Clare O'Neil (Hotham, Australian Labor Party) Share this | Link to this | Hansard source

All of us in this House have in our lives children who are important to us. I am the mother of one- and four-year-old boys who are the centre of my existence, and I'm a former foster parent. The welfare of Australian children is one of the driving passions of my life, as a person and as a politician. I talked about this in my first speech. Every time a child in this country is abused, harmed by another person, this parliament has failed. It is our job to protect them. That much should be beyond debate. But we fail far too often. The sexual abuse of children is abhorrent. It sickens me and it sickens everyone in this parliament. I believe, and Labor believes, that the people who commit these crimes must be punished. Most sex crimes are state offences, but as a Commonwealth parliament we play an important and growing role in protecting Australian children. We are responsible for offences that relate to telecommunications and offences that occur overseas, and it is child abuse occurring in these contexts that is the subject of most of this bill, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017.

I have the great privilege of working with a lot of organisations within my portfolio area that protect Australian children. One of them is the Alannah & Madeline Foundation. You would remember Alannah and Madeline. They were three and six years old when they were tragically killed in the Port Arthur massacre. The organisation that is their namesake was created by their very brave father, Walter Mikac. The CEO of that organisation is fond of saying that protecting children on the internet is the defining child protection issue of our age, and I don't think any parliamentarian or any parent in the community would have a different view about that. The reality is that children today face dangers that didn't exist 10 years ago. They didn't exist when any of us in this chamber were children. These changes are not academic. They are not the invention of tabloid newspapers. They are absolutely and completely real.

In this country we are seeing massive growth in the number of people who are viewing and sharing child abuse images. Indeed, the volume is so large that the Federal Police do not have the ability to investigate and prosecute more than a very small proportion of perpetrators. The Australian Federal Police receive more than 10,000 reports of child exploitation every year, and we know that that number is growing every year—and they are just the offences that we are aware of. We are seeing incredibly disturbing trends with how the crimes in this area are changing on the internet. We're seeing sexual predators target children to produce abuse materials themselves on apps that many of the children of people in all of our communities use—things like Snapchat and musical.ly. We are seeing the growth of absolutely disgusting trading and selling of child abuse materials on the dark net. We are seeing a growth in the use of FaceTime and Skype to target the abuse of children who are living in poor countries right throughout our region. The Philippine National Police receive over 6,000 cybersex abuse case referrals every month from other law enforcement agencies around the world.

I want to take a moment to mention the men and women working in the Australian Federal Police who have to review, handle and classify this material when they go to work every day. I cannot say how strongly I commend the bravery of the officers who undertake this work. It is so difficult that the Australian Federal Police officers who do it have to work constantly in pairs—they're not allowed to work on this alone—and they have to have regular psychological check-ups. I know from talking to Australian Federal Police officers that the sole reason they go to work to do this, frankly, traumatic work every day is that they care so deeply for the children who are at the other end of these images. I know we speak as one voice as a parliament when we say how much we truly appreciate the efforts of those officers.

Labor believes that, due to these extensive changes in the way that child abuse is proliferating online, there is a need to review the law in this area. That is why the opposition will be supporting this bill, with some amendments. I want to talk about some of the areas that we believe are particularly worthy of support in this bill. One of those is the additional supports that this law will provide to vulnerable witnesses. In this context, of course, we're referring mainly to children who are going to sit in court and testify against adults who are older, who are stronger and who are much more powerful than they are. Those children exhibit incredible bravery in their willingness to tell their stories to try to prevent further abuse of other children. They deserve every protection that the law can provide to them, and we are very pleased to see some improvements made in the bill before the House in this area.

We are supportive of the new grooming offences that are contained in the bill, and we're supportive of the clarification this bill provides on the scope of some of the child sex offences that are contained in the Criminal Code. We also support the change in the terminology that is contained in this bill. The bill changes the words that we use to describe the material in question to 'child abuse materials'. This may sound like a small thing, but it is absolutely not. We talk often in the public realm about this problem being called child pornography, but that does not recognise the seriousness and the abject criminality that is at the heart of these images. These images harm children in their creation. But every time these images are accessed and every time they are viewed, there is an additional violence and an additional abuse being undertaken. That is because, every time those images are looked at, there is further humiliation done to that child. Every time those images are looked at, there are citizens of this country who are doing something to support an industry which only thrives and survives on the abuse of some of the most vulnerable people in our community.

Labor is of the view that the crimes contained in this bill are so horrendous that there are in fact some areas that need a much tougher approach. I want to talk about some of the amendments that Labor will be making to this bill to make sure that the paedophiles who are harming children are locked up for as long as we can manage. Child sex abuse which involves subjecting the child to cruel, inhumane or degrading treatment, or which causes the death of that child, is barbaric. We want courts to be able to lock up people who commit this horrendous crime—really, what must be the worst crime that can be committed. We want judges to have the power to put those people away for life. Labor will move amendments in the Senate to bring in life imprisonment for aggravated sex offenders.

Labor will be moving further amendments to increase the maximum sentences for the most serious child sex crimes by five years, to 20 and 25 years imprisonment. We believe that predators who go overseas to prey on and abuse vulnerable children should face tougher penalties than those the government has proposed. Labor are particularly sickened by the examples that we are aware of where vile website moderators encourage other people who are part of these horrendous networks to commit crimes against children. People who incite violence and cruel, inhumane or degrading treatment against children deserve further punishment. They are the despicable ringleaders of these child abuse networks. They facilitate the production and distribution of sometimes sadistic and brutal material, and courts must be able to punish them appropriately. Labor will be moving amendments to add aggravated offences to target these vile criminals. We will also target offenders who play a role in coordinating, organising or inciting other people's participation in these most serious sex offences with new aggravating sentencing factors. We want child sex offenders to be appropriately punished and we want to focus on the worst offenders because bringing them down is critical to stopping the proliferation of these absolutely sickening crimes.

Labor have looked at and tackled this bill with only one issue in mind, and that is the protection of children. That is our only goal here. The government's bill contains mandatory minimum sentences, and this is the only section of the bill that we will oppose. We will do that because these sections of the bill will not make Australian children safer. We made this decision very thoughtfully and with extensive expert advice. There is almost a uniform view in the law enforcement and legal community that this is a legal device which will not further protect Australian children—indeed, it may have the opposite effect. Prosecutors are opposed to this measure, and the Law Council and just about every other organisation like them are opposed to it. In fact, the Attorney-General's Department, part of the government that sits on the other side of the House, is also opposed to this measure. Mandatory minimums let guilty people off the hook because juries are less likely to convict them when they know there is no discretion about the sentence. Mandatory minimums mean that criminals will not cooperate with police to bring the kingpins who run these networks to justice. I don't want paedophiles on the street—I've got two children; I shouldn't need to say that. I don't want to put people away for five years—I want to catch the kingpins who are the drivers of this disgusting behaviour and I want judges to be able to put them away for life. That is what Labor's amendments will allow for.

One of the additional issues in this bill is that the mandatory minimum sentences will have very significant unintended consequences. As the bill stands, schedule 6 would attach a mandatory five-year jail term to an 18-year-old in a consensual relationship with a 15-year-old. I want to make that clear to people listening. What the government is proposing would mean that an 18-year-old in a consensual relationship with a 15-year-old would end up in jail for five years. The Law Council has provided examples of some of the behaviour that they believe will be captured by these provisions. One of them is an 18-year-old and a 15-year-old who go on a school trip together. They might be year 10 and year 12 students. They engage in sexual activity overseas. Under this bill the older person in the relationship would be up for a mandatory five-year jail term. That means the judge has no discretion about whether that punishment fits the crime. We are speaking here about 18-year-olds and 15-year-olds who are engaged in sexual activity over Snapchat. This is something that a lot of teenagers do. The Law Council points out that this behaviour between a 15-year-old and a 17-year-old in a consensual relationship is perfectly legal. On the day the older person turns 18, suddenly that person has committed a range of federal offences and will go to jail for a minimum of five years. These are crimes. A consensual sexual relationship between a 15-year-old and an 18-year-old is a crime; I don't devalue that. But does the Minister for Justice really believe that the young people in this relationship belong in jail for five years?

I want to return to the bill at large. I do believe that this parliament needs to send a clear message that the sexual abuse of children is absolutely intolerable and that not only is it intolerable but also this parliament universally regards this as the most heinous crime that can be committed. We will be supporting this bill and we will be strengthening it. We want to send paedophiles to jail for longer. I say that as the parent of two young boys who are right in the age of target for these horrendous criminals. Labor have and always will fight to protect children here and overseas. Indeed, we have a long history of acting to protect children in this way. It was Labor, under former Prime Minister Paul Keating, that introduced some of the first offences that targeted those who sexually abused children, and those were world-leading laws at the time.

The previous Labor government did extensive work in this area. One example is the establishment of the Royal Commission into Institutional Responses to Child Sexual Abuse. That was the first inquiry of its kind at a national level. One of the most important roles of that royal commission, which is still underway, is understanding this problem better and providing advice to this and other parliaments around the country about what we can do to improve the law in this area, and we will be keenly awaiting their final report to consider further law reform.

Labor wholeheartedly support the object of this bill. We have no tolerance for child sexual abuse. But we believe this bill needs to contain even stronger messages of condemnation for these horrible crimes. We will be pleased to support this bill with strengthening measures in the Senate.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to this | Hansard source

Labor have always fought to protect children in Australia and overseas from abuse and exploitation. We have a strong record on protecting children from child sexual abuse. Labor first introduced world-leading offences, targeting Australians who engage in the sexual abuse of children overseas, in 1994. Labor established the Royal Commission into Institutional Responses to Child Sexual Abuse when we were last in government. And Labor appointed Australia's first national children's commissioner to advocate for the rights of Australia's young people in 2013.

All members of this parliament know that the sexual abuse of children is vile and disgusting. Children are the most vulnerable members of our society and we must do all we can as legislators to protect them. Labor are and always have been tough on paedophiles, but we want to do it right and make sure that offenders are properly imprisoned and kept away from harming vulnerable children. The government's bill aims to protect children but it doesn't go far enough. It's Labor's priority to ensure that those who prey on vulnerable children get the punishment they deserve through the justice system. And we want to make sure the punishment for child sex offences acts as an appropriate deterrent to prevent abuse from occurring in the first place.

Labor welcome several aspects of this bill but we want it to be tougher and more effective. That is why we will be seeking amendments in the Senate to ensure that offenders are appropriately punished. We will be moving amendments that will ensure that child sex offenders are appropriately punished and amendments that we hope will improve the effectiveness of the criminal justice system. We want courts to be able to lock up the worst offenders for life. We want to see higher maximum sentences available for courts to hold perpetrators accountable. We want to make sure that people watching child abuse remotely are covered by the existing offences. People are watching child abuse material through webcams and live streaming, so we need to make sure our laws are keeping up with the pace of technological change.

We will also be proposing new aggravated offences for people who incite or direct the production of child abuse material. There are vile people who can be found lurking in chatrooms and encouraging people to create new child exploitation material. It's a truly disgusting practice and we need to act to stop it. Labor will also be moving amendments that will improve protections for children. If a person engages in sexual intercourse or activity with a child outside Australia, they may be able to rely on the defence of marriage under the Criminal Code. Both the Law Council of Australia and Anti-Slavery Australia have called for this defence to be removed from the Criminal Code.

Labor also takes issue with schedule 13 of the bill, which relates to national security. Schedule 13 would allow information to be withheld by the Attorney-General where, in the opinion of the Attorney-General, it is likely to prejudice national security. These provisions go beyond the stated purpose of the bill and are of general application. If the government wishes to proceed with this general national security measure, it should be introduced as part of the bill dealing with national security matters and referred to the Parliamentary Joint Committee on Intelligence and Security for review in accordance with the usual practice of this parliament. There are also a number of concerning aspects of this bill, and Labor will be moving amendments to address these. In particular, the bill introduces a mandatory sentencing scheme for a large number of child sex offences, and my colleague the member for Hotham, the shadow minister for justice, has already spoken eloquently in relation to these matters.

This bill would apply mandatory minimum sentences for what the government has defined as 'the most serious Commonwealth child sex offences' and 'all Commonwealth sex offences that are a second or subsequent offence'. There are no exemptions for persons who may be significantly cognitively impaired. Mandatory minimum sentences are not the solution to Australia's crime problems, they're not the solution to Australia's gun problems and they're not the solution to child sexual abuse. There is no evidence that mandatory minimum sentences act as a deterrent. In fact, they actually make Australia's criminal justice system less effective, because they make juries less likely to convict. Perpetrators who should be convicted may escape punishment altogether. Juries may decide not to convict, even though they think they're guilty, because they may not want to inflict on an offender a sentence they think is disproportionately harsh based on the circumstances of the crime. Mandatory minimum sentences also make offenders less likely to plead guilty. Offenders facing mandatory minimum sentences lose an incentive to provide useful information or assistance to prosecutors.

These concerns have been repeatedly expressed by state and territory prosecutors, but the government is choosing to completely ignore them. The government is ignoring similar concerns that have been expressed repeatedly by the legal profession through the state and territory law societies and the Law Council of Australia. The Law Council of Australia is the peak body for lawyers across Australia. It has said about this bill:

Mandatory sentences actually make it harder to prosecute criminals, by removing the incentive for anyone to plead guilty or to provide information to the police. There is every incentive to fight on and appeal against convictions.

Of course, we're used to the government ignoring the advice of experts, but the government is even ignoring the advice of the Attorney-General's Department, which has issued formal guidelines opposing mandatory minimum sentences. It is clear that mandatory sentences do not work, and Labor is firmly opposed to them. It is the role of the judiciary to make decisions about sentencing criminals, and that is what our system of justice is founded on. This is a clear separation-of-powers issue. It's not up to the legislature to decide what the sentences should be for individual offenders regardless of the particular circumstances of the case. Our system of government is based on the fundamental principle of judicial independence. It's the role of judges to decide on sentencing, because they are impartial and unbiased; they can come to each decision with a clear mind and determine what justice requires in each case. It is the role of judges to make the punishment fit the crime. That role can be carried out only by a court that has examined all the circumstances of the particular crime—something this parliament cannot seek to do in legislation.

The role of the parliament is to indicate to courts the seriousness with which parliament views different classes of crime, in particular by setting maximum penalties. The High Court of Australia is not in any doubt about the importance of maximum penalties. In a decision handed down just last week, Director of Public Prosecutions v Dalgliesh, the Chief Justice and Justices Bell and Keane quoted with approval from a 2005 decision of the court, Markarian v The Queen. In that case, former Chief Justice Gleeson and Justices Gummow, Hayne and Callinan said this:

… careful attention to maximum penalties will almost always be required, first, because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before court at the time; and thirdly, because in that regard, they do provide, taken and balanced with all of the other relevant factors, a yardstick …

The High Court has been equally forthright about the importance of judicial discretion in sentencing. Later in their judgement in that same case, Dalgliesh, Chief Justice Kiefel and Justices Bell and Keane quoted another earlier decision of the court and offered their own view. They said:

In Elias v The Queen, former Chief Justice French of the High Court, and Justices Hayne, Kiefel, Bell and Keane said: 'the administration of the criminal law involves individualised justice'.

Then they added:

… the imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.

This has been the clear position of the High Court for decades. Former Chief Justice Barwick of the High Court, while recognising the power of the legislature to determine penalties for offences, in Palling and Corfield in 1970 said:

It is both unusual and in general, in my opinion, undesirable that the court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.

In 1981, Chief Justice Gibbs said in Sillery and The Queen that even in the case of a most serious crime:

... there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion for the judge at trial to impose an appropriate sentence not exceeding the statutory maximum' and that mandatory sentencing 'would lead to results that would be plainly unreasonable and unjust'.

Other legal figures have voiced the same principle. The President of the International Commission of Jurists Australia, former NSW Liberal Attorney-General and former NSW Supreme Court Justice John Dowd, called for a judicial inquiry into mandatory sentences in 2012. He said:

It is a breakdown of the rule of law and sentencing, where the court determines what is appropriate.

Former NSW Director of Public Prosecutions Nicholas Cowdery AM QC said in 2014:

It is unrealistic, therefore, and unjust, to prescribe a penalty or minimum penalty that must be imposed for any serious offence before it has been committed or is even in contemplation (or can even be foreseen by Parliament), before all the facts and circumstances are known and without knowing anything of the offender; and experience has shown that such measures do create injustice. Justice requires proper consideration of all the circumstances of the offence and the offender.

And Justice Michael Adams of the NSW Supreme Court powerfully said in 1999:

To remove judicial discretion in such a vital area of the liberties of the subject is tantamount to a vote of no confidence in the judiciary … The assertion by the elected politicians of the right, in effect, to impose particular sentences for particular crimes, as a response to immediate political exigencies is a significant interference with traditional and well settled principles of the separation of powers.

In a submission to a 2012 parliamentary inquiry, the Australian Human Rights Commission said:

Laws that impose mandatory minimum terms of imprisonment are inconsistent with Australia's international human rights obligations, including obligations under the International Covenant on Civil and Political Rights (ICCPR).

A particularly concerning example—it has already been given by the member for Hotham, but it bears repeating—of how these mandatory minimum sentences would work in practice is that an 18-year-old and a 15-year-old who engage in sexual activity while overseas, perhaps on a school trip, would be captured by the offences. An 18-year-old in this situation would receive a mandatory minimum sentence, under the government's bill, of five years in jail. There would be no room for judicial discretion to take into account the particular circumstances of the case. This is unacceptable.

In speaking out against the mandatory minimum sentences in this bill, the Law Council of Australia raised this example and pointed out:

Teenage years can often be marked by rash decisions and regrettable mistakes. A blunt instrument like a mandatory minimum sentence will not take this into account.

The Law Council said:

Mandatory sentencing is always likely to trigger unintended consequences that are at odds with the intention of the laws and fundamental principles of justice.

What has been the government's response to this long-expressed opposition to mandatory sentences? It has been to ignore it. The government has produced no evidence that mandatory sentencing works and has not even bothered to explain its reasons for attempting to impose these mandatory sentences. Mandatory sentences will not make children safer. Juries are less likely to convict, perpetrators are less likely to plead guilty and perpetrators are less likely to cooperate in bringing down ringleaders.

In this area of child sex abuse Labor want courts to be able to lock up the worst offenders for life. We want to see paedophiles imprisoned and kept away from vulnerable children. Labor want to see higher maximum sentences and the sentences of life imprisonment that we are going to propose for this bill to make sure that Commonwealth child sex offences do work effectively. But mandatory minimums don't work and are wrong in principle, and that is why we are opposing them.

Jason Falinski (Mackellar, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017. Imagine that you or a loved one had been subjected to child abuse. Wouldn't you want to know that the law was on your side? Our outdated rules have failed to recognise the heinous and disgusting nature of this vile crime and the seriousness with which we must combat this scourge. Whilst past administrations have failed to give the subject the attention and amendment required, I'm glad to support a government that values the protection and wellbeing of the next generation.

This bill targets all aspects of the child sex offender cycle by strengthening measures at the time of charging, bail, sentencing and upon release. Our reforms will criminalise emerging forms of child sexual abuse, strengthen community protection from child sex offenders and ensure that sentencing of child sex offenders reflects the gravity of this type of offending. They will ensure that terminology used in Commonwealth legislation reflects the seriousness of child sexual abuse and improves protections for vulnerable witnesses. It is the largest such change to the Criminal Code in decades, and seeks to provide genuine deterrence, punishment and protection.

At the moment legislation is too weak and our criminal justice system has arguably not given sufficient weight in its sentencing for these crimes—41.3 per cent of child abusers never serve time in prison. Just think about that for a moment: over one-third of child abusers never face the justice that they deserve. And, of the preposterously low portion of offenders that are imprisoned, the average sentence for carrying out one of society's most unspeakable evils is a paltry six months.

We are seeking to protect our communities from some of the most horrendous ills imaginable by shifting courts towards a preference for imprisonment rather than mere suspended sentences. We can maximise safeguards against these criminals, ensuring that the most dangerous predators are imprisoned and kept away from those who they seek to harm. In the same vein, the introduction of mandatory minimum sentences will go a long way to alleviating the institutional biases and embarrassing weaknesses inherent within a criminal justice system that has been rendered toothless by the turn-the-other-cheek attitude of previous regimes. For all the naysayers that have prejudged this bill, based on nothing more than their preconceptions of mandatory sentencing, I say this: this law will target those who attempt to do harm to the most vulnerable members of our society, ensuring that they face the penalties that they deserve. What possible objection could members have to that? By spelling out clearly to the courts what is and is not within their remit, this parliament can reinforce its power to mandate the law and its enforcement. This issue is just too important to be left to the whim of a judiciary that has been perceived as insufficiently harsh to such criminals.

We would also like to see change to the mindset of the courts to better align it to contemporary Australian society and prioritise civil safety, giving greater balance to victims and the community over the rehabilitation of convicted criminals. Importantly, this bill prevents judges from using an offender's standing in the community to discount their sentence, if it was used to assist in the commission of the offence. In cases involving the worst offenders, we would like to see the courts make it more difficult to release defendants on bail. Similarly, by mandating that courts state and record their reasons for releasing suspects on bail, we can finally begin to stand up for ourselves, to strengthen our resolve against these criminals and better protect our children. We also are making it compulsory for the courts to have regard to the objective of rehabilitating offenders, including setting appropriate treatment and supervision conditions. It's an aspect we cannot overlook if we want to lastingly reduce the number of offences committed against children every year.

We are not, as I'm sure some of the opposition would dreamily machinate, shifting towards dictatorial tendencies. This law does not mark a shift in civil liberties. We will continue to maintain the principle of innocence until proven guilty. This is a tenet of our free liberal society and one that we will not change. Rather, what this bill does is enhance our freedoms. We should be confident that our law enforcement and justice systems can securely guarantee that our loved ones won't be harassed, hurt or abused. Surely we should have the freedom to live without fear that child abusers, having been given free rein by the courts to roam free, strike again, harming our children.

In yet another example of utter contempt for victims, unscrupulous defendants have been allowed to unnecessarily and inappropriately harass their victims through harsh and brutal cross-examinations. By making it simpler to pre-record testimony, allowing such video recordings to be used as evidence and introducing greater restrictions on the scope of cross-examination, this government aims to right the wrongs of the previous government's ham-fisted approach to the sensitivities of victims—that is, our children.

Four years ago in the UK, 48-year-old Frances Andrade took her own life after being subjected to hostile, aggravating and downright selfish cross-examination by the defendant's legal team. She was forced to relive, in public, over and over again, the horrors of her abuse as a 14-year-old. The subsequent inquest blamed the needlessly aggressive hostilities as a key reason behind her suicide. No-one wants to see that happen here. Not a single parent wants to see their child subjected to such extended, repeated and unnecessary torment when they are doing the right thing—speaking out and making sure their attacker can never do this to someone else. So I beseech those opposite to get on board, to stop dragging their feet, because we can make a difference.

With this bill we also are amending legislation to bring criminal legislation up to date with the digital age. With such dramatic changes in the way we interact and communicate, particularly when technology is becoming ever more complex and the internet more available, it is time to update our child-protection legislation. Unfortunately, paedophiles are constantly seeking new ways to exploit emerging technology to commit their crimes. Where the vast majority of us see wonderful opportunities to improve our lives, a sickening minority have harnessed the internet and the dark web to enact their sickening and deplorable fantasies. They rob our children of their childhoods, of their innocence and of their sense of security. We must crack down on the loopholes that have helped and will continue to help abusers get off scot-free.

Internet carriers have their role to play in monitoring and reporting such highly offensive material. Failure to act, to report on abuses and remove any material, will carry greater financial penalties than ever before, because we are serious. Everyone must be vigilant and everyone carries a responsibility to speak out. This will greatly aid law enforcement agencies in their efforts to monitor the ever-expanding vastness of the internet and its 24/7 nature.

Our desire to tackle this issue and protect our most vulnerable is nothing new. This bill reflects the Turnbull government's continuing commitment to protecting our children and builds upon previous child protection legislation passed in this very parliament. In June this year, with the Passports Legislation Amendment (Overseas Travel by Child Sex Offenders) Bill 2017, the Turnbull government stopped child sex offenders from travelling overseas to sexually abuse children in more vulnerable parts of the world. We also introduced Carly's law to target online predators preparing or planning to cause harm to procure or engage in sexual activity with a child, increasing police powers to intervene. This government is steadfast in its commitment to the principle that all children should be safe from abuse wherever they happen to be born and, most certainly, in Australia.

This morning I saw bipartisan support at the launch of the Polished Man campaign by my colleagues the member for Kooyong and the member for Fisher, who were inadvertently joined by our Prime Minister, the member for Wentworth. The will is there. The will is bipartisan. We can all agree that any violence, including sexual violence, against our children is despicable and must end. Let's end it now and let's end it together.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017. To state the obvious, sexual abuse of children is abhorrent. The very thought of children being harmed in that way breaks my heart and I'm sure it breaks the heart of all members of this House. To give you some context, a fortnight ago my wife Lea and I celebrated the 25th anniversary of our very first date. For those entire 25 years, and for a few years before, she's either been a frontline child protection worker or a lawyer representing people giving evidence in the Royal Commission into Institutional Responses to Child Sexual Abuse, or in her current role, which is as a prosecutor dealing with child abuse.

On Monday, Minister Keenan associated the Australian Labor Party, including me, with paedophilia or child abuse in a grubby, disgraceful and unforgivable tactic in this chamber. He stood right there, at that front bench. He said, whilst pointing at the Australian Labor Party, 'What is there to prevaricate about? We want paedophiles off the street and we believe this legislation deserved bipartisan support.' That is something I will never forgive him for, even if he comes back into this chamber and apologises. I will never, ever forgive his comments. They were disgraceful. The Australian Labor Party has a long, proud tradition of standing up for Australian children. Minister Robert Tickner commissioned the Bringing them home report. Prime Minister Kevin Rudd's apology to the stolen generation was delivered on my first day in this chamber. Prime Minister Julia Gillard apologised to the victims of forced adoptions. Policies flowed from these apologies, such as the Closing the Gap commitments and the Royal Commission into Institutional Responses to Child Sexual Abuse, which Prime Minister Julia Gillard kicked off. We have a long, proud tradition—like those opposite, I will say—of standing up for Australian children wherever we can.

The extent of abuse uncovered by the Royal Commission into Institutional Responses to Child Sexual Abuse has shocked Australia and the world. For my wife to transfer from being a social worker to being a lawyer—I thought I'd heard it all, and I've heard stuff that would break anybody's heart. Night after night after night, especially when she came home from night duty after not being able to go to the gym after work, I heard horrible stories over the last 25 years. Then she was to go and work for the royal commission, for no more, where she heard worse details of child abuse. That royal commission shone a spotlight on a shame that has been hidden for far too long, and I know those opposite would agree. Around 8,000 survivors of sexual abuse have given evidence in private sessions in the royal commission, and I thank the royal commissioners for the great work that they do. That must be an incredibly difficult process. There were 8,000 children who had their lives broken by vile paedophiles or sadists or both. There have been 2,393 referrals to authorities from the royal commission thus far—thus far—because of a Labor Party decision, because of a Labor Prime Minister's decision, to hold that royal commission. When institutions that are charged with caring for our children violate that trust, it shatters all trust in all institutions. I look forward, two years on, to some redress movement from this government.

The royal commission has reported some of the impacts of child sexual abuse on the victims and survivors. They report that there are both short-term and long-term effects, and many may be lifelong. Children and adolescents face emotional, physical and social impacts. These impacts often extend into adulthood, affect life choices and mental health and may lead to victims committing suicide, I'm sad to report. The nature and severity of the impacts vary between survivors, but it's all often incredibly horrible. The impacts extend beyond the immediate victims, affecting their parents, colleagues, friends and, sadly, sometimes their families and the community.

There is no doubt that all children deserve our protection and support. I commend the member for Hotham for her stance in this area. We know, as parents and as good politicians, that children are our most precious resource—hope distilled, as I've described it in the past—and they are also, sadly, the most vulnerable members of our community. We must do everything we can to protect every single child in Australia. But we also know that there will be more children who will be abused. We won't be able to protect every child, no matter how hard we try, and sadly some children will have their lives broken by predatory paedophiles. And, worse, more often than not, that abuse will be perpetrated by a family member. The very nature of child sexual abuse makes it difficult for children to disclose and for others to detect. Where infant children are involved, communicating the abuse becomes even more difficult. But, wherever child abuse is reported or detected and then prosecuted, the perpetrators of this most sickening crime should feel the full weight of Australian laws. They should be punished and they should be locked up.

We must make our laws the best they can be to give every child the maximum chance of living a childhood free from harm. I want to keep my own children safe; I want to keep the children in Moreton safe; I want to keep all Australian children safe. So Labor will be moving amendments to this bill in the Senate. Those amendments will make this bill tougher, giving greater protections to children who are at risk of being abused. We are seeking these amendments so that the bill will impose higher maximum sentences and courts can lock up the worst offenders for life. Our laws reflect the ever-changing ways that paedophiles procure their child victims and export vile images to other paedophiles on the web. People who incite others to commit child abuse will be subject to aggravated offences. These stronger measures, put forward by the member for Hotham, on passing through the Senate, will protect children. We know that paedophiles manipulate; they create opportunities for abuse like you wouldn't believe. The royal commission has recognised that it is often difficult for parents and others who care for children to recognise the grooming behaviour used by paedophiles to trap their victim. We need strong protections so that, when grooming behaviour is recognised, it is punished. The perpetrators should face tough penalties appropriate for such a heinous crime.

There is one aspect of this bill that Labor will not accept and that I personally do not support—that is, the provision of mandatory minimum sentences—for one simple reason: mandatory sentences do not work. We know that. The experts know that and have told us that. The Law Council of Australia, the peak body for lawyers, says:

Mandatory sentences actually make it harder to prosecute criminals, by removing the incentive for anyone to plead guilty or to provide information to the police. There is every incentive to fight on and appeal against convictions.

The Australian Institute of Criminology, the Queensland Law Society, the Victorian Sentencing Advisory Council and prosecutors, just to name a few, have warned that, in some circumstances, where an offender is facing a mandatory jail sentence, a jury may refuse to convict. I repeat that: a jury may refuse to convict. Mandatory sentences make a good headline grab for a media-hungry politician, but sadly, they don't work. Even the Attorney-General's own departmental guidelines recognise this. We need laws that work, that will make it more likely that we can lock up paedophiles. This should not be about political ideology and grubby political posturing; it should be about protecting our children. It's no use having laws that say judges must lock up convicted paedophiles for a period of time, if those same laws make it less likely that paedophiles will be convicted. Mandatory sentences take away the discretion of the judge to determine an appropriate sentence in the circumstance of that particular case.

It's very easy to say, 'Paedophiles should be locked up regardless.' Many people would agree. I would agree. My wife would agree mostly vehemently, and, as I said, she has devoted nearly 30 years of her working life to protecting kids and hunting down paedophiles. But it is the unintended consequences of mandatory sentencing that create the mischief. You will see sentences that do not fit the crime. It would be a tragedy to see laws designed to protect children actually convicting young people engaging in normal adolescent behaviour and sending them to jail. Let me give some examples that have been provided by the Law Council of Australia:

For example, a 15 and 17-year-old might be sharing sexual images with each other in a consensual relationship, yet the day the older partner turns 18, under this legislation that 18-year-old would be looking at an automatic five-year sentence.

The 18 year old student would be sentenced to a mandatory minimum of five years jail.

The 18 year old would be sentenced to a mandatory minimum of five years jail.

The 18 year old would be sentenced to a mandatory minimum of five years jail.

The 18 year old who sent the text message would be sentenced to a mandatory minimum of five years jail.

An 18 year old boy and a 15 year old girl are in a relationship and constantly exchange intimate images. The boy has previously been convicted for a child sexual abuse offence.

He would be sentenced to a further three years mandatory jail. These could be any children. We could say, 'Children should not have phones; children should not send images.' I know what the world should be, but we also need to reflect the world as it is. These could be any children making poor decisions in any family, in any suburb of Australia. This is not the behaviour that this legislation was designed to catch, but it could easily happen in a suburb near you. These kids would be caught nonetheless. They would go to jail because the impartial, informed judge would have no discretion. Judges would have no choice but to sentence these kids that I've mentioned in the scenarios to a minimum five-year jail sentence.

This is why we have judges who have discretion in sentencing. No politician would ever say that every judge gets every decision right every time, but I will guarantee that the Australian justice system gets it right more times than that of any other country. No-one can imagine the thousands of different scenarios that may come before a judge and be caught by these offences. Not having a mandatory minimum sentence will not prevent paedophiles from being jailed, but it will prevent some young people who do not deserve to be jailed from being jailed and potentially having their lives ruined and their families' lives ruined. As the Law Council of Australia has said:

When you take away the ability of a judge to take into account the seriousness of the offence, the degree of culpability of the offender, their personal circumstances or the explanation for offending, you generate disproportionate and, often, unconscionable outcomes.

What Labor proposes is to have higher maximum sentences. We want judges to be able to lock up the worst child sexual abuse offenders for life. That would truly protect our children—without the unintended consequences of young adolescents being locked up for behaving like adolescents and making foolish decisions—and not punish them forever.

Labor is proud of its record on fighting to protect children, both in Australia and overseas, from all types of abuse and exploitation. In 1994 Labor led the world in laws that targeted Australians who engaged in sexual abuse of children overseas. In 2009 the Labor government implemented the National Framework for Protecting Australia's Children, an important initiative that was accompanied by an injection of $63.6 million. In 2010 it was Labor that made it an offence to target preparation for child abuse. In 2013 Julia Gillard as Prime Minister established the Royal Commission into Institutional Responses to Child Sexual Abuse, the first of its kind in the national forum and perhaps the most important inquiry ever to be conducted in Australia. As I said, it has made 2,393 referrals to authorities so far. In 2013 Labor appointed the first National Children's Commissioner to advocate for the rights of all Australia's young people. And in 2013 Labor introduced the Vulnerable Witness Act. Labor is strongly committed to protecting Australian children from all forms of abuse and exploitation. We have been consistent in our approach. There is still much work to do to tighten up our laws, to protect children so that our laws cannot be used as a tool to avoid detection or punishment.

The chair of the Royal Commission into Institutional Responses to Child Sexual Abuse, the Hon. Justice Peter McClellan, recently said in a speech:

Our work has shown that across many decades many institutions failed our children. Our child protection, criminal and civil justice systems let them down. Although the primary responsibility for the sexual abuse of an individual lies with the abuser and the institution of which they were part, we cannot avoid the conclusion that the problems faced by many people who have been abused are the responsibility of our entire society.

It is our responsibility as lawmakers to make sure our laws are adequate and fit for purpose and to have faith in the expertise of our judicial officers. It is our responsibility as lawmakers to make sure that our laws don't have unintended consequences. It is our responsibility to make sure that our children are protected. Labor wholeheartedly supports the objects of the bill but will move amendments in the Senate to make it even tougher.

Nola Marino (Forrest, Liberal Party) Share this | Link to this | Hansard source

I think everybody in this place understands that children are incredibly precious and they have a right to be protected. No child should ever be in a situation where they are sexually assaulted, but we know that that is what's happening.

This Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 adds to the government's recent legislation relating to child sexual abuse. Carly's law passed the parliament in the last session, a law that makes it a crime to plan to harm a child who is under 16. It targets online predators who misrepresent their age with the sole purpose of grooming the child online for sex. These people are pretending to be young children, like the children they are grooming online. The first arrest using this law has already been made. The government also recently passed legislation that stops convicted sex offenders from travelling overseas to commit criminal acts against children in other countries. This bill specifically targets some inadequacies in the criminal justice system that result in outcomes that don't sufficiently punish, deter or rehabilitate offenders. The bill also introduces new offences directed at the use of the internet for the sexual abuse of children.

Today I'd really like to acknowledge the member for Fisher, Andrew Wallace, for his Polished Man campaign. It's a campaign encouraging men to take a stand and actively commit to ending violence against children by painting one fingernail for the month of October. I looked at the statistics provided at this gathering. They show that more than 120 million girls and 73 million boys have been the victims of sexual violence. I thank Prime Minister Malcolm Turnbull and the Minister for the Environment and Energy, Josh Frydenberg, for their support of this campaign.

The government has become increasingly concerned about manifestly inadequate sentences for child sex offenders. These sentences do not sufficiently reflect the harm suffered by the victims of child sex abuse or protect the community from the risk of future harm. These sentences also do not fully reflect the fact that these crimes actually increase the demand for child abuse material, particularly online. I read that—and this really concerned me—since 2012, less than two-thirds of Commonwealth child sex offenders have received a term of imprisonment after conviction. This means that 269 child sex offenders, convicted of a Commonwealth crime, were released directly back into the community over the past five years. I find that appalling. Of those who were imprisoned, the most common sentence length was 18 months and the most common non-parole period was six months. I can't think of anyone in my electorate or any Australian, in fact, who would think that these are adequate sentences for those people who sexually abuse children.

I'm a mum. How would any mother and father feel if the person who was convicted under federal law of sexually abusing their child actually served no time in prison? All of us here know how we would feel if it was our child or our grandchild. I know exactly how I would feel. These are vile, heinous crimes. The trust and the vulnerability of children we see every day. We see it in our own children; we see it in every child. I had a group of wonderful children with special needs who came into this parliament today from Busselton in my electorate. The thought of anybody taking advantage and sexually abusing one of those extremely vulnerable young children, to me, requires the sort of legislation that we're putting forward here. I don't want to see any person who sexually abuses a child not suffer the punishment they deserve. I would suggest that there isn't one member of parliament or one parent or one grandparent who wouldn't feel the same. It is absolutely disgusting and abhorrent. We see these beautiful kids who trust us as adults—they trust us to look after them. What's love to a child? Love is security. And that's what we are here to provide. I see my role in this place as providing as much security as I can through the legislation that we enact, and that's why I support the measures within this bill.

I agree with the Minister for Justice, our federal laws should punish and deter offenders unequivocally. They should send a very simple message out into the community. None of us here, in any way, believe that a sex offender should not be punished. They should be punished, and we should be deterring potential future offenders. That's why this bill introduces mandatory sentencing for specified offences—to address the disparity between the seriousness of child sex offending and lenient sentences. It's critical. The community depends on us to provide the laws to protect the community, as much as is possible, across the board, and no-one more so than our children. That's what I expect. If I weren't a member of parliament here, that's exactly what I would expect of the members in this parliament and the government of the day.

Mandatory minimum sentences will send a very clear message. They will apply to the child sex offences that attract the highest penalties—not just any penalty; the highest penalties—and to reoffenders, as they rightly should. Are those reoffenders of the 269 who weren't sent to jail and, as a result, they've reoffended? What message did they get out of that?

If they are reoffending they clearly have not learnt from their original offence.

I find that it's applying to the highest penalties. That cannot be understated in this debate. It combats the evolving use of the internet in child sexual abuse. I know firsthand from young people in my electorate that offenders are using the internet to groom young people for sex. As most members here would be aware, I've spoken about this frequently and worked actively in this space. I've seen this as an opportunity for paedophiles. I've delivered hundreds—hundreds—of cybersafety presentations. The minister at the table worked with me, historically in his previous roles, in establishing the Office of the eSafety Commissioner, focusing on children and specifically providing resources in this space.

I have delivered hundreds of cybersafety presentations to young people, parents and community groups. Following one of these presentations the mother of an 11-year-old girl contacted my office and said, 'My daughter came to your presentation today and she's come home and she's had to confess to me that she's realised after listening to my presentation that she, at 11, was being groomed online for sex.' It's made even easier on the internet, because paedophiles are grooming these children to have sex with them, but they're also encouraging them to meet them in person. It's extremely disturbing for me, having delivered this to primary school aged children, to find eight children in one class of 11-year-olds who had the courage and the honesty to admit to me that they had been to meet people in person that they first met only online. I'm continuing to do these presentations. What disturbed me even more, which is why I'm strongly supportive of this bill, is that too often it's usual for me now to come across classes where, when I do my secret survey and I ask them if they would be honest about what's happening to them online—I ask them if they have ever been to meet in person someone they had first met only online—the hands go up. Can you imagine how horrified the teachers are? And can you imagine how horrified the parents who have come along to some of my sessions are when I tell them that's the response I get? It's not happening to someone else's children. It's happening to our children. So, every time I can get to one child it's a very good day. That's what we are trying to do here. We're trying to protect those wonderfully innocent, precious children. I make no excuse for that. I think it's the best thing this government can be doing and I'm proud of the fact that we take it so seriously.

It concerns me, too, that sentencing for child sex offences needs to be commensurate to the seriousness of the crime, and we are talking about the most serious crimes. We need to make sure that the sentences imposed adequately reflect the seriousness of the offending that's occurred. That's important for community trust in us. That's what the community expects of us here. We pass a lot of laws in this place and there are a lot of laws around this space at the state level as well. But when they involve Commonwealth offences, such as using a carriage service—which, as the minister knows, involves using a phone, an iPad, the internet or any form of service—to abuse, harass and, of course, to sexually abuse, it is against the law, as it should be. It is a federal offence. Child sexual offences are also federal offences in this space.

I'm very pleased that we are introducing this legislation to make sure that we are doing everything we can. We the government are very serious about ensuring that child sex offenders are off our streets as soon as possible and for as long as possible, especially when there are those who reoffend. There are a number of measures contained in this bill, and community safety is the primary consideration here. Those listening to this speech may find it surprising that community safety is not already the primary consideration. This bill makes it explicit: it is to ensure the protection of the community. It ensures that, once an offender's parole has been revoked, they will serve time in custody. That's what that mum, that dad, that grandparent, the brothers and sisters and the friends, expect us to do. The families of every child who has been sexually abused expect us to have the laws to not only try to protect that child but also then to punish the person who offends. I'm very pleased that this is the road that we're taking on this.

Two new measures target online sites especially. If you have a bit of a look around the internet, the amount of pornography available online, and the amount of aggressive physical pornography and some of what's available on the dark web, is just extraordinary. I am greatly concerned about what our children have access to and what they're accessing and how young they are when they have access to it. The second measure, criminalising the transmission of communications to groom any person with the aim of procuring a child for sexual activity, is very, very important and a measure I'm strongly supportive of. I've just seen too much of it. It wasn't just an 11-year-old; 13- and 14-year-olds were also being groomed online for sex. That came out of a group that I had previously. We need to make sure that there is harsh punishment. We need to send a very clear message to offenders and potential offenders that we as a government and we as a society are not going to stand by and allow more young people, our children, to be sexually assaulted.

Emma Husar (Lindsay, Australian Labor Party) Share this | Link to this | Hansard source

Sexual crimes against children are abhorrent. Children are among the most vulnerable members of our community, and every measure should be undertaken to ensure their safety and their security. Sexual crime against children is not a debate for political handballing and pointscoring. But, sadly, that's what we've seen today. I'm proud to support the members for Hotham, Moreton and Isaacs who spoke before me on the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill. Labor is committed to strong legislation that will keep children safe. Children deserve our absolute protection and our support and we must do everything within our power to ensure that kids are safe from sexual predators both here and abroad. We have an obligation also to the children of other countries. We must protect them from the criminals who stalk them on the net, groom them, deceive them and exploit them in the most heinous way possible. Labor are committed to doing what we can to protect children from harm and abuse and we have zero—zero—tolerance for child sexual abuse. The tragedy is that children who are victims of sexual abuse endure lifelong suffering, carrying the burden of crimes that should never have been committed. The parents of these children are affected. Nobody wants to go through the nightmare of losing a child, but to lose your child at the hands of a sexual predator would be nothing more than a living hell. No-one's child should be subjected to sexually explicit conversations or to being stalked by sexual predators who are using social media platforms or apps that specifically target children.

These crimes are being committed in Australia and overseas. Anti-Slavery Australia reported in its submission to the Senate Legal and Constitutional Affairs Legislation Committee that children in the Philippines are lured to sex tourism hotspots, such as Angeles City, Metro Manila and Cebu City, on the promise of legitimate jobs. Thereafter they are physically and/or emotionally coerced into working in the sex industry, including, increasingly, online exploitation dens, where they are made to perform on webcams for foreign online sex tourists. In 2013 it was estimated that tens of thousands of boys and girls were in the webcam sex tourism trade alone, with that number predicted to increase. What depraved, sick humans they are who consume this. Adding to the terror are the children trapped in child trafficking and slavery. There has been an increase in trafficking to use children in online exploitation. This is driven by the financial support from Australian offenders who encourage the production of sexual exploitation materials.

Labor have no tolerance for these crimes by paedophiles, and we want to see them stopped and perpetrators locked up, facing the most severe penalties. The criminals who groom and procure children online need to be stopped. The international paedophilia rings that traffic and enslave children need to be stopped. We welcome some of the changes in this bill, including: the new offence to criminalise the grooming of third parties for the purpose of procuring a child for sexual activity; new aggravated offences for child sex abuse where a child is subject to cruel, inhumane or degrading treatment or which causes the death of a child; the addition of residential treatment orders as a sentencing alternative to allow intellectually disabled offenders to receive access to specialised treatment options; and the removal of the requirement to seek leave before a recorded interview of a vulnerable witness can be admitted as evidence in chief. We believe the government is playing sick politics with laws that protect children from sexual abuse. We are not going soft on the perpetrators of these crimes, and those who seek to score political points are nothing more than sick.

We commend the actions of the Australian state and territory police and the Australian Federal Police in combating this scourge and stopping the sexual offenders who are exploiting children. As the member for Hotham pointed out, what a horrible job it is for those AFP men and women who have to trawl through this material. I want to support the member for Hotham in her statement of thanks and gratitude for what these men and women go through in having to classify this material. I can only imagine it would be incredibly horrendous to watch.

The police in each state and territory and the AFP work closely with international counterparts to rescue children and stop the offenders. We commend task force agents of the Queensland Police Service and their international counterparts for the many operations that they run, including the operations which they undertook and ran on the dark web network over many months which led to the rescue of 85 children. That means 85 kids are now removed from that life. There were hundreds of arrests, including the site's operator, Shannon McCoole. He is serving a 35-year sentence for the sexual abuse of multiple children. David Cecchin, a member of the paedophile Shannon McCoole's child exploitation website, had previously pleaded guilty for possessing, accessing and disseminating child exploitation material. He regularly disseminated child exploitation material on the website, and he's been sentenced to seven years and five months jail. He had 1,500 items of child exploitation material on his computer. Ninety per cent of that material was photographs and the rest was videos.

The creation of new child exploitation material needs to be stopped. The paedophiles and criminals who are running these internet sites and creating the content need to be stopped. No child should ever be exploited in this way. We believe the bill should be tougher, stronger and more effective by: increasing maximum sentences, with the worst offenders locked up for life; keeping up with changing technologies such as criminals watching child abuse through webcams and live streaming, and stopping them, charging them and bringing them to justice; and introducing new aggravated offences for people who incite or direct the production of child abuse material.

This bill introduces mandatory minimum sentences. We do not support mandatory minimum sentences, because we know mandatory minimums do not work. As the member for Hotham has already pointed out, all of the agencies, including the Attorney-General's Department, have said they don't support mandatory minimums either. The bill's mandatory sentencing is problematic because of different ages of consent across Australia. And mandatory minimums can lead to fewer prosecutions and convictions, sometimes leading juries to acquit rather than sentence, and can conflict with the role of the judiciary. People will not have an incentive to plead guilty or to inform police on others' actions if they know they face a mandatory sentence. It builds in the incentive to fight and appeal against convictions. Even former Prime Minister John Howard has previously commented, 'As a matter of public principle, I do not agree with mandatory sentencing and, in the end, I do think these matters ought to be determined by judges and by magistrates.' It's a shame that those opposite only seek to champion John Howard when it suits them. He's only getting rolled out for his opposition to other things and not his opposition to mandatory sentencing.

Debate interrupted.