Ms O’CONNOR (Hobart) – Mr President, the Greens cannot and will not support this bill, just as we have never and will never support mandatory minimum sentencing, the undermining of judicial independence. We have just heard three, frankly magnificent, contributions on why not to support this legislation, very clear articulation of everything that is wrong with it. I too want to acknowledge people who are victim/survivors of child sexual abuse, acknowledge the victims who did not survive, and note that this is a traumatic subject. What makes it so highly regrettable is that it is so transparent how government continues to weaponise child sexual abuse for political purposes.
There is a long and sorry history here of it and here we are again, déjà vu all over again, Groundhog Day. This is bad law. It is also potentially dangerous law because, as we understand on the evidence, it could lead to very adverse outcomes for victim/survivors. We understand that this bill is functionally identical to the Sentencing Amendment (Presumption of Mandatory Sentencing) Bill of 2023 also brought forward by the current Attorney-General and prorogued as a result of the needlessly early election, and to the previous bills which the Liberals have brought on to introduce this topic. I agree with the seasoned honourable members here who note the timing so often of the introduction or debates and votes on this bill or this type of bill where you have a mandatory minimum sentence.
As premier, Lara Giddings was not perfect, but she worked very hard and she gave it her best. She was a strong attorney-general. After the 2014 state election, when the Liberals first tried this under the Hodgman government, I remember watching one of the most magnificent performances I had ever seen from the shadow attorney-general: Lara Giddings speaking passionately and in a most informed way against this type of legislation, acknowledging the absence of an evidence base, the fact that it does not have support from within the legal profession, and critically noting that there is a high risk of adverse outcomes for victim/survivors. The Labor opposition voted against that bill and they kept voting against mandatory minimum legislation all the way up until this one in 2023.
We saw an abject display of hand wringing by the current shadow attorney-general. In fact, if you listened to that second reading speech, you would form the view that Labor was going to hold true to its previous opposition and vote against what was a cynical bill with no evidence base. What we got in almost the last breath of that contribution was a complete capitulation where Labor said, ‘It is terrible law, it is bad law’. I am paraphrasing here: ‘It could have adverse consequences. It has no support from within the legal profession or the community sector, but we are going to roll over and vote for it anyway because we are over the politics of it’. I will tell you who is over the politics of it: it is victim/survivors constantly being used as a political football by this government.
Now we are in a situation where parliament, having battered off and fought off this kind of legislation for nine years may well pass it because Labor in the lower House did not have the courage to stand up to what is so transparently base politics. It so obviously has the potential to undermine the separation of powers and the independence of the judges and the court. Labor rolled over. I do not like getting political in this Chamber, but shame on the Labor opposition. Shame on them. They know that this bill has no evidence base. They have been played. They have been played into supporting bad law. Worse, they have been played into supporting law which could have the reverse effect.
There is no evidence that the government’s stated claim that this will protect vulnerable children and young people is true. There is zero evidence of that. There is enough evidence to demonstrate that the opposite is the risk. When faced with a mandatory minimum sentence, the alleged perpetrator, on the evidence, may well want to plead not guilty rather than face a two-to four-year jail term. What does that mean for the victim? Well, we know what it means. Yet this government is prepared to introduce legislation which they know will lead to that outcome.
It was not recommended by the commission of inquiry. In fact, it was strongly spoken against by the Sentencing Advisory Council and not recommended by the Law Society. We were told in the briefing this morning, when we asked who was consulted this time, it was the Chief Justice, the Chief Magistrate and someone else – I forget – President of TASCAT maybe, but I do not want to verbal that person. Well, that is a lousy attempt at consultation for starters. However, because we have had no transparency here, we do not actually know what the Chief Justice and the Chief Magistrate think of this legislation, which undermines their authority and independence. We do not know. We do know there is strong opposition from within the legal fraternity and the community sector and from among victim/survivors themselves to this legislation, because it is so transparently populist and highly political.
Shame on this government and shame on the jellyback Labor opposition that we have to deal with these days under the new Opposition Leader. In fact, sorry, it was the previous opposition leader too, because Labor supported this at the end of 2023 before parliament was prorogued.
Let us go now to what Laurel House thinks of this bill, a statement here from Kathryn Fordyce. This is from information that was provided to our leader and my colleague, Dr Woodruff. She spoke with members of the Family and Sexual Violence Alliance and a number of organisations that are opposed to mandatory sentencing. There is an obvious and necessary recognition that child sexual abuse is abhorrent. There is also a real concern about the impact of mandatory sentencing on victim/survivors, and that this approach sees energy being placed in the wrong area if the intention is to deter child sexual abuse.
I will just pause here for a minute. As the previous speakers have made clear, there is no evidence that this bill will protect children and young people. Back to this statement.
Ms Forrest – It will probably traumatise them all by having to front up in court.
Ms O’CONNOR – Absolutely. There is evidence to demonstrate that potential outcome articulated by interjection from the member for Murchison.
There is no evidence to indicate that any type of mandatory minimum sentence is a deterrent. In fact, if you want to understand how heavier sentences or dire penalties have zero deterrence value have a look at those jurisdictions in the United States that have the death penalty for murder. It has never stopped anyone from murdering someone – the knowledge that they could go to the electric chair – because sentences do not prevent crimes. They do not.
I digress, back to Laurel House. There was no consultation on the bill that came forward in late 2023, which is almost identical to this one. Clearly, we had it confirmed by the department this morning. There has been no consultation on this regurgitation of it, none with the family and sexual violence sector. Laurel House and others in the sector are particularly concerned about the impact of mandatory sentencing as it reduces the incentive for perpetrators to enter a plea of guilty and will lead to more trials. It is not in the interests of victim/survivors, children and adults, to put them through the harrowing experience of unnecessary committals, hearing and subsequent appeals.
Furthermore, contested cases and trials will inevitably lead to longer delays for victim/survivors to access the justice system. Kathryn and others echo the concern of the Sentencing Advisory Council that there is also a risk that mandatory reporting may result in fewer convictions because jurors may be reluctant to convict where a mandatory penalty is imposed.
Laurel House and the sector also echo Sentencing Advisory Council’s concerns about the transfer of discretion from judges to prosecutors and the police. Given the current concerns in the immediate past about the inaction of police and police prosecutors in relation to paedophile former police officer Paul Reynolds, and the continued challenges that many victim/survivors experience with the Director of Public Prosecutions, they are concerned that there is even less transparency in these decisions than there currently is when judges provide discretion to sentencing.
The CEO of Laurel House is also concerned about how the bill is currently drafted in relation to children and young people under 18 who have harmed other children. They close by saying:
We are certainly hopeful that the lower House will continue to oppose mandatory sentencing. Our group are considering our approach on this matter.
They are particularly concerned about the impact on victim/survivors. We also have here the 2017 submission from former commissioner for children and young people, the delightful and dedicated Mark Morrissey. None of it has changed. All the reasons for Council to reject this legislation for the transparently political populist move that it is, are contained in the Commissioner for Children and Young People’s 2017 submission.
This is a government that just does not listen to its advisory bodies or its statutory officers who are the experts in these fields. They think they know better; the arrogance. At that time, and we had it confirmed today, at this time, the Commissioner for Children and Young People, or in this case the Acting Commissioner for Children and Young People, has not been consulted on this bill. Mr Morrissey made these points:
4. It is every child’s right to live free from violence. Unfortunately, we know that children are not always safe from harm and, despite the difficulties involved in measuring prevalence, it is clear that child abuse, including child sexual abuse, occurs at significant levels within our community.
5. Sexual offending against children is a serious and grave issue. It is has long-term social and emotional cost to children, their families and our community at large and we must do all we can to prevent and respond to it.
Well, hear, hear, Mr President. He goes on:
6. I acknowledge and welcome the Government’s commitment to further strengthening our responses to this issue. It is, however, very important that initiatives to prevent or respond to sexual offending against children are supported by evidence that they will have the desired effect and do not lead to unintended and undesirable consequences.
7. This is a highly emotive issue, as one would expect.
8. Those supporting mandatory minimum sentences say they are in line with community expectations, that they will deter future offending and that they provide for greater consistency around how Courts sentence those convicted of a serious sexual offence against a child.
9. But, having considered the Report of the Sentencing Advisory Council (the Council) into this issue, I am not convinced of these arguments. I am certainly not convinced that by introducing mandatory minimum sentences, we are promoting and protecting the rights and wellbeing of children who are victims of serious sexual abuse.
…
11. The Council has very clearly expressed the view that mandatory minimum sentencing is inherently flawed; that mandatory sentences will create injustice by unduly fettering judicial discretion and should not be introduced in Tasmania.
Ignored by government again, repeatedly. Arrogantly dismissed in favour of populist, cheap, nasty politics that weaponises child sexual abuse.
It is important to note that the former commissioner for children and young people said that a joint select committee of the Parliament of New South Wales on sentencing of child sexual assault offenders also reached the conclusion that mandatory minimum sentencing should not be introduced for child sexual assault offences in New South Wales. In reaching that view, it relied on evidence it heard from the New South Wales Ombudsman, the New South Wales Bar Association and the Director of Criminal Law Review of the New South Wales Department of Police and Justice, among others.
13. Our Sentencing Advisory Council describes 6 objections …
I will focus on the objection that arises in relation to pleas of guilty – that is, it is generally agreed by those who oppose mandatory minimum sentences that it may reduce the incentive to plead guilty.
The Sentencing Advisory Council was clear about that. Mr Morrissey said:
If this is a correct assumption, then a clear consequence will be that matters such as this are more likely to go to trial and a child victim of a serious sexual offence will be forced to undergo the traumatic process of a criminal trial. … the fact remains that a child still has to go through the process of reliving a traumatic event, the uncertainty of a trial, and enduring a potentially traumatic cross examination – and at the end of it all, a very real possibility of acquittal.
I have looked everywhere that it is possible to look in the time that we have and I cannot find any support for the principle of this bill, or this bill, from anyone in authority external to government. I cannot find it. Except for Labor, of course, but we have discussed how pathetic they are on this legislation.
It would be a mistake for Council to pass this bill. It would be a terrible mistake to allow ourselves to be manipulated in this way. We all want to see those who perpetrate abuses against children punished. I know that sounds vengeful and I do not mean it to, but anyone who harms a child in that way should face the full force of the law, as the member for Murchison said. To cynically exploit that collective decent human will to protect children by putting forward legislation like this brings shame on the government.
Ms Webb – At the same time, no paedophiles from Ashley Youth Detention Centre have been prosecuted.
Ms O’CONNOR – Interesting. I will gladly take that interjection, member for Nelson. All the young people who have been through Ashley, those who were harmed and/or abused in Ashley, and the whistleblowers who shone a light into that torture chamber know full well that justice has not been served as a result of the abuse perpetrated at Ashley Youth Detention Centre over its entire history. The member for Nelson is quite right.
In contrast to the stated objectives here, the government has let alleged perpetrators of heinous abuse against children inside Ashley Youth Detention Centre off the hook. Spare us these protestations about how this bill shows a government that wants to protect children and young people. It is a very narrow span of care for the wellbeing of children and young people. As we have discussed in here, it has the potential to damage people. It has the potential to harm more victims/survivors who already carry the burden of trauma of their lived experience and, for too long, a state and other people in positions of authority who could have helped them who had abandoned them or were deaf to them. We are told what had happened to them. We were told by the victims what had happened and those victims were not believed.
That history is all still real and present. When you experience trauma, it never ever goes away, it is always with you. So why would the government want to create a circumstance that can cause more harm to people knowingly? They know this.
The Sentencing Advisory Council made it really clear, the community sector organisations have made it really clear, and yet here we are. This is dangerous legislation. It sailed through the lower House because we have a gutless opposition. Hopefully, we are better than that up here.
We have an opportunity here to again stop the government from weaponising child sexual abuse. This Council has the responsibility to take that opportunity and hold true to the evidence. Do not capitulate to populism and cheap politics and fear, because that is how we are here. A fearful Labor Party abandoned principle so that this legislation is before us now.
I strongly encourage all my non-major party colleagues not to support this bill. It has been rejected by this place before for good reason. In this Chamber where we carefully examine and consider legislation and the policy that underpins it, this legislation has been rejected before because it is bad legislation and it is damaging. It brings shame on both the Liberals in government and Labor in the opposition.
I hope members who are not already locked in will vote against this bill in the interests of victim/survivors. Our job should be to do no harm. In fact, not just to do no harm, but to make it better; make it better for the people we are elected to serve. This legislation will not. It will not make it better, it will not protect children, it will not deter predators, but it will undermine the independence of the judiciary, it will lead to adverse outcomes in our courts and it absolutely should be rejected by this place.
