Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Hansard source

I want to make clear at the beginning that Labor and I consider that there is nothing more sickening than child sexual abuse. As a father of two children, I feel that on a personal level, let alone the position I might take in politics. Children are the most precious and vulnerable members of our community, and Labor will always support strong and effective laws to protect children from abuse and to punish their abusers. Labor has always fought, and will always fight, to protect children here and overseas from exploitation and abuse. Labor are proud of our record under the Keating, Rudd and Gillard governments in this area.

To pick up on just a few examples, in 1994 Labor in government introduced world-leading offences targeting Australians who engage in the sexual abuse of children overseas. In 2009, Labor in government brought federal, state and territory governments together to implement the National Framework for Protecting Australia's Children, which included a significant funding commitment over four years from the Commonwealth government. In 2010, Labor in government introduced new child abuse offences and other protection measures. In 2013, Labor in government appointed Australia's first National Children's Commissioner to advocate for the rights of Australia's young people. And, of course, in that same year, Labor in government established the Royal Commission into Institutional Responses to Child Sexual Abuse—the first national inquiry of its kind. That commission shone a light on 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. I could go on. Despite the occasional efforts of some—not all, but some—on the other side to use this issue for base political reasons, my colleagues and I do not question the current government's commitment to doing what it can to protect children from harm. To the extent that there is disagreement, it should only ever be about the means and not the ends.

Labor strongly supports the vast majority of the measures in this bill, the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019. Labor supports schedule 1, which would allow the Attorney-General to revoke a parole order or licence in the interests of community safety. Labor supports schedule 2, which would remove the requirement for a court to approve the admission as evidence-in-chief of a video recording of an interview with a vulnerable adult or child. Labor supports schedule 3, which would prohibit the cross-examination of child witnesses and other vulnerable witnesses at committal proceedings. Labor supports schedule 4, which would create new grooming offences. Labor supports schedule 5, which would significantly increase the maximum penalties for a range of offences relating to sexual activity with children outside Australia and child sex offences relating to the use of postal or similar services within Australia. Labor supports schedule 7, which would introduce a presumption against bail for serious Commonwealth child sex offences. Labor supports schedules 8 and 9, which would require the court to consider a range of additional factors, including aggravating factors, when it comes to sentencing a person who has been convicted of a Commonwealth child sex offence. Labor supports schedule 10, which would insert a presumption in favour of cumulative sentences for Commonwealth child sex offences. Labor supports schedule 11, which would require offenders convicted of a Commonwealth child sex offence to serve a period of imprisonment that is not suspended other than in exceptional circumstances. Labor supports schedule 12, which would include residential treatment orders as a sentencing alternative for certain classes of offenders. Labor supports schedule 13, which would introduce new provisions in relation to the remission and reduction of sentences in circumstances where parole is revoked or where a person to whom a parole order relates is sentenced for a further offence. And Labor supports schedule 14, which would replace the existing definition of 'child pornography material' with a broader definition of 'child abuse material' in various acts, including the Crimes Act 1914. So, as you can see, Labor supports many of the measures contained in this bill.

The only schedule Labor does not support is schedule 6, which would introduce mandatory minimum sentences. Labor has a longstanding, well-reasoned and principled opposition to mandatory sentencing. Mandatory sentencing may sound tough, but there is nothing tough about sentencing measures that make it more difficult to catch, prosecute and convict child sex offenders. There is nothing tough about measures that do nothing to reduce crime or criminality. And there is nothing tough about sentencing measures that could, in some cases, result in unjust sentences being handed out to teenagers. The evidence is overwhelming. Accused persons are less likely to plead guilty or cooperate with authorities if faced with a mandatory minimum sentence. The Commonwealth's own Attorney-General's Department has previously gone so far as to argue 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. As well as resulting in costly and unnecessary trials and the possibility of acquittal, this forces survivors of child sexual abuse to endure the trauma of having to give evidence in court against offenders who would otherwise have pleaded guilty. This in turn could result in fewer survivors of child sexual abuse coming forward at all.

As the Uniting Church Synod of Victoria and Tasmania told the Senate committee:

If the perverse outcome of mandatory sentencing is that fewer victims are willing to come forward because the process is going to be made even more onerous for them and more traumatic, then you actually get a reverse outcome to the one you were intending.

Even the current government implicitly acknowledges that accused persons are less likely to plead guilty or cooperate with authorities if faced with a mandatory minimum sentence. For that reason, the bill would allow a judge to reduce a mandatory minimum sentence by up to 25 per cent to reflect either an offender's early guilty plea or an offender's cooperation with law enforcement.

However, this supposed solution is little more than window dressing as it does not remove the obvious incentive for a defendant to fight charges—even where there is little merit in doing so. All this reduction means is that in some circumstances an accused person will be faced with a different mandatory minimum sentence. Instead of seven years, for example, an accused person may face a 5.25-year mandatory minimum sentence. The problem remains; it's just a slightly smaller problem.

Then you have the problem of juries and judges being less likely to convict guilty people, and prosecutors may be less likely to charge alleged criminals if they do not believe the mandatory minimum sentence is justified. That is the evidence of the Law Council of Australia, the Queensland Law Society and a range of other experts who have looked into this issue. These and other reasons for opposing mandatory minimum sentences are set out in greater detail in a report tabled by Labor senators of the legal and constitutional affairs committee in relation to this bill. I would urge government senators to read it.

It is also worth noting that almost every non-government witness who gave evidence to the legal and constitutional affairs committee in relation to this bill recommended that it proceed without mandatory minimum sentences. Those witnesses included: the knowmore Legal Service, established in 2013 to assist people to engage with the Royal Commission into Institutional Responses to Child Sexual Abuse; the Uniting Church Synod of Victoria and Tasmania; the Jesuit Social Services; the Sexual Assault Support Service; the Law Council of Australia; and the Carly Ryan Foundation.

So what is the evidence to support the introduction of mandatory sentencing? As Labor senators noted in their Senate report, the government has produced no evidence to support the introduction of mandatory minimum sentences in this bill. Schedule 6, it seems, is not based on the outcome of any review or detailed analysis of sentencing practices. Instead of evidence or detailed analysis, the Attorney-General's Department has pointed to high-level and irrelevant statistics about sentencing outcomes generally. That's not good enough. Labor believes that this bill should proceed without mandatory minimum sentences. To that end we will be moving an amendment to delete schedule 6 from the bill. We urge the government to reconsider its position on this matter and support that amendment.

In addition to moving an amendment to delete mandatory sentencing from the bill, Labor will also seek to amend the bill to include a comprehensive statutory review of sentencing practices in relation to Commonwealth child sex offences. That was a suggestion made by the Carly Ryan Foundation in its evidence to the legal and constitutional affairs committee, and we think it's a very good one. On that point, in closing, I see that there are a number of government senators lined up to speak on this bill, including some with a legal background. I'd encourage them, in their contributions, to explain to us why they disagree with the evidence of experts to this Senate committee which says that mandatory minimum sentences in fact make it harder to get convictions and make it less likely that the tough sentences that the government say they are about will actually get imposed. I will be very interested to hear whether government senators address that point.

I would like to conclude by saying something about resourcing. As Labor senators pointed out in their report, this bill would introduce a range of measures that would be likely to create an additional burden on a criminal justice system that is largely administered by state and territory governments. The government claims in its explanatory memorandum that the financial impact of the bill will be negligible and will be absorbed by the states and territories, but, like the proposal to introduce mandatory minimum sentences, that statement does not appear to be based on any evidence at all. This is because, prior to introducing this bill, the government had not consulted with a single state or territory government about the potential resourcing implications of the measures contained in this bill. The assertion by the government that the financial impact of the bill will be negligible is not credible. As such, Labor reiterates its call for the government to consult with state and territory governments to ensure that appropriate resourcing is in place to implement the measures proposed in this bill.

More generally on the question of resourcing, it is worth stating the obvious: this parliament can pass the strongest child exploitation laws in the world, but, unless our agencies are equipped with the best technology in the world and have an appropriate number of personnel, we will not be in a position to address the scourge of child abuse. It is well known that reports of child sexual abuse imagery on the internet have exponentially increased over the last several years. We need to keep up. Labor calls on the government to conduct a detailed and thorough review of the adequacy of the resourcing that is currently available to authorities across Australia for the detection and apprehension of those who commit crimes against children, especially online.

In conclusion, 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—not just the rhetoric that I predict that we will be hearing from government senators during this debate, but the evidence—about whether mandatory minimum sentencing actually works and whether it actually does lock up people who've been convicted of heinous crimes against children in the way that they claim it will do. In particular, I urge the government to consider the significant potential for mandatory sentences to cause injustice and to actually make it harder to protect children.

Labor will be moving amendments to remove the mandatory sentencing provisions and to require a review of sentencing practices in relation to child sex offences under Commonwealth legislation. We urge all senators to support those amendments and then to support this bill.