Introduction
Society rightly abhors the sexual abuse of children, and Labor will always support strong and effective laws to protect children from abuse and to punish their abusers.
During the committee's inquiry, experts and child protection advocates expressed concern that offenders are commonly receiving sentences that are not in line with 'increasing societal understanding of the seriousness of these offences and the enduring impact that child sexual abuse can have on the life of survivors'.
The very substantial increases to maximum penalties proposed in this bill, and several of the other proposed sentencing reforms, represent an appropriate response by the Parliament to those concerns. Among other things, those measures will result in significantly higher sentences for individuals who are convicted of Commonwealth child sex offences – and are unlikely to have any adverse unintended consequences.
By contrast, the proposed introduction of mandatory sentencing in Schedule 6 of the bill is an inappropriate response to the concerns about inadequate sentences. Based on the evidence considered by this Committee and the overwhelming opinion of experts, the introduction of mandatory sentencing is likely to create significant new problems – both for children who are victims of sexual abuse as well as for the effective and just operation of the courts.
Labor Senators oppose the introduction of mandatory minimum sentences because:
mandatory sentencing has perverse unintended consequences, such as making it more difficult to prosecute criminals and making it less likely that juries or judges will convict guilty people;
mandatory sentencing is ineffective in reducing crime or criminality; and
mandatory sentencing is wrong in principle as it conflicts with the role of the judiciary as an independent arm of government.
Labor Senators cannot support measures that are likely to make this otherwise strong and effective piece of legislation less effective and therefore weaker. We recommend that Schedule 6 of the bill be deleted.
In addition, Labor Senators recommend that:
Consistent with a proposal put forward by the Carly Ryan Foundation in its evidence to the Committee, the bill should be amended to include a comprehensive statutory review of Commonwealth sentencing practices for child sex offences. The findings of that review should be reported to the Parliament within three years of the bill coming into effect.
The Government should commence an urgent inquiry into 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; and
is currently available to authorities, including courts, to implement the measures introduced by this bill,
and report to the Parliament within 6 months.
Schedule 6 and mandatory minimum sentences
At the outset, it is necessary to address paragraph 1.13 of the committee's report which asserts that 'the bill is consistent with recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse'. While reasonable minds may differ about whether that is true of some aspects of the bill, it is very clearly not the case in relation to the proposed introduction of mandatory sentencing.
After hearing from more than 16,000 people, receiving over 1,000 written accounts of abuse, reviewing allegations of sexual abuse in more than 4,000 institutions and holding 57 public hearings and 35 policy roundtables, the Royal Commission did not recommend the introduction of mandatory sentencing for child sex offences. This is discussed further below.
The unintended consequences of mandatory sentencing
Labor Senators are particularly concerned about the perverse unintended consequences of mandatory minimum sentences, including the following.
(1)
Accused persons are less likely to plead guilty or cooperate with authorities if faced with a mandatory minimum sentence. 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.
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'. That view has also been backed by the New South Wales Director of Public Prosecutions in a submission to one of this committee's previous inquiries.
As the Uniting Church, Synod of Victoria and Tasmania told this committee '[i]f 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 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 clumsy and highly unusual approach does not remove the 'incentive' for a defendant to fight charges even where there is little merit in doing so. All it means is that, in some circumstances, an accused person will be faced with the spectre of a 5.25 year mandatory minimum sentence instead of a 7 year mandatory minimum sentence (for example).
(2)
Juries and judges will be less likely to convict guilty people, and prosecutors may be less likely to charge people, if they do not believe the mandatory minimum sentence is justified in particular cases. This concern has been cited by the Commonwealth's own Attorney-General Department and is also cited in the Law Council of Australia’s Policy Discussion Paper on Mandatory Sentencing, which reports that:
'Further, as the Queensland Law Society has observed, mandatory sentencing may encourage judges, prosecutors and juries to circumvent mandatory sentencing when they consider the result unjust. In some circumstances when offender is faced with a mandatory penalty, juries have refused to convict. The Queensland Law Society has also noted that prosecutors have deliberately charged people with lesser offences that the conduct would warrant to avoid the imposition of a mandatory sentence'.
Labor Senators note that there is a large body of research echoing those concerns.
(3)
In some cases, mandatory minimum sentences may result in unjust and disproportionate sentences where the punishment does not fit the crime. The Law Council provided numerous examples where the mandatory sentences in this bill would be applied unjustly and in a manner that would not be consistent with community standards and expectations.
For example, the bill would introduce a mandatory minimum penalty of 5 years imprisonment for the offence of using a carriage service, such as a mobile phone, to cause a child to engage in sexual activity with another person (section 474.25A(2) of the Criminal Code).
This would mean that an 18 year-old who texted her 15 year-old friend to encourage him to send an indecent image to his 18 year-old girlfriend would be subject to a mandatory minimum sentence of 5 years. The arbitrariness of this penalty is underscored by the fact that, if the text message had been sent the day after the 15 year-old friend's 16th birthday, no crime would have been committed at all.
In the absence of a mandatory minimum penalty, a judge could impose a more appropriate sentence in those circumstances which would be more consistent with community standards and expectations.
The examples cited by the Law Council are set out in full in Appendix A.
The lack of support for mandatory minimum sentences from submitters
The Committee received many submissions from experts expressing grave concerns about – and outright opposition to – the proposed introduction of mandatory minimum sentences. Without being exhaustive, those submitters included:
(1)
knowmore Legal Service, which 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. knowmore told this Committee that it opposed the introduction of mandatory sentencing and expressed particular concern about 'the lack of evidence supporting the effectiveness of mandatory sentencing policy in achieving the Bill’s stated aims';
(2)
The Uniting Church Synod of Victoria and Tasmania, which told this committee that the evidence supported the propositions that, in some circumstances, mandatory minimum sentences may make it more difficult to secure convictions, may force victims into trauma in having to give evidence in court against offenders who would otherwise have pleaded guilty, and would not necessarily make the community and children safer;
(3)
Shine Lawyers, which represented clients giving evidence before the Royal Commission into Institutional Responses to Child Sexual Abuse and continues to represent survivors seeking redress in every institutional redress scheme in Australia;
(4)
Jesuit Social Services, which noted that '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';
(5)
The Sexual Assault Support Service, which provides a free and confidential service for people of all ages who have been impacted by sexual violence (including children); and
(6)
The Law Council of Australia, which cited numerous legal arguments and a substantial body of evidence in opposing the proposed introduction of mandatory minimum sentences.
The Carly Ryan Foundation initially expressed support for the introduction of mandatory minimum sentencing in its submission to the committee's inquiry. However, in oral evidence to the committee, the Foundation revised its submission and suggested:
…that mandatory minimums be removed from the bill. I suggest this not just because it will allow the legislation to progress but also because of further feedback from international experts on paedophiles, who agree that these amendments will not achieve adequate sentencing outcomes.
Over the course of the committee's inquiry, it was noted that the Commonwealth's own experts have previously declined to support – or have outright opposed – the introduction of mandatory sentencing, including for child sex offences. For example:
(1)
The Royal Commission into Institutional Responses to Child Sexual Abuse did not recommend the introduction of mandatory sentencing. Moreover, according to research prepared for and published by the Royal Commission, the evidence overwhelmingly shows that mandatory sentences are not effective as deterrents and do not reduce crime rates.
(2)
The Australian Law Reform Commission strongly opposed all forms of mandatory sentencing when it conducted what the Attorney-General's Department described as 'the last comprehensive review of Commonwealth sentencing practices, including sentencing for child sex offences', in 2006. The Commission re-iterated its opposition to mandatory sentencing in a report published in late 2017.
As noted above, the Commonwealth's own Attorney-General's Department has previously said that mandatory minimum sentences should be avoided as they 'create an incentive for a defendant to fight charges, even where there is little merit in doing so'.
Of the 19 non-government submitters to this committee's inquiry, the committee's report cites only three who supported the Government's position – and even that appears to overstate the level of support.
Contrary to the assertion in the committee's report at paragraph 2.40 that Bravehearts 'submitted its support' for the Government's proposal for mandatory sentencing, that organisation expressed support for 'the use of minimum standard non-parole periods in relation to sexual offences against children'. That is not what the Government is proposing to introduce in Schedule 6. As the joint submission from the Attorney-General's Department and the Department of Home Affairs is at pains to point out, Schedule 6 would introduce mandatory minimum head sentences for certain offences and not mandatory minimum non-parole periods. Judges would 'retain discretion in relation to setting the minimum custodial period'.
The Government’s position in support of mandatory sentencing
The Government has produced no evidence to support the introduction of mandatory minimum sentences. Schedule 6 of the bill is not based on the outcome of any review or detailed analysis of sentencing practices.
When Labor Senators asked the Attorney-General's Department for evidence to support the Government's position on mandatory sentencing, the Department instead pointed to high level statistics in relation to current sentencing practices:
Senator KIM CARR: Evidence is what I'm looking for—evidence to sustain the claim. The evidence we've heard from all the submitters, even those that support this bill, is that there is no evidence [to support mandatory sentencing]. I would have thought you'd be able to rebuke that, that you would have put that in your submissions. I would have thought you would have shouted that from the rooftops. There has been no review undertaken and no evidence presented to the committee. This is your chance to tell me why.
Ms Wells: The evidence is very much in the data we've set out. The most common head sentence for child sex offenders who are convicted and sentenced to a custodial term is just 18 months, and the most common non-parole period or time served in custody is just six months.
There are a number of problems with the so-called “evidence” cited by the Department:
The reference to '[t]he most common head sentence for child sex offenders' being '18 months' is unrelated to the proposed introduction of mandatory minimum sentences. Proposed section 16AAA of Schedule 6 would introduce mandatory sentencing for some but not all Commonwealth child sex offences. Nobody who was convicted of an offence listed in section 16AAA during 2018/19 received a head sentence of 18 months and, according to the evidence of the Commonwealth Director of Public Prosecutions, only two of those individuals received a head sentence of less than 20 months during 2018/19.
The reference to 'the most common non-parole period or time served in custody' being 'just six months' is also irrelevant to the proposed introduction of mandatory minimum sentences. This is because Schedule 6 would introduce mandatory minimum head sentences for certain offences and not mandatory minimum non-parole periods. As the Attorney-General's Department and the Department of Home Affairs noted in their joint-submission to this Committee, judges would 'retain discretion in relation to setting the minimum custodial period'.
In any event, the various sentencing statistics cited by the Government and by the Department are, at best, evidence of a problem with current sentencing practices in relation to Commonwealth child sex offences. They do not justify or support the introduction of mandatory minimum sentences as an appropriate solution to that problem.
Most concerningly, the Attorney-General's Department was unable to point to a single report or independent expert to rebut any of the concerns expressed by Labor Senators and experts about the adverse unintended consequences of mandatory sentencing.
A way forward
The bill would introduce a range of sentencing reforms other than mandatory minimum sentencing which Labor Senators do support. Those include:
significant increases to maximum penalties for Commonwealth child sex offences (including, in some cases, increases of more than 30%) (Schedule 5);
new provisions that require courts to consider a range of additional factors, including aggravating factors, at the time of sentencing (Schedules 8 and 9);
a new presumption in favour of cumulative sentences for Commonwealth child sex offences (Schedule 10);
a new presumption in favour of Commonwealth child sex offenders serving an actual term of imprisonment (Schedule 11); and
new provisions in relation to the remission and reduction of sentences in circumstances where parole is revoked (Schedule 13).
Labor Senators believe that these measures will result in significantly higher sentences and are unlikely to have any adverse unintended consequences. However, whether those measures are, in fact, effective will not be known until some time after they are implemented.
According to the Attorney-General's Department, there has been no comprehensive review of Commonwealth sentencing practices, including in relation to child sex offences, since 2006. That is unacceptable.
Following a suggestion made by the Carly Ryan Foundation, every non-Government witness who gave evidence at the public hearing of the Committee supported the removal of mandatory minimum sentences from the bill and the inclusion of a comprehensive statutory review of sentencing practices in two- or three-years' time. Among other things, that review could look at the efficacy of the other sentencing reforms introduced by this bill and make recommendations for further sentencing reforms if any are needed.
Labor Senators endorse that approach as a sensible way forward.
Resourcing
Additional burden on state and territory governments
This bill would introduce a range of measures that are likely to create an additional burden on a criminal justice system that is largely administered by state and territory governments.
The Explanatory Memorandum claims that 'the overall financial impact [of the bill] on states and territories will be negligible' and 'these costs will be absorbed'.
However, that claim does not appear to be based on evidence given that the Commonwealth Government has not consulted with state or territory governments about the potential resourcing implications of the measures contained in this bill.
In response to a question on notice, the Attorney-General's Department noted that 'proposed measures' were 'discussed' at meetings of the 'National Working Group on measures concerning child sex offenders' in July and October 2017. That Working Group comprised senior police and justice officials from each of the states and territories and the Commonwealth.
However, those meetings were more than 2 years ago and, in any event, the Department provided the Committee with no evidence that the issue of resourcing was raised during those discussions.
During the committee's inquiry, the President of the Law Council, Arthur Moses SC argued that:
…if the Commonwealth is enacting legislation, whether it be in this area or other areas, that will increase the workload of the state courts, it seems that there needs to be an arrangement entered to, whether it be through the Attorneys-General reaching an arrangement, or through COAG or through some other arrangement, where the courts can be properly funded.
We therefore urge the Government to take urgent steps, in consultation with state and territory governments, to ensure that appropriate resourcing is in place to implement the measures proposed in this bill.
As part of those consultations, it is also important that the Commonwealth, state and territory governments consider the training needs of the judiciary. Labor Senators strongly endorse the comments that were made to this Committee by knowmore Legal Service and the Carly Ryan Foundation about the need to ensure that the judiciary has the appropriate training to be able to sentence effectively. In the context of child sexual abuse, such training should include raising awareness of current social science research in relation to the effects and impacts of child sexual abuse (including online).
Additional resourcing for the detection and apprehension of those who commit crimes against children
This bill introduces a range of sensible measures to punish child sex offenders after those offenders are caught by authorities. It does not provide any additional resources to assist in the detection and apprehension of those who commit these vile crimes.
This Parliament can pass the strongest child exploitation 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.
The New York Times recently reported on the upward trend in the sharing and distribution of child exploitation material online. According to that report:
In 1998, there were over 3,000 reports of child sexual abuse imagery on the Internet.
In 2014, that number surpassed 1 million.
In 2018, there were 18.4 million worldwide reports of child sexual abuse imagery.
The reports in 2018 included 45 million photos and videos.
There has been a similar trend in Australia. According to the Attorney-General, there were 9,741 reports of child sexual exploitation received by the Australian Federal Police Child Protection Assessment Centre in the 2017 calendar year. In 2018, that figure was 17,905.
The reporting 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.
Given the dramatic increase in reports of child sexual abuse imagery on the Internet over the last year, Labor Senators ask that the Government commence an urgent inquiry into the adequacy the resourcing that is currently available to authorities across Australia for the detection and apprehension of those who commit crimes against children, especially online.
Other concerns expressed by submitters
Labor Senators note that the Law Council of Australia and other submitters have expressed concerns about other aspects of the bill, including the introduction of a presumption against bail for individuals accused of serious Commonwealth child sex offences and a presumption in favour of cumulative sentences.
While Labor Senators support those measures, we urge the Government to closely monitor their operation to ensure they are being applied appropriately.
Recommendations by Labor Senators
Labor Senators recommend that the bill be amended, and that the Government provide appropriate undertakings, to implement the following recommendations:
Recommendation
Schedule 6 should be deleted from the bill.
Recommendation
The bill should be amended to include a comprehensive statutory review of Commonwealth sentencing practices for child sex offences. The findings of that review should be reported to the Parliament within three years of the bill coming into effect.
Recommendation
The Government should commence an urgent inquiry into the adequacy of the resourcing that:
is currently available to state and territory authorities, including courts, to implement the measures introduced by this bill; and
is currently available to authorities across Australia for the detection and apprehension of those who commit crimes against children, especially online,
and report to the Parliament within 6 months.
Senator the Hon Kim Carr
Deputy Chair
Appendix A – Examples from the Law Council’s Submission to the Committee