Coalition laws have been a major sticking point in caucus as Labor’s platform prohibits minimum sentences
Labor has waved through a government bill creating mandatory minimum sentences for child sexual abuse offences – despite a prohibition on such minimums in its platform and Senate support to amend the bill.
On Monday evening Labor, the Greens, Centre Alliance and Jacqui Lambie combined to pass a version of the sexual crimes against children bill which included opposition amendments removing mandatory minimums and creating a review of sentences – but Labor later backtracked after the Coalition ruled out passing the amended bill in the lower house.
The Law Council had lobbied against mandatory minimums on the basis they restrict judicial discretion, and could result in lengthy sentences such as five years in prison for an 18-year old who had a sexual relationship with a 15-year old or exchanged graphic images with them on Snapchat.
The government leader in the Senate, Mathias Cormann, said it was “extremely disappointing” that Labor had “used a procedural trick to vote against the minimum mandatory sentencing for child sex offenders”.
“The legislation that we’ve put forward, was entirely appropriate – about 39% of child sex offenders don’t do any time in jail,” he said on Tuesday.
In the Coalition party room, Scott Morrison said the government would send the bill back to the Senate “time and time again” and would not negotiate on it.
“We are proud – we stand up for kids, especially the most vulnerable and defenceless,” he said.
Despite passing its preferred form of the bill in the Senate on Monday night, the shadow attorney general, Mark Dreyfus, told Labor caucus on Tuesday morning that there was no prospect the government would allow it to pass the lower house.
Dreyfus urged caucus to approve the shadow cabinet’s decision to pass the bill in its original form.
He argued Labor could not let “the perfect be the enemy of the good” and pointed to the bill’s 12 other schedules which protected children through measures such as presumptions against bail and improved processes for child witnesses.
Senator Louise Pratt and the shadow assistant minister for treasury, Andrew Leigh, raised concerns – expressing disappointment Labor had not argued further that mandatory sentencing doesn’t work, arguing the bill harms the independence of the judiciary and would make Closing the Gap between the outcomes of Indigenous and non-Indigenous offenders harder. Nevertheless the motion passed unanimously.
Shortly after noon the original bill passed the House of Representatives and after question time it passed the Senate when Labor voted with the government to pass it without insisting on previous amendments.
The Greens senator Nick McKim accused Labor of an “appalling backflip”, warning it would result in “significant miscarriages of justice”.
He said the bill “places at significant risk teenagers in Australia, engaging in what has throughout human history been quite normal teenage behaviour” with sentences of four, five, six or seven years in prison.
Cormann clarified mandatory sentencing “does not apply to offenders who are under 18 when they commit the offence”. The bill passed 44 votes to 8.
The bill has been a major sticking point in Labor’s caucus before. In July former frontbencher Kim Carr challenged the party leadership over the bill, suggesting to vote for it would contravene the party’s platform. The 2018 platform agreed to at the party’s last national conference says Labor opposes mandatory sentencing and detention regimes.
In November, Carr, the deputy chair of the Senate legal and constitution affairs legislation committee, wrote a dissenting report calling to remove mandatory minimum sentences from the bill.
It argued that mandatory sentences have “perverse unintended consequences, such as making it more difficult to prosecute criminals and making it less likely that juries or judges will convict guilty people”.
In a statement, the Law Council president, Pauline Wright, warned that mandatory sentences “erode an important incentive to plead guilty, which will lead to more contested trials”.
She said the bill sets a “dangerous precedent” and the Law Council believes mandatory sentencing “is inconsistent with Australia’s voluntarily assumed international human rights obligations”.
The Carly Ryan Foundation chief executive, Sonya Ryan, said the bill had been “politicised” and mandatory sentencing aspects had held up the “other, very good aspects of this bill”.
“These measures include greater protection for vulnerable witnesses – like children – in the court process,” she said.
“There are increases to maximum penalties for child sex offences so that parliament is sending judges a clear message: society will no longer tolerate inadequate sentences for child abusers.”