Senate debates

Monday, 15 June 2020


Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019; Second Reading

12:48 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

I want to make clear at the beginning that Labor and I consider that there is nothing more sickening than child sexual abuse. As a father of two children, I feel that on a personal level, let alone the position I might take in politics. Children are the most precious and vulnerable members of our community, and Labor will always support strong and effective laws to protect children from abuse and to punish their abusers. Labor has always fought, and will always fight, to protect children here and overseas from exploitation and abuse. Labor are proud of our record under the Keating, Rudd and Gillard governments in this area.

To pick up on just a few examples, in 1994 Labor in government introduced world-leading offences targeting Australians who engage in the sexual abuse of children overseas. In 2009, Labor in government brought federal, state and territory governments together to implement the National Framework for Protecting Australia's Children, which included a significant funding commitment over four years from the Commonwealth government. In 2010, Labor in government introduced new child abuse offences and other protection measures. In 2013, Labor in government appointed Australia's first National Children's Commissioner to advocate for the rights of Australia's young people. And, of course, in that same year, Labor in government established the Royal Commission into Institutional Responses to Child Sexual Abuse—the first national inquiry of its kind. That commission shone a light on how systems have failed to protect children and made recommendations on how to improve laws, policies and practices to prevent and better respond to child sexual abuse in institutions. I could go on. Despite the occasional efforts of some—not all, but some—on the other side to use this issue for base political reasons, my colleagues and I do not question the current government's commitment to doing what it can to protect children from harm. To the extent that there is disagreement, it should only ever be about the means and not the ends.

Labor strongly supports the vast majority of the measures in this bill, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. Labor supports schedule 1, which would allow the Attorney-General to revoke a parole order or licence in the interests of community safety. Labor supports schedule 2, which would remove the requirement for a court to approve the admission as evidence-in-chief of a video recording of an interview with a vulnerable adult or child. Labor supports schedule 3, which would prohibit the cross-examination of child witnesses and other vulnerable witnesses at committal proceedings. Labor supports schedule 4, which would create new grooming offences. Labor supports schedule 5, which would significantly increase the maximum penalties for a range of offences relating to sexual activity with children outside Australia and child sex offences relating to the use of postal or similar services within Australia. Labor supports schedule 7, which would introduce a presumption against bail for serious Commonwealth child sex offences. Labor supports schedules 8 and 9, which would require the court to consider a range of additional factors, including aggravating factors, when it comes to sentencing a person who has been convicted of a Commonwealth child sex offence. Labor supports schedule 10, which would insert a presumption in favour of cumulative sentences for Commonwealth child sex offences. Labor supports schedule 11, which would require offenders convicted of a Commonwealth child sex offence to serve a period of imprisonment that is not suspended other than in exceptional circumstances. Labor supports schedule 12, which would include residential treatment orders as a sentencing alternative for certain classes of offenders. Labor supports schedule 13, which would introduce new provisions in relation to the remission and reduction of sentences in circumstances where parole is revoked or where a person to whom a parole order relates is sentenced for a further offence. And Labor supports schedule 14, which would replace the existing definition of 'child pornography material' with a broader definition of 'child abuse material' in various acts, including the Crimes Act 1914. So, as you can see, Labor supports many of the measures contained in this bill.

The only schedule Labor does not support is schedule 6, which would introduce mandatory minimum sentences. Labor has a longstanding, well-reasoned and principled opposition to mandatory sentencing. Mandatory sentencing may sound tough, but there is nothing tough about sentencing measures that make it more difficult to catch, prosecute and convict child sex offenders. There is nothing tough about measures that do nothing to reduce crime or criminality. And there is nothing tough about sentencing measures that could, in some cases, result in unjust sentences being handed out to teenagers. The evidence is overwhelming. Accused persons are less likely to plead guilty or cooperate with authorities if faced with a mandatory minimum sentence. The Commonwealth's own Attorney-General's Department has previously gone so far as to argue that mandatory minimums should be avoided as they create an incentive for a defendant to fight charges, even where there is little merit in doing so. As well as resulting in costly and unnecessary trials and the possibility of acquittal, this forces survivors of child sexual abuse to endure the trauma of having to give evidence in court against offenders who would otherwise have pleaded guilty. This in turn could result in fewer survivors of child sexual abuse coming forward at all.

As the Uniting Church Synod of Victoria and Tasmania told the Senate committee:

If the perverse outcome of mandatory sentencing is that fewer victims are willing to come forward because the process is going to be made even more onerous for them and more traumatic, then you actually get a reverse outcome to the one you were intending.

Even the current government implicitly acknowledges that accused persons are less likely to plead guilty or cooperate with authorities if faced with a mandatory minimum sentence. For that reason, the bill would allow a judge to reduce a mandatory minimum sentence by up to 25 per cent to reflect either an offender's early guilty plea or an offender's cooperation with law enforcement.

However, this supposed solution is little more than window dressing as it does not remove the obvious incentive for a defendant to fight charges—even where there is little merit in doing so. All this reduction means is that in some circumstances an accused person will be faced with a different mandatory minimum sentence. Instead of seven years, for example, an accused person may face a 5.25-year mandatory minimum sentence. The problem remains; it's just a slightly smaller problem.

Then you have the problem of juries and judges being less likely to convict guilty people, and prosecutors may be less likely to charge alleged criminals if they do not believe the mandatory minimum sentence is justified. That is the evidence of the Law Council of Australia, the Queensland Law Society and a range of other experts who have looked into this issue. These and other reasons for opposing mandatory minimum sentences are set out in greater detail in a report tabled by Labor senators of the legal and constitutional affairs committee in relation to this bill. I would urge government senators to read it.

It is also worth noting that almost every non-government witness who gave evidence to the legal and constitutional affairs committee in relation to this bill recommended that it proceed without mandatory minimum sentences. Those witnesses included: the knowmore Legal Service, established in 2013 to assist people to engage with the Royal Commission into Institutional Responses to Child Sexual Abuse; the Uniting Church Synod of Victoria and Tasmania; the Jesuit Social Services; the Sexual Assault Support Service; the Law Council of Australia; and the Carly Ryan Foundation.

So what is the evidence to support the introduction of mandatory sentencing? As Labor senators noted in their Senate report, the government has produced no evidence to support the introduction of mandatory minimum sentences in this bill. Schedule 6, it seems, is not based on the outcome of any review or detailed analysis of sentencing practices. Instead of evidence or detailed analysis, the Attorney-General's Department has pointed to high-level and irrelevant statistics about sentencing outcomes generally. That's not good enough. Labor believes that this bill should proceed without mandatory minimum sentences. To that end we will be moving an amendment to delete schedule 6 from the bill. We urge the government to reconsider its position on this matter and support that amendment.

In addition to moving an amendment to delete mandatory sentencing from the bill, Labor will also seek to amend the bill to include a comprehensive statutory review of sentencing practices in relation to Commonwealth child sex offences. That was a suggestion made by the Carly Ryan Foundation in its evidence to the legal and constitutional affairs committee, and we think it's a very good one. On that point, in closing, I see that there are a number of government senators lined up to speak on this bill, including some with a legal background. I'd encourage them, in their contributions, to explain to us why they disagree with the evidence of experts to this Senate committee which says that mandatory minimum sentences in fact make it harder to get convictions and make it less likely that the tough sentences that the government say they are about will actually get imposed. I will be very interested to hear whether government senators address that point.

I would like to conclude by saying something about resourcing. As Labor senators pointed out in their report, this bill would introduce a range of measures that would be likely to create an additional burden on a criminal justice system that is largely administered by state and territory governments. The government claims in its explanatory memorandum that the financial impact of the bill will be negligible and will be absorbed by the states and territories, but, like the proposal to introduce mandatory minimum sentences, that statement does not appear to be based on any evidence at all. This is because, prior to introducing this bill, the government had not consulted with a single state or territory government about the potential resourcing implications of the measures contained in this bill. The assertion by the government that the financial impact of the bill will be negligible is not credible. As such, Labor reiterates its call for the government to consult with state and territory governments to ensure that appropriate resourcing is in place to implement the measures proposed in this bill.

More generally on the question of resourcing, it is worth stating the obvious: this parliament can pass the strongest child exploitation laws in the world, but, unless our agencies are equipped with the best technology in the world and have an appropriate number of personnel, we will not be in a position to address the scourge of child abuse. It is well known that reports of child sexual abuse imagery on the internet have exponentially increased over the last several years. We need to keep up. Labor calls on the government to conduct a detailed and thorough review of the adequacy of the resourcing that is currently available to authorities across Australia for the detection and apprehension of those who commit crimes against children, especially online.

In conclusion, Labor will always work constructively, whether in opposition or in government, to put in place the most effective measures to protect children. In that spirit of cooperation, I urge the government to examine the evidence—not just the rhetoric that I predict that we will be hearing from government senators during this debate, but the evidence—about whether mandatory minimum sentencing actually works and whether it actually does lock up people who've been convicted of heinous crimes against children in the way that they claim it will do. In particular, I urge the government to consider the significant potential for mandatory sentences to cause injustice and to actually make it harder to protect children.

Labor will be moving amendments to remove the mandatory sentencing provisions and to require a review of sentencing practices in relation to child sex offences under Commonwealth legislation. We urge all senators to support those amendments and then to support this bill.

1:02 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

The Australian Greens of course are supportive of the stated objectives of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 and we support most of the provisions in this legislation. The explanatory memorandum states:

This Bill better protects the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all stages of the criminal justice process, from bail and sentencing through to post-imprisonment options.

Senator Watt went through the schedules to this bill in some detail and made it clear that the Australian Labor Party does not support schedule 6. I can indicate to the Senate that that is also the position of the Australian Greens. It's worth pointing out, before I go to that in detail, that there were some submissions to the committee inquiry into this legislation which raised some technical concerns with various other parts of this bill, and that is why the Greens, in our dissenting report to that inquiry, recommended that the bill be withdrawn and redrafted without mandatory minimum sentencing and with consideration of the technical concerns raised in various legal submissions to this inquiry.

With regard to mandatory minimum sentencing, unfortunately the government has continued its evidence-free ideological agenda of attempting to legislate—and, in some cases, legislating—mandatory minimum sentencing. We will also be moving amendments in the committee stage which seek to remove schedule 6 and insert a requirement for a review. Ultimately, the government's position here is ideological, because evidence just doesn't support the government's agenda. There is any amount of research by sentencing experts, by criminologists, by justice experts, that has found that mandatory sentencing actually increases the likelihood of recidivism because, among other reasons, it makes offenders less likely to plead guilty and cooperate with authorities. For lower level offences, it places offenders in prison, where they are in, basically, a learning environment for crime and associating with people convicted of similar offences. It reinforces criminal identity and fails to address the underlying causes of crime.

To put into shorthand what all that evidence taken collectively shows, people who commit crimes, including crimes against children, don't believe they're going to get caught. So the best way to deter people from committing those crimes is to increase the chances that they will be caught. Because they don't believe they're going to be caught, mandatory minimum sentences do not play into their thought processes, such as they are. This is well known and has been well known for decades. But no. In come the Liberals, as usual, for political purposes and ideological purposes, wanting to go out and say they are tough on crime, when, in fact, the evidence shows they are anything but.

We understand the evidence in this context, and our amendments are based on that evidence. Like Senator Watt, I'll be very interested to hear what some of the government senators can offer, by way of evidence, that shows that this kind of approach will deliver the outcomes they say it will, because all of the available evidence shows that it will not. I'm not after sweeping motherhood statements here from coalition senators; I'm after actual evidence.

As I said, we submitted a dissenting report to the Legal and Constitutional Affairs Legislation Committee inquiry into this legislation. In a submission to that inquiry, the Sexual Assault Support Service wrote:

Whilst we are strongly supportive of reform to strengthen punishments against those who sexually abuse children, we do not feel that there is sufficient evidence to suggest that mandatory minimum sentencing is an effective response.

Of course the Greens consider sexual offences committed against children to be extremely serious. We believe serious sex offenders should receive appropriate sentences that are, as submitted to the inquiry by knowmore, which is a nationwide free legal service for victims and survivors of child abuse:

… in line with increasing societal understanding of the seriousness of [sexual crimes against children] and the enduring impact of such offences on survivors.

However, the Greens, along with knowmore and most other legal experts and associations, do not believe that this includes mandatory minimum sentencing. One of the reasons we don't believe that kind of approach includes mandatory minimum sentencing is that it undermines fundamental rule-of-law principles and puts at risk enduring public safety outcomes. Sentences should be determined by the courts on the merits of each case, and mandatory minimum sentences fly against that principle.

One matter we will seek some clarity on, when we move into the committee stage of this legislation, relates to the offences of causing a child to engage in sexual activity with another person, using a carriage service, where the other person is also a child. I would place the minister and his advisers on notice that we would like to understand how, in that case, it would intersect with other pieces of legislation. For clarity, where the alleged perpetrator is themselves a minor, how would those provisions operate?

As I've said, we have an amendment to remove schedule 6 from this bill. We won't be opposing this legislation. We would like to see it passed without schedule 6, but we won't be opposing the legislation, because, as I indicated at the top of my speech, most of the provisions of this legislation are strongly supported by the Greens.

1:10 pm

Photo of Amanda StokerAmanda Stoker (Queensland, Liberal Party) Share this | | Hansard source

The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 is a bill that is close to my heart. As a mother of three girls, I know how terrifying the prospect of child exploitation, starting from the online world, is to parents. As a barrister and former prosecutor, I have dragged ordinary people before the courts to answer charges of the most abhorrent behaviour—acts that make me feel sick to my stomach to recall them. Over and over, I heard defence counsel say crimes about child exploitation images are victimless crimes. Victimless crimes? It made me so angry because in every picture there was a real child—a barbaric moment of their short lives was captured and circulated among the most repugnant people on the internet for their own gratification.

Sadly, those image based offences are not the worst offences. Child abuse is ordered over the internet—barbarism inflicted to order, in exchange for cash, upon children anywhere in the world. Children are abducted and held prisoner for this vile business, and their innocence is sold by their parents, the people who are supposed to protect them. Grooming of children over the internet for sexual abuse is too common, too easy, yet it is so hard to counter in a time when digital connectivity has never been greater. Indeed, with more children of late being at home and learning and spending their recreation time online, the risk has never been higher. Last year there were 18,000 complaints made in Australia about crimes of this kind. That was double the year before. Authorities are expecting that number to increase again this year.

I have worked with and I deeply respect those people who continue to work to protect all of our children from these kinds of nasty paedophiles. The police officers in Task Force Argos, based in Queensland, my home state, are right up there with the best in the world. They work with and are trusted by their international counterparts, because these crimes have puzzle pieces spread all over the internet and all over the world. To the girls and boys of Task Force Argos: thank you very much. To the champions at the AFP, my former employer: thank you. Your enduring these horrible crimes every day makes our community safer for all of our children. At a personal level, I know it often takes a really serious personal toll on each and every one of you.

Here's something that victims, parents, investigating officers and prosecutors have to deal with every day: the penalties imposed for these offences are too often too low. In 2018-19, 39 per cent of convicted Commonwealth child sex offenders did not spend a single day in prison—not one. I think the mums and dads at home would be horrified to hear that statistic. It's important we value the discretion we give to judges to weigh up the circumstances of the case, but it's not as though the need for these penalties to be taken seriously is a message that is new. It's not something anyone could be taken by surprise on. Thirty-nine per cent spend not a single day in prison. Despite the innocence of children stolen, it just does not wash.

So what does this bill do? Well, it does four things, broadly speaking. Firstly, it introduces new offences related to grooming activities and websites and online platforms that are designed to host child abuse material. Secondly, it introduces new aggravated offences for the most horrific types of child abuse engaged in while someone is outside of Australia, which again, sadly, is far too common, where an Australian travels to another country and inflicts upon a child—who is not Australian, usually—cruel, inhumane and degrading treatment. Thirdly, it implements a range of presumptions against bail and presumptions for imprisonment, meaning it will be more likely that child sex offenders go to prison, that they stay there for longer and that it is harder for them to get bail. Finally, it introduces mandatory minimum sentences for the most serious types of child sex offences and for those who are repeat offenders, to address the completely unacceptable situation we face at the moment of 39 per cent of offenders last year not spending a single day in jail. The bill also implements recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse to protect vulnerable witnesses by allowing them the automatic right to give evidence via a video recorded interview and prohibiting their cross-examination at committal to minimise the number of times the horror of their experience need be revisited upon them.

This bill complements a wide range of reforms that have already been brought in by the coalition in this field. We brought in tough new measures to stop child sex offenders from travelling overseas to abuse children; we brought in Carly's Law, which targets online predators who use the internet to prepare or plan to sexually abuse children; and we have brought in a range of recommendations arising from the royal commission that I mentioned a moment ago that improve the Commonwealth framework for offences relating to child abuse material, overseas child sexual abuse, the use of child-like sex dolls, forced marriage, the failure of people to report child sexual abuse—a very important recommendation arising from the royal commission—and the failure to protect children from such abuse.

We have heard some interesting remarks from those on the Labor side today about how committed they are to this bill, but none of that hides the facts. The first of those facts is that Labor refused to support this bill when it was last before the parliament, in 2017. So they might talk the talk but they definitely don't have a record of walking the walk. And, as they foreshadow their plans to bring in amendments to this bill today to remove those aspects that are directed at increasing the penalties that are inflicted upon convicted child sex offenders, we see more evidence that they don't quite have the stomach to do what needs to be done today either. They say they don't support mandatory sentencing on principle, and I understand that mandatory sentencing is a very serious measure, but it strikes me that offences don't get all that much more serious than these. In any event, those opposite are not consistent in their application of their opposition to mandatory sentencing on principle. If they truly oppose mandatory sentencing, why, under the Rudd-Gillard-Rudd government, did they support introducing mandatory sentencing for people who engage in people-smuggling offences? If people smuggling is serious enough to justify mandatory sentencing and to allow the principles of the Labor Party to be set aside, well, why not this? Why not the safety of your children? Why not the safety of my children? I have no qualms in standing up for the measures in this bill any day of the week. So let's go to what they are.

The first thing that was said by those on the other side about mandatory sentencing, both in the committee report and before the chamber today, was that there is very little evidence that mandatory sentencing increases public safety. They say that's the reason why they don't support it on principle. Well, if that were the case, they wouldn't have supported mandatory sentencing in the past. It's also not borne out by circumstances where mandatory sentencing has been effective. I'll give you an example. When the Western Australian state Liberal government introduced mandatory sentencing provisions for assaults against police and other officers, in just a 12-month period—almost immediately—there was a 28 per cent drop in assaults against police. Twenty-eight per cent is an awful lot of difference. That's just one of many examples. To say that there is zero evidence of the value of this sits very uncomfortably with the Western Australian experience as well as with Labor's past conduct.

The other thing we can say about this is that the academic opposition to mandatory sentencing that is often proffered is that it's insufficiently flexible to provide reasons for people to cooperate with the justice system. What's interesting about that is that the arguments about mandatory sentencing that have been brought to this chamber today have ignored the fact that the way these mandatory minimum penalties have been structured in this bill isn't the kind of flat mandatory sentencing that is analysed in the academic context. In fact, this bill provides for considerable flexibility so that there remain incentives for people to plead guilty to their offences, for instance, and for people to not reoffend. Those mandatory elements kick in at the second offence. So it really is a shallow analysis to say that the academic arguments proffered against mandatory sentencing apply here.

Let me explain how it's going to work in this context. If a total sentence is three years or less, a court retains the ability to fully suspend a sentence but only in very limited circumstances—where it is satisfied that there are exceptional circumstances. Those opposite suggest that the removal of flexibility is going to see people refuse to plead guilty because their particular circumstances aren't going to be able to be taken into account, but there is flexibility in the bill for those sentences of three years or less. Those sentences that are of more than three years are the really serious ones, and I'm pretty comfortable that, for very serious child sex offences, a mandatory penalty to be served in custody passes the pub test.

The real-life stories here should be enough to bring tears to the eyes of those opposite, those who are scoffing now at the fact that this stuff is unacceptable. I'll give you an example. A Brisbane man named Gordon Chalmers was an academic, a teacher who connected well with his students. He's alleged to have committed 931 offences against children. His tactics were explained by the police officers involved in that case. He'd pretend online that he was Justin Bieber and strike up a conversation with children—girls as young as 13. One hundred and fifty-seven children fell into his trap. But he wasn't Justin Bieber. He was a polite, bookish, 42-year-old husband and a father of two who allegedly sent messages in the voice of Justin Bieber. He listened. He was a friend to those children online. Then, after isolating them and turning them to distrusting their parents, he'd ask for a naked selfie or a brief pornographic act. He convinced those children to do things they would never have done otherwise, and then, once he had that digital image or video in his hand, he would use it to blackmail them into real-life abhorrent acts. This isn't in any way unique. This is the reality that parents face now.

I'm proud of the work this government's been doing to try and help parents understand what they need to do to protect their children and the role that every parent must play in being vigilant, making sure they know not just what their children are doing online but the ins and outs of how those programs and apps are used. But this isn't a problem that's going away, and this government is prepared to fight it every day of the week.

1:25 pm

Photo of Concetta Fierravanti-WellsConcetta Fierravanti-Wells (NSW, Liberal Party) Share this | | Hansard source

I rise to speak on the very important Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. We must remain resolute in our commitment to protect children from all forms of abuse. As a former chair of Father Chris Riley's Youth Off The Streets and having supported his work over many years, I have seen firsthand the effect of child abuse on young people. Indeed in my maiden speech, on 14 June 2005, some years ago, I referred to Father Chris and his teachings to me that there's no such thing as a bad child—just bad circumstances. And I stated that I had come to understand the resilience of our young against terrible adversity and that a child was abused every 13 minutes across Australia—and we were talking back in 2005—and that the perpetrators of crimes against children and those who protect them deserve the severest of punishments. We must confront and end child abuse and the exploitation of youth once and for all. So fast-forward 15 years, and here we are. Let's not forget that those who are abused do go on to abuse themselves and therefore we need to be strong and decisive in our actions so that this cycle is broken.

In a speech to the National Press Club on 19 February 2020, AFP Commissioner Reece Kershaw spoke about countering child sexual exploitation and abuse and he stated:

Today I want to lift the lid on society's dark secret. I want to shine a light on the ever-increasing online exploitation of our children, by those that seek to do them harm. Deviant and perverted offenders, with global reach, who are using the dark web to evade law enforcement detection and commit heinous crimes against our most vulnerable.

…   …   …

Over a decade ago, the AFP received about 300 referrals for online child exploitation material a year. Last year the AFP had just under 17,000.

Indeed, on 28 May this year, the commissioner made comments which I think are very, very pertinent to our discussion today. He talked about the increase of exploitation because more people were spending more time on the dark web. He says:

People probably don't realise that it's child abuse, it's rape, it's torture. It's horrific. It's not naked young girls or naked young boys. These are people who are being sexually assaulted—sometimes in real time. Those videos are shared. It's absolutely abhorrent. My view is that these individuals are hardwired this way. I personally have not seen any study that says you can be rehabilitated. That means they will continue to offend.

So therefore it's vitally important that we pass this legislation. In commending the commissioner for his comments at estimates on 2 March earlier this year, and most particularly about comments in relation to paedophiles being hardwired, which I agree with, I stated that the current sentences were not keeping up with community expectations. I asked him whether the time had come for higher mandatory minimum sentences for paedophiles, but immediately Senator McKim—and I see him over there—took a point of order arguing that it was outside the scope of estimates, and for good measure Senator Keneally also chimed in on the same point.

Sadly and for too long, people who sexually abuse children have been receiving grossly inadequate sentences. It's time to send a clear message to perpetrators that their behaviour will not be tolerated, and this is why this legislation is so important. It will strengthen Commonwealth laws in order to provide greater protection to the community through deterrence and punishing child sex offenders. It does four broad things. Firstly, there are new offences relating to grooming activities and for websites and online platforms designed to host child abuse material. Secondly, it introduces new aggravated offences for the most horrific types of child abuse engaged in whilst someone is outside of Australia, including where the child is subjected to cruel, inhumane or degrading treatment—the very sort of thing that the police commissioner was referring to. Thirdly, it implements a range of presumptions against bail and presumptions for imprisonment, meaning it will be more likely that child sex offenders will go to prison and stay there longer and it will be harder for them to get bail. Fourthly, it introduces mandatory minimum sentences for the most serious child sex offences and those who are repeat offenders to address the completely unacceptable situation where last year 39 per cent of offenders did not spend a single day in jail.

On the question of mandatory minimum sentencing, this is really what lies at the core of this legislation for the most serious child sex offenders and repeat offenders. I'm concerned that personal beliefs and behaviours may be influencing some judges, and this is reflected in more lenient sentences. I believe the time has come for judges to be positively vetted through some review process before they are appointed to the bench. This will require personal disclosures to ensure conflicts of interest do not arise. Difficult though this may be, I think it is a reform that is necessary.

So let me go back to the bill. It also implements recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse to protect vulnerable witnesses by allowing them to automatically give evidence via a video recorded interview and prohibit cross-examination at committal hearings. The bill complements a broad package of reforms which have already been introduced by the coalition, including tough new measures to stop child sex offenders from travelling overseas to abuse children; Carly's Law, which targets online predators who use the internet to prepare or plan to sexually abuse children; and the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, which implements a number of recommendations from the royal commission and improves the Commonwealth framework for offences related to child abuse material, overseas child sexual abuse, childlike sex dolls, forced marriage, failure to report child sexual abuse and failure to protect children from such abuse.

We hope that those opposite will change tack on this important bill. We know that Labor refused to support this bill when it was brought before the parliament, in 2017, and we know Labor doesn't have the political will to tackle these abhorrent crimes. We know Labor is divided and not focused on passing these changes. On 3 September last year, the Leader of the Opposition said that people who engage in vile acts against children should have the book thrown at them. Right! However, the day after, an article in the Canberra Times entitled 'Labor weighs paedophile mandatory penalties' said:

"Sometimes what it can lead to is less convictions rather than more," Mr Albanese told 5AA Radio on Wednesday.

"Because judges or juries will make the view that because it's mandatory sentencing, all of the circumstances can't be factored in."

This is a nonsensical argument. It is completely at odds with community expectations. Australians are absolutely appalled to hear that, last year, 39 per cent of child sex offenders didn't spend a single day in jail. The community expects that child sex offenders go to jail, and this is precisely what this bill will allow.

We know that the Greens and parts of the Labor Party don't support mandatory sentencing, on principle. As I indicated earlier, both Senator McKim and Senator Keneally tried to shut me down at estimates when I was seeking to pursue the issue with Commissioner Kershaw, so I don't hold out much hope that they will come on board. Of course, as Senator Stoker said earlier, this position only applies when it suits them, given that they legislated mandatory minimum sentencing for people-smuggling offences in 2010, during the failed Labor-Greens alliance government. Does that mean that Labor does not think that child sex offences are as serious as people-smuggling offences? The Australian public, of course, believes that sex offenders are very, very serious and therefore sex offences are very, very serious and should therefore attract the highest possible sanctions.

In the inquiry into the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019, Labor said:

The problems created by removing judicial discretion in sentencing are well attested. As the Law Council of Australia stated in its Discussion Paper on Mandatory Sentencing (May 2014) there is very little evidence that mandatory sentencing increases public safety. On the contrary, the evidence is that it may have the opposite effect. Mandatory sentencing increases the incentive for defendants to fight charges and may increase the risk of recidivism.

This is not true—absolutely not true. When the Western Australian state Liberal government introduced mandatory sentencing provisions for assaults against police and other officers, there was a 28 per cent drop in assaults against police in just a 12-month period.

Those opposite now have the opportunity to right the wrongs of the Shorten Labor opposition and support these important changes. It's incumbent on the Leader of the Opposition to stand up to those people in his party who, because of some ridiculous left-wing ideological position, oppose mandatory sentencing of child abusers. He needs to stand up, and those opposite need to stand up, for Australian families and support this critical legislation so that our community can be protected against the evils of child sexual abuse.

In the time left to me, I would like to return to the speech of the Australian Federal Police commissioner and some of the comments that he made. The reason we need to pass this legislation is to support him and his officers in their efforts. He said:

I want you to know, law enforcement fights for those who can't, we speak for those who can't. And our basic mission is to prevent crime and disorder—but I want to not only prevent, but defeat and eradicate this crime.

The dark web, as the commissioner says, provide anonymity not only for individuals and networks but for whole websites—servers and untold volumes of material. We owe it not just to this generation but to future generations, because of the insidious nature of child abuse. As I said earlier, those who are abused themselves go on to abuse. Therefore, if we don't break this cycle we will be having this debate in years to come. Indeed, in years to come it will be much worse than it is today. So I urge those opposite to reconsider their position and support the government in passing this very important piece of legislation.

1:39 pm

Photo of Claire ChandlerClaire Chandler (Tasmania, Liberal Party) Share this | | Hansard source

Sexual offending against children is as abhorrent a crime as any a person can commit. The public rightly expects that the parliament makes it as easy as possible to catch these predators, prosecute them and put them in jail, where they can't harm children for a very long time. This bill, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019, amends the Commonwealth Crimes Act and the Commonwealth Criminal Code to make a number of improvements to better protect the 'community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders'. These include provisions:

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                          In contributing to the debate on this bill today, I will focus my comments on the measures within the bill which relate to the sentencing of child sex offenders, measures which I strongly believe in and which I am gobsmacked to hear that the Labor Party will seek to remove from the legislation by amendment today.

                          I am one of many Australians who feel that courts across this country have lost their way when it comes to sentencing of child sex offenders. Every week we read of horrific cases of child abuse where offenders get a suspended sentence or six months in jail or just a few years in prison for the rape of a child. These light sentences are wildly out of step with community expectations. They amount to the courts taking a deliberate risk, an unacceptable risk, that a convicted paedophile will abuse a child again in the future. I've spoken previously on the public record about the need for courts to better differentiate between lower-level crimes and perpetrators of the worst category of crimes, like child sex abuse and terrorism—offences where we should not be releasing offenders back into the community just to test a theory that they might be rehabilitated and won't again cause harm.

                          For property crimes or drug related crimes we accept as a community that there is a level of risk when an offender is released, and we tolerate that risk because it is ultimately in the interest of the community that these people are given a chance to rehabilitate, prove they can live within the law and contribute positively to society. This logic of giving an offender a chance has absolutely no place when it comes to terrorists or people who sexually abuse children. I do not accept that a court should roll the dice on the abuse of children by giving a convicted child rapist a second chance. The risk that an offender may abuse another child because the court speculated on their likely rehabilitation is not a risk we should ever accept. It isn't contested that a convicted paedophile is a risk to children after they're released from prison. That's why we have sex offender registers that record where these offenders live. Those registers are not an academic exercise. They are there to record the names and locations of people we know to pose a risk of abusing children again.

                          What kind of system is this, where we catch a person who abuses children, convict them in court and then let them out again while acknowledging they still have a high risk of harming another child? The only time when we can be sure that convicted paedophiles won't harm children is when they're in prison. Yet the courts consistently pass up the opportunity to apply anywhere near the maximum life sentences, even for the most horrific examples. The difference between an offender walking free from court after being found guilty and an offender receiving a seven-year mandatory jail sentence—which this bill provides for, with a number of offences—is over 2,500 days, during which a predator is in the community and has the opportunity to inflict more abuse on children.

                          This is not a hypothetical scenario. Evidence presented to the Senate inquiry conducted by the Legal and Constitutional Affairs Legislation Committee, of which I am a member, showed that, according to one study, 20 per cent of child sex offenders were caught reoffending again within six years, and that's just the ones who were caught and convicted. So, in at least one in five cases, letting a child sex offender walk free can be expected to result in more children being abused, and this should be utterly unacceptable to us as a nation. We know that the rate of convictions resulting in custodial sentences is low, meaning many child sex offenders are released straight back into the community. From 1 February 2014 to 31 January 2019, 40 per cent of sentences for Commonwealth child sex offences did not result in a custodial period. For those offenders who did receive a custodial sentence during this time, the most frequent custodial period recorded was just six months. Again, this is completely unacceptable, and something must be done. That's why we need mandatory sentencing for child sex offenders.

                          Personally, I hope that the provisions in this bill are just the first step towards a complete recalibration of sentencing for child sex offenders in this country. People who rape and sexually abuse children are the worst of the worst, alongside terrorists, murderers and rapists. And, far from a reduction in the sexual abuse of children, instances of child sex crimes are escalating dramatically. Last year, the Australian Federal Police received almost 18,000 reports of child exploitation involving Australian children or Australian child sex offenders. This number has almost doubled from the previous year. That's ample evidence that current sentencing does nothing to deter people from committing these crimes. Eighteen thousand reports of child abuse—sadly, there would be an equally disturbing number of cases which aren't reported.

                          Having sat through two Senate committee inquiries into sex offence crimes, I can list several arguments used against mandatory sentencing for sex offenders which I find to be particularly spurious. The first of these arguments—and this is the one most commonly brought up by legal groups and by the Labor Party—is that there isn't evidence to show that tougher sentencing will deter people from committing these crimes. We've had an increase of almost 100 per cent in reports of child abuse, and you don't want to even try and send a stronger deterrence message? Surely any attempt to increase deterrence is worth a try. What's the downside? That paedophiles spend longer in jail? Good—they deserve to. Deterrence is certainly not the only reason, or even the main reason, to implement mandatory sentencing. In my view, the No. 1 reason for mandatory sentencing is the increased community protection from having predators behind bars for a significantly longer period than we're currently seeing. A paedophile can't harm a child while they're in prison; when they're out of prison, they can. It's that simple.

                          Another spurious argument against mandatory sentences is that reoffending after release somehow proves that prison is contributing to the reoffending. I find this a completely backwards argument. If a paedophile reoffends after leaving prison, that demonstrates that the community would have been much safer if that person had still been behind bars. Courts should not be gambling on the assumption that paedophiles might learn their lesson and see the error of their ways. The consequence of them being wrong is another child being abused, when their abuser could've been in jail. Community safety and, most importantly, the safety of children must always come first.

                          That's why this government is legislating for additional mandatory jail time for a second or subsequent conviction for child sex offences—an important step. I note that the organisation Bravehearts has advocated for consideration being given to introducing mandatory life sentences for persistent offenders. I certainly support that proposal—most importantly, at the state level, as states have jurisdiction over so many of the most serious forms of child abuse. And, if the courts are giving weight to the chances of rehabilitation, why does the evidence show that current sentencing practices are delivering sentences too short for offenders to even complete the rehabilitation programs that they're offered in prison? The most common sentence, of six months, is not long enough to complete or even commence rehabilitation programs, according to state correctional services. The effectiveness of rehabilitation programs for child sex offenders is doubtful, and I don't think we should be relying on their effectiveness, but it has to be better that offenders are in jail long enough to complete a rehabilitation program rather than being released before the program finishes.

                          I want to conclude my contribution today by reflecting on the views of victims of child abuse—people who deserve to be listened to because they know, more than anyone, the damage done by these heinous predators. The Senate Legal and Constitutional Affairs Legislation Committee inquiry into this bill heard that it is the common view of survivors that sentences for child sexual offences should be more severe and survivors report feeling let down after the stress and, often, trauma of the trial process. We heard that it is especially difficult for survivors when actual imprisonment is not imposed. The Carly Ryan Foundation submitted that:

                          Current sentencing for these and other appalling crimes against children is currently completely inadequate in each state often resulting in suspended sentences or sentences delivered of only a few months. The Australian community expects our legal system to deliver justice for such inexcusable and horrendous crimes against children and those victims of crime deserve this justice given the life long suffering endured if the victim survives the offence committed against them.

                          Victims of abuse deserve better. Victims of abuse deserve justice. They deserve to know that it will be a very long time before their abuser is back in the community. Most of all, those who are yet to come forward deserve to know that if they go through the pain and trauma of reporting their abuse then it will be worthwhile, and they won't see their abuser found guilty and convicted yet walk free from the court or just get a slap on the wrist of a six-month sentence.

                          That's why I'm so disappointed that Labor are seeking to deny justice to the victims of child sex crimes by removing the mandatory sentencing element from this legislation with their amendment today. In a democratic society, it is the job of elected parliaments to make laws, including sentencing laws. The constant suggestion that it's inappropriate for us in this place to make laws which reflect the views of the community because this limits judicial discretion is a tiresome misrepresentation of the role of democratically elected parliaments. We have courts and judges to apply the laws, not to make them. That's our job. So, to those who say we can't implement mandatory sentences for paedophiles because it implies that the community doesn't have faith in the courts to hand down adequate sentences, I say this. I can assure you that, when 40 per cent of convicted child sex offenders don't spend a day in prison, the community does not have faith in the way courts are sentencing for child sexual abuse. Now is the chance for this parliament to do as the community expects and send the strongest possible message that child sexual abuse is the most abhorrent of crimes and the perpetrators should be put behind bars for a long time, every time. I commend the bill to the Senate.

                          1:54 pm

                          Photo of Alex AnticAlex Antic (SA, Liberal Party) Share this | | Hansard source

                          I rise to speak in support of the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. The Australian Institute of Health and Welfare annual report on child protection last published in 2018-19 noted the following: 171,300 investigations were conducted for 115,700 children in 2018-19. Sixty-two thousand seven hundred claims of child maltreatment were substantiated for 47,500 children. In 2018-19, emotional abuse was the primary type of abuse substantiated for children, at 54 per cent, followed by neglect at 21 per cent, physical abuse at 15 per cent and sexual abuse at 10 per cent.

                          Too often our children, the victims of these crimes, are seen as just a statistic. The bill before us today ensures that these children will not be just a number on a page. The Morrison government sees these victims and their families, who are devastated by these monstrous crimes, as more than just a statistic. Each number represents a child, a family unit or a community group that is forever scarred by this offending. What is gut-wrenching is that the full prevalence of child sexual abuse, both domestically and internationally, is largely unknown. But this bill is a commitment from the Morrison government to protect children from sexual abuse.

                          Too often do we hear it alleged that the perpetrator has reformed or that they have learnt their lesson from their actions and therefore deserve a lesser sentence. But these children and their families get a life sentence, and they are left with the scars and left to pick themselves back up. From the moment of those unforgivable and inexcusable acts, the lives of these individuals are changed forever. No matter how hard they try to pick up the pieces, it will never be the same.

                          South Australians will remember the harrowing story of the 'two masked brothers' matter, a matter that was watched closely by the local community in South Australia. They will recall the masked brothers, who were victims of an abuser, and they will remember their advocacy regarding child abuse and the field of innocence on Montefiore Hill in Adelaide. The offender was found guilty of nine counts of indecent assault and one count of unlawful sexual intercourse against three boys aged between 14 and 16 and was sentenced to six years imprisonment, with a two-year non-parole period, back in 1996. The offender was released in 1997 after the sentence was backdated to commence from the date of arrest. In 2018, the offender was again charged with and pleaded guilty to six counts of offences of a sexual nature against children, and in this instance the offender was sentenced to six years, seven months and six days imprisonment for those offences committed against the two brothers. The offender filed an appeal to serve out his sentence in home detention, claiming that there was no longer an appreciable risk to the safety of the community, due to advanced age and self-reports of diminished libido and sexual interest. The appeal was ultimately dismissed, and the offender now serves a custodial sentence. As you can imagine, Mr President, this case caused great angst throughout the community in South Australia, and it is a stark reminder of why it is that we need strong legislation in place, because the masked brothers were real people whose lives had been turned upside down by this offending. A victim gets a life sentence, and this is why we need strong legislation for these types of offences.

                          I use this as an example, as the community expects strong action in relation to such heinous offending, and I share this story to remind us that every single number in those statistics amounts to a life that has been forever changed. According to the Australian Bureau of Statistics' most recent personal safety survey, in 2016, an estimated 7.7 per cent of Australians had experienced childhood sexual abuse before the age of 15, with the average age at which the abuse started being approximately eight years old. Of the 1.4 million survivors of abuse in Australia, the majority knew the perpetrator and experienced multiple incidents. Last year, the Australian Federal Police received almost 18,000 reports of exploitation involving children or Australian child sex offenders, and this number has almost doubled since the previous year. This parliament must show that this behaviour—

                          Debate interrupted.