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

I will start where I was cut off. The Labor Party's position on this particular bill is completely out of step with community expectations. Thirty-nine per cent of child sex offenders convicted federally last year didn't spend a single day in jail. The community expect better than that. We, the Morrison government, understand that, and that's why this bill is here—to correct that and to make a difference. For the Labor Party to stand there and for the member for Isaacs to, rather than support this bill, try and give the government a lecture on parliamentary process just shows that their actions do not match their rhetoric.

The member for Fowler also raised a number of issues in defence of Labor's position not to do anything on this particular issue. Even though there were a lot of platitudes—and I accept that Labor's platitudes were heartfelt—the member for Fowler raised the issue that, somehow, mandatory sentencing might remove the incentive for people to cooperate. Well, we know that the legislation deals with that. If he had bothered to read the legislation, rather than simply seeking an arbitrary reason to justify Labor's indefensible position, he would know that. The fact is: this bill retains discretion for the judiciary to reduce a mandatory minimum penalty by up to 25 per cent to allow for recognition of early guilty pleas and cooperation with law enforcement. Quite clearly, there is still an incentive within this bill for people to either plead guilty or to cooperate with law enforcement agencies. There is also significant discretion for the courts remaining in this bill. That is what is going to prevent the spectre that Labor keeps raising—that, somehow, this will lead to a situation where juries are less likely to convict.

Courts will still retain their important power to set non-parole periods for child sex offenders as they see fit. Importantly, law enforcement officers and prosecutors will retain their broad discretions regarding whether or not to charge or prosecute individuals. But the point is that, when these individuals are found to have undertaken these most heinous of acts against children in our community—acts which create victims for life—we will not have the situation that has been the case for the last year, where 39 per cent of perpetrators who were convicted did not spend a day in jail. Their victims, and the victims' families, are affected by these crimes for the rest of their days. The idea that 39 per cent of child sex offenders convicted federally last year didn't spend a single day in jail is so out of step with community expectations that we must seek to rectify it urgently, which is what this bill does.

I'm disappointed that, despite the platitudes, Labor members opposite can't bring themselves to join with the government to take action on this important issue. Our children must be protected from the dangers of sexual abuse. We must do everything in our power that we can to address the inadequacies of our criminal justice system. There must be severe penalties for those individuals who seek to commit these heinous crimes. We on this side of the chamber not only believe this but are willing to act so that we can stand, hand on heart, as fathers and mothers, and say we have done everything to keep our children safe.

Children are among the most vulnerable in the community, and the crimes that this bill deals with are some of the most serious we are faced with. Children are more trusting of the adults around them, and their innocence can, disgustingly, be preyed on. This bill is an example of the government's commitment to protect children from sexual abuse. These offenders are predators—have no doubt about that. For too long, punishments have been inadequate, in the eyes of the community, and grossly below our expectations and the public's.

Just last week in my home town of Brisbane we had a disturbing judgement handed down by the Brisbane District Court. Last December, during the Christmas rush, at a department store in North Lakes, a paedophile by the name of Sterling Free lured a seven-year-old girl away from her mother. He proceeded to take her into bushland, where he sexually assaulted her, before returning her to the store. This is the nightmare of every parent. I am at a loss for words to describe how I feel about such despicable acts, and I am at a loss to think about how a family recovers from something like that. He was sentenced to just eight years in prison, with parole after two. This offender could be back in the Brisbane community in August 2021.

Queenslanders are justifiably outraged, as they expect more from the Queensland state Labor government when it comes to punishing this individual for this disturbing act. I stand with the Minister for Home Affairs, Minister Dutton, who has rightly slammed the sentence as an outrage and called on Queensland's state Labor government to immediately appeal, and to follow the Morrison government's lead and introduce legislation, such as that we have before us, creating minimum mandatory sentences for child sex offenders.

With that in mind, I'm speaking on this bill so we can do what we can in this place to improve the situation. The bill will strengthen Commonwealth laws to provide greater protection of our children and send a strong message, a deterrent, that people, should they choose to act in this way, will be duly punished. The bill does four things to achieve this. It introduces new offences relating to grooming activities and to websites and online platforms designed to host child abuse material. It introduces new aggravated offences for the most horrific types of child abuse engaged in while somebody is outside of Australia, including where the child is subjected to cruel, inhumane or degrading treatment. It implements a range of presumptions against bail and presumptions for imprisonment, meaning it is more likely that child sex offenders will go to prison and will stay there longer, and it will be harder for them to get bail. It introduces mandatory minimum sentences for the most serious child sex offences and for those who are repeat offenders.

Unfortunately, as technology continues to improve and enhance the way we live, so, too, can it be harmful in the wrong hands. Importantly, this reform seeks to bolster the tools available to combat this increasingly changing form of child sexual abuse. In an age where it is now standard for children to be online for schoolwork or at home, particularly at an increasingly young age, we must do all we can to protect them against emerging threats. Perverse individuals could be lurking at the other end of a keyboard. Online services making a profit from making or facilitating the exchange of child abuse material is a sickening and growing problem. Currently, those behind such acts can only be prosecuted where it can be proven they are themselves also accessing child abuse material or encouraging others to do so. This bill will introduce a new offence, allowing a sentence of up to 20 years in jail, that ensures that providers of these services are rightly held to account for the damage they are doing to our community.

As I said, in the last financial year 39 per cent of Commonwealth child sex offenders walked away with a non-custodial sentence. This is not an acceptable figure. The bill, I am pleased to say, will dramatically improve judicial outcomes. Mandatory minimum sentences will apply to child sex offences that attract the highest penalties, particularly to reoffenders who have previously been convicted of separate child sex offences. The bill introduces minimum five- to seven-year terms for the most serious child sex offenders. Recidivists will face from one to four years across a spectrum at the Commonwealth level. This, together with a new presumption in favour of cumulative sentences for multiple child sex offences, will see sentences that will adequately reflect the seriousness of the offending that has occurred.

Bail is another issue in these cases. This bill will introduce a presumption against bail for those who have reoffended. In consideration of bail for repeat child sex offenders or those charged with the most serious of offences, there will be an expectation that bail should be refused on the grounds of community safety. Nothing is a bigger priority for me in this place than ensuring my community is safe. I'm a dad, a parent, with a two-year-old son, and I will do everything I can to ensure that he and the other children in Ryan are safe from predators like the ones targeted and addressed in this bill.

I will circle back to finish where I started, and that is that it is so disappointing to me and the other members of the Morrison government that this bill does not have bipartisan support. I've spent the last few minutes outlining what's in this bill, and I'm yet to see anything that could be disagreed with, quite frankly. What is the argument against from the Labor members—that those who commit these hideous crimes shouldn't go to jail for longer; that they shouldn't go to jail full stop, as opposed to what is currently happening; that there shouldn't be a presumption that bail is denied so that the community can be kept safe in these circumstances? I've heard a lot of words from members opposite about standing up for the principle of no mandatory sentencing. But why aren't they standing up for the principle that our children should be safe? We in the Morrison government certainly are. We're doing it with actions, through this bill, not with words. So, when Labor members talk about standing up for a principle, remember that they're standing up for the principle of process rather than for the principle of keeping our kids safe, as we here in the Morrison government are doing.

There are perfect examples of where mandatory sentencing has worked. When the Western Australian state Liberal government introduced mandatory sentencing provisions for assaults against police and other officers—again, serious offences within our community where there is a community expectation that they be dealt with in a significant way—there was a 28 per cent drop in assaults against police in just a 12-month period. This demonstrates that, when these criminals, these evil individuals, are forced to confront the fact that their fate will be a minimum of five to eight years in jail, this will be a deterrent to their committing those acts. If even one of these kinds of heinous acts is prevented thanks to this legislation, it will have been well worth it.

I have faith in our judicial system. That's why I'm pleased that this bill still allows flexibility for judges to make decisions and for prosecutors about whether or not they prosecute a case, and makes allowances for people who work with prosecutors and police for intelligence gathering. But, at the end of the day, I'm prouder still of the fact that this bill, if passed by the House, will ensure that people who are convicted of these most heinous acts are sent to jail, and sent to jail for a reasonable period of time, in line with community standards.

Andrew Leigh (Fenner, Australian Labor Party, Shadow Assistant Minister for Treasury) Share this | Link to this | Hansard source

In the United States, President Trump recently signed the FIRST STEP Act. That act takes several steps to ease mandatory minimum sentences under US federal law. It passed with overwhelming support from Republicans and Democrats, and the support of a wide range of groups—from the American Civil Liberties Union to the right-wing organisation Right on Crime. It reflects the reality that many other countries' legislators are moving away from mandatory sentences. As Hilde Tubex from the University of Western Australia has said:

… let's follow international jurisdictions that are moving away from mandatory sentences, due to a lack of evidence that they work in protecting the community, and leave it to the judges to judge.

In Australia, we face the same situation that Britain, the United States and New Zealand also face: a massive rise in incarceration rates. Australia's incarceration rate is now the highest that it has been since 1899. Australia is facing a second convict age. The imprisonment rate now stands at 221 prisoners per 100,000 Australian adults, and has had a 130 per cent rise in the incarceration rate since 1985.

Among Indigenous Australians, the incarceration rate is probably best expressed simply as a percentage—2.5 per cent of Indigenous adults are now behind bars. In Western Australia, 4.3 per cent of Indigenous adults are incarcerated. Noel Pearson has referred to Indigenous Australians as the most incarcerated people on earth, and my research finds that the incarceration rate of Indigenous Australians is higher than the incarceration rate of African Americans. This has occurred in an environment in which sentences have increased. In 1985, the average time expected to serve for sentenced prisoners was 2.4 years; now it's 3.7 years. Back then, the share of prisoners expected to serve more than 10 years was 1.8 per cent. In 2018 it was 8.6 per cent. This increase in sentence lengths has been one of the reasons that Australia's incarceration rate has risen, one of the reasons why Australia now spends some $5 billion a year on prisons and one of the reasons why many states are expecting to have to build new prisons in coming years.

Let me be absolutely clear. I am the father of three beautiful little boys, ages 7, 10 and 12. Nothing is more abhorrent to me than sex crimes against children. My focus is on what we can do in order to reduce the scourge of child sex abuse. The reason that Labor will not support the mandatory minimum sentence provisions in this bill is because we don't believe they work. This is not a question of who is going to be tougher on paedophiles. If I believed that increasing sentences would reduce the chances of child sex abuse, then I would support it. The reason I don't support it, the reason the shadow Attorney-General doesn't support it, the reason the Law Council of Australia, the Institute of Criminology and indeed the Attorney-General's Department don't support it is that mandatory minimum sentences have not been proven to work. The government has brought to this debate a great deal of ideology but precious little evidence.

Labor has a strong record in protecting children. In 1994, we introduced world-leading offences targeting Australians who engage in the sexual abuse of children overseas. In 2009, we brought jurisdictions together to implement the National Framework for Protecting Australia's Children. It was the Gillard government that established the Royal Commission into Institutional Responses to Child Sexual Abuse. Labor appointed Australia's first National Children's Commissioner to advocate for the rights of Australia's young people. But we don't support mandatory minimum sentences, because, as the Law Council has pointed out, they may well be counterproductive. The Law Council has pointed out that mandatory sentencing 'potentially increases the likelihood of recidivism, because prisoners are placed in a learning environment for crime, which reinforces criminal identity and fails to address the underlying causes of crime'. They point out that mandatory sentences 'are likely to result in an increase in contested hearings since offenders who may have considered pleading guilty in the hope of receiving an alternative to full-time imprisonment may be inclined to go to trial,' causing a further drain on resources, delay and unnecessary distress to alleged victims.

As the Standing Committee for the Scrutiny of Bills has consistently noted:

… mandatory penalties necessarily undermine the discretion of judges to ensure that penalties imposed are proportionate in light of the individual circumstances of particular cases.

The Attorney-General's Department says 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'. The Australian Institute of Criminology has pointed out that mandatory sentences can lead to circumstances in which juries can refuse to convict. The Royal Commission into Institutional Responses to Child Sexual Abuse brought down a report which was in 17 volumes and contained some 400 recommendations. None of those recommendations were for the introduction of mandatory minimum sentences for offences of this kind. That was the most extensive inquiry into child sexual abuse that we have seen in Australia's history, and it did not propose that mandatory sentences be put in place.

The Senate Legal and Constitutional Affairs References Committee noted:

The Chief Magistrate of the Northern Territory provided the committee with evidence of incarceration rates as a result of the imposition of mandatory sentencing in the Northern Territory during the period 1997 to 2001. The Chief Magistrate noted that the imprisonment rate was 50 per cent higher during this period than following repeal of the laws. Non-custodial orders such as home-detention and community work were almost unused for property offences during the mandatory sentencing era.

The member who spoke before me referred to mandatory sentences for assaults on police officers in Western Australia. It is my understanding that that offence is rarely charged and that that is a direct result of the mandatory sentence that is in place.

The Australian Law Reform Commission, in its Pathways to justice report, noted:

Mandatory sentencing may also disproportionately affect particular groups within society, including Aboriginal and Torres Strait Islander peoples …

That is always a risk that must be borne in mind. Labor has called for incarceration targets to be part of the Closing the Gap targets. Those who are concerned with closing the gaps must also be concerned with the impact that mandatory minimums could have. The Law Council of Australia put it well:

We all agree these are heinous crimes that should be subject to severe sentences. The community is not interested in cheap law and order politics but solutions that prevent harm.

We need to be practical and evidence based. We need to be ruled by the philosophy of what works, not what feels good. As criminal justice reformers have pointed out in the United States, we should ensure that policies are based on the best available evidence.

The Law Council's submission also pointed out the potential for unjust outcomes to occur, and they give a range of examples which could occur as a result of this bill. The examples include the hypothetical:

On a scout’s trip to New Zealand, an 18 year old Year 12 student has sex with his 15 year old Year 10 girlfriend—

Under the bill, that would be conduct punishable by a mandatory minimum of six years in jail—

On a holiday overseas between two families, an 18 year old and 15 year old commence a romantic relationship and they touch each other—

That would be subject to a mandatory minimum penalty of five years—

An 18 year old and a 15 year old exchange images and sexual stories on Snapchat—

or—

An 18 year old and a 15 year old engage in sexual activity using FaceTime—

That would subject the 18-year-old to a mandatory minimum penalty of five years—

An 18 year old text messages her 15 year old friend encouraging him to send an indecent image to his 18 year old girlfriend—

That would be subject to a mandatory minimum penalty of five years—

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

That would carry an additional offence of three years. It would surprise me greatly if there were no-one in the current parliament who had committed one of these acts, yet this bill proposes to levy multiyear mandatory minimum penalties.

The Law Council also points out that there is also the strange feature of the bill that, 'if the conduct continued after the victim’s 16th birthday, the conduct would no longer be an offence'. As the Law Council points out:

This serves to highlight the arbitrary and unjust nature of the mandatory sentencing provisions and their blindness to the actual moral culpability of offenders in particular cases.

This is fundamentally, as the Law Council points out, a task best left to judges.

If we want to reduce the terrible scourge of child exploitation, of child sex abuse, we must do it based on the best available evidence. We must ensure that that evidence guides us as parliamentarians. We must also make these decisions in a context in which we recognise that the incarceration rate in Australia has not been higher in the lifetimes of any of us. The last time Australia locked up such a large share of our population was 1899. The rise in incarceration has been due, in part, to the increase in sentence lengths, and the increase in sentences has not been a principal driver of the fall in crime. Crime has fallen markedly since the 1980s. Murder rates are down by almost 50 per cent. Rates of car theft, burglary, robbery and assault are all significantly down since the 1980s. This has occurred through a confluence of factors, but increased incarceration has played little part in that fall in crime. It is vital that we deal with the problem of child sex abuse in a way which is best targeted to achieve the purpose, not in a way which is calculated to buy a headline or to make us feel good. This issue is too important for ideology to trump evidence.

Graham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education and Training) 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 2019. I thank the member for Fenner for his contribution, and I point out that, as stated by the member for Fenner, Labor strongly supports the objectives of this bill. The protection of children is and always will be a priority for Labor—as it should be for all political parties, obviously. I'm very proud to have been a member of parliament in November 2012, when Labor Prime Minister Julia Gillard announced that she would recommend to the Governor-General that a royal commission be appointed to inquire into institutional responses to child abuse.

The workload of that royal commission, instigated by Labor, was phenomenal. I thank the commissioners and their staff for their considered work over five years, work that will no doubt leave a lasting imprint on all of their lives as well; I say that in my 25th year of being married to someone that has worked in child protection areas. I know how horrible it can be when you see humanity at its worst. That royal commission received 42,041 calls and 25,964 letters and emails, held 8,013 private sessions and made 2,575 referrals to authorities, including the police. The royal commission handed down its final report in December 2017 and made a total of 409 recommendations. None of them, as pointed out by the member for Fenner, included mandatory minimum sentences.

That royal commission changed lives. It looked at child protection and the welfare of children in a more forensic way than anything has ever done, yet it did not recommend what this legislation is contemplating. That royal commission allowed many survivors of child sexual abuse to tell their stories for the very first time. Importantly, it shone a light on the abhorrent sexual abuse that had been conveniently ignored by many—often people in positions of power—for far too long. It shone a cleansing light into some corners where powerful people thought they were above the law.

Child sexual abuse is sickening. There should be no tolerance for these crimes. There is no tolerance for these crimes, and there are no sides to be taken in this debate. It is simply political pointscoring for the Prime Minister and his senior ministers to suggest otherwise. I particularly want to call out a former minister, Michael Keenan, who was an absolute grub at the dispatch box when it came to doing that in the 45th Parliament. I will never ever forget—or forgive him for—what he said. We all want to see paedophiles locked up.

I'm very proud of Labor's record on child protection. In 1994 Labor introduced world-leading offences targeting Australians who engage in the sexual abuse of children overseas. Labor 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. Labor introduced new child abuse preparatory offences and other protection measures in 2010. Labor appointed Australia's first National Children's Commissioner, in 2013, to advocate for the rights of Australia's young people, and Labor introduced the vulnerable witness act in 2013. I haven't checked but, in defence of the coalition, I'm certain that the Liberal Party, the National Party and many other political parties would have supported that legislation at the time.

I just wanted to put on the record that Labor is committed to protecting children from harm and abuse. While Labor supports the objectives of this bill to protect children, Labor has had a longstanding and well-reasoned objection to mandatory sentencing. Mandatory sentencing undermines fundamental rule of law principles. It restricts judicial discretion and independence and the ability of a member of the judiciary to look at the facts in front of them. It also violates Australia's human rights obligations.

It's not just an ideological objection to mandatory sentencing. We know, and all sensible lawyers know, that serious problems will occur when mandatory sentencing is imposed. The Law Council says:

… the Law Council's Mandatory Sentencing Policy considers that mandatory sentencing:

rather than just listening to some shock jock—

about the particular circumstances of the case and the offender, 90 per cent viewed judges' sentences as appropriate;

and chance their luck—

something that the Australian nation willingly signed up for; we weren't coopted into signing up but willingly signed up—

the right to a fair trial and the provision that prison sentences must in effect be subject to appeal as per Article 14 of the ICCPR.

The Law Council are not the only organisation concerned about mandatory sentencing. Knowmore, the free and independent community legal centre that provides legal information, advice, representation and referrals, education and systematic advocacy for victims and survivors of child abuse, also has serious concerns about mandatory sentencing. I should declare that my wife used to work for knowmore before becoming a member of the judiciary, just to put that on the record. Knowmore's submission to the Senate Legal and Constitutional Affairs Legislation Committee says:

…knowmore is concerned by the lack of evidence supporting the effectiveness of mandatory sentencing policy in achieving the Bill's stated aims. The Royal Commission expressed concerns with mandatory sentencing policy, warning that it '… imposes a significant or complete constraint on judicial discretion …'

The royal commission itself said:

[t]he criminological evidence is that mandatory sentences are not as effective as deterrents, do not reduce crime rates and generally operate in such a way that discriminates against certain minority groups. In terms of consistency, rather than leniency of sentences, mandatory sentencing has the effect of treating unlike cases as like, creating a form of unfairness analogous to the situation where there is too much discretion and where like cases are treated differently.

The Australian Lawyers Alliance also have grave concerns about implementing mandatory sentencing. They say in their submission to the Senate committee:

The simultaneous provision of mandatory minimum sentences removes judicial discretion and shows a manifest want of trust and faith in the competence of the judiciary. If maximum sentences are increased, then the message of gravity of wrongdoing and the need for deterrence is clear but there will always be cases where flexibility needs to be available to judges in sentencing and the imposition of minimum sentences removes all useful discretion. Minimum sentences are offensive to our system if they imply that judges are not properly applying the existing law. The increase in maximum sentences suggests that it was the existing law which was the problem; not the judges. The ALA strongly submits that sentencing should ultimately be a discretionary matter and judges' hands should not be tied so that there is an unjust result in particular and unusual circumstances.

So the experts all agree. Mandatory sentencing will not achieve the desired objective of keeping children safe. Mandatory sentencing may result in fewer criminals being convicted of child sex offences. Mandatory sentencing can also result in unjust outcomes.

The Law Council, in their submission, gave examples of what they describe as 'not uncommon teenage behaviour'—heaven forbid, I say as the father of a 14-year-old—that could be caught by the mandatory minimum sentences included in the current bill:

On a scout's trip to New Zealand, an 18 year old Year 12 student has sex with his 15 year old Year 10 girlfriend.

That would meet the offence of sexual intercourse with a child outside Australia under this proposed legislation and would result in a mandatory minimum penalty of six years in prison. Another example is:

An 18 year old text messages her 15 year old friend encouraging him to send an indecent image to his 18 year old girlfriend.

That would meet the offence of using a carriage service for sexual activity with a person under 16, causing child to engage, resulting in a mandatory minimum penalty of five years in prison.

There are lots of other examples we could give that are of a similar nature. We could all say, 'This is not what teenagers should do,' but that is not the world that we live in. It's a reality that, with social media, inappropriate sharing of information and images is much more common. Let me be clear: this is not behaviour that I am in any way encouraging. But do we really want teenagers who did something like that being locked up for many years, with a member of the judiciary having no option but to lock them up?

I urge the government—the National Party and Liberal Party coalition—to consider alternative approaches to mandatory sentencing—alternatives that would be more likely to achieve the objectives of this bill that Labor supports, which are to punish child sex offenders and keep our children safe. Labor is ready and willing to work with the government to achieve these objectives, the most important being the protection of vulnerable children. It would be unforgivable if political pointscoring or some lame attempt at 'wedgislation' to get some cheap media out there by the showman that we have in the Lodge ended up with kids in jail for doing stupid things rather than being child sex offenders. So I ask the Attorney-General and the government to reconsider. We will carefully consider this bill through the Senate committee process and also engage with stakeholders from across the community, and I say again that our focus, my focus, will always be on the protection of children.

Christian Porter (Pearce, Liberal Party, Attorney-General) Share this | Link to this | Hansard source

I thank all the members for their contribution at the second reading stage of this bill. The Morrison government is evidently wholeheartedly committed to protecting communities, especially children, from the dangers of child sex offenders. This government has introduced the most significant reforms to the legal framework concerning child sex offenders since the establishment of the Criminal Code of the Commonwealth in 1995. The increases to the maximum penalties for the most serious Commonwealth offences with respect to child sex offending better reflect the seriousness of the offending, and that the impact of these offences can be damaging and the impact is lifelong.

The increased maximum penalties reflect the gravity and the higher level of culpability of these most serious offences. However, the proposal to simply increase maximum penalties will not be enough to shift sentencing practices. For those Commonwealth child sex offenders who even received a custodial sentence, the most common amount of time spent in jail was six months, despite offences currently attracting imprisonment maximum penalties of up to 20 years. In the 2018-19 financial year, 39 per cent of convicted Commonwealth child sex offenders were not sentenced to spend a day in prison. For those that did spend time in prison, the most common sentence was 18 months. These statistics, updated from initial figures provided last month by the Commonwealth Director of Public Prosecutions, are alarming and clearly demonstrate that we need to act to ensure that child sex offenders receive the sentences that they deserve. The introduction of mandatory minimum sentencing for the most serious offences and repeat child sex offenders is necessary to send a clear message that society will not tolerate sexual crimes against children and to ensure that criminal penalties appropriately reflect the gravity of the offending.

Members of the opposition have made a number of comments during the debate and in the media that the Labor Party is opposed to mandatory penalties in principle. It does seem strange to me that the party that legislated mandatory minimum sentences for people-smuggling offences in 2010 will not now contemplate the same sentencing regime for child sex offences in 2019. One could draw the view that that means that Labor does not think that these are equivalent in terms of seriousness of offences, but they clearly are. Indeed, the view the government takes is that this category of offences is significantly more serious than those for which Labor instituted mandatory sentencing principles.

The argument that mandatory sentencing will lead to fewer convictions is, I must say, nonsensical. It is completely at odds with community expectations that 39 per cent of child sex offenders convicted federally last year were not sentenced to spend a single day in jail. The community expects that child sex offenders go to jail, and this bill is the way to make that happen. The Morrison government is firmly of the view that, while setting mandatory minimum penalties is unusual, it is wrong in principle that people who commit abhorrent acts against children that can destroy the lives of the victims avoid jail time and/or are released into the community without appropriate protections in place.

So, for the sake of clarity: these provisions do not set mandatory minimum non-parole periods for child sex offences. The mandatory sentencing scheme is a layered and considered approach and has built-in safeguards that enable the courts to take into account the individual circumstances of a case. It does not apply to persons under 18 years old, and it enables a court to discount sentences for pleading guilty and cooperating with law enforcement. Judicial discretion over the non-parole period is retained, allowing the courts to take a range of sentencing considerations into account in determining a sentence of appropriate severity in all the circumstances of the case. People suffering from a cognitive impairment at the time of their offending will not be subject to minimum mandatory sentencing, as the Criminal Code already contains protections to ensure that they do not face criminal responsibility. The mandatory minimum sentencing scheme is a sensible solution that reflects community expectations and ensures that sentences for child sex offences actually reflect the gravity of those crimes.

The Commonwealth already has mandatory minimum penalties for people-smuggling offences. These impose a mandatory minimum non-parole period as well as a mandatory minimum head sentence. The High Court have considered these types of penalties and held that they are constitutionally valid, noting, in their 2013 decision of Magaming:

In Markarian v The Queen, the plurality observed that "[l]egislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks." The prescription of a mandatory minimum penalty may now be uncommon but, if prescribed, a mandatory minimum penalty fixes one end of the relevant yardstick.

The appellant may be right to have submitted, as he did, that, even at 1901, mandatory minimum custodial sentences were "rare and exceptional". But as the appellant's submission implicitly recognised, mandatory sentences (including, at 1901, sentence of death and, since, sentence of life imprisonment) were then, and are now, known forms of legislative prescription of penalty for crime.

These mandatory minimum penalties, consistent with the principle that I've just read from, set a sentencing yardstick for judges sentencing Commonwealth child sex offenders. The bill also makes it harder for serious child sex offenders to get bail once they've been charged, by creating an offence based presumption against bail for certain Commonwealth child sex offences. Given the seriousness of the offences to which the proposed new presumption would apply, and the potential risk to the most vulnerable members of the community if bail were granted, this measure will provide for protection of the community.

The new offences in this bill deal with new and emerging threats and criminalise reprehensible and harmful behaviour which facilitates or perpetuates child sexual abuse, such as being the administrator of a website that exists for the purposes of distributing child abuse material or the groomer of another person for the purposes of procuring a child for sexual activity. The most important task of the government and of this parliament is to ensure the safety of the Australian community, especially those most vulnerable—our children. The package of measures introduced by this bill marks a tough and necessary crackdown on paedophiles.

I might note one or two additional points with respect to matters that were raised by the final speaker from the opposition regarding, particularly, the issue of children and the effect, potentially, on them. The final example that was provided by the last speaker from the opposition was with respect to a male over the age of 18 who had had sexual intercourse with his girlfriend, who was 15. I might just note that, at that age, there is no ability to provide consent. In that example, it is, under the law of the Commonwealth, a rape. That is the law as it presently stands. I think it demonstrates some of the misunderstandings of how the law actually operates. I also note that people who were under 18 at the time of the offence themselves are exempt from the mandatory minimums. So those who were under 18 at the time of the offence are exempt from mandatory minimum sentences, and that is, obviously, to ensure that children who may have engaged in things like sexting and other consensual sharing of images with other children are not captured by the mandatory minimums. It is not, I think, a viable submission to put that the bill would have unduly harsh outcomes for consenting teens engaging in sexual activity. When this bill previously came before the House, the opposition erroneously said that the government's legislation would see teenagers locked up for five years for flirtations over Snapchat, Facebook and other social media platforms. This bill does not target that type of relationship between consenting young persons. Rather, it targets serious predation aiming to sexually exploit vulnerable children.

The criminal justice system has effective safeguards. Firstly, all sex child offenders in part 10.6 of the Criminal Code require the Attorney-General's consent to prosecute where the accused was a minor at the time of the offending. Further, police and prosecutors retain discretion to pursue an investigation, and they must ensure that any prosecution is in the public interest. These existing considerable safeguards have not been altered by this bill. A review of the cases of actual prosecutions for engaging in sexual activity with a child under 16 since the introduction of the offence in 2010 reveals that consenting teenagers are not, in fact, being prosecuted. The people who have been convicted of these crimes include examples of the most serious offending. Three examples put before me are a 56-year-old preying on a nine-year-old, a 49-year-old targeting children in the range from nine to14 and a 36-year-old who abused eight child victims and made video recordings of the abuse that made out the offences. He was released on a condition of good behaviour after serving only 14 months in prison. On the few occasions where young persons aged 18 and above have been prosecuted for engaging in sexual activity with a child, often the victim was manipulated or deceived into sexual activity or providing child abuse material to the offender. They dealt with cases where victims were tricked about the age and often the gender of the offender, and such conduct simply cannot be excused.

So I think those submissions that were made in the latter part of the second reading debate do not actually reflect the provisions in the bill and, for those reasons and the reasons stated in the substantive remarks, we commend this bill to the House.

Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

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 immediate question before the House is that the amendment be agreed to.

Question negatived.

Original question agreed to.

Bill read a second time.