The Australian Greens would like to thank everyone who made a public submission and/or public representation to this inquiry.
The Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2019 (the bill), as stated in the Explanatory Memorandum, seeks to:
…better protect the community from the dangers of child sexual abuse by addressing inadequacies in the criminal justice system that result in outcomes that insufficiently punish, deter or rehabilitate offenders. The Bill targets all stages of the criminal justice process, from bail and sentencing through to post-imprisonment options.
The Australian Greens note that submissions from legal, religious, and social justice NGOs were broadly supportive of the bill's stated objectives. However, submissions from legal NGOs all raised opposition to mandatory minimum standards, with the Australian Lawyers Alliance (ALA) submission addressing this aspect of the bill exclusively. Opposition to mandatory sentencing was also found in the submissions of the Sexual Assault Support Service (SASS) and Jesuit Social Services.
It is also worth noting that concerns regarding mandatory minimum sentencing in this bill were raised by the Parliamentary Joint Committee on Human Rights, and the Standing Committee for the Scrutiny of Bills.
Although the Australian Greens share some of the other more technical concerns raised by the Law Council of Australia (the Law Council), Knowmore legal service (Knowmore), and Professor Luke McNamara and Ms Drew Hawkes from the University of New South Wales' Centre for Crime, Law and Justice, like the ALA, our primary concern regarding this bill is with its imposition of mandatory minimum sentencing.
The Australian Greens, like the Law Council, have always opposed the use of mandatory sentencing regimes. In its 2014 Policy Discussion Paper on Mandatory Sentencing, the Law Council of Australia argued such regimes:
…impose unacceptable restrictions on judicial discretion and independence, and undermines fundamental rule of law principles. The rule of law underpins Australia's legal system and ensures that everyone, including governments, are subject to the law and that citizens are protected from arbitrary abuses of power. Mandatory sentencing is also inconsistent with Australia's voluntarily assumed international human rights obligations.
In its submission to this inquiry, SASS commented:
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.
The Australian Greens consider sexual offences committed against children to be extremely serious, and believe serious sex offenders should receive appropriate sentences that are, as submitted by Knowmore:
…in line with increasing societal understanding of the seriousness of [sexual crimes against children] and the enduring impact of such offences on survivors.
However, alongside the Law Council of Australia and most other legal experts and associations, we support the Sentencing Advisory Council for Tasmania’s position that the introduction of mandatory minimum sentences will:
…create unjustified unfairness without achieving its stated aims of deterring offenders and increasing transparency.
The recommendation of the Australian Greens is that the bill be withdrawn and redrafted without mandatory minimum sentencing, and with consideration of the technical concerns raised in various legal submissions to this inquiry.
Senator Nick McKim
Greens Senator for Tasmania