Labor senators strongly support the objectives of this bill, which implements several recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse and builds on reforms and policies implemented under Labor governments.
The bill, which reintroduces a bill that lapsed at the dissolution of the 45th Parliament, seeks to amend several Acts to strengthen the Commonwealth’s framework of offences relating to: child exploitation material; child sexual abuse, including abuse overseas; failing to report child sexual abuse; failing to protect children from abuse; and forced marriage.
As noted in the Labor senators’ additional comments to the committee’s report on the lapsed bill, it is vital that this legislation be as effective as possible.
For that reason, it is appropriate that this bill does not include the minimum mandatory sentencing provisions included in the lapsed bill.
The problems created by removing judicial discretion in sentencing are well attested. As the Law Council of Australia stated in its Discussion Paper on Mandatory Sentencing (May 2014) there is very little evidence that mandatory sentencing increases public safety. On the contrary, the evidence is that it may have the opposite effect. Mandatory sentencing increases the incentive for defendants to fight charges and may increase the risk of recidivism.
The mandatory sentencing provisions in the lapsed bill were contingent on passage of the Crimes Legislation Amendment (Sexual Offences Against Children and Community Protection Measures) Bill 2017, which did not reach the Senate and which also lapsed at the dissolution of the 45th Parliament.
Although mandatory sentencing provisions are not included in this bill, the joint submission to the inquiry by the Attorney-General’s Department and the Department of Home Affairs states that the Government remains committed to introducing mandatory minimum penalties for the most serious and repeated child sex offences.
Labor Senators note the concern raised by the Law Council with regard to the application of absolute liability for committing the offences created by the bill. As Dr David Neal SC, co-chair of the Law Council’s National Criminal Law Committee, stated in giving evidence to the inquiry: “It’s a fundamental principle of criminal law, and just a fundamental principle of blaming generally, that there be a criminal intent … What subsection (d), in the rendering of it as an absolute liability, seeks to do is to take that out of the requirements for the offence”.
We provisionally accept, however, the response of the Department of Home Affairs and the Attorney-General’s Department that application of absolute liability is “appropriate to ensure compliance with the reporting regime”. We urge that when enacted the operation of this legislation should be closely monitored to ensure that there is no erosion of appropriate safeguards for the rights of accused persons.
Similarly, we provisionally accept the response of the two departments to a concern raised by the Law Council, and by the Senate’s Scrutiny of Bills Committee, regarding the bill’s provision that an individual is not excused from failing to disclose information relating to child sexual abuse on grounds on possible self-incrimination.
Labor senators support the additional measures in the bill to target child sexual exploitation, and the expanded definition of forced marriage.
With regard to forced marriage, we note the submission by Good Shepherd Australia New Zealand that the minimum age of marriage should be 18 without exception. However, we also note the response of the Attorney-General’s Department, in the inquiry’s public hearing, that 18 is already the minimum age of marriage, but there are exceptional cases where someone aged from 16 to 18 could take the matter to a judge and be authorised to marry. Labor senators support the continuation of the possibility of judicial discretion in this matter.
Senator the Hon Kim Carr
Senator Anthony Chisholm
Labor Senator for Queensland