Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

I too would like to make a contribution on the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. Just before the member for Wide Bay leaves us, I would like to acknowledge his service as a most respected Queensland police officer—no doubt much of the contribution that he has just made probably comes from experience. That is not to say that I fully agree with all of his submissions about mandatory sentencing, but, nevertheless, I put on record our appreciation for the work our police do in keeping our community safe.

I want to make a contribution on this bill because, firstly, I want to ensure that there is no misapprehension that Labor supports the objectives of this bill. We are willing and able to work with this government on measures that best achieve the protection of children in our communities. Sex crimes against children are abhorrent to any of us, as parents or, in my case, as a grandparent. There should be an absolute abhorrence throughout our community of sexual and physical violence being brought to bear on any child. Children are—let's face it—one of the most vulnerable groups in our community, so every child deserves our protection and our support. Quite frankly, there is nothing more sickening than sexual abuse of children, and we have no tolerance for that. For members opposite and all those within the community, this is just something that you cannot rationalise. You cannot go about and try to put a positive aspect on anything associated with child sexual offences. Yes, we want to see paedophiles behind bars—no question about that. It's a matter not only of safety for the victims but of safety for the community at large that paedophiles be removed from our community and do not have the ability to spread their evil endeavours.

This debate shouldn't be one of pointscoring. People shouldn't be coming into this chamber and thinking, 'This is a form of wedge politics; this is something that we can get Labor on.' Labor does have a long history of opposing mandatory sentencing, and I'll come back to that. Many of the reasons why I personally came to that view, as I have expressed with my colleagues, come from my time in the police force, where I also expressed my concerns about minimum sentencing and its impact on trials and our criminal justice system. So, as I say, this is not about pointscoring.

Sex crimes against children destroy lives not only for the victims but for their families. For far too long we have seen individuals commit these vile offences, and they are handed sentences which, certainly in the minds of many in the community, are grossly inadequate. I understand that, and I also understand that people have been released on bail without proper rehabilitative requirements or without the necessary supervision. To some extent I do sympathise with the police, because they are coming under many, many supervision orders now, without any increased funding to our state and territory police forces to provide that role of monitoring and keeping people safe in that respect. We must ensure that the sentences that are handed down are appropriate to the gravity of the offence committed. It is not an issue that should be dealt with lightly. It's an issue that demands that community expectations, particularly when associated with sexual crimes against children, be met.

This bill also targets the inadequacies of the current legal framework in terms of new and emerging technologies. This is something that I just can't get my head around. I'm not a tech head in the first place, but I am seeing and hearing reports from many of my colleagues, particularly those currently serving in the police, about what technology has opened up for people to be able to abuse children, particularly children in other countries. This is something I think is just such a vile abuse of those technical aspects that we have in our lives today.

I reiterate: Labor will always fight to protect children here and overseas from the exploitative and abusive endeavours of those, hopefully, few people in our community. Labor has had a pretty positive record when it comes to protecting children under the Keating, Rudd and Gillard governments, which includes introducing in 1994 world-leading offences targeting Australians who engage in sexual abuse of children overseas; bringing state, federal and territory governments together in 2009 to implement the National Framework for Protecting Australia's Children, and including in that the provision of Commonwealth funding; the introduction of new child abuse preparatory offences and other protection measures in 2010; the appointment in 2013 of Australia's first National Children's Commissioner to advocate for the rights of Australian young people; introducing the vulnerable witness act in 2013; and most notably, as everyone will recall, the establishment under the Gillard government of the Royal Commission into Institutional Responses to Child Sexual Abuse, the first inquiry of its kind at a national level. I think we have demonstrated our commitment. It's not about putting a political point on it—it is simply our commitment to ensuring that community expectations, when it comes to violence and the sexual abuse of children, are met.

This bill will make a number of changes to Commonwealth laws relating to child sex offenders. The changes cover areas such as sentencing, custody, bail, rules of evidence, parole and rehabilitative treatments. I don't intend to go into detail on many of these aspects of the bill, but I would like to take the opportunity to raise my concerns about mandatory sentencing. In this place I've spoken a number of times about mandatory sentencing in the criminal justice system, but, certainly, I haven't spoken about it with respect to schedule 6 as it currently appears in this bill. To apply mandatory sentencing, we need to have a view about what impact it will have on the criminal justice system referring to jury trials. Is it possible, which I've argued previously, that this could actually lead to lesser charges being preferred against an accused and pleas being taken? We don't want this being referred into some form of plea bargaining system.

Labor has a longstanding opposition when it comes to mandatory sentencing—one that I personally agree with. The Law Council of Australia also agree with that position. They put it very succinctly: 'The imposition of mandatory minimum penalties upon conviction for criminal offences imposes unacceptable restrictions on judicial discretion and independence, and undermines fundamental rule-of-law principles and human rights obligations.' As such, mandatory penalties necessarily undermine the discretion of judges to ensure that the penalties imposed are proportionate to the crime. Mandatory penalties are also often discriminatory in practice and conflict with the actual role of the judiciary, which we pride ourselves on in Australia—our judiciary certainly being independent from the role and control of government. It's fundamental to our operation of criminal justice.

Furthermore, the Law Council go on to talk about how mandatory sentencing can result in unjust outcomes; fails to prove effective in reducing crime; potentially increases the likelihood of recidivism; and can undermine the community's confidence in the judiciary. They also go on to talk about how mandatory sentencing can reduce and remove the incentive for defendants to cooperate with police and law enforcement agencies. I don't want to get into how that comes about, but many of us who have worked in the legal system know that modern policing is all about intelligence gathering and securing proper prosecutions of a wide group of offenders, and that may require agreements to be made. This would cut across that aspect, and may see a wider group of offenders flee prosecution.

The Standing Committee for the Scrutiny of Bills noted that the objective of the measure is to ensure the courts are handing down sentences:

… 'that reflect the gravity of these offences and ensure that the community is protected from child sex offenders' …

We fully agree with that. They go on to say—and I have not necessarily done my own research:

… current sentences 'do not sufficiently recognise the harm suffered by victims of child sex offences' or 'that the market demand for, and commercialisation of, child abuse material often leads to further physical and sexual abuse of children'.

I am prepared to accept it, as I say, without having done my own particular research.

Apart from issues in terms of the domestic legal principle, the mandatory sentencing measures proposed in schedule 6 of the bill invite consideration, as they necessarily do, of article 9 of the International Covenant on Civil and Political Rights—to which Australia is a signatory—which protects the right to liberty, including the right to not be arbitrarily detained. In other words, we need to make sure that people are, firstly, properly indicted and, secondly, prosecuted for a particular offence in accordance with the law.

Depriving an individual of their liberty must be reasonable, necessary and proportionate in all circumstances in order to avoid being considered arbitrary. As consistently noted by the Parliamentary Joint Committee on Human Rights: 'Mandatory sentencing may lead to disproportionate or unduly harsh outcomes, as it removes the judicial discretion to take into account all the relevant circumstances of a particular case.' Mandatory sentencing involves a risk that the application of a mandatory minimum sentence may not be reasonable or necessary for, or proportionate to, an individual case.

As its record suggests, Labor is committed to doing what it can to protect children from harm and abuse. We wholeheartedly support the objectives of the bill. We certainly have no tolerance for child exploitation of any form. I think it is important, nevertheless, that we make every effort to ensure that the integrity and independence of our criminal justice system are maintained—certainly the integrity and independence of our judiciary. Nothing can interfere with the role of a commissioned juror in making what is fundamentally their position, which is to determine guilt or otherwise. I fear mandatory sentencing will also impact on the role of the jury insofar as not only will they decide guilt or otherwise but a juror will know, as they are making their decision, that they are in fact imposing the sentence. That may impact on their thinking and their deliberations as a jury, hence why I think we need to move to protect the integrity of our criminal justice system.

See this speech in context