Tuesday, 16 June 2020
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019; Consideration of House of Representatives Message
It's quite unusual for the government to make this suggestion in a motion immediately after the minute, before the Senate has had an opportunity to consider, at any length at all, the position of the House and the request from the House. We know that, in the other place today, Labor backflipped and abandoned its opposition to mandatory sentencing.
Government senators interjecting—
I can hear some interjections from coalition senators here saying that that's exactly what the Labor Party should do. I'll address this in more detail when we get into the committee, but I want to simply make the point here that this is an unseemly haste from the government. I expect that the Labor Party is going to support this motion because it's embarrassed at its backflip—and so it should be embarrassed at its backflip, because the backflip that Labor is engaged in here today, firstly, is in direct contravention to its own policy. Labor's policy says this: 'Labor opposes mandatory sentencing'—and so Labor should oppose mandatory sentencing. So Labor did oppose mandatory sentencing yesterday in this parliament, when it joined with the Australian Greens and members of the crossbench to reject the mandatory sentencing provisions of this legislation. Yet here we are today with Labor having backflipped in the House and supported the mandatory sentencing provisions of this legislation, and now, I have no doubt, Labor will be helping the government to ram this legislation through the parliament today.
Let's be very clear about what this legislation will do should it be successful, which it now will be thanks to this appalling backflip and walk away from its own policy by the Labor Party. It will place at significant risk teenagers in Australia engaging in what, over human history, has been quite normal teenage behaviour.
Senator Pratt interjecting —
I'll take that interjection—I don't know whether Hansard picked it up—from Senator Pratt—
Thank you, Madam Deputy President. I will address these matters once we go into committee, but I'm making the point that the sooner this legislation goes through the parliament—which it now will, thanks to the Labor Party—the higher the risk that teenage people in Australia will be sentenced to four, five, six or, in some cases, seven years imprisonment for engaging in what through human history has been relatively normal teenage behaviour. The only rebuttal that the government has to this allegation is that we can all relax because there is prosecutorial discretion and prosecutors will not prosecute if it is not in the public interest to do so. I say to the government and to the Labor Party: tell that to Mr Bernard Collaery, tell that to Witness K and tell that to the innumerable whistleblowers that have been prosecuted in this place.
That the committee does not insist on its amendment to which the House of Representatives has disagreed.
In doing so, I urge the Senate not to insist on its amendment. This amendment, if insisted upon, would remove schedule 6 of the bill, which provides for mandatory minimum sentences for child sex offences that attract the highest penalties and for recidivist child sex offenders who have previously been convicted of a child sex offence.
Current sentencing practices for Commonwealth child sex offences are resulting in manifestly inadequate sentences that do not sufficiently recognise the harm suffered by victims of child sex offences or provide for adequate rehabilitation time in custody. Between 1 February 2014 and 31 January 2019 approximately 40 per cent of Commonwealth child sex offenders were not sentenced to spend a single day in prison. In the last five years the most common length of imprisonment for a Commonwealth child sex offence was 18 months, with the most common non-parole period or fixed term period being six months or less. Many sentences for Commonwealth child sex offenders are applied on the basis of being manifestly inadequate. The mandatory minimum provisions provided for in schedule 6 are necessary to achieve the bill's intent of ensuring that sentencing for child sex offences is in line with community expectations.
To reiterate, the provisions do not impose mandatory non-parole periods. Judicial discretion is maintained on setting the minimum period in custody, and minimum penalties can be reduced where an offender pleads guilty and cooperates with law enforcement agencies. The mandatory sentencing provisions of this bill do not apply to offenders who are under 18 when they commit an offence. I repeat this: the mandatory sentencing provisions of this bill do not apply to offenders who are under 18 when they commit an offence. I urge the Senate to not insist on its amendment to remove schedule 6.
As I outlined in my second reading speech in the original debate on the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019, there is a lot that this bill gets right and Labor will always work with MPs and senators from all sides of politics to strengthen our laws to protect our children. Nothing should get in the way of this objective. There is nothing more sickening than child sexual abuse. 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.
From the very beginning, Labor have signalled our strong support for the key measures in this bill, including: significant increases to maximum penalties; the introduction of a presumption against bail for serious Commonwealth child sex offences; the replacement of the existing definition of 'child pornography material' with a broader definition of 'child abuse material' in various acts; and the introduction of new grooming offences. Given our support for those measures, Labor also made it clear that we would support this bill whether our amendments succeeded or failed. That is what Labor did in the Senate last night: Labor supported the bill. For that reason, while we maintain our opposition to mandatory sentencing—because it doesn't work and makes it harder to catch, prosecute and convict criminals—we will not insist on our amendments. Protecting the welfare of children will always be Labor's overriding priority and concern.
Given some of the commentary over the last 12 hours, I'd like to conclude by reading a statement from Sonya Ryan, the founder and CEO of the Carly Ryan Foundation. This statement was issued this morning, and it is something that all of us in this place and in the other place should reflect on carefully. The statement reads as follows:
"This bill will genuinely help so many people and so many victims of crime.
"There is no question that we want child sex offenders put away for a long time and off the streets, this is an absolute given. As a mother who has lost a child through the actions of a heinous child sex offender, I implore all sides of government work together, compromise and pass this bill as soon as possible with or without mandatory sentencing."
Victims of crime, innocent children, the Australian community are looking for leaders who will stand up for those who cannot defend themselves, who put political battles aside for the greater good of humanity, who are able to push their egos aside and do what's right.
As we see it there are two practical options;
1. Pass this legislation with mandatory—a review in three years.
2. Pass this legislation without mandatory—work with the judiciary to increase sentencing overall and make sure adequate sentences are being applied—a review in three years.
Either way our children win. This is a huge step in the fight against those who wish to harm families.
On that basis, I commend the bill to the Senate.
If I could first address the matter I've spoken to Senator Cormann about—that is, to acknowledge that the government did inform our team that this matter would be proceeded with now. That message did not make its way to us in the chamber due to a technical issue, so that's the reason we voted against the previous motion put by Senator Cormann. We in the Australian Greens don't want this bill to be unnecessarily held up, because we share the view just espoused by Senator Watt that there is a lot in this bill, as I said in my second reading contribution yesterday, which is meritorious and which is supported by the Australian Greens. Now that the government has shifted its position and accepted the necessity of a three-year review into that legislation, that has taken care of one of the concerns that the Greens articulated yesterday and was encapsulated in one of the amendments that we put yesterday.
However, unlike the Labor Party, we still believe and stand to our position that mandatory sentencing should not be in this legislation. That's because it creates the very real potential for miscarriages of justice. I accept the assurance Senator Cormann has just given, which was also given by the government yesterday, that people under the age of 18 will not be caught by the mandatory sentencing provisions in this bill. However, you can be a teenager and still be over the age of 18. If a teenager just over the age of 18 engages in various behaviours that are caught by this legislation with a partner who is under the age of 16, even by one day, then that person who could just be one or two days over the age of 18 will be caught by the mandatory sentencing provisions of this legislation.
It is absolutely critical to the Australian Greens that judges be left to impose sentences based on their consideration of the merits of each individual case which comes before them. That's why we pay them the big dollars. That's why we have an independent judiciary—so that justice can be done. We retain the concern that we articulated yesterday—that this will create the very real possibility of significant miscarriages of justice and will result in teenage Australians being imprisoned for, in some circumstances, seven years, with judges being given no real discretion to reduce those sentences except in the case of a guilty plea, which can only reduce the sentence by 25 per cent under the provisions of this legislation.
We do not believe that the Senate should not insist on its amendments. We believe that the Senate should insist on its amendments. The government could then accept that in the lower house and have the rest of this bill passed today, if the government was so minded. So this is not delaying the enactment of this bill or the royal assent to this bill in any way whatsoever. If the government would simply remove its ideological commitment to mandatory sentencing, this matter could proceed. We could remove the only elements of this bill that are now not supported by the Australian Greens—the mandatory sentencing provisions—and the rest of this legislation, which has the full support of the Australian Greens, could pass through the parliament today.
The CHAIR: Before I put the motion, I am assuming that all senators standing are participating in the vote. The question is that the committee does not insist on its amendments.