Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) Share this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. I thank the member for Fenner for his contribution, and I point out that, as stated by the member for Fenner, Labor strongly supports the objectives of this bill. The protection of children is and always will be a priority for Labor—as it should be for all political parties, obviously. I'm very proud to have been a member of parliament in November 2012, when Labor Prime Minister Julia Gillard announced that she would recommend to the Governor-General that a royal commission be appointed to inquire into institutional responses to child abuse.

The workload of that royal commission, instigated by Labor, was phenomenal. I thank the commissioners and their staff for their considered work over five years, work that will no doubt leave a lasting imprint on all of their lives as well; I say that in my 25th year of being married to someone that has worked in child protection areas. I know how horrible it can be when you see humanity at its worst. That royal commission received 42,041 calls and 25,964 letters and emails, held 8,013 private sessions and made 2,575 referrals to authorities, including the police. The royal commission handed down its final report in December 2017 and made a total of 409 recommendations. None of them, as pointed out by the member for Fenner, included mandatory minimum sentences.

That royal commission changed lives. It looked at child protection and the welfare of children in a more forensic way than anything has ever done, yet it did not recommend what this legislation is contemplating. That royal commission allowed many survivors of child sexual abuse to tell their stories for the very first time. Importantly, it shone a light on the abhorrent sexual abuse that had been conveniently ignored by many—often people in positions of power—for far too long. It shone a cleansing light into some corners where powerful people thought they were above the law.

Child sexual abuse is sickening. There should be no tolerance for these crimes. There is no tolerance for these crimes, and there are no sides to be taken in this debate. It is simply political pointscoring for the Prime Minister and his senior ministers to suggest otherwise. I particularly want to call out a former minister, Michael Keenan, who was an absolute grub at the dispatch box when it came to doing that in the 45th Parliament. I will never ever forget—or forgive him for—what he said. We all want to see paedophiles locked up.

I'm very proud of Labor's record on child protection. In 1994 Labor introduced world-leading offences targeting Australians who engage in the sexual abuse of children overseas. Labor brought federal, state and territory governments together in 2009 to implement the National Framework for Protecting Australia's Children, which included a funding commitment of $63.6 million over four years from the Commonwealth government. Labor introduced new child abuse preparatory offences and other protection measures in 2010. Labor appointed Australia's first National Children's Commissioner, in 2013, to advocate for the rights of Australia's young people, and Labor introduced the vulnerable witness act in 2013. I haven't checked but, in defence of the coalition, I'm certain that the Liberal Party, the National Party and many other political parties would have supported that legislation at the time.

I just wanted to put on the record that Labor is committed to protecting children from harm and abuse. While Labor supports the objectives of this bill to protect children, Labor has had a longstanding and well-reasoned objection to mandatory sentencing. Mandatory sentencing undermines fundamental rule of law principles. It restricts judicial discretion and independence and the ability of a member of the judiciary to look at the facts in front of them. It also violates Australia's human rights obligations.

It's not just an ideological objection to mandatory sentencing. We know, and all sensible lawyers know, that serious problems will occur when mandatory sentencing is imposed. The Law Council says:

… the Law Council's Mandatory Sentencing Policy considers that mandatory sentencing:

rather than just listening to some shock jock—

about the particular circumstances of the case and the offender, 90 per cent viewed judges' sentences as appropriate;

and chance their luck—

something that the Australian nation willingly signed up for; we weren't coopted into signing up but willingly signed up—

the right to a fair trial and the provision that prison sentences must in effect be subject to appeal as per Article 14 of the ICCPR.

The Law Council are not the only organisation concerned about mandatory sentencing. Knowmore, the free and independent community legal centre that provides legal information, advice, representation and referrals, education and systematic advocacy for victims and survivors of child abuse, also has serious concerns about mandatory sentencing. I should declare that my wife used to work for knowmore before becoming a member of the judiciary, just to put that on the record. Knowmore's submission to the Senate Legal and Constitutional Affairs Legislation Committee says:

…knowmore is concerned by the lack of evidence supporting the effectiveness of mandatory sentencing policy in achieving the Bill's stated aims. The Royal Commission expressed concerns with mandatory sentencing policy, warning that it '… imposes a significant or complete constraint on judicial discretion …'

The royal commission itself said:

[t]he criminological evidence is that mandatory sentences are not as effective as deterrents, do not reduce crime rates and generally operate in such a way that discriminates against certain minority groups. In terms of consistency, rather than leniency of sentences, mandatory sentencing has the effect of treating unlike cases as like, creating a form of unfairness analogous to the situation where there is too much discretion and where like cases are treated differently.

The Australian Lawyers Alliance also have grave concerns about implementing mandatory sentencing. They say in their submission to the Senate committee:

The simultaneous provision of mandatory minimum sentences removes judicial discretion and shows a manifest want of trust and faith in the competence of the judiciary. If maximum sentences are increased, then the message of gravity of wrongdoing and the need for deterrence is clear but there will always be cases where flexibility needs to be available to judges in sentencing and the imposition of minimum sentences removes all useful discretion. Minimum sentences are offensive to our system if they imply that judges are not properly applying the existing law. The increase in maximum sentences suggests that it was the existing law which was the problem; not the judges. The ALA strongly submits that sentencing should ultimately be a discretionary matter and judges' hands should not be tied so that there is an unjust result in particular and unusual circumstances.

So the experts all agree. Mandatory sentencing will not achieve the desired objective of keeping children safe. Mandatory sentencing may result in fewer criminals being convicted of child sex offences. Mandatory sentencing can also result in unjust outcomes.

The Law Council, in their submission, gave examples of what they describe as 'not uncommon teenage behaviour'—heaven forbid, I say as the father of a 14-year-old—that could be caught by the mandatory minimum sentences included in the current bill:

On a scout's trip to New Zealand, an 18 year old Year 12 student has sex with his 15 year old Year 10 girlfriend.

That would meet the offence of sexual intercourse with a child outside Australia under this proposed legislation and would result in a mandatory minimum penalty of six years in prison. Another example is:

An 18 year old text messages her 15 year old friend encouraging him to send an indecent image to his 18 year old girlfriend.

That would meet the offence of using a carriage service for sexual activity with a person under 16, causing child to engage, resulting in a mandatory minimum penalty of five years in prison.

There are lots of other examples we could give that are of a similar nature. We could all say, 'This is not what teenagers should do,' but that is not the world that we live in. It's a reality that, with social media, inappropriate sharing of information and images is much more common. Let me be clear: this is not behaviour that I am in any way encouraging. But do we really want teenagers who did something like that being locked up for many years, with a member of the judiciary having no option but to lock them up?

I urge the government—the National Party and Liberal Party coalition—to consider alternative approaches to mandatory sentencing—alternatives that would be more likely to achieve the objectives of this bill that Labor supports, which are to punish child sex offenders and keep our children safe. Labor is ready and willing to work with the government to achieve these objectives, the most important being the protection of vulnerable children. It would be unforgivable if political pointscoring or some lame attempt at 'wedgislation' to get some cheap media out there by the showman that we have in the Lodge ended up with kids in jail for doing stupid things rather than being child sex offenders. So I ask the Attorney-General and the government to reconsider. We will carefully consider this bill through the Senate committee process and also engage with stakeholders from across the community, and I say again that our focus, my focus, will always be on the protection of children.

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