Monday, 15 June 2020
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019; Second Reading
I thank honourable senators for their contribution in this debate. As the Royal Commission into Institutional Responses to Child Sexual Abuse stated:
The sexual abuse of a child is a terrible crime. It is the greatest of personal violations. It is perpetrated against the most vulnerable in our community. It is a fundamental breach of the trust which children are entitled to place in adults.
For too long, the criminal justice system has failed innocent children who have fallen victim to predatory offenders.
I thank the Senate Sanding Committee on Legal and Constitutional Affairs, the Scrutiny of Bills Committee and the Parliamentary Joint Committee on Human Rights for their consideration of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. This consideration gave the government the opportunity to further highlight the improved community safety which will result from these important reforms, including the operation of the mandatory minimum sentencing scheme, the presumptions in favour of actual imprisonment and cumulative sentencing, the presumption against bail, the increased requirements for rehabilitation and supervision of offenders, and the offences to counter emerging forms of child sexual abuse.
In their dissenting reports, the Senate Standing Committee on Legal and Constitutional affairs, Labor and the Greens have called for the mandatory minimum sentencing scheme contained in schedule 6 of the bill to be removed. This was on the back of claims that mandatory minimum sentencing has perverse unintended consequences such as making it more difficult to prosecute criminals because they are less likely to plead guilty or to cooperate with law enforcement if faced with a mandatory minimum sentence. My Labor and Greens colleagues have again raised these issues as part of today's debate, and I would like to take the opportunity to address some of these concerns.
Senator McKim raised concerns that mandatory minimum penalties are ideological and not supported by any evidence that these penalties will in fact increase recidivism and de-incentivise offenders to plead guilty. With respect to Senator McKim: these claims are unfounded and contradicted by what we know about these truly abhorrent crimes. An offender being sentenced to a prison term increases the likelihood that they will be subject to supervision upon their release into the community, and they will be provided the opportunity to engage in rehabilitation programs and education to reduce their risk of reoffending.
Child sex offenders released from prison on parole are subject to robust parole conditions that require them to engage in psychological or other relevant treatment or restrict their use of electronic devices and also limit their engagement with children in the community. The bill incentivises offenders to enter early guilty pleas and to cooperate with law enforcement through sentencing discounts of up to 25 per cent for each form of assistance, resulting in a total potential sentencing discount of up to 50 per cent, not 25 per cent as stated by my colleague Senator Watt.
On the matter of guilty pleas: this is an argument often put forward for mandatory minimums. While you may argue it for people smuggling or for other crime types, it just doesn't hold weight in the case of child sex offences that we are discussing here. That is because, in so many of the cases we're talking about, offending is taking place online and, as a consequence, there is often irrefutable evidence of online child exploitation activity which comes from an individual's own devices. That is why, currently at least, 80 per cent of Commonwealth child sex offenders plead guilty. The existence or otherwise of mandatory minimum sentencing will make no difference to these offenders pleading guilty.
Senator McKim also raised his concern that mandatory minimum penalties may apply to sweetheart scenarios. I would like to reassure Senator McKim that the bill does not capture this type of conduct. The scheme does not apply to persons under 18 years old, so it will not apply to a 17-year-old innocently engaging with a 15-year-old girlfriend. The scheme has built-in safeguards to allow for the individual circumstances of each case to be taken into consideration at each step of the criminal justice process. History shows that these sweetheart scenarios are not the types of offences that are pursued. The cases that are pursued are those that involve predatory behaviour; they are the individuals the legislation targets and the agencies focus on.
Labor also raised a concern that juries and judges will be less likely to convict guilty people if they do not believe that a mandatory minimum sentence is justified in a particular case. Again, while this argument might work for mandatory minimums for other crimes, there is no evidence of this occurring; and, in relation to child sex offences, the most reprehensible type of offending on the statute books, it is a far-fetched claim.
In relation to Senator McKim's concern about the lack of evidence of mandatory minimums achieving their desired policy outcome, I would reiterate the example cited by the government during the debate earlier today in which it was outlined that there was in fact a 28 per cent decrease in assaults on police officers when Western Australia introduced laws that imposed a mandatory minimum sentence for police assaults. Of course, the purpose of mandatory minimums is not just as a deterrent but also to ensure that those who do commit the crime are appropriately punished.
I note, too, that concerns were raised during the debate that mandatory minimum sentences may result in unjust and disproportionate sentences, where the punishment does not fit the crime. However, this misses the nuance of the scheme. The scheme is a layered and considered approach which has safeguards that enable the court to take into account the circumstances of each individual case, and it ensures that judges maintain a high degree of discretion, which was a concern also raised by Senator McKim. Judicial discretion over the non-parole period is retained. Thus, notwithstanding a mandatory minimum sentence applying, it will be open to the judge to order a non-parole period for a time of their choosing. This allows the courts to take a range of considerations into account in determining a sentence of appropriate severity in all the circumstances of the case. This is, of course, in addition to the discretion available to the judge to issue discounts in sentencing of up to 50 per cent for guilty pleas and for cooperation with law enforcement. Further, people suffering from a cognitive impairment at the time of their offending will not be subject to the mandatory minimum sentencing, as the Crimes Act already contains protections to ensure that they do not face criminal responsibility. Indeed, the mandatory minimum sentencing scheme is a sensible solution that reflects community expectations and ensures that sentences for child sex offenders actually reflect the gravity of those crimes.
Concerns have also been raised about the resourcing impost that this bill will have on states and territories and law enforcement agencies. These concerns are also not well founded. States and territories were consulted during the development of this bill in various forums. In both July and October 2017, discussions were held on measures concerning child sex offenders at meetings of the national working group, which comprised senior police and justice officials from each of the states and territories and also from the Commonwealth. The Law, Crime and Community Safety Council; the Council of Australian Governments; and the Ministerial Council for Police and Emergency Management discussed measures relating to child sex offenders at meetings held variously in 2016, 2017 and 2019. Funding or resources have never been requested in any of these meetings.
The bill also contains a number of other important reforms which must also be acknowledged and which are supported by my opposition colleagues. The bill provides for increases to the maximum penalties for the most serious Commonwealth child sex offending, and the impact of these offences can be damaging and lifelong in their effect. Increased maximum penalties reflect the gravity and the higher level of culpability of these most serious offences.
I would like to place on the record that the proposal to simply increase the maximum penalties will not be enough to shift current sentencing practices, as some have suggested. Of those offenders who even received a custodial sentence, the most common time spent in jail was six months, despite some offences currently attracting imprisonment penalties of up to 20 years. In its dissenting report to the Senate Standing Committee on Legal and Constitutional Affairs, Labor recommended that the amendment of the bill include a comprehensive statutory review of the Commonwealth sentencing practices for child sex offenders, the findings of which should be reported to the parliament within three years of the bill coming into effect. My colleagues Senator Watt and Senator McKim have also tabled amendments providing for a statutory review. The government sees merit in this idea and has put forward amendments that would see a statutory review of sentencing for offenders convicted of Commonwealth child sex offences, with the findings to be reported to parliament within four years of the bill coming into effect, rather than within three years. This additional year will ensure that the review properly captures the impact of this bill on sentencing outcomes for Commonwealth child sex offenders charged after the passage of this bill.
In conclusion, this bill signifies this government's commitment to ensuring that the Australian community is protected from these heinous crimes. I thank honourable members for their contributions to this debate and I commend the bill to the Senate.
Question agreed to.
Bill read a second time.