Monday, 15 June 2020
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019; In Committee
I understand that the government has just tabled a supplementary explanatory memorandum relating to amendments. I just ask you, Minister, did you wish to move your amendments now or later? I just offer the call to the minister out of courtesy.
by leave—I move:
(1) Clause 2, page 3 (table item 16), omit "Schedule 14", substitute "Schedules 14 and 15".
(2) Page 53 (after line 30), at the end of the Bill, add:
Schedule 15—Review of sentencing for Commonwealth child sex offences
1 Review of sentencing for Commonwealth child sex offences
(1) The Attorney-General must cause a review to be undertaken of the first 3 years of the operation of the following provisions of Part IB (sentencing, imprisonment and release of federal offenders) of the Crimes Act 1914, as amended by this Act, in relation to Commonwealth child sex offences (within the meaning of that Act):
(a) Divisions 2 to 4;
(b) Subdivision D of Division 5;
(c) Divisions 6 to 9;
(d) Division 1, to the extent that it relates to a provision covered by paragraph (a), (b) or (c) of this subitem.
(2) The review must be undertaken by one or more persons who, in the Attorney-General's opinion, possess appropriate qualifications to undertake the review.
(3) The person or persons undertaking the review must give the Attorney-General a written report of the review within 12 months after the end of the 3-year period.
(4) The Attorney-General must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Attorney-General.
I just want to thank the government for moving these amendments. I won't speak on behalf of the Labor Party, but I did say in my second reading speech that I thought there should be a statutory review of these provisions. So, Minister, I just wanted to clarify with you—and, sorry, obviously, your amendments have been circulated relatively late. That's not a criticism; it's more of an explanation for me seeking this advice from you. In terms of the scope of the review that would result from your amendments, can I confirm that it would cover all of the matters in this bill that relate to sentencing outcomes for offenders convicted of Commonwealth sex offences, but also of existing statutory provisions relating to sentencing outcomes for offenders convicted of Commonwealth sex offences?
I also want to join with Senator McKim in thanking the government for listening to what we had to say on this point about a review. As I said during my second reading speech in relation to this bill, Labor believes that this bill should proceed without mandatory minimum sentences—and we'll come to that later. Mandatory sentencing is wrong in principle, does nothing to reduce or deter crime and, worst of all, has adverse consequences. It makes it harder to catch criminals, harder to prosecute criminals and harder to convict them. It should not be supported.
As recommended by senators of Legal and Constitutional Affairs Legislation Committee, Labor also thinks that the Attorney-General should be required to initiate a review of sentencing practices in relation to Commonwealth child sex offences so that the government and the parliament can ensure that people convicted of child sex offences are being sentenced in accordance with community standards and expectations. Happily, these hastily prepared amendments moved by the government would implement that particular recommendation by Labor senators. Labor does welcome these amendments. If they are successful, I would like to give the Senate notice that the opposition will not be moving items 1 and 3 on sheet 8800.
In a similar spirit, should these amendments be successful—and I believe of course that they will—we will not proceed with our amendments which provided for a review, amendments (1) and (3) on sheet 8826. So we look forward to supporting the government's amendment—which I believe, given the contributions we've just had, will pass the chamber unanimously—and then we can move on to other issues regarding this bill, including the mandatory sentencing provisions.
I want to come to some of the points that the minister made in summarising the second reading debate and points made by other government members who have spoken to this legislation. Firstly, obviously there is a carve-out in the mandatory sentencing provisions of this legislation, and that carve-out is contained in 16AAC, which provides that 16AAA and 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.
Before I go to some of the implications of putting such a hard marker in—where if you're one day under 18 years of age you are not caught by the mandatory minimum sentencing provisions, but if you are one day over 18 years of age you will be caught by the mandatory minimum sentencing provisions—I want to ask you, Minister, given that you've carved out the people who are under the age of 18 when the relevant offence occurred, why you have not carved out people who have significant cognitive impairment. I place this on the record. Firstly, because you've decided not to do that, if there are other pieces of Commonwealth legislation that apply, could you provide some advice to the Senate on that. Secondly, if there are not other pieces of Commonwealth legislation that apply, and someone who does have significant cognitive impairment actually is caught by the mandatory minimum sentencing provisions of this legislation, I think you risk filling up our jails with mentally ill people—or, I should say, continuing to fill up our jails with mentally ill people. So perhaps you could address that matter, Minister: whether anything in this bill, or any other piece of Commonwealth legislation, would mean that someone who does have significant cognitive impairment would not be caught by the mandatory minimum sentencing provisions in this legislation.
Senator McKim, I did mention in my summing up speech that people suffering from 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.
Thank you, Minister. I was probably just reading through your late supplementary explanatory memorandum when you addressed that in your second reading speech, so I do thank you for addressing that again.
Minister, I want to now address the issue that I briefly flagged earlier. I heard—and, by the way, I don't believe I heard this from a minister, but I did hear it from some government backbenchers—that 'young people' are not going to be caught by the mandatory minimum sentencing provisions. With respect to those senators, that is most certainly not true. Anyone who is 18 years and one day old can certainly be considered a 'young person'. I want to give you some examples, Minister, because I think it's important that senators understand what they're voting for here, and I give you these examples in good faith. Could you confirm that if, on an overseas holiday between two families, an 18-year-old and a 15-year-old commenced a romantic relationship and they touched each other in a sexual way, the person in that relationship who is 18 years and one day old will have to be sentenced to five years imprisonment, if found guilty of an offence. Could you confirm that please, Minister.
When this bill previously came before the House the opposition erroneously said that the government's reforms would see teenagers locked up for five years, as you have just said, for their flirtations over Snapchap or on Facebook or on other social media platforms. This bill specifically does not target that type of sweetheart relationship between consenting young people. Rather, it targets serious predators aiming to sexually exploit vulnerable children. The criminal justice system has effective safeguards. Firstly, all child sex offences in part 10.6 of the Criminal Code—transmitting child abuse material over a carriage service—require the Attorney-General's consent to prosecute, where the accused was a minor at the time of offending. Further, police and prosecutors retain discretion to pursue an investigation and must ensure that any prosecution is in the public interest. These existing 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 a 56-year-old who preyed on a nine-year-old, who received a three-year sentence and was released after one year's imprisonment, on the condition that he be of good behaviour; a 49-year-old who targeted children ranging in age from nine to 14, who was sentenced to four years in prison with a two-year non-parole period, for child abuse material and grooming offences, as well as attempting to engage in a sexual activity with a child; and a 36-year-old who abused eight child victims and made video recordings of the abuse, who was released after serving only 14 months in prison, on the condition that he be of good behaviour. On the very few occasions where young people aged 18 and above have been prosecuted for engaging in sexual activity with a child, often the victims were manipulated or deceived into sexual activity with or providing abuse material to the offender. The victims were tricked about the age and, often, the gender of the offender. Such conduct cannot be excused. For an example of a young person convicted of sexual activity with a child using a carriage service, in 2014 an offender aged 19 was convicted of 14 Commonwealth child sex offences. The offences were committed over a period of approximately 12 months and involved the exploitation of 14 individual children, most of whom were aged between 13 and 16, but one of the victims was seven years of age. The court awarded a 25 per cent discount for an early guilty plea. The offender's total effective sentence was three years and six months and he was released after serving 14 months, on a recognizance release order, on the condition that he be of good behaviour, accept supervision and pay $200 for any breach. The offender had been convicted previously of contact child sex offences. I note that because the conviction was before the passage of the legislation in 2015 that required sentences of over three years to include a non-parole period, the court was able to sentence this offender with a recognizance release order. The bill ensures sexual predators who abuse children face appropriately severe penalties, regardless of their age.
Just to be clear, no-one in this debate is arguing that heinous crimes such as that should not attract appropriate sentences. I just want to place that on the record. Having said that, most of your answer was completely irrelevant to the question that I asked. In terms of the Attorney-General needing to sign off, I believe you said that relates to minors. That is not the question I asked. I asked about an 18-year-old offender—not a minor—who is obviously still a teenager. Eighteen-year-olds, no matter their sex, can be very emotionally immature—
An honourable senator: And still at school.
And still at school—absolutely. As I understand your answer, the only part of your answer that was relevant to the question I asked was the bit about prosecutorial discretion. What you're saying is that the Senate should be satisfied on the basis of an unknown decision made by an unknown prosecutor that they won't prosecute so-called sweetheart arrangements, when in fact the sweetheart arrangements—including the example I just gave, the example of an 18-year-old and a 15-year-old exchanging sexual images or body images and sexual stories on Snapchat—could attract a mandatory minimum penalty of five years under this legislation.
Let's be clear here, Minister. You're asking us to accept a prosecutorial decision or an investigative decision made by someone—we don't know who they are; we don't know what prejudices might exist in their lives—and saying that that should satisfy the Senate, when actually, if a prosecution is launched and someone is found guilty of these offences, you could end up in a situation where someone who is 18 years and one day old could face a mandatory minimum penalty of five years in some circumstances or of six years in other circumstances. In a situation where an 18-year-old is one of the coaches of a sporting team of which his 15-year-old girlfriend is a member and he has sex with his girlfriend while the team is on an overseas trip, that 18-year-old would face a mandatory minimum penalty of seven years imprisonment. And you're asking us to accept, Minister, that an unknown decision that you hope might happen in the future, made by someone that we don't know—we don't know what their training is; we don't know what their expertise in assessing public interest is—should satisfy the Senate. Well, it doesn't satisfy me. That's why the Australian Greens maintain their strong opposition to mandatory minimum sentencing in this legislation.
Thank you, Senator McKim. I suppose I can only reiterate that there is judicial discretion and that part of that judicial discretion suggests that the penalty must be in the public interest. Bear in mind, too, that the victim must be under 16, because 16 is the age of consent. Moreover, history suggests that this does not happen. All the examples that you gave are entirely hypothetical; they are entirely hypothetical because they haven't happened in real life.
Senator Pratt interjecting—
Of course they have, Senator Pratt. You know that. But, as you also know, those young people have not been prosecuted and would not be subject to this.
What is the judicial discretion you just mentioned in relation to, Minister? You mentioned judicial discretion in the answer you just gave. Could you explain what you mean, because mandatory minimum sentencing actually removes judicial discretion.
Can you be clear, Minister? In your answer to the first question in this stage of proceedings, you said that the Attorney-General would need to sign off. But that only relates to a situation where the offender is a minor. Can you be clear about that?
That's my bad, Chair; I started speaking before you had given me the call. I apologise for that.
Thank you for that answer, Minister. Just to be clear, I'm not asking about a circumstance where the offender is a minor—that is, under the age of 18. I understand that there is a carve-out in this legislation that covers that circumstance. I'm asking about where the offender is 18. Let's use an example. Yes, this is hypothetical. Believe me, Minister, I have not forgotten what it is like to be young and I hope you haven't either. This may be hypothetical, but you can bet your bottom dollar that situations similar to the one I am describing would happen on a regular basis. I want to ask you again about someone who is 18 years and one day old. Let's say, hypothetically, it is a male. He has a girlfriend who is 15 years and 364 days old—under 16 and under the age of consent—so there is effectively an age difference of two years and two days between those two people. And if, for example, those two people are on a school trip, let's say, to New Zealand, and the male who is 18 years and one day old and in year 12 has sex with his girlfriend who is 15 years and 364 days old. If a prosecution was launched, the judge would have no alternative other than to sentence that 18-year-old teenager to six years imprisonment. And the only succour you can offer this Senate is that you don't believe that a prosecution would be proceeded with in that circumstance. Is that correct?
I will make the obvious point: there are secret trials going on in this country right now that are not in the public interest. Bernard Collaery has been charged by the Commonwealth DPP when it is clearly not in the public interest that he be charged. It is a disgrace that he was charged and that charge—authorised, recommended by the DPP and signed off by the Attorney-General—is an absolute disgrace. It should not be happening. It clearly runs counter to the public interest, but it is still happening. So when you say that the prosecution would not be proceeded with because it is not in the public interest, that gives me no confidence whatsoever, because prosecutions happen in this country when they are not in the public interest, Minister, and that is an unarguable statement of fact. I tender, as exhibit A, the charges of Mr Collaery, who bravely and patriotically acted in one of the most shameful episodes in this country's recent history, which was the illegal bugging of the Timor-Leste government by Australian security agencies. So I do want to say to you, Minister, that I understand that's the only argument you've got—to say that the prosecution would not proceed in the public interest—but it gives no comfort to the Australian Greens whatsoever.
I can relate to Senator McKim's concerns about an 18-year-old and a 15-year-old. He might be 18 years and one day and he might get caught up. In his example, Senator McKim referred to the teenagers going to New Zealand but this is federal legislation we are talking about. There is state legislation for sexual crimes, but this is federal. So what we are discussing here really are the expectations of the public. People are absolutely fed up with seeing children abused, with paedophilia, with children being used in pornographic photos and with people going to other countries to abuse children. That is what this is all about. What Senator McKim is talking about is something that could likely happen but, then again, it is up to the federal Attorney-General to decide whether they will bring a prosecution case, and he will sign off on a case like that.
But what's happened, over a period of time, is that we've seen so many paedophiles and monsters in our society that abuse children, and 39 per cent of them have not spent one day in jail. The average jail term is about 1½ years. So we're not dealing with the public expectation. They fear for their children. That's why parents accompany their children everywhere. When I was growing up I could walk to school. There were no problems with that. These days parents are fearful of letting their children out of their sight. I think that we need to really look at this fairly. The issue of the 18-year-old and the 15-year-old was raised with me, and it did concern me. But, at the end of the day, we need to stop cases like that of the Australian I was informed about who paid $120,000 for someone else to go overseas on their behalf to take photos of people having sex with children and then send them back so that any sick mind can watch it on the internet.
If we introduce a four-year mandatory sentence, it may stop what is happening. There has to be a deterrent. There has to be punishment. For most of these people, as I've heard Senator McKim say, if there is no deterrent, do you think it will stop the crimes? It won't. I can understand your reasoning—put more police out there. But you've got these crafty criminals out there that will do whatever they can to get their pornographic photos. They're sick. They really are sick. And it's not about that; it's about becoming a society that intends to get tough with these people. Yes, these sentences have been increased, but, although the sentences were at 10 or 15 years, how often were those maximums imposed? 'Give me one case,' I asked, and they couldn't, because the judges are reluctant to impose those sentences. We've got to the point now where it's a slap over the wrist or they're let go. That's why we've got the 39 per cent of those who have committed sexual crimes against these kids and nothing has happened.
It's up to us in this chamber, as legislators, to put it before the courts and say, 'This is the minimum.' And if they do plead guilty, it won't be the four-year minimum; there will be 25 per cent taken off that, so it'll be three years. So I don't know where Senator McKim is getting the six years from. We have to look at the balance of it. The balance is: do we want to let those monsters who will continue to abuse children through our system, or will we rely on the right people, like the DPP and the Attorney-General, to look at it realistically if someone who's 18 sends a text to their 15-year-old, 16-year-old or 17-year-old girlfriend? That's what we have to consider here. It's very important.
The amendment has now been passed, and a review will be done. That was my suggestion to the government—that it have a review. I think that's a good place to be in. Then we can look at what has happened over the three or four years and see if it is working, because what we have now is not working. We have to send out a clear message to the people of this nation: if you want to commit these crimes against our children, you are going to be dealt with. So I have no problem with this, and I commend the government on bringing this legislation through. I know that any clear-minded person in this chamber with children of their own could not possibly oppose this legislation, and I think that we are doing a good thing for our society by passing this legislation as is.
I could go through example after example, and many of them were submitted by eminent submitters to the Legal and Constitutional Affairs Committee inquiry into this legislation. But I will just make a point about the comfort that the minister is attempting to offer this chamber around whether or not a prosecution is in the public interest. I offer the example of where a mother becomes aware that her 15-year-old daughter has been receiving images from someone over 18 and pushes really hard in the public for a prosecution to occur. I just don't think, Minister, that that comfort is of a high enough level that this Senate ought to accept the mandatory minimum sentencing provisions. I just want to place it on the record.
I accept that you've tabled an amendment for review. As I said earlier, I thank you for that and we support that, and it is very important that that happen. But I want to place on the record that we are risking here a series of gross miscarriages of justice, where a young Australian could end up being imprisoned for up to seven years in some circumstances. That young Australian could still be a teenager when the offence occurs, and they will be well into their 20s when they get out of prison, with a very different life in front of them than would be the case if a judge had been allowed to exercise his or her discretion in the sentencing. So, having said that, I seek leave to move Australian Greens amendments (2) and (5) to (7) on sheet 8826.
I move Australian Greens amendments (2) and (5) to (7) on sheet 8826 together:
(2) Clause 2, pages 2 and 3 (table items 7 to 9), omit the table items.
(5) Schedule 7, item 4, page 34 (lines 9 and 10), omit "described in column 1 of an item in the table in section 16AAA", substitute "covered by subsection (9)".
(6) Schedule 7, item 4, page 34 (lines 11 and 12), omit "described in column 1 of an item in the table in subsection 16AAB(2)", substitute "covered by subsection (10)".
(7) Schedule 7, item 4, page 36 (after line 16), at the end of section 15AAA, add:
(9) This subsection covers offences against provisions of the Criminal Code listed in the following table:
(10) This subsection covers offences against provisions of the Criminal Code listed in the following table:
The effect of those amendments would be that the mandatory sentencing provisions in this legislation would be deleted. I indicated earlier that we will withdraw amendments (1) and (3) on sheet 8826 because the government has already tabled an amendment which provides for a review.
The CHAIR: The question is that Australian Greens' amendments (2) and (5) to (7) on sheet 8826, by leave moved together, be agreed to.