Andrew Leigh

HOUSE OF REPRESENTATIVES, 15 OCTOBER 2019

In the United States, President Trump recently signed the FIRST STEP Act. That act takes several steps to ease mandatory minimum sentences under US federal law. It passed with overwhelming support from Republicans and Democrats, and the support of a wide range of groups—from the American Civil Liberties Union to the right-wing organisation Right on Crime. It reflects the reality that many other countries' legislators are moving away from mandatory sentences. As Hilda Tubex from the University of Western Australia has said, 'Let's follow international jurisdictions that are moving away from mandatory sentences, due to a lack of evidence that they work in protecting the community, and leave it to the judges to judge.'

In Australia, we face the same situation that Britain, the United States and New Zealand also face: a massive rise in incarceration rates. Australia's incarceration rate is now the highest that it has been since 1899.

Australia is facing a second convict age. The imprisonment rate now stands at 221 prisoners per 100,000 Australian adults—a 130 per cent rise in the incarceration rate since 1985. Among Indigenous Australians, the incarceration rate is probably best expressed simply as a percentage—2.5 per cent of Indigenous adults are now behind bars. In Western Australia, 4.3 per cent of Indigenous adults are incarcerated. Noel Pearson has referred to Indigenous Australians as the most incarcerated people on earth, and my research finds that the incarceration rate of Indigenous Australians is higher than the incarceration rate of African Americans. This has occurred in an environment in which sentences have increased. In 1985, the average time expected to serve for sentenced prisoners was 2.4 years; in 2018 it was 3.7 years. Back in 1985 the share of prisoners expected to serve more than 10 years was 1.8 per cent. In 2018 it was 8.6 per cent. This increase in sentence lengths has been one of the reasons that Australia's incarceration rate has risen, one of the reasons why Australia now spends some $5 billion a year on prisons and one of the reasons why many states are expecting to have to build new prisons in coming years.

Let me be absolutely clear. I am the father of three beautiful little boys, ages 7, 10 and 12. Nothing is more abhorrent to me than sex crimes against children. My focus is on what we can do in order to reduce the scourge of child sex abuse. The reason that Labor will not support the mandatory minimum sentence provisions in this bill is because we don't believe they work. This is not a question of who is going to be tougher on paedophiles. If I believed that increasing sentences would reduce the chances of child sex abuse, then I would support it. The reason I don't support it, the reason the shadow Attorney-General doesn't support it, the reason the Law Council of Australia, the Australian Institute of Criminology and indeed the Attorney-General's Department don't support it is that mandatory minimum sentences have not been proven to work. The government has brought to this debate a great deal of ideology but precious little evidence.

Labor has a strong record in protecting children. In 1994, we introduced world-leading offences targeting Australians who engage in the sexual abuse of children overseas. In 2009, we brought jurisdictions together to implement the National Framework for Protecting Australia's Children. It was the Gillard government that established the Royal Commission into Institutional Responses to Child Sexual Abuse. Labor appointed Australia's first National Children's Commissioner to advocate for the rights of Australia's young people. But we don't support mandatory minimum sentences, because, as the Law Council has pointed out, they may well be counterproductive. The Law Council has pointed out that mandatory sentencing 'potentially increases the likelihood of recidivism, because prisoners are placed in a learning environment for crime, which reinforces criminal identity and fails to address the underlying causes of crime'. They point out that mandatory sentences 'are likely to result in an increase in contested hearings since offenders who may have considered pleading guilty in the hope of receiving an alternative to full-time imprisonment may be inclined to go to trial,' consequently, causing a further drain on resources, delay and unnecessary distress to alleged victims.

As the Standing Committee for the Scrutiny of Bills has consistently noted:

… mandatory penalties necessarily undermine the discretion of judges to ensure that penalties imposed are proportionate in light of the individual circumstances of particular cases.

The Attorney-General's Department says 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'. The Australian Institute of Criminology has pointed out that mandatory sentences can lead to circumstances in which juries can refuse to convict. The Royal Commission into Institutional Responses to Child Sexual Abuse brought down a report which was in 17 volumes and contained some 400 recommendations. None of those recommendations were for the introduction of mandatory minimum sentences for offences of this kind. That was the most extensive inquiry into child sex abuse that we have seen in Australia's history, and it did not propose that mandatory sentences be put in place.

The Senate Legal and Constitutional Affairs References Committee noted:

The Chief Magistrate of the Northern Territory provided the committee with evidence of incarceration rates as a result of the imposition of mandatory sentencing in the Northern Territory during the period 1997 to 2001. The Chief Magistrate noted that the imprisonment rate was 50 per cent higher during this period than following repeal of the laws. Non-custodial orders such as home-detention and community work were almost unused for property offences during the mandatory sentencing era.

The member who spoke before me referred to mandatory sentences for assaults on police officers in Western Australia. It is my understanding that that offence is rarely charged and that that is a direct result of the mandatory sentence that is in place.

The Australian Law Reform Commission, in its Pathways to Justice report, noted:

Mandatory sentencing may also disproportionately affect particular groups within society, including Aboriginal and Torres Strait Islander peoples …

That is always a risk that must be borne in mind. Labor has called for incarceration targets to be part of the Closing the Gap targets. Those who are concerned with Indigenous gaps must also be concerned with the impact that mandatory minimums could have.

The Law Council of Australia put it well when they said:

We all agree these are heinous crimes that should be subject to severe sentences. The community is not interested in cheap law and order politics but solutions that prevent harm.

We need to be practical and evidence based. We need to be ruled by the philosophy of what works, not what feels good. As criminal justice reformers have pointed out in the United States, we should ensure that policies are based on the best available evidence.

The Law Council's submission also pointed out the potential for unjust outcomes to occur, and they give a range of examples which could occur as a result of this bill. The examples include the hypothetical that:

On a scout’s trip to New Zealand, an 18 year old Year 12 student has sex with his 15 year old Year 10 girlfriend.

Under the bill, that would be conduct punishable by a mandatory minimum of six years in jail.

On a holiday overseas between two families, an 18 year old and 15 year old commence a romantic relationship and they touch each other.

That would be subject to a mandatory minimum penalty of five years.

An 18 year old and a 15 year old exchange images and sexual stories on Snapchat.

or—

An 18 year old and a 15 year old engage in sexual activity using FaceTime.

That would subject the 18-year-old to a mandatory minimum penalty of five years.

An 18 year old text messages her 15 year old friend encouraging him to send an indecent image to his 18 year old girlfriend.

That would be subject to a mandatory minimum penalty of five years.

An 18 year old boy and a 15 year old girl in a relationship and constantly exchange intimate images. The boy has previously been convicted of a child sexual abuse offence.

That would carry an additional penalty of three years. It would surprise me greatly if there were no-one in the current parliament who had committed one of these acts. Yet this bill proposes to levy multiyear mandatory minimum penalties. The Law Council also points out that there is also the strange feature of the bill that, 'if the conduct continued after the victim’s 16th birthday, the conduct would no longer be an offence'. As the Law Council points out:

This serves to highlight the arbitrary and unjust nature of the mandatory sentencing provisions and their blindness to the actual moral culpability of offenders in particular cases.

This is fundamentally, as the Law Council points out, a task best left to judges.

If we want to reduce the terrible scourge of child exploitation, of child sex abuse, we must do it based on the best available evidence. We must ensure that evidence guides us as parliamentarians.

We must also make these decisions in a context in which we recognise that the incarceration rate in Australia has not been higher in the lifetimes of any of us. The last time Australia locked up such a large share of our population was 1899. The rise in incarceration has been due, in part, to the increase in sentence lengths, and the increase in sentences has not been a principal driver of the fall in crime. Crime has fallen markedly since the 1980s. Murder rates are down by almost 50 per cent. Rates of car theft, burglary, robbery and assault are all significantly down since the 1980s. This has occurred through a confluence of factors, but increased incarceration has played little part in that fall in crime. It is vital that we deal with the problem of child sex abuse in a way which is best targeted to achieve the purpose, not in a way which is calculated to buy a headline or to make us feel good. This issue is too important for ideology to trump evidence.

ENDS

Authorised by  Paul Erickson, ALP, Canberra.