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senate vote 2020-06-15#12
Edited by
mackay staff
on
2020-06-26 13:22:55
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Title
Bills — Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019; in Committee- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 - in Committee - Mandatory minimum sentences
Description
<p class="speaker">Jane Hume</p><p>I table a supplementary explanatory memorandum relating to the government amendments to be moved to this bill.</p> <p class="speaker">Nick McKim</p>- The same number of senators voted for and against [amendments](https://www.openaustralia.org.au/senate/?gid=2020-06-15.223.1) (2) and (5) to (7), which means they failed. They were introduced by Tasmanian Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim) (Greens), who explained that:
- > *The effect of those amendments would be that the mandatory sentencing provisions in this legislation would be deleted.*
- ### Motion text
- > *(2) Clause 2, pages 2 and 3 (table items 7 to 9), omit the table items.*
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- > *[minimum sentences]*
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- > *(5) Schedule 7, item 4, page 34 (lines 9 and 10), omit "described in column 1 of an item in the table in section 16AAA", substitute "covered by subsection (9)".*
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- > *[bail]*
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- > *(6) Schedule 7, item 4, page 34 (lines 11 and 12), omit "described in column 1 of an item in the table in subsection 16AAB(2)", substitute "covered by subsection (10)".*
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- > *[bail]*
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- > *(7) Schedule 7, item 4, page 36 (after line 16), at the end of section 15AAA, add:*
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- >> *(9) This subsection covers offences against provisions of the Criminal Code listed in the following table: [see [Hansard](https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansards/b2e4c475-0bf6-4659-8b88-1f54e43d14ad/&sid=0000) for the table]*
- >>
- >> *(10) This subsection covers offences against provisions of the Criminal Code listed in the following table: [see [Hansard](https://www.aph.gov.au/Parliamentary_Business/Hansard/Hansard_Display?bid=chamber/hansards/b2e4c475-0bf6-4659-8b88-1f54e43d14ad/&sid=0000) for the table]*
<p>I understand that the government has just tabled a supplementary explanatory memorandum relating to amendments. I just ask you, Minister, did you wish to move your amendments now or later? I just offer the call to the minister out of courtesy.</p> <p class="speaker">Jane Hume</p><p>by leave—I move:</p><p class="italic">(1) Clause 2, page 3 (table item 16), omit "Schedule 14", substitute "Schedules 14 and 15".</p><p class="italic">(2) Page 53 (after line 30), at the end of the Bill, add:</p><p class="italic">Schedule 15—Review of sentencing for Commonwealth child sex offences</p><p class="italic">1 Review of sentencing for Commonwealth child sex offences</p><p class="italic">(1) The Attorney-General must cause a review to be undertaken of the first 3 years of the operation of the following provisions of Part IB (sentencing, imprisonment and release of federal offenders) of the <i>Crimes Act 1914</i>, as amended by this Act, in relation to Commonwealth child sex offences (within the meaning of that Act):</p><p class="italic">  (a) Divisions 2 to 4;</p><p class="italic">  (b) Subdivision D of Division 5;</p><p class="italic">  (c) Divisions 6 to 9;</p><p class="italic">  (d) Division 1, to the extent that it relates to a provision covered by paragraph (a), (b) or (c) of this subitem.</p><p class="italic">(2) The review must be undertaken by one or more persons who, in the Attorney-General's opinion, possess appropriate qualifications to undertake the review.</p><p class="italic">(3) The person or persons undertaking the review must give the Attorney-General a written report of the review within 12 months after the end of the 3-year period.</p><p class="italic">(4) The Attorney-General must cause a copy of the report of the review to be laid before each House of the Parliament within 15 sitting days of that House after its receipt by the Attorney-General.</p> <p class="speaker">Nick McKim</p><p>I just want to thank the government for moving these amendments. I won't speak on behalf of the Labor Party, but I did say in my second reading speech that I thought there should be a statutory review of these provisions. So, Minister, I just wanted to clarify with you—and, sorry, obviously, your amendments have been circulated relatively late. That's not a criticism; it's more of an explanation for me seeking this advice from you. In terms of the scope of the review that would result from your amendments, can I confirm that it would cover all of the matters in this bill that relate to sentencing outcomes for offenders convicted of Commonwealth sex offences, but also of existing statutory provisions relating to sentencing outcomes for offenders convicted of Commonwealth sex offences?</p> <p class="speaker">Jane Hume</p><p>Yes, Senator McKim, we can confirm that.</p> <p class="speaker">Murray Watt</p><p>I also want to join with Senator McKim in thanking the government for listening to what we had to say on this point about a review. As I said during my second reading speech in relation to this bill, Labor believes that this bill should proceed without mandatory minimum sentences—and we'll come to that later. Mandatory sentencing is wrong in principle, does nothing to reduce or deter crime and, worst of all, has adverse consequences. It makes it harder to catch criminals, harder to prosecute criminals and harder to convict them. It should not be supported.</p><p>As recommended by senators of Legal and Constitutional Affairs Legislation Committee, Labor also thinks that the Attorney-General should be required to initiate a review of sentencing practices in relation to Commonwealth child sex offences so that the government and the parliament can ensure that people convicted of child sex offences are being sentenced in accordance with community standards and expectations. Happily, these hastily prepared amendments moved by the government would implement that particular recommendation by Labor senators. Labor does welcome these amendments. If they are successful, I would like to give the Senate notice that the opposition will not be moving items 1 and 3 on sheet 8800.</p> <p class="speaker">Nick McKim</p><p>In a similar spirit, should these amendments be successful—and I believe of course that they will—we will not proceed with our amendments which provided for a review, amendments (1) and (3) on sheet 8826. So we look forward to supporting the government's amendment—which I believe, given the contributions we've just had, will pass the chamber unanimously—and then we can move on to other issues regarding this bill, including the mandatory sentencing provisions.</p> <p class="speaker">Alex Gallacher</p><p>The question is that government amendments (1) and (2) on sheet QJ115, by leave moved together, be agreed to.</p><p>Question agreed to.</p> <p class="speaker">Nick McKim</p><p>I want to come to some of the points that the minister made in summarising the second reading debate and points made by other government members who have spoken to this legislation. Firstly, obviously there is a carve-out in the mandatory sentencing provisions of this legislation, and that carve-out is contained in 16AAC, which provides that 16AAA and 16AAB(2) do not apply to a person who was aged under 18 years when the offence that the relevant provision specifies a minimum penalty for was committed.</p><p>Before I go to some of the implications of putting such a hard marker in—where if you're one day under 18 years of age you are not caught by the mandatory minimum sentencing provisions, but if you are one day over 18 years of age you will be caught by the mandatory minimum sentencing provisions—I want to ask you, Minister, given that you've carved out the people who are under the age of 18 when the relevant offence occurred, why you have not carved out people who have significant cognitive impairment. I place this on the record. Firstly, because you've decided not to do that, if there are other pieces of Commonwealth legislation that apply, could you provide some advice to the Senate on that. Secondly, if there are not other pieces of Commonwealth legislation that apply, and someone who does have significant cognitive impairment actually is caught by the mandatory minimum sentencing provisions of this legislation, I think you risk filling up our jails with mentally ill people—or, I should say, continuing to fill up our jails with mentally ill people. So perhaps you could address that matter, Minister: whether anything in this bill, or any other piece of Commonwealth legislation, would mean that someone who does have significant cognitive impairment would not be caught by the mandatory minimum sentencing provisions in this legislation.</p> <p class="speaker">Jane Hume</p><p>Senator McKim, I did mention in my summing up speech that people suffering from cognitive impairment at the time of their offending will not be subject to the mandatory minimum sentencing, as the Crimes Act already contains protections to ensure that they do not face criminal responsibility.</p> <p class="speaker">Nick McKim</p><p>Thank you, Minister. I was probably just reading through your late supplementary explanatory memorandum when you addressed that in your second reading speech, so I do thank you for addressing that again.</p><p>Minister, I want to now address the issue that I briefly flagged earlier. I heard—and, by the way, I don't believe I heard this from a minister, but I did hear it from some government backbenchers—that 'young people' are not going to be caught by the mandatory minimum sentencing provisions. With respect to those senators, that is most certainly not true. Anyone who is 18 years and one day old can certainly be considered a 'young person'. I want to give you some examples, Minister, because I think it's important that senators understand what they're voting for here, and I give you these examples in good faith. Could you confirm that if, on an overseas holiday between two families, an 18-year-old and a 15-year-old commenced a romantic relationship and they touched each other in a sexual way, the person in that relationship who is 18 years and one day old will have to be sentenced to five years imprisonment, if found guilty of an offence. Could you confirm that please, Minister.</p> <p class="speaker">Jane Hume</p><p>When this bill previously came before the House the opposition erroneously said that the government's reforms would see teenagers locked up for five years, as you have just said, for their flirtations over Snapchap or on Facebook or on other social media platforms. This bill specifically does not target that type of sweetheart relationship between consenting young people. Rather, it targets serious predators aiming to sexually exploit vulnerable children. The criminal justice system has effective safeguards. Firstly, all child sex offences in part 10.6 of the Criminal Code—transmitting child abuse material over a carriage service—require the Attorney-General's consent to prosecute, where the accused was a minor at the time of offending. Further, police and prosecutors retain discretion to pursue an investigation and must ensure that any prosecution is in the public interest. These existing safeguards have not been altered by this bill.</p><p>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 a 56-year-old who preyed on a nine-year-old, who received a three-year sentence and was released after one year's imprisonment, on the condition that he be of good behaviour; a 49-year-old who targeted children ranging in age from nine to 14, who was sentenced to four years in prison with a two-year non-parole period, for child abuse material and grooming offences, as well as attempting to engage in a sexual activity with a child; and a 36-year-old who abused eight child victims and made video recordings of the abuse, who was released after serving only 14 months in prison, on the condition that he be of good behaviour. On the very few occasions where young people aged 18 and above have been prosecuted for engaging in sexual activity with a child, often the victims were manipulated or deceived into sexual activity with or providing abuse material to the offender. The victims were tricked about the age and, often, the gender of the offender. Such conduct cannot be excused. For an example of a young person convicted of sexual activity with a child using a carriage service, in 2014 an offender aged 19 was convicted of 14 Commonwealth child sex offences. The offences were committed over a period of approximately 12 months and involved the exploitation of 14 individual children, most of whom were aged between 13 and 16, but one of the victims was seven years of age. The court awarded a 25 per cent discount for an early guilty plea. The offender's total effective sentence was three years and six months and he was released after serving 14 months, on a recognizance release order, on the condition that he be of good behaviour, accept supervision and pay $200 for any breach. The offender had been convicted previously of contact child sex offences. I note that because the conviction was before the passage of the legislation in 2015 that required sentences of over three years to include a non-parole period, the court was able to sentence this offender with a recognizance release order. The bill ensures sexual predators who abuse children face appropriately severe penalties, regardless of their age.</p> <p class="speaker">Nick McKim</p><p>Just to be clear, no-one in this debate is arguing that heinous crimes such as that should not attract appropriate sentences. I just want to place that on the record. Having said that, most of your answer was completely irrelevant to the question that I asked. In terms of the Attorney-General needing to sign off, I believe you said that relates to minors. That is not the question I asked. I asked about an 18-year-old offender—not a minor—who is obviously still a teenager. Eighteen-year-olds, no matter their sex, can be very emotionally immature—</p><p>An honourable senator: And still at school.</p><p>And still at school—absolutely. As I understand your answer, the only part of your answer that was relevant to the question I asked was the bit about prosecutorial discretion. What you're saying is that the Senate should be satisfied on the basis of an unknown decision made by an unknown prosecutor that they won't prosecute so-called sweetheart arrangements, when in fact the sweetheart arrangements—including the example I just gave, the example of an 18-year-old and a 15-year-old exchanging sexual images or body images and sexual stories on Snapchat—could attract a mandatory minimum penalty of five years under this legislation.</p><p>Let's be clear here, Minister. You're asking us to accept a prosecutorial decision or an investigative decision made by someone—we don't know who they are; we don't know what prejudices might exist in their lives—and saying that that should satisfy the Senate, when actually, if a prosecution is launched and someone is found guilty of these offences, you could end up in a situation where someone who is 18 years and one day old could face a mandatory minimum penalty of five years in some circumstances or of six years in other circumstances. In a situation where an 18-year-old is one of the coaches of a sporting team of which his 15-year-old girlfriend is a member and he has sex with his girlfriend while the team is on an overseas trip, that 18-year-old would face a mandatory minimum penalty of seven years imprisonment. And you're asking us to accept, Minister, that an unknown decision that you hope might happen in the future, made by someone that we don't know—we don't know what their training is; we don't know what their expertise in assessing public interest is—should satisfy the Senate. Well, it doesn't satisfy me. That's why the Australian Greens maintain their strong opposition to mandatory minimum sentencing in this legislation.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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