David Pocock (ACT, Independent) Share this | Hansard source

I want to thank Senator Canavan for many of his comments about the lack of process for what is a really important bill before us that will have far-reaching consequences. The government has created an alarming habit of linking really good reforms with incredibly problematic policy, as well as curtailing opportunities to consult with experts and the community—who we are in here to represent—on major legislative changes. This time they are adding mandatory minimum sentences to a bill that was all about protecting vulnerable members of our community from hate crimes, and rushing it through parliament in a single day. As Senator Canavan said, the Senate will have less time to debate the Criminal Code Amendment (Hate Crimes) Bill 2025 than the House of Representatives will.

To be clear, this is an important bill that is urgently needed. Like so many others in this place and in our community, I condemn hate speech in all its forms. Everyone in our community deserves to be safe to practise their faith openly and without fear. This bill is designed to make that happen. What experts have said won't be effective, though, is the mandatory minimum sentencing provisions that have been added in a late-night deal with the coalition. Faith leaders and others in my community are telling me that these issues should be above politics, yet time and again they are being politicised and used to drive division. People convicted of hate crimes must absolutely be held to account, but it is the judiciary who should set the penalties on a case-by-case basis.

Less than a month ago, the Law Council of Australia published an article titled 'You know what creates unsafe communities? Mandatory sentencing'. According to the former president of the Law Council Greg McIntyre SC, the Law Council of Australia has consistently opposed the use of mandatory sentencing regimes and, indeed, has adopted a formal policy against them. He goes on to say:

… mandatory sentencing laws are inherently arbitrary and limit an individual's right to a fair trial by preventing judges from imposing an appropriate penalty based on the unique circumstances of each case.

The Australian Law Reform Commission also opposes the policy, saying:

Evidence suggests mandatory sentencing increases incarceration, is costly and is not effective as a crime deterrent. Mandatory sentencing may also disproportionately affect particular groups within society …

International law is equally clear. There is a prohibition on arbitrary detention in article 9 of the International Covenant on Civil and Political Rights, and the principle that children should be detained only as a last resort and for the shortest appropriate period of time is expressed in article 37(b) of the Convention on the Rights of the Child.

Perhaps, most strikingly, at page 87 of the current Labor Party platform, it states:

Labor opposes mandatory sentencing. This practice does not reduce crime, but does undermine the independence of the judiciary, lead to unjust outcomes and is often discriminatory in practice.

But apparently not. If we look at what Labor members have said, it's no different. In 2019, the now Attorney-General said, in the other place:

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 …

In 2019, now Minister Murray Watt also said:

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.

In 2017, now Minister Matt Keogh said:

There are already numerous reported examples of mandatory sentences that have been handed down and applied with anomalous and unjust results. When adopted, mandatory sentencing fails to produce convincing evidence to demonstrate that increases of these sorts of penalties actually deter any crime.

In 2014, now Minister Stephen Jones said:

Parliament, in fact, is usurping the judicial discretion by introducing mandatory minimum sentencing. It actually sends, as the former DPP of New South Wales said, a vote of no-confidence from the parliament to the judiciary.

Despite all this opposition to mandatory minimum sentences—including that of the Labor Party and, I assume, its rank-and-file members and most Labor voters—here we are. The government has capitulated to the coalition's politically motivated demands to add something that experts tell us doesn't work to a bill that, I think, had fairly broad support amongst the community. People have acknowledged that the parliament needs to act on this. In all of this, the communities that need the substance of the original bill are being overlooked. The Muslim community, the LGBTI community, the Jewish community, people with a disability and so many people who experience racism and bigotry have been desperate for the protections contained in this bill for so many years. They've been abused and subjected to hate speech in our streets and in our public spaces, and that's why this bill is important. They want to see this bill pass. But this practice from the government of corrupting positive reforms with terrible policy has to stop. Australians deserve better.