MARK DREYFUS MP

MARK DREYFUS
SHADOW ATTORNEY-GENERAL
SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS

Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019

Second Reading

15 OCTOBER 2019

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'
• 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;
• mandatory sentencing displaces discretion to other parts of the criminal justice system, most notably law enforcement and prosecutors, and thereby fails to eliminate inconsistency in sentencing;
• mandatory sentencing is 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 trial) and, consequently, a further drain on resources, delay and unnecessary distress to alleged victims.

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:

• notes that:

1. 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;

a. 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;

b. 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

c. 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".