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

It's disappointing that the government has chosen to bring this bill on for debate in the House before the Senate Legal and Constitutional Affairs Legislation Committee has concluded its consultations with the Australian people about the measures in this bill and issued its report. The committee's inquiry in relation to this bill, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019, is not due to conclude until 7 November 2019 and so there is no reason why we need to vote on this bill in the House today, and yet here we are.

The fact that the government has brought this bill on for debate before the Legal and Constitutional Affairs Legislation Committee completes its inquiry is further evidence, as if any were needed, that this government does not respect the parliament and the processes that have long been in place to enable MPs and senators to scrutinise, analyse and make informed judgements about proposed legislation.

In particular, the Morrison government's contempt for the parliamentary inquiry system disrespects the views of the Australian public, including legal experts and those from community groups with an interest in a particular piece of legislation—which in this context includes survivor groups and child advocacy organisations—because a primary purpose of the inquiry process is to give the Australian people, particularly those with expert knowledge, a chance to express their views about a bill before it becomes law. Through such a process, problems with the proposed law can be identified, and recommendations for improvements can be made by the committee. Those recommendations would usually be carefully considered by the government and, very often, form the basis of government amendments to the bill. Yet the Morrison government has chosen to try to force this bill through the House before the Senate Legal and Constitutional Affairs Legislation Committee has even had a chance to consider the Australian public's views, let alone report back to parliament.

This ignoring of long-established democratic processes of scrutiny and review is the hallmark of an arrogant government, the hallmark of a government whose members believe they were born to rule, the hallmark of a government once again demonstrating its insufferable arrogance by effectively declaring, 'We don't care what the Australian people think, because we in the Liberal Party are always right.' It's another example of 'be quiet, Australians' from this Prime Minister.

Turning to the inquiry into this bill, a number of organisations have taken the time to make thoughtful submissions to the Legal and Constitutional Affairs Legislation Committee, and many of those submissions express concerns about some aspects of the bill. Out of respect for that process and the organisations and individuals that are engaging with it, Labor will not finalise its position on the majority of measures introduced by this bill until that inquiry has concluded, but it can already be said that there are many aspects of this bill that should enjoy broad support across this parliament.

There is, however, one aspect of the bill that Labor has a longstanding position on, and that is the proposed introduction of mandatory sentencing. Labor's opposition to mandatory sentencing is well known. I will elaborate on the reasons for that opposition in a moment, but let me be clear: we do not support the introduction of mandatory sentencing in this bill. Those provisions should be removed.

This morning The Australian newspaper reported:

Scott Morrison will move to capitalise on Labor's division by opening parliamentary debate on issues contentious in Anthony Albanese's ranks, including drug tests for welfare recipients and minimum mandatory sentencing …

I had hoped that the reporting was inaccurate and that the proposed introduction of mandatory sentencing in this bill was not merely an attempt to attack Labor. People of goodwill can disagree in good faith about these matters. I'd hoped that the government was more interested in passing the best possible laws to protect children from abuse rather than attempting to use such laws as a political tool to attack Labor. I hope I'm wrong about the government's motivations in this context, but the government's talking points that were leaked yesterday appear to confirm that the government is intent on turning this bill and almost every other bill and policy debate in this country into a debate about Labor rather than a debate about what is in the national interest. Those leaked talking points mentioned Labor and the Leader of the Opposition an astonishing 40 times.

Sex crimes against children are abhorrent. Children are the most precious and vulnerable members of our community. They require and deserve our protection and support. The debate about this bill should be about one thing and one thing only—how best to protect and support children. This should not be a topic for scoring political points. This is not a topic and this is not a bill for the tawdry whose-side-are-you-on nonsense from the Prime Minister or his senior ministers.

I am a father and a grandfather. My colleagues are mothers, fathers and grandparents. Every single one of us wants to protect children from harm, but from time to time some of us may disagree on the best and most effective ways of doing so. Such things should, of course, go without saying. Sadly, they do not. Some in this place may recall that former defence minister and now defence lobbyist Christopher Pyne sent a tweet in December last year in which he accused the opposition of allowing 'terrorists and paedophiles to continue to do their evil work'. That pathetic tweet was prompted by the fact that my colleagues and I expressed concerns about certain aspects of the government's assistance and access bill dealing with encryption—concerns that were shared by media organisations, including every major media organisation in the country, by tech experts and by the Australian Industry Group. But at least Mr Pyne had the good sense to feel ashamed of himself and quickly delete the tweet. Not all of his colleagues in the last parliament appeared to have a similar capacity to feel shame. Some of you may recall that the former justice minister, Mr Michael Keenan, said that a vote against one aspect of the previous iteration of this bill was 'a vote to allow more paedophiles into the community'. That is a direct quotation from a prepared statement by Mr Keenan.

Regrettably, the comments that I've just referred to from Mr Pyne and Mr Keenan are not isolated examples. They are, unfortunately, only examples that illustrate this government's approach to politics. I believe it is an approach that was engaged in, with a lasting and destructive effect on our nation, by the former Leader of the Liberal Party, and later Prime Minister, Tony Abbott. It is an approach that has continued since Mr Abbott's brief and dysfunctional reign. It is an approach that continues to undermine what should be a robust but respectful contest of ideas between politicians and political parties—a contest of ideas that aims to ensure the best outcomes for our nation.

While I'm aware that politics has become more polarised not just here but across the world, I will still take this opportunity to express the hope that, in the context of debating laws to better protect children against abuse, we can return to a more respectful debate and that the kind of vile and contemptible comments I referred to earlier will not be heard again in this parliament or in public statements from members of this government. The debate over this bill is an opportunity for this Prime Minister to demonstrate that when he told Australians, 'What we need is not to disagree less but to disagree better,' those were not just empty words.

Labor always has and always will fight to protect children here and overseas from exploitation and abuse. Labor's proud of its record under the Keating, Rudd and Gillard governments in this area. To pick up on just a few examples, Labor in government introduced world-leading offences in 1994 targeting Australians who engage in the sexual abuse of children overseas. Labor in government brought federal, state and territory governments together in 2009 to implement the national framework for protecting Australia's children, which included a funding commitment of $63.6 million over four years from the Commonwealth government. In government, Labor introduced new child abuse preparatory offences and other protection measures in 2010. Labor in government established the Royal Commission into Institutional Responses to Child Sexual Abuse, the first inquiry of its kind at a national level. The royal commission, among other things, inquired into 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. Some of the measures in this bill appear to pick up on recommendations made by the royal commission, as I'll discuss in a moment. Labor in government appointed Australia's first National Children's Commissioner to advocate for the rights of Australia's young people in 2013. I could go on.

As our record demonstrates, Labor are committed to doing what we can to protect children from harm and abuse. Let me be clear: I do not question the current government's commitment to doing what it can do to protect children. To the extent that there is disagreement between us and the government on this subject matter, it will only ever be about the means and not the ends. As I've already stated, Labor will not finalise our position on the majority of the measures introduced by this bill until the Senate inquiry has concluded and, as I've already noted, there are clearly many aspects of this bill that should enjoy broad support across this parliament, subject to working through the detail. The introduction of measures to protect child and other vulnerable witnesses in court proceedings, the creation of aggravated offences where a child victim has a mental impairment and requiring judges to consider a range of additional factors, including aggravating factors, at the time of sentencing are potential examples.

I would also add that Labor does not, as a matter of principle, oppose increasing maximum penalties in appropriate circumstances. Where there is evidence that offenders are consistently being given sentences that are, on any view, inadequate, it is appropriate for the parliament to respond by increasing maximum penalties. Doing so sends a clear signal to judges that sentences should be higher, a signal that as a matter of law and established sentencing practices cannot be ignored. That is why when a version of this bill was brought before the previous parliament, Labor called for amendments to further increase maximum sentences for some child sex offences over and above the increases originally proposed by the government. It appears that those calls by Labor in the previous parliament on the previous iteration of this bill have been heeded by the government and incorporated into the current version of the bill. That, I would suggest, is an example of the parliamentary process working.

As I noted earlier, this bill would also introduce some measures that we do not agree with. In particular, Labor have a longstanding opposition to mandatory sentencing and this bill would introduce mandatory minimum sentences. Labor's opposition to mandatory sentencing is no secret. It is spelled out in our national platform, which states clearly that:

Labor opposes mandatory sentencing and detention regimes; they are often discriminatory in practice, conflict with the role of the judiciary as an independent arm of government, and have not proved effective in reducing crime or criminality.

But it is not simply that mandatory sentencing regimes have not proven effective in reducing crime or criminality; experts have said that mandatory sentencing may make it harder to prosecute criminals and less likely for juries or judges to convict guilty people. The Commonwealth's own Attorney-General's Department has said 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'. In its research, the Australian Institute of Criminology has previously found that in some circumstances, when an offender is faced with a mandatory penalty, juries have refused to convict. It goes without saying that this parliament should not introduce laws that make it harder to prosecute and convict child sex offenders, however well-intentioned such laws may be.

The Royal Commission into Institutional Responses to Child Sexual Abuse heard from more than 16,000 people, received over a thousand written accounts of abuse, reviewed allegations of sexual abuse in more than 4,000 institutions and held 57 public hearings and 35 policy roundtables. It also heard from over 8,000 people in private sessions. That royal commission issued a 17-volume final report and made over 400 recommendations for reform, but, notably, it did not recommend the introduction of mandatory minimum sentences. Indeed, according to research prepared for the royal commission, the evidence shows that mandatory sentences are not effective as deterrents and do not reduce crime rates.

I would also note the comments of the knowmore legal service to the Senate committee inquiry into this bill. Knowmore was established in 2013 to assist people to engage with the Royal Commission into Institutional Responses to Child Sexual Abuse. Today it continues to do important work as a free and independent community legal centre which specialises in providing advice, representation and advocacy for victims and survivors of child abuse. In its submission to the Senate committee's inquiry, knowmore expresses concern about 'the lack of evidence supporting the effectiveness of mandatory sentencing policy in achieving the bill's stated aims'. Labor shares that concern.

There are numerous other submissions to the current Senate committee inquiry that have also expressed concern about the introduction of mandatory sentencing. The Uniting Church synod of Victoria and Tasmania argues in its submission:

… mandatory minimum sentences and required periods of imprisonment need to be approached with extreme caution … criminological research finds the risk of apprehension serves as a more effective general deterrent than the severity of the punishment.

Jesuit Social Services told the Senate committee:

… research in Australia and other jurisdictions has consistently found that mandatory sentences do not work to deter offending, and do nothing to address the complex issues faced by many people who may offend.

The Sexual Assault Support Service is a free and confidential service for people of all ages, including children, who have been impacted by any form of sexual violence. In its submission it states that it does not support the introduction of mandatory sentencing. The service submitted:

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. We note the concern expressed regarding mandatory minimum sentencing for sexual offences by various legal authorities including the Tasmanian Sentencing Advisory Council and the Law Council of Australia.

To go back to basics, it's the role of this parliament to indicate to the 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 setting maximum penalties. In a recent decision, 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:

… 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 the 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, in judgement after judgement, for decades. Former Chief Justice Barwick of the High Court of Australia—a former Liberal Attorney-General—while recognising the power of the legislature to determine penalties for offences, said in 1970 in the case of Palling and Corfield:

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.

A decade later, Chief Justice Gibbs, in Sillery v The Queen, said 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.

He said that mandatory sentencing 'would lead to results that would be plainly unreasonable and unjust'.

In the Dalgliesh decision, which I've referred to previously, Chief Justice Kiefel and Justices Bell and Keane noted the observation of a previous High Court decision and said that 'the administration of the criminal law involves individualised justice'. They went on to say:

… 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.

In its submission to the Senate inquiry, the Law Council of Australia set out a number of concerns about mandatory sentencing, including that there's no 'convincing evidence which demonstrated that mandatory minimum penalties deter crime' and that mandatory sentencing:

…   …   …

…   …   …

Bravehearts and the Carly Ryan Foundation have expressed some measure of support for the introduction of mandatory minimums. I acknowledge that and I look forward to further discussing this issue with those two important organisations over the coming weeks. As I said at the outset, people of goodwill can disagree on how best to achieve an objective we all agree with: the protection of children from harm.

In short, Labor is not aware of any evidence that mandatory sentences are effective in reducing crime. In fact, there is evidence that mandatory sentencing makes it more difficult to prosecute and convict offenders. So far, the Attorney-General has not pointed to any evidence to the contrary. Instead, he has sought to justify the introduction of mandatory sentencing by pointing out that, according to the Attorney-General, 28 per cent of child sex offenders convicted of federal offences in 2018-19 did not spend one day in jail. On the face of it, that statistic does appear to be alarming, but the Attorney-General has not provided any greater detail than that. That's not good enough. For example, we don't know whether that statistic applies to all sex offences, including offences that would not be the subject of mandatory sentences should this bill be passed.

I hope that the Attorney-General's Department and the Department of Home Affairs are in a position to provide much greater detail about current sentencing practices to the Senate committee looking into this bill so we can all better understand the problem which the Attorney-General says he has identified and then work together on the most effective solutions. I implore the Attorney-General to consider alternative approaches to mandatory sentencing that are more likely to achieve the laudable objective of this bill, which, at its heart, is about keeping our children safe from harm.

In this House we debate legislation, but I wish to make it clear today that my colleagues and I are committed to working with the government on prevention and harm reduction measures, legislative or non-legislative, to address this epidemic of child abuse imagery online. Many of the proposed measures in this bill are addressed in one way or another to the online environment. This is in part a result of the fact that the Commonwealth has limited powers to make laws in this area, and so, as a consequence, a significant proportion of Commonwealth child sex offences relate to the electronic sending, receiving or storage of child abuse material. In practice, that will often mean images or videos being viewed, sent or received online.

The Carly Ryan Foundation is committed to the promotion of internet safety and the prevention of crime against children. Its mission is to make the internet safer for children and families. In its submission to the Senate Legal and Constitutional Affairs Legislation Committee, the Carly Ryan Foundation notes that:

There is a particular kind of insidiousness to child sex offences. For the majority of people, it is a level of offending that just cannot be comprehended. For law enforcement agencies and other organisations like the Carly Ryan Foundation who have some involvement in the space, the upward trend in the production and distribution of child abuse material combined with the trend in more violent assault can make us question where humanity is going wrong.

I thought of the Carly Ryan Foundation and the tremendous work that it does when I read some recent reporting in The New York Times on the upward trend in the sharing and distribution of child abuse material online. Some of the statistics quoted in that story are alarming. According to The New York Times, in 1998 there were over 3,000 reports of child sexual abuse imagery on the internet. In 2014 that number surpassed one million. In 2018 there were 18.4 million worldwide reports of child sexual abuse imagery; that's in one year. The reports in 2018 included 45 million photos and videos. The majority of those reports were made by tech companies; Facebook alone accounted for nearly 12 million of the 18.4 million reports in 2018.

The story told by The New York Times is a story of the failure of authorities around the world to keep up with the problem of child exploitation on the internet, but it is not, principally, about a failure of lawmaking; it is at least as much a story about inadequate resourcing and reporting practices. As a parliament, we can pass the strongest laws in the world, but, unless our agencies are equipped with the best technology and have an appropriate number of personnel, we will not get very far. Nor will we get very far if we do not work with our international partners, because the exploitation of children is a global problem. This is also not a problem that can be adequately addressed by law enforcement alone. Education of children and parents about online safety and the provision of mental health services for young people will also play a role, because protecting children from harm means the prevention of harm—not just the punishment of those who commit offences after the fact.

In conclusion, I make clear that Labor's No. 1 priority here is protecting children. There is nothing more sickening than child sexual abuse. Children are the most precious and vulnerable members of our community. Labor has no tolerance for these crimes, and we want to see paedophiles locked up. 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 about mandatory sentencing and, in particular, to consider the significant potential for mandatory sentences to cause injustice and to actually make it harder to protect children. In light of that evidence, I call on the government to remove from this bill the schedule that would compel Australian judges to impose mandatory sentences. I move:

That all words after "That" be omitted with a view to substituting the following words:

"whilst not declining to give the bill a second reading, the House:

(1) notes that:

  (a) the Opposition supports the objectives of this bill and would like to work with the Government to ensure the bill best achieves those objectives—the most important being the protection of children;

  (b) the bill is currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee, which is due to report on 7 November 2019;

  (c) while its final position on the bill will be determined following the conclusion of that inquiry, the Opposition has a longstanding opposition to mandatory sentencing; and

   (d) among other things, the bill would introduce mandatory sentencing; and

(2) is of the view that:

  (a) there is no evidence to suggest that mandatory sentencing is an effective mechanism for deterring offenders or protecting the community;

  (b) by contrast, experts—including the Commonwealth Attorney-General's Department—have argued against the introduction of mandatory sentencing regimes, including on the basis that, where an offender is facing a mandatory minimum sentence, juries may be less likely to convict; and

  (c) in light of the concerns raised by experts, and in the absence of any evidence that mandatory sentencing is effective, the Government should work with the Opposition on alternative approaches to sentencing that are more likely to achieve the core objectives of this bill, which are to punish child sex offenders and keep children safe from harm".

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for Isaacs. Is the amendment seconded?

Linda Burney (Barton, Australian Labor Party, Shadow Minister for Families and Social Services) Share this | Link to this | Hansard source

I second the amendment and reserve my right to speak.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I thank the member for Barton. The original question was that this bill be now read a second time. To this the honourable member for Isaacs has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. The question now is that the amendment be agreed to. I call the member for Wide Bay.

Llew O'Brien (Wide Bay, National Party) Share this | Link to this | Hansard source

The Morrison government and the Australian community know that every child needs to be protected from sexual predators. Every child needs to witness adequate judicial sentencing of sexual predators. Every predator must be adequately sentenced and supervised to prevent reoffending. The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 will improve existing legislation to achieve these expectations. There should be no question as to whether this bill should pass in the form that it is in now, as it serves to correct the weaknesses that have been identified which favour depraved sex offenders and predators, who should receive the adequate sentencing that the community rightly expects.

The bill follows the government's previous reforms, which included the power to stop paedophiles from travelling overseas to reoffend and the introduction of Carly's Law. Following these increased powers of investigation and the tighter legislation, the AFP have detected an increase in child exploitation offences over the past year. The government will not sit idly on its hands when it can respond with clear, strong laws against these predators. We won't waste time kicking this issue into the long grass. There is a serious problem, and it needs to be dealt with now. I'm confident that not one member in this chamber would vote to make our child sex crimes any less effective or sentencing any more lenient. And nor should they, for they represent their communities, and their communities want more effective protection for their children and harsher penalties for those convicted. The Morrison government is acting on this expectation, and the bill includes mandatory sentencing for recidivist offenders, increased maximum penalties and a presumption in favour of actual imprisonment.

The previous speaker spoke of Labor's longstanding opposition to mandatory sentencing. Well, I have long been in support of mandatory sentencing. This doesn't come from shining a seat in a university as an academic or from sitting in Labor Party conferences, listening to other bleeding hearts about how mandatory sentencing doesn't work; it comes from having watched the most vile filth in our community walk free when they shouldn't have—walk free when a gutless member of the judiciary, who has lost touch with looking after victims and with community expectations, has let a sex offender or criminal walk back into the community.

I understand that mandatory sentencing is not for every offence. I understand that you need to take into account matters like hardship or education or the circumstances that someone finds themselves in, such as whether they have children to look after, as to whether you are going to give a custodial sentence. But you think about those things that I've just said and put them into the context of somebody who has decided to sexually offend against and sexually abuse a child.

Does hardship, not having enough money or no job, cause you to sexually abuse a child? No, it doesn't. Does not having education cause you to sexually abuse a child? No, it doesn't. Does having kids at home mean, because you've sexually abused a child, you should be let go back home to look after those children? Well, I think the answer to that is obvious; no, it shouldn't. Sex offenders are people who have a perverted, sick desire to satisfy themselves by sexually abusing a child. Anybody that is associated with this kind of thing should not be walking amongst us in our community. They should be incarcerated. And it is a disgrace that Labor opposes mandatory sentencing for child sex predators.

No longer will we tolerate a third of Commonwealth child sex offenders being convicted without going to jail. No longer will we tolerate child sex predators being released into the community without undergoing any rehabilitation programs. No longer will we tolerate paedophiles being released without adequate supervision. This bill is urgently needed to tackle the increased capability of child sex predators to commit offences in the ever-developing digital space. Unfortunately, in this online world, the monstrous act of child sexual abuse is often accompanied by wicked, cruel violence, and this bill augments sentencing with appropriate aggravating factors that allow tougher penalties for these sorriest of crimes.

The government is conscious that children as victims and, therefore, witnesses of these nightmare crimes need greater protection in court. No longer will they have to enter the adult-filled courtroom and look into the face of their attacker, as we will allow prerecorded evidence. No longer will they be unnecessarily re-traumatised, as we will stop them being unnecessarily cross-examined at committal or other preliminary hearings.

The Australian public's outcry of anguish when it learns that a repeat offending paedophile, or one charged with serious acts of paedophilia, is released from custody on bail must end. With the introduction of this bill, the government will make it difficult for these most dangerous of predators to obtain such releases. This bill will help the victims over the predators and will place the safety of children as the prime consideration. By passing this bill, we will ensure that never again will a convicted paedophile walk free in the community without mandated supervision. The government want this bill to pass and the Australian people want this bill to pass with mandatory minimum sentencing. The Australian government want us to be a tougher on paedophiles. This bill is our response to that call.

Chris Hayes (Fowler, Australian Labor Party) Share this | Link to 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.

Julian Simmonds (Ryan, Liberal National Party) Share this | Link to this | Hansard source

I rise to strongly support the bill before the House today, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. Listening to the member for Isaacs's speech and the member for Fowler just now, I certainly accept that their words regarding their desire to protect children are heartfelt. But what strikes me is that, once again, Labor's rhetoric doesn't match their actions. They are happy to come into this place and talk about protecting children—as we certainly are with this bill—but they aren't willing to actually get behind the government and support the passage of this bill. What was particularly concerning was that the member for Isaacs spent more time on trying to lecture the government on parliamentary process than on talking about the protection of the child. This is a pretty clear-cut case of the government on the side of community expectations, and it is entirely out of step with community expectations that somebody who commits these heinous crimes against children should not receive a custodial sentence.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may resume at a later hour.