Tuesday, 03 September 2019

Sky with Tom Connell



Subjects: Mandatory sentencing for child sex offenders

TOM CONNELL: And this comes on the same day the Federal Government is renewing a push for mandatory sentences for child sex offences. Now, this would not necessarily relate to this case. It's about Commonwealth offences first and foremost, although there can be a link between the two depending on how this all plays out. This was something as well the government tried back in 2017.

Then, it didn't get support from Labor. This time around, I suppose like everything post-election, it is up for grabs. Jim Chalmers was asked about this earlier today and well, did say he'd have to consult with his colleagues before changing the topic.

[Excerpt] JIM CHALMERS: Oh, I'd have to have discussions with my colleagues about our position on that particular bill [audio skip] processes to go through, and the point that I would make is that all of these other issues from the Government are a distraction from their failures on the economy. The Government is notorious for bowling up all of these kinds of issues to distract from the slowest economic growth in at least a decade. [End of excerpt]

TOM CONNELL: This would focus according to the Government a lot on online offences that can include people ordering people to commit acts online from Australia or even travelling overseas as well. And the Government says one of the big issues are the number of serious offences that don't actually attract prison terms, saying that number is 28 per cent at the moment. Earlier, I spoke about this proposal with the Attorney-General Christian Porter.

CHRISTIAN PORTER: There's a long sheet that lists out case studies, but we've had examples, say for instance where sentencing has occurred in the courts in Victoria, where for various [audio skip] there's been a term of imprisonment which has been suspended. So someone has received a two year term of imprisonment and that gets suspended, which for your viewers means that so long as the person doesn't offend during a period of time, they actually don't spend a day in jail. And that type of scenario plays out with great regularity in our courts. And these are the types of offences of Commonwealth law that deal with misuse of a carriage service, so using the internet to spread child exploitation material, using the internet to groom people under the age of 16 and induce them into sexual activities. So these are very, very serious offences. They also are offences at a Commonwealth level that deal with people leaving Australia to offend against children in countries overseas.

TOM CONNELL: What about an offence where someone has accessed material online? Now obviously all of this is pretty troubling, but in a relative sense, that content of access is a lot [audio skip] simply accessed it maybe once or twice. Would they still be going to jail and is that the best way for them to rehabilitate?

CHRISTIAN PORTER: So there's a way in which the minimum mandatory component of the sentencing works - is that that will be for a first strike for the most serious offences, and they're usually offences that involve persistent behaviour of the most serious type, multiple victims or circumstances of aggravation.

With respect to the second tier of offending, into which the example that you've given would likely fall, where it's simply access of child exploitation and child abuse material. And when I say simply, that is itself a very, very serious offence, but in those circumstances for those second-tier offences to receive the minimum mandatory term the person who'd committed that offence must have previously been charged and convicted with another offence against children pursuant to either a state or a Commonwealth law. So in effect, for that second-tier of seriousness, those offences [audio skip] strike before you enliven the minimum mandatory conditions. So that means that there is a layered, cautious approach in these circumstances. But nevertheless, what we're trying to deal with here is a set of circumstances where the complaints about this type of behaviour to the AFP now in the vicinity of 18,000, which is double what they were not less than a year ago.

TOM CONNELL: On the aspect then- another aspect that Labor has put forward last time when they didn't support this was a 17 and a 15-year-old in relationship. Now, that 17-year-old then turns 18.

They might be sending images to each other from state to state, for example, and that would constitute an offence that could mean someone triggers that and goes to jail, perhaps if it's the second time they've done it. Is that a possibility that would happen?

CHRISTIAN PORTER: So, this bill features a provision called 16AAA, which effectively says that all of the scheduled offences that that provision lists where a minimum mandatory won't apply if the alleged perpetrator was under the age of 18 at the time. So, in effect, is a system and a regime of minimum mandatories that applies to adult offenders.

TOM CONNELL: In that situation, you've got someone that's just turned 18 and the offence has happened after that point even though what they were doing a month earlier, for example, when they were 17 was not illegal. Is there a possibility that person still goes to jail under this law?

CHRISTIAN PORTER: Well, it applies to people whose offending occurred when they were adult, so over 18.

TOM CONNELL: But is that fair and the sort of people that should target if it's a relationship that is consensual, it's illegal at 17 and 15 and then at 18 and 15 when one person has a birthday it's not?

CHRISTIAN PORTER: Well, in these circumstances, child refers to someone under 16. So I think that we have a situation here where you need to keep on top of that type of behaviour. But this applies to adults and an 18-year-old needs to be careful what they do.

TOM CONNELL: Okay. I wanted to ask you quickly about the religious discrimination laws as well that have been [audio skip] Applying it to the Israel Folau situation, if Rugby Australia can prove that it was suffering- obviously in the future or the same situation, Rugby Australia could prove it was suffering unjustifiable financial hardship on its business because of Folau's Tweets. So, would that then, if that's proven, allow them to sack him?

CHRISTIAN PORTER: No. No, of course not. That would be the absolute minimum thing. The necessary thing they'd have to prove before they got on to what would necessarily be other arguments such as the reasonableness of the rule; how the rule interacted with their contract. What we're saying here is that it seems to be an increasing habit of large business, particularly in Australia, to have what I would describe as a general non-communication rules on their employees. Those rules seem to apply across a large number of staff and are often phrased in fairly broad terms. They don't specifically or necessarily mention religion or any other type of particular expression.

But where [audio skip] pursuant to some form of contracted employment and where the rules had a disproportionate effect, disadvantaging effect on someone who wanted in their spare time to express their religious beliefs, then that rule would be unreasonable unless as a starting point the big company could prove that the rule was necessary to prevent undue financial hardship. But that's just the starting point. Then a business, like any other business under anti-discrimination law who faces a reasonableness test, would have to prove that the rule is reasonable in all the circumstances.

TOM CONNELL: And how is that going to be defined? Because if you look at this situation with Israel Folau, a lot of people looking at the draft law so far are unsure how it exactly plays out. What's reasonable in that way?

CHRISTIAN PORTER: Well, reasonableness, as it is the case in all legal contexts where that question has put, turns on all the relevant circumstances of the case and you'll see when you go to the legislation at Section 8 it lits some of the most obvious circumstances. How much disadvantage is occasion to the person who wanted to put their religious view in their spare time? Where there are other ways for the company to achieve the ends that it sought to achieve? How was the rule structured? What was the nature of the behaviour in the first place? So, all of those circumstances would come in to bear.

Now, I'm not in a position because the Israel Folau matter is already before a decision-making tribunal, in a Fair Work Act action, but I would put this: in those types of circumstances, this legislation clearly gives significant extra protection to people who aren't doing much more than putting their religious views based on their beliefs, very often based on the Bible or other very old and well-known documents and scripture, in their spare time. And I think most Australians think that's a pretty reasonable thing to be able to do without being sacked for it. So this gives extra protection to people who might be employees of a large company, or any company for that matter, to put their religious views in their spare time if they believe that's the way that they need to express those religious views.

TOM CONNELL: We'll see where Labor goes on that and the previous laws we were talking about as well. But Attorney-General Christian Porter, I appreciate your time today.

CHRISTIAN PORTER: Thank you very much. Cheers.​​​​