse and exploitation. We have a strong record on protecting children from child sexual abuse. Labor first introduced world-leading offences, targeting Australians who engage in the sexual abuse of children overseas, in 1994. Labor established the Royal Commission into Institutional Responses to Child Sexual Abuse when we were last in government. And Labor appointed Australia's first national children's commissioner to advocate for the rights of Australia's young people in 2013.

All members of this parliament know that the sexual abuse of children is vile and disgusting. Children are the most vulnerable members of our society and we must do all we can as legislators to protect them. Labor are and always have been tough on paedophiles, but we want to do it right and make sure that offenders are properly imprisoned and kept away from harming vulnerable children. The government's bill aims to protect children but it doesn't go far enough. It's Labor's priority to ensure that those who prey on vulnerable children get the punishment they deserve through the justice system. And we want to make sure the punishment for child sex offences acts as an appropriate deterrent to prevent abuse from occurring in the first place.

Labor welcome several aspects of this bill but we want it to be tougher and more effective. That is why we will be seeking amendments in the Senate to ensure that offenders are appropriately punished. We will be moving amendments that will ensure that child sex offenders are appropriately punished and amendments that we hope will improve the effectiveness of the criminal justice system. We want courts to be able to lock up the worst offenders for life. We want to see higher maximum sentences available for courts to hold perpetrators accountable. We want to make sure that people watching child abuse remotely are covered by the existing offences. People are watching child abuse material through webcams and live streaming, so we need to make sure our laws are keeping up with the pace of technological change.

We will also be proposing new aggravated offences for people who incite or direct the production of child abuse material. There are vile people who can be found lurking in chatrooms and encouraging people to create new child exploitation material. It's a truly disgusting practice and we need to act to stop it. Labor will also be moving amendments that will improve protections for children. If a person engages in sexual intercourse or activity with a child outside Australia, they may be able to rely on the defence of marriage under the Criminal Code. Both the Law Council of Australia and Anti-Slavery Australia have called for this defence to be removed from the Criminal Code.

Labor also takes issue with schedule 13 of the bill, which relates to national security. Schedule 13 would allow information to be withheld by the Attorney-General where, in the opinion of the Attorney-General, it is likely to prejudice national security. These provisions go beyond the stated purpose of the bill and are of general application. If the government wishes to proceed with this general national security measure, it should be introduced as part of the bill dealing with national security matters and referred to the Parliamentary Joint Committee on Intelligence and Security for review in accordance with the usual practice of this parliament. There are also a number of concerning aspects of this bill, and Labor will be moving amendments to address these. In particular, the bill introduces a mandatory sentencing scheme for a large number of child sex offences, and my colleague the member for Hotham, the shadow minister for justice, has already spoken eloquently in relation to these matters.

This bill would apply mandatory minimum sentences for what the government has defined as 'the most serious Commonwealth child sex offences' and 'all Commonwealth sex offences that are a second or subsequent offence'. There are no exemptions for persons who may be significantly cognitively impaired. Mandatory minimum sentences are not the solution to Australia's crime problems, they're not the solution to Australia's gun problems and they're not the solution to child sexual abuse. There is no evidence that mandatory minimum sentences act as a deterrent. In fact, they actually make Australia's criminal justice system less effective, because they make juries less likely to convict. Perpetrators who should be convicted may escape punishment altogether. Juries may decide not to convict, even though they think they're guilty, because they may not want to inflict on an offender a sentence they think is disproportionately harsh based on the circumstances of the crime. Mandatory minimum sentences also make offenders less likely to plead guilty. Offenders facing mandatory minimum sentences lose an incentive to provide useful information or assistance to prosecutors.

These concerns have been repeatedly expressed by state and territory prosecutors, but the government is choosing to completely ignore them. The government is ignoring similar concerns that have been expressed repeatedly by the legal profession through the state and territory law societies and the Law Council of Australia. The Law Council of Australia is the peak body for lawyers across Australia. It has said about this bill:

Mandatory sentences actually make it harder to prosecute criminals, by removing the incentive for anyone to plead guilty or to provide information to the police. There is every incentive to fight on and appeal against convictions.

Of course, we're used to the government ignoring the advice of experts, but the government is even ignoring the advice of the Attorney-General's Department, which has issued formal guidelines opposing mandatory minimum sentences. It is clear that mandatory sentences do not work, and Labor is firmly opposed to them. It is the role of the judiciary to make decisions about sentencing criminals, and that is what our system of justice is founded on. This is a clear separation-of-powers issue. It's not up to the legislature to decide what the sentences should be for individual offenders regardless of the particular circumstances of the case. Our system of government is based on the fundamental principle of judicial independence. It's the role of judges to decide on sentencing, because they are impartial and unbiased; they can come to each decision with a clear mind and determine what justice requires in each case. It is the role of judges to make the punishment fit the crime. That role can be carried out only by a court that has examined all the circumstances of the particular crime—something this parliament cannot seek to do in legislation.

The role of the parliament is to indicate to courts the seriousness with which parliament views different classes of crime, in particular by setting maximum penalties. The High Court of Australia is not in any doubt about the importance of maximum penalties. In a decision handed down just last week, Director of Public Prosecutions v Dalgliesh, the Chief Justice and Justices Bell and Keane quoted with approval from a 2005 decision of the court, Markarian v The Queen. In that case, former Chief Justice Gleeson and Justices Gummow, Hayne and Callinan said this:

… careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before court at the time; and thirdly, because in that regard, they do provide, taken and balanced with all of the other relevant factors, a yardstick …

The High Court has been equally forthright about the importance of judicial discretion in sentencing. Later in their judgement in that same case, Dalgliesh, Chief Justice Kiefel and Justices Bell and Keane quoted another earlier decision of the court and offered their own view. They said:

In Elias v The Queen, former Chief Justice French of the High Court, and Justices Hayne, Kiefel, Bell and Keane said: 'the administration of the criminal law involves individualised justice'.

Then they added:

… the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.

This has been the clear position of the High Court for decades. Former Chief Justice Barwick of the High Court, while recognising the power of the legislature to determine penalties for offences, in Palling and Corfield in 1970 said:

It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.

In 1981, Chief Justice Gibbs said in Sillery and The Queen that even in the case of a most serious crime:

... there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion for the judge at trial to impose an appropriate sentence not exceeding the statutory maximum' and that mandatory sentencing 'would lead to results that would be plainly unreasonable and unjust'.

Other legal figures have voiced the same principle. The President of the International Commission of Jurists Australia, former NSW Liberal Attorney-General and former NSW Supreme Court Justice John Dowd, called for a judicial inquiry into mandatory sentences in 2012. He said:

It is a breakdown of the rule of law and sentencing, where the court determines what is appropriate.

Former NSW Director of Public Prosecutions Nicholas Cowdery AM QC said in 2014:

It is unrealistic, therefore, and unjust, to prescribe a penalty or minimum penalty that must be imposed for any serious offence before it has been committed or is even in contemplation (or can even be foreseen by Parliament), before all the facts and circumstances are known and without knowing anything of the offender; and experience has shown that such measures do create injustice. Justice requires proper consideration of all the circumstances of the offence and the offender.

And Justice Michael Adams of the NSW Supreme Court powerfully said in 1999:

To remove judicial discretion in such a vital area of the liberties of the subject is tantamount to a vote of no confidence in the judiciary … The assertion by the elected politicians of the right, in effect, to impose particular sentences for particular crimes, as a response to immediate political exigencies is a significant interference with traditional and well settled principles of the separation of powers.

In a submission to a 2012 parliamentary inquiry, the Australian Human Rights Commission said:

Laws that impose mandatory minimum terms of imprisonment are inconsistent with Australia's international human rights obligations, including obligations under the International Covenant on Civil and Political Rights (ICCPR).

A particularly concerning example—it has already been given by the member for Hotham, but it bears repeating—of how these mandatory minimum sentences would work in practice is that an 18-year-old and a 15-year-old who engage in sexual activity while overseas, perhaps on a school trip, would be captured by the offences. An 18-year-old in this situation would receive a mandatory minimum sentence, under the government's bill, of five years in jail. There would be no room for judicial discretion to take into account the particular circumstances of the case. This is unacceptable.

In speaking out against the mandatory minimum sentences in this bill, the Law Council of Australia raised this example and pointed out:

Teenage years can often be marked by rash decisions and regrettable mistakes. A blunt instrument like a mandatory minimum sentence will not take this into account.

The Law Council said:

Mandatory sentencing is always likely to trigger unintended consequences that are at odds with the intention of the laws and fundamental principles of justice.

What has been the government's response to this long-expressed opposition to mandatory sentences? It has been to ignore it. The government has produced no evidence that mandatory sentencing works and has not even bothered to explain its reasons for attempting to impose these mandatory sentences. Mandatory sentences will not make children safer. Juries are less likely to convict, perpetrators are less likely to plead guilty and perpetrators are less likely to cooperate in bringing down ringleaders.

In this area of child sex abuse Labor want courts to be able to lock up the worst offenders for life. We want to see paedophiles imprisoned and kept away from vulnerable children. Labor want to see higher maximum sentences and the sentences of life imprisonment that we are going to propose for this bill to make sure that Commonwealth child sex offences do work effectively. But mandatory minimums don't work and are wrong in principle, and that is why we are opposing them.

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