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Sentencing Amendment (Presumption of Mandatory Sentencing) Bill 2023

Dr Rosalie Woodruff MP

Dr Rosalie Woodruff MP  -  Tuesday, 14 November 2023

Tags: Legislation, Justice

Dr WOODRUFF (Franklin - Leader of the Greens) - Well, this is what you wanted, isn't it? You just wanted something as low as what we have. Thank you, Attorney-General. What a rock bottom. What a terrible low. What a terrible disgrace the Labor and Liberal parties are today. I thought they had hit rock bottom years ago, but the Government seems desperate to prove just how willing they are to use a sledgehammer and find out what new lows lie below the bedrock they have reached.

Mr Speaker, we have been here before and the Opposition spokesperson today has laid out the history. Having listened to that speech the whole way through, where Ms Haddad prosecuted perfectly the arguments why in the past the Labor Party voted three times against this bill and the argument for why they should vote against it again today, I could not believe that just at the end, she flipped. I am sure the whole speech will be sent out to people, all the stakeholders will get this speech, the bit before the fact that the Labor Party decided that if the Liberals bring in the wrong bill enough times, they will backflip and vote with them. That is all it takes. All it takes is to be stuck in a difficult spot. What we have seen from the Labor Party every time is that when they are in that place, instead of going with the community, the people who support them, the people who want to have them vote the way they have always done, the way the Greens have always done, if it is difficult, they will support the Government. They will go with the Liberals because they have exactly the same position.

The majority of Tasmanians do not want a stadium, but it got to a hard place so Labor waved it through. All of the legal community, and the family and sexual violence support service community do not want this legislation to pass. Ms Haddad knows that and they all know that. That is the community I am talking about, Mr Winter. I am talking about the family and sexual violence support service community who do not want this bill to pass. I will lay out why they do not want it. I have done it three times before. Ms Haddad basically did it then.

I will lay out why because there are really strong reasons. Three times the Government has had a go at this, and at least in the past they used to have a consultation process, but the time the Labor Party decided to support them, they have not bothered to consult with anybody. Ms Haddad cannot read in the harsh words that would have been spoken by the Bar Association, the Law Society, the Tasmania Law Reform Institute, the Sentencing Advisory Council, the Australian Lawyers Alliance. Also, she would not have read in the words that would have been spoken by members of the family and sexual violence community if they had had time to provide their views.

Let us just make it crystal clear to people who are watching how overtly political this bill is. For starters, we are talking about something that is meant to be looking after the best interests and caring for the wellbeing of children. Every child has a right to live without violence, every child has a right to live without sexual abuse in Tasmania and everywhere on the planet. We abundantly know that this has not happened in Tasmania too many times. That is exactly why we all know what the Commission of Inquiry has gone through.

The minister had the gall and the shame to cite the Commission of Inquiry in his second reading speech, but not once in the two-year long work and the 2927-page report, and the 191 recommendations, not once does the Commission mention support or recommend mandatory minimum sentencing as a legislative response. They did not do that, because, despite all the other legislative changes that they identified that were essential to keep children safe and provide them with justices in Tasmania, this bill was not recommended.

From the briefing that I had for this bill - thank you to the staff who gave it to me - we determined that the drafting of this bill did not start until this Attorney-General took over, which means that the turnaround for the idea of this bill and the drafting by OPC has been less than a month - time that should have been spent focusing him, his staff, the resources of OPC, the resources of the Department of Justice, and the Attorney General on drafting legislation to do with the Commission of Inquiry, to do with the urgent work that they said needed to be done, not to deal with something that was political that has been thrice thrown out by this parliament that was not recommended to respond to child sex abuse in Tasmania.

This bill is a substantive amendment to the Sentencing Act 1997, but despite that the Attorney-General tabled it in the House without any prior notice at the last sitting, and it is being debated now in the next sitting week. We have not seen any submissions or any other comments about this controversial bill by any eminent legal minds in Tasmania or, equally and especially importantly, by the family and sexual violence support service sector. That is because, as I found out during the briefing, the Government did not do any consultation on this bill at all.

Given the Commission of Inquiry has just completed two years of work, and the Government is meant to be in the middle of preparing a response to that, you would hope that the Government would have internalised just how important it is to speak to the communities they are preparing to legislate for. That means speaking to support services and advocates for children and families who are suffering from sexual violence and child sex abuse.

What we know from the Government's previous versions is that nearly every legal stakeholder in Tasmania from the courts, the defence attorneys, prosecutors, professional bodies, have all rejected the three previous attempts to force courts to impose mandatory minimum sentences for child sexual abuse. The previous Commissioner for Children rejected it, for the obvious and disturbing reason that it will lead to worse outcomes for victims of child sex abuse. I will read it to the House. Ms Haddad has obviously forgotten it, and the minister has obviously never bothered to read it.

Mr Morrissey said in a briefing to the Legislative Council on 21 June 2017, that:

It is 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. 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 offense against a child. 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.

The Sentencing Advisory 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.

Which part of that have you not read, Labor and Liberal party members? Which bit of it do you think you have got better advice on? The Sentencing Advisory Council and the former Commissioner for Children and Young People. Neither the Attorney-General nor Ms Haddad have offered any argument for why they disagree with this.

There is no argument. They did not even get to the argument. They were just going to the politics. That is all this is. This is just a play of politics and it is using victim/survivors and children as the subjects of a political play between two major parties. It is beyond sickening to see this display.

The Government is throwing the bill out here without any opportunity for those people to comment on it. Why is that? It is because they know exactly what they would say: they will say that this is a move that leads to poorer justice outcomes and it will have, importantly, the consequence for worst outcomes for victim/survivors. The Attorney-General did not want to give the legal profession any opportunity to say just how terrible and perverting this piece of legislation is which is why he did not have a consultation on it.

This is what it is: it is a shameful political wedge that is being used by the Government to distract from their terrible handling of the Commission of Inquiry's report. I cannot believe that the Labor Party want to be any part of engaging in that process of distraction from just how bad the Liberals have been in responding to the Commission of Inquiry's report.

The idea of weaponising child sex abuse is just so abhorrent. If the Government was truly tough on child sex offending they would have made sure there was a proper investigation of the serious concerns that were raised about Tasmania Police dismissing and potentially covering up complaints of child sex abuse against paedophile officers that were raised in the commission of inquiry's report that the Greens raised because the Government had not picked up on it. This included the case of Paul Reynolds, a senior sergeant in the police, who was under active investigation as a paedophile when he killed himself. Even so, he was celebrated by being given a full-on police funeral including a eulogy from past commissioner, Darren Hines.

You would think with that information the Government would want to move heaven and earth to make sure there was an independent full-powers wide-scope investigation to make sure that this deep stain, which is hanging over Tasmania Police and which many victims/survivors have spoken about, would be thoroughly investigated. Instead, it was only because of public pressure only because of victims/survivors speaking out only because of journalists and the Greens that their hand was forced and any review was put in place at all. It does not have the full powers it needs to properly get to the problem of the extent of the alleged cover ups and dismissal and inaction within Tasmania Police over decades of child sexual abuse. How is that putting tough on children offending first?

The Government also showed itself to be using disingenuous and bad faith legal arguments and delaying tactics with the Commission of Inquiry to prevent adverse findings being made against public servants during the inquiry.

The Premier has indicated today that he is looking at an independent review of it but we have not even heard yet if he is going to go further and look all of the state sector employees against whom adverse findings were indicated by the commision of inquiry but they did not have the time or resources to do that job. We have seen time and again that the Government talks tough on these matters but when it really comes down to it, they are all about politics, covering risk to ministers, covering unpleasant investigations into powerful agencies like Tasmania Police, instead of putting children and victim/survivors first.

The Attorney-General is presenting this bill as some sort of dedication to victims/survivors, as an indication of how much he is standing with them. At the same time they are exposed for preventing the commision of inquiry from making adverse findings into state servants. The Sentencing Advisory Council was very clear on this matter when they looked at mandatory minimum sentencing for child sex offenders. They said:

During the council's consultations with stakeholders, strong opposition to the introduction of mandatory sentencing was expressed by the bar association, the Director of Public Prosecutions, the Prisoners Legal Service and the law society.

They also said:

More importantly, in the context of sexual offending, if mandatory sentencing leads to more trials, it will result in increased trauma for victims and a likely reduction in the number of convictions obtained.

This is exactly the sort of concern about this bill, which Labor has just said it is going to support. The Attorney-General claims the bill will result in tougher sentences for paedophiles but what will happen, according to all the experts, is that it will deliver fewer convictions for paedophiles and it will retraumatise victims/survivors.

I have said before that I was informed there was no consultation with any of the organisations in the family and sexual violence sector about the reintroduction or introduction of this bill. I spoke to Kathryn Fordyce, CEO of the Laurel House sexual assault support service. Ms Fordyce and the other Laurel House staff have had an important role in advocating for victims/survivors for many years, especially in recent times around the commision of inquiry process. They have incredible expertise in this area. Ms Fordyce has talked to other members of the sector who wanted time to speak about this with members but have been blindsided by the speed at which the Government has bought on the bill.

Once again, why is the Labor Party supporting this bill knowing that the sector is deeply concerned about the unintended consequences of passing this legislation?

Ms Fordyce told me the sector recognises that child sexual abuse is abhorrent and they are concerned about the impact of mandatory sentencing on victim/survivors. They are concerned that this approach puts energy into the wrong area if the intention is to deter child sexual abuse. She and others in the sector are particularly concerned about the fact that mandatory sentencing reduces the incentive for perpetrators to enter a plea of guilty and will lead to more trials. How is that being tough on crime? How is that helping victims/survivors? It is not in the interest of the victims/survivors, child or adult, to put them through what she says is the harrowing experience of unnecessary committals, hearings and subsequent appeals. Contested cases and trials will also inevitably lead to longer delays for victims/survivors to access the justice system.

She and others in the sector also echo the concerns of the Sentencing Advisory Council that there is a risk that mandatory reporting may result in even fewer convictions because jurors may be reluctant to convict where a mandatory penalty is imposed. They echo the concerns of the Sentencing Advisory Council that this bill's approach will transfer discretion from judges to prosecutors and the police. Given the current concerns about the inaction of police and police prosecutors, particularly in the case of Paul Reynolds, and the continued challenges that many victims/survivors experience with the DPP, she and others are concerned there will be even less transparency in these decisions than there is when judges provide discretion in sentencing.

She is also concerned about how the bill is currently drafted in relation to children and young people under 18 who have harmed other children. Laurel House, which provides therapeutic support to these children, is concerned that the current drafting does not prevent children under 18 from receiving mandatory sentences. Ms Fordyce says this approach does not comply with Australia's obligations under the UN Convention on the Rights of the Child. I am staggered that the Attorney-General has not informed himself about these matters. He has the arrogance to push through legislation that has been overturned many times without anybody backing him except his own political party and the Labor Party in there with him.

According to advocates in the family and sexual assault sector, this bill will force more women and children to go through avoidable, inquisitorial retraumatising court processes which will be devastating for them. As a consequence, more women will decide they cannot put themselves through this process and opt not make a formal complaint. I asked about this at the briefing and was told the Attorney-General had formed the view that the drafting in this iteration of the bill would mitigate the risk to victims/survivors that the Sentencing Advisory Council's report highlighted. Who do you think you are, Mr Barnett? Who are you to form this view on such a controversial and traumatic matter without seeking the advice of the Sentencing Advisory Council, the Tasmanian Bar Association, the Director of Public Prosecutions, the Prisoners Legal Service, the Law Society of Tasmania and all the other bodies? It grieves me that this Government has gone down this road again and has made this their top priority following the commission of inquiry, despite all the other important legislation that needs to come out of it, purely for political survival.

This bill was never recommended by the commission of inquiry. It was dreamt up and cobbled together in less than a month in the minister's office. And, despite the fact it purports to improve justice for victims/survivors, the Tasmanians who are best placed to give their learned views on this, the legal profession and the sexual violence sector, were not asked their opinion, even though these groups were highly critical of and opposed to the Government's three previous versions of, essentially, the same bill.

On the evidence, it is impossible to look at this bill and not see the same underlying motivations that are behind the Government's other actions on child sexual abuse. That is about putting political self-interest and avoiding scandals in their own agencies ahead of the priority of keeping children safe from sexual abusers. They have failed to properly investigate the police for potentially protecting their own who are paedophiles. They have protected public servants from adverse findings during the commission of inquiry investigations. They have not yet introduced a thorough code of conduct investigation into all of them. Let us not forget that they were dragged kicking and screaming into the commission of inquiry process in the first place.

In this current bill, they are willing and eager to exploit child sexual abuse for their own political ends. The Attorney-General verballed the Sentencing Advisory Council in his second reading speech when he claimed: 'Our Government has adopted the council's advice.' To be crystal clear, the Sentencing Advisory Council said:

This final report reiterates the council's previous recommendations against the introduction of mandatory sentencing for sex offenders.

The Attorney-General even had the hide to brag about the collective knowledge and experience of the council and how widely the council consulted, as if he respected that when he obviously does not. Let me reiterate, in case anybody is not clear: the Sentencing Advisory Council strongly opposes this reform, as does the Bar Association, the DPP, the Prisoners Legal Service and the Law Society.

The Attorney-General's second reading speech is completely divorced from reality; it is a Trumpian triumph. Somehow the Attorney-General believes that he personally has superior insights about the impact of this legislation than the two-year long commission of inquiry and all those other bodies. It is a level of arrogant presumption I did not even think he could stoop to. He has failed to point to any evidence or expert opinion whatsoever to refute the concerns of the Sentencing Advisory Council. He could have quoted what they said to argue against the bill, which is that it will lead to increased trauma for victims and a likely reduction in the number of convictions attained. It could not be clearer about this.

During the briefing we had on the bill we asked whether some fairly basic assessments had been done. While the department did a review of sentencing, they did not look at two critical components. We asked if the Government specifically identified any sentences that had been given in Tasmania that they considered inappropriate. They had not. So there is all this talk about inappropriate sentences yet no evidence they had collected to support their argument that they are in fact inappropriate or not matching community expectations. Second, the Government has done a review of historic sentencing to determine whether those sentences that have been given out below the proposed mandatory minimum thresholds in this bill would have used the proposed exemptions in the bill and stayed below this threshold if the bill was in place, but they have not done that either.

Before us we have a bill where the Government has not identified any specific sentencing that they view as problematic, and they have not identified whether this bill would make a difference in sentencing practices either. What we have in front of us is a bill that is intended to incite painful division in order to divert attention from the Government's failures leading up to, during and since the commission of inquiry. The Attorney-General is going down the well-worn Liberal path of politicising a serious justice issue. The path he chooses, he is warned by legal and sexual violence experts, will likely cause increased trauma for victims and a likely reduction in the number of convictions obtained. Congratulations. Who would want that on their conscience? The Greens do not, and we will not be supporting the bill.

Labor has obviously decided, although Ms Haddad gave not a single reason why it would be beneficial for children or victims/survivors to vote for this legislation. Not a single reason, except that the Government has done it three times so they may as well get their way. If this is what they are like in opposition, Mr Deputy Speaker, heaven help Tasmanians if they ever get into government. There is not a single thing the Labor Party can say they stand for anymore that they will not change their mind about at some point if it is not in their political interest. They have done the numbers, but what is the point in standing for anything if you cannot stand for it in the vote?

Ms Haddad, I really hope you change your mind on this vote; you still have time. Otherwise, the members of the government and Labor benches should hang their heads in shame. After what we have been through this year, after what victims/survivors have asked us to do, to put their interests first, to go ahead and support a bill like this will not put their interests first. It will put them down the line past politicisation.

I will finish with the words of the former Commissioner for Children and Young People. He said:

As we are well aware, child sex abuse is notoriously difficult to prosecute. The fact remains that a child 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, the very real possibility of acquittal. It is important to note that the council does not recommend that a guilty plea should be a specific exception in the mandatory minimum penalty scheme. However, the council expresses its view that if an offender pleads guilty, a sentencing discount from the specified minimum mandatory sentences should be provided. I do not agree with mandatory minimum penalties, particularly where their introduction has the potential for adverse impacts on children and young people.

It is the very clear expressed view of the Sentencing Advisory Council and Mr Morrissey that mandatory sentences will create injustice and should not be introduced in Tasmania.