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Sentencing Amendment (Mandatory Sentencing For Serious Sexual Offences Against Children) Bill 2018

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Wednesday, 1 May 2019

Tags: Mandatory Minimum Sentencing, Justice, Legislation

Dr WOODRUFF (Franklin) - Madam Speaker, what a surprise that we are here today with exactly the same bill that we debated in 2017 - same Government, same bill, same populist tough-on-crime agenda, same complete denial of the evidence that is widely available in Tasmania, same complete denial of the lockstep position of the legal profession, legal researchers, everybody in the field of civil liberties, and same complete denial of the long-held principle of the separation between parliament and the judiciary, the very important principle that underpins our Westminster democracy. It is one of the fundamental democratic principles that keeps us separate from authoritarian regimes. They make sure that incoming governments, incoming prime ministers and premiers, do not get to stick their grubby little paws into what is happening in the justice system and impose sentencing on people for a whole range of populist and personal motivations.

I will get to the amendment from the Labor Party, but because I have not given my second reading contribution, I believe it is important to read in some of the basics, I suppose, of our argument for why we do not support this bill.

The Sentencing Advisory Council has provided a range of reports. I believe there are three reports specifically on this particular issue of mandatory sentencing for serious sexual offences against children.

Before I go any further, I want to say that the Greens strongly believe that the approach taken by this Government is not what is required to safeguard the interests of children, to act in their best welfare, and do the things that the evidence shows are the most effective in reducing trauma, providing justice and allowing for healing and closure - all of the things that children who have suffered horrific abuse need so they can come back into their lives and have justice done, be supported to move on in their lives and be healed in the way they are able to, and the way we can support them in that process.

Unfortunately, this bill is not about making the community safer. It is a cynical move to bring it on again. Clearly the timing is all about politics. It is shameful that the Government would play a game like that with such a serious issue. If the Government was serious about doing everything they could they would have provided in the first instance in 2016 a broad mandate for the Tasmanian Law Reform Institute to explore ways to reduce offending against children. Instead, when the then Minister for Justice, Vanessa Goodwin, approached the Sentencing Advisory Council, she gave them highly restricted terms of reference on the matter of mandatory sentencing for serious sexual offences against children and asked them how minimum mandatory sentences should be implemented. They were attempting to railroad the Sentencing Advisory Council into providing a particular type of advice, rather than enabling them to provide the best evidence and their frank advice on how we should look at the issue of mandatory minimum sentences in this instance.

I want to inform the Chamber about who are the Sentencing Advisory Council, because it is worth recording it for Hansard. It was a body established in 2010 by then Attorney-General and Minister for Justice, the Honourable Lara Giddings MP, as an advisory body to the Attorney-General. Other functions are to bridge the gap between the community, the courts and government by informing, educating and advising on sentencing issues in Tasmania.

For the particular work they were asked to do by the Government on mandatory sentencing for serious sexual offences against children - their final report produced in September 2016 - they undertook consultations in arriving at their decisions with the President of the Tasmanian Bar, Darryl Coates; the Director of Public Prosecutions; Greg Barns and Jennifer White from the Prisoners Legal Service; Luke Rheinberger from the Law Society; other members of the Criminal Law Committee; members of the Victims Support Service; and Chief Justice Alan Blow from the Supreme Court. They also received advice from Tasmania Police. By any measure, it was a very wide group of stakeholders and the legal profession, and also the Victims Support Service.

The terms of reference for that report were highly restricted but, in their wisdom and commitment to the evidence, the Sentencing Advisory Council found a way to make it abundantly clear to anybody who read the report that they in no way support the premise that mandatory minimum sentences are the best approach to providing justice, the best and most effective mechanism for ensuring that convictions are achieved or of providing justice for victims. They said -

… the Council has identified objections to the implementation of the scheme. These are that:

(1) mandatory minimum sentences provide an incomplete guidance system to the courts;

(2) mandatory minimum sentences may lead to unrealistic expectations in the community that changes to sentencing policy will deter potential offenders when there is no evidence to suggest that increased penalty levels act as a deterrent;

(3) mandatory minimum sentences may reduce the incentive to enter a plea of guilty;

(4) mandatory minimum sentences reduce transparency and consistency because discretion is transferred from judges to prosecutors;

(5) mandatory minimum sentences will result in significant financial costs; and

(6) that it may be prudent to wait until the Supreme Court has had an opportunity to respond to the significant changes in sentencing practice resulting from the government’s proposed sentencing reforms.

Further on, the report states that -

Accordingly, the Council reiterates its previous recommendation that mandatory sentencing not be introduced in Tasmania.

This should not be taken to mean that Council considers that sexual offences committed against children are not serious or that serious sex offenders ought not to receive appropriate sentences. Instead, the Council’s view is that the introduction of mandatory minimum sentences will create unjustified unfairness without achieving its stated aims of deterring offenders and increasing transparency. Further, any attempt to ameliorate the injustices of a mandatory sentencing scheme by restricting its operation to deserving cases… creates difficulties and introduces undue complexity in the sentencing process.

The concept of mandatory minimum sentences in general, but mandatory minimum sentences for serious sex offences against children specifically, was ridiculed by judges, state and national law societies, the Australian and state law reform and sentencing advisory bodies and various bodies representing community legal centres. Essentially, they are an affront to the rule of law. They breach the doctrine of a separation of powers and reflect an attempt by this Government to intrude on the role of judges through removing their discretion in passing sentences.

The action of Government, and of the executive specifically, intervening in this legislative way into the role of judges in making these sorts of decisions, was specifically identified by the honourable Gillian Triggs when she was in Tasmania a couple of years ago. She was amazing and spoke for about an hour and 20 minutes, and for not one minute of that time did I feel I was doing anything other than listening alertly. She is an extraordinary person and her knowledge of human rights law is phenomenal. She is particularly concerned at the move progressing in western democracies of the executive intervening through a legislative framework and eroding our democratic principles by intruding into the ability of courts to make decisions in the way it has always been done.

Nothing has changed since this bill came through in 2017, except that we have further strengthened the evidence. In November last year, the Sentencing Advisory Council produced Research Paper 3, 'Sentencing for Serious Sex Offences Against Children'. We find that courts are listening and the sentences being handed out have been gradually increasing in length. I will come back to this.

I will read some extra comments made in 2017 by then premier, Lara Giddings, who has been a passionate advocate, resisting mandatory minimum sentences across the board. She has been the champion for the Labor Party and she and I, in our respective roles in these shadow portfolios, have spent many an hour here standing, arguing for the importance of the separation of powers and the evidence as to why bills such as this are so inherently damaging and ineffective.

Lara Giddings made a couple of points in her 23 May 2017 address. One of the examples she cited was the research conducted for the Tasmanian jury sentencing study in their 2015 report, which was research of jurors to identify their sentencing tendencies. Jurors were asked to specify the sentence that should be imposed on the offender. That was compared with the sentence ultimately imposed by the judge. Jurors were evenly split between more lenient and more severe sentencing suggestions, with about 48 per cent wanting a sentence that was more lenient and 48 per cent wanting a harsher sentence.

In the second stage of the Tasmanian jury sentencing study, jurors were given details of the sentence after the judge had imposed it and were asked if it was appropriate. Nearly 90 per cent, 87.8 per cent, of the jurors considered the sentence appropriate. The vast majority, almost 90 per cent of people who participated in that process, said the courts had it right. I am quoting now from Lara Giddings -

… yet here we are in this House debating more mandatory sentencing and taking discretion away from the courts. We are giving a vote of no confidence in our judges. We are saying, 'You keep getting it wrong and therefore we are going to take your discretion away from you and give it to the police and the DPP'. They will have the power to determine what charges are laid and whether they think a crime is suitable to be under one of these charges that will lead to a mandatory sentence. If they are a bit doubtful about it, they will not charge someone under the crime of rape, they will find a lesser sentence because they do not believe the facts of the case before them warrant four years in prison. The DPP will make that decision, not the courts. The victim will not get their justice on the issue of rape; it will be a lesser charge if the DPP believes four years is too harsh a sentence and that the facts do not fit that form of sentence. You are shifting justice out of the courts and into the hands of faceless men and women in the police department and the Office of the Department of Public Prosecutions. That is what you do with mandatory sentencing.

Madam Speaker, Lara Giddings makes that point very well. There is nothing that is going to benefit the people we are most concerned about looking after, children who have suffered terrible sexual abuse.

Everything about this bill is rotten. The Greens have always opposed the trampling of the judicial system by governments and parliaments on the matter of sentencing. We do not support this bill and bringing it on today in an identical form at this time is clearly all about populist politics and that is absolutely the point.

I have more I would like to say about the basis of our concerns for mandatory minimum sentencing. Labor has moved to refer this to a select committee with power to inquire into the provisions of the bill and in relation to specific matters and alternative sentencing options to those provided in the bill. We are not supporting the bill for mandatory minimum sentencing more broadly. We are more than satisfied with the substantial evidence that has been prepared over years repeatedly across august bodies such as the Sentencing Advisory Council. The Governor, Kate Warner, has been involved in research in this area, as have community organisations, the Law Society, the Lawyers Alliance, and all are in agreement on this issue. We stand with them. We do not support this bill.

The amendment has been presented by Labor as a way of looking at the evidence, but it is quite clear that this Government is incapable of looking at the evidence. I am not persuaded that anything will make a change to that situation because they made a pre-election commitment - and this is really what it is all about - in 2014 to impose mandatory minimum sentences. The minister said that herself.

Ms Archer - We told them to do that.

Dr WOODRUFF - Absolutely. That is what you stood to do. The Greens stand for the separation of powers, science and evidence, and listening to the experts rather than populist politics. That is why we will never support this sort of bill, including this particular bill, but equally we cannot support this motion by Labor because it gives legitimacy to the bill because it is premised on the notion that the bill has credibility and a basis for investigation. We utterly reject that because all the evidence has been prepared by the Sentencing Advisory Council numerous times.

I am not persuaded by Ms Haddad's plea to establish a select committee inquiry so that the evidence can be listened to and taken on board because I believe there is a fundamental inability of this Government to listen to the evidence. On many examples, the Government has shown itself to be anti-science - just look at fish farms. They are not interested in the evidence. They are interested in a range of other things. In this instance, they are interested in a tough-on-crime narrative and there is a federal election and an upper House election coming up. That is what this is all about.

The Greens stand along with all Tasmanians who utterly despise this way of playing politics. This is not a game. These are people's lives. These are children who have suffered serious sexual abuse. This should not be a political football. We do not think taking this to a select committee inquiry is going to improve the situation. We do not agree that we need to hear more evidence on this.

We just had the Sentencing Advisory Council in November last year. I am not persuaded by the unintended consequences of opening up a select committee inquiry with a range of people coming through the doors in a very populist, media-oriented space that is highly politically charged. I am not persuaded that it will provide the best outcomes for children, because this is really who we are talking about, going to court and getting justice. I am not persuaded that that space is going to produce the best outcomes. We have had more than enough of this conversation in parliament. We need to support children and we need to support the judiciary to do their job.

I had a range of conversations with members of the Labor Party about this and I was led to understand that they had had conversations and presented this to members of the legal profession and groups and that there was support. In the conversations I had over the lunch break it is quite clear that the Australian Lawyers Alliance and the Prisoners Legal Service do not support going to a select committee inquiry on this bill.

Ms HADDAD - Point of order, Madam Speaker. I indicated that there was support from some for our change of policy. I did not indicate that I consulted.

Dr WOODRUFF - I hear that point of order but my understanding was that there had been consultation not about the bill but about the proposed change.

Ms Haddad - No.

Dr WOODRUFF - You did not talk to anyone about it?

Ms Haddad - It is a misrepresentation to say that they disagree with it.

Dr WOODRUFF - No, but did you talk to anyone about it?

Ms Haddad - No.

Dr WOODRUFF - Well, you told me you did.

Ms Haddad - I didn't tell you I had consulted on the amendment. I told you I had consulted on our policy.

Dr WOODRUFF - Okay, all right.

Ms Haddad - You are misrepresenting what I said.

Dr WOODRUFF - All right, just to go back to the record, I understand from Ms Haddad that therefore you did not consult with those groups about this proposal of yours that we are discussing, the motion of going to a select committee inquiry. I will say for the record that I did consult with those groups and they have told me that they do not support doing this for the same reasons I have stated - because it gives succour to a bill which is rotten. It gives legitimacy to an approach which is utterly wrong.

Let us be clear, the motion says that the select committee will inquire into the provisions of the bill for mandatory minimum sentencing for serious sexual offences against children and -

Ms Haddad - It is the advice of the Clerk actually.

Dr WOODRUFF - alternative sentencing options to those provided in the bill.

Ms Haddad - That is right.

Dr WOODRUFF - In no way do either of those things give legitimacy to the weight of evidence and the authority of bodies such as the Sentencing Advisory Council because essentially this is saying that all those positions can be interrogated, assessed and investigated as if they are not legitimate or credible. Let us be honest here. Look what happened with the gambling inquiry. It went on for years. It had an amazing quantity of evidence from people interstate, who spoke about the great harm from gambling. The evidence is that gambling addiction kills people, leads to misery, social deprivation, family break-up and suicide. All manner of harm is being facilitated by this Government for decades longer. It is a blight on our state. What does the committee find? Go ahead, good on you, keep going.

We have no confidence that an inquiry on a matter like this would produce the result which I believe the Labor Party wants to achieve, which is to knock this off. I will, on behalf of the Greens, vote with the long-held position of our party, and have nothing to do with -

Ms Archer - At least you have the guts to do it.

Dr WOODRUFF - You can trust the Greens to be consistent on its position. We have a clearly articulated view. On the basis of that I would not support something I fear would be a kangaroo inquiry. Although Labor's intentions might be to try to facilitate an outcome, some things just cannot be fixed. This is one of them. We will not be supporting this motion.