The Australian Greens are supportive of legislative measures that
address protecting children against sexual abuse and harm. The Australian
Greens are concerned that some aspects of Crimes Legislation Amendment (Sexual
Crimes Against Children and Community Protection Measures) Bill 2017 (the Bill)
will have negative and unintended consequences.
Considering the serious nature of the Bill, the Greens agree with the
Law Council of Australia that it is concerning that the Bill is being
introduced before the Royal Commission into the Institutional Responses to
Child Sexual Abuse (Royal Commission) releases its final report. The Greens are
also concerned that the Bill does not take into consideration the Royal
Commission's Criminal Justice Report.
Due to the serious systematic, social and individual harms of child
sexual offences, legislation aimed at combatting such offences should be fit
for purpose and shaped by expert advice. Therefore, the Australian Greens
consider it is important that legislation of this nature should be informed the
findings of the Royal Commission.
The Australian Greens also share the Law Council of Australia's concern
that the Bill has been introduced prior to the completion of the Australian Law
Reform Commission's inquiry into Incarceration Rates of Aboriginal and Torres
Strait Islander Peoples.
The Australian Greens share the concern of the Law Council of Australia
and Associate Professor Lorana Bartels in regards to the Bill's inclusion of
The Australian Greens have consistently opposed mandatory minimums.
The Australian Greens agrees with the Law Council of Australia that:
...the imposition of mandatory minimum sentences upon
conviction for criminal offences imposes unacceptable restrictions on judicial
discretion and independence, and undermines the fundamental rule of law
principles and human rights obligations.
The inclusion on the presumption against bail within the Bill is
inconsistent with the presumption of innocence. The Australian Greens share the
view of the Law Council of Australia:
...that section 15AAA runs counter to the long held presumption
in Australian criminal law in favour of bail. In respect of most criminal
charges, the person charged is entitled to be released on bail unless the
police demonstrate to the court particular grounds on which bail should be
The Australian Greens agree with the Law Council of Australia that the
presumption in favour of cumulative sentences contained within the Bill will
lead to unfair and unjust outcomes.
The Greens also agree with the Law Council that unjust and unfair
outcome are particularly likely as :
...there is significant overlap in the both State/Territory and
Commonwealth charges being laid in child sexual abuse cases where offences will
often have different maximum penalties. The presumption is likely to lead to
significant legal challenges and delays in the courts.
The key purpose of sentencing should always be rehabilitation. However,
the Australian Greens share the Law Council of Australia's concern that, due to
lack of funding, states would not be able to provide enough rehabilitation
places to constraints on resourcing.
The Law Council of Australia noted in their submission that currently,
due to resourcing constraints and prison overcrowding, offenders are often
released on parole where they wait to undertake rehabilitation.
The Law Council raised concerns that:
This may impact on the ability of this measure to be
effectively implemented and may also result in disproportionate sentences. That
is, sentences that are longer than necessary to address the conduct and the
objective of protecting the community.
Senator Nick McKim
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