Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Hansard source

I thank all the members for their contribution at the second reading stage of this bill. The Morrison government is evidently wholeheartedly committed to protecting communities, especially children, from the dangers of child sex offenders. This government has introduced the most significant reforms to the legal framework concerning child sex offenders since the establishment of the Criminal Code of the Commonwealth in 1995. The increases to the maximum penalties for the most serious Commonwealth offences with respect to child sex offending better reflect the seriousness of the offending, and that the impact of these offences can be damaging and the impact is lifelong.

The increased maximum penalties reflect the gravity and the higher level of culpability of these most serious offences. However, the proposal to simply increase maximum penalties will not be enough to shift sentencing practices. For those Commonwealth child sex offenders who even received a custodial sentence, the most common amount of time spent in jail was six months, despite offences currently attracting imprisonment maximum penalties of up to 20 years. In the 2018-19 financial year, 39 per cent of convicted Commonwealth child sex offenders were not sentenced to spend a day in prison. For those that did spend time in prison, the most common sentence was 18 months. These statistics, updated from initial figures provided last month by the Commonwealth Director of Public Prosecutions, are alarming and clearly demonstrate that we need to act to ensure that child sex offenders receive the sentences that they deserve. The introduction of mandatory minimum sentencing for the most serious offences and repeat child sex offenders is necessary to send a clear message that society will not tolerate sexual crimes against children and to ensure that criminal penalties appropriately reflect the gravity of the offending.

Members of the opposition have made a number of comments during the debate and in the media that the Labor Party is opposed to mandatory penalties in principle. It does seem strange to me that the party that legislated mandatory minimum sentences for people-smuggling offences in 2010 will not now contemplate the same sentencing regime for child sex offences in 2019. One could draw the view that that means that Labor does not think that these are equivalent in terms of seriousness of offences, but they clearly are. Indeed, the view the government takes is that this category of offences is significantly more serious than those for which Labor instituted mandatory sentencing principles.

The argument that mandatory sentencing will lead to fewer convictions is, I must say, nonsensical. It is completely at odds with community expectations that 39 per cent of child sex offenders convicted federally last year were not sentenced to spend a single day in jail. The community expects that child sex offenders go to jail, and this bill is the way to make that happen. The Morrison government is firmly of the view that, while setting mandatory minimum penalties is unusual, it is wrong in principle that people who commit abhorrent acts against children that can destroy the lives of the victims avoid jail time and/or are released into the community without appropriate protections in place.

So, for the sake of clarity: these provisions do not set mandatory minimum non-parole periods for child sex offences. The mandatory sentencing scheme is a layered and considered approach and has built-in safeguards that enable the courts to take into account the individual circumstances of a case. It does not apply to persons under 18 years old, and it enables a court to discount sentences for pleading guilty and cooperating with law enforcement. Judicial discretion over the non-parole period is retained, allowing the courts to take a range of sentencing considerations into account in determining a sentence of appropriate severity in all the circumstances of the case. People suffering from a cognitive impairment at the time of their offending will not be subject to minimum mandatory sentencing, as the Criminal Code already contains protections to ensure that they do not face criminal responsibility. The mandatory minimum sentencing scheme is a sensible solution that reflects community expectations and ensures that sentences for child sex offences actually reflect the gravity of those crimes.

The Commonwealth already has mandatory minimum penalties for people-smuggling offences. These impose a mandatory minimum non-parole period as well as a mandatory minimum head sentence. The High Court have considered these types of penalties and held that they are constitutionally valid, noting, in their 2013 decision of Magaming:

In Markarian v The Queen, the plurality observed that "[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks." The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.

The appellant may be right to have submitted, as he did, that, even at 1901, mandatory minimum custodial sentences were "rare and exceptional". But as the appellant's submission implicitly recognised, mandatory sentences (including, at 1901, sentence of death and, since, sentence of life imprisonment) were then, and are now, known forms of legislative prescription of penalty for crime.

These mandatory minimum penalties, consistent with the principle that I've just read from, set a sentencing yardstick for judges sentencing Commonwealth child sex offenders. The bill also makes it harder for serious child sex offenders to get bail once they've been charged, by creating an offence based presumption against bail for certain Commonwealth child sex offences. Given the seriousness of the offences to which the proposed new presumption would apply, and the potential risk to the most vulnerable members of the community if bail were granted, this measure will provide for protection of the community.

The new offences in this bill deal with new and emerging threats and criminalise reprehensible and harmful behaviour which facilitates or perpetuates child sexual abuse, such as being the administrator of a website that exists for the purposes of distributing child abuse material or the groomer of another person for the purposes of procuring a child for sexual activity. The most important task of the government and of this parliament is to ensure the safety of the Australian community, especially those most vulnerable—our children. The package of measures introduced by this bill marks a tough and necessary crackdown on paedophiles.

I might note one or two additional points with respect to matters that were raised by the final speaker from the opposition regarding, particularly, the issue of children and the effect, potentially, on them. The final example that was provided by the last speaker from the opposition was with respect to a male over the age of 18 who had had sexual intercourse with his girlfriend, who was 15. I might just note that, at that age, there is no ability to provide consent. In that example, it is, under the law of the Commonwealth, a rape. That is the law as it presently stands. I think it demonstrates some of the misunderstandings of how the law actually operates. I also note that people who were under 18 at the time of the offence themselves are exempt from the mandatory minimums. So those who were under 18 at the time of the offence are exempt from mandatory minimum sentences, and that is, obviously, to ensure that children who may have engaged in things like sexting and other consensual sharing of images with other children are not captured by the mandatory minimums. It is not, I think, a viable submission to put that the bill would have unduly harsh outcomes for consenting teens engaging in sexual activity. When this bill previously came before the House, the opposition erroneously said that the government's legislation would see teenagers locked up for five years for flirtations over Snapchat, Facebook and other social media platforms. This bill does not target that type of relationship between consenting young persons. Rather, it targets serious predation aiming to sexually exploit vulnerable children.

The criminal justice system has effective safeguards. Firstly, all sex child offenders in part 10.6 of the Criminal Code require the Attorney-General's consent to prosecute where the accused was a minor at the time of the offending. Further, police and prosecutors retain discretion to pursue an investigation, and they must ensure that any prosecution is in the public interest. These existing considerable safeguards have not been altered by this bill. A review of the cases of actual prosecutions for engaging in sexual activity with a child under 16 since the introduction of the offence in 2010 reveals that consenting teenagers are not, in fact, being prosecuted. The people who have been convicted of these crimes include examples of the most serious offending. Three examples put before me are a 56-year-old preying on a nine-year-old, a 49-year-old targeting children in the range from nine to14 and a 36-year-old who abused eight child victims and made video recordings of the abuse that made out the offences. He was released on a condition of good behaviour after serving only 14 months in prison. On the few occasions where young persons aged 18 and above have been prosecuted for engaging in sexual activity with a child, often the victim was manipulated or deceived into sexual activity or providing child abuse material to the offender. They dealt with cases where victims were tricked about the age and often the gender of the offender, and such conduct simply cannot be excused.

So I think those submissions that were made in the latter part of the second reading debate do not actually reflect the provisions in the bill and, for those reasons and the reasons stated in the substantive remarks, we commend this bill to the House.

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