Media Conference Perth
The Hon. Peter Dutton MP
Minister for Home Affairs
The Hon. Christian Porter MP
Minister for Industrial Relations
Leader of the House
Subjects: Mandatory sentences for child sex offenders
CHRISTIAN PORTER: Morning everyone and thanks for being here and welcome to Peter Dutton the Home Affairs Minister to Perth particularly. It is great to have you over. We are announcing today the re-introduction of some legislation that has a few minor amendments but is in substantially in the same form as it was in the previous parliament. For two years, we were unable to secure passage of that legislation, notwithstanding that it is very, very important legislation. The context of the legislation dealing, as it does, with child sex offenders, is that last year there were 18,000 reports of child exploitation involving child sex offenders at the Commonwealth level. And that represents a doubling of the number of reports from the year prior to that. So, we clearly have an escalating problem with respect to child exploitation, the distribution of child abuse material, and offending against children, pursuant to Commonwealth law. It's also the case that last year 28 per cent of the people convicted of Commonwealth offences in this area did not spend a day in jail. The bill attempts to do four things. The first is it establishes a mandatory component to sentencing, which I'll come back to and explain in a moment. The second is that it increases the maximum penalties for the most serious Commonwealth offences with respect to child sex offending. Thirdly, it makes it harder for serious child sex offenders to get bail once they have been charged. And fourthly, it creates several new offences to deal with what we see to be new and emerging threats.
These include new offences for being the administrator of a website that exists for the purposes of distributing child sex abuse. So we want to have offences that are properly adapted for the purpose of going further up the chain, particularly where the child sex abuse material is being distributed online. With respect to the mandatory sentencing components of the bill, as was the case in the bill introduced in the previous Parliament, it's a layered, and I think cautious approach to mandatory sentencing. And what it does do is it establishes that there are first-strike minimum mandatory terms of imprisonment for the most serious offences at Commonwealth law. So, those are, generally speaking, offences that have a component of aggravation in the nature of the offending, where there's been persistent sexual abuse against a child, or where there have been multiple occasions of abuse, which means three or more occasions involving two or more individual people. Where we are talking about the second tier of seriousness of offences at the Commonwealth level, to engage the minimum term of imprisonment there would of had to have been a prior strike. So, where you're looking at the second tier of offending, the previous condition would have to be that the person had already been charged and convicted of another child sex offence against Commonwealth or state law. So, we think that this is legislation which now has been not merely introduced into the previous Parliament, it's been part of our Government's policy for over two years. It was taken to a full federal election. There's clearly a need for stronger penalties for specific and general deterrence in this area.
And we are very much hoping that we will finally get Opposition support for this bill. And in fact, there have been some indications that that may possibly be the case, notwithstanding that the bill was not supported in the previous Parliament.
PETER DUTTON: Well Attorney, firstly, thank you very much for your efforts in what I think is a really important area of law. And I think there's a huge expectation across the country that we deal with child sex offenders in this way. Anybody who has somebody within their family or friend group, knows somebody that has been sexual abused by an adult, and they know that those young people live with that as a life sentence. And it's unacceptable in this country that a child sex offender cannot go to jail, but that a victim of child sexual abuse ends up with a lifetime sentence. And this is not the first effort under this Government, by any stretch of the imagination, in our effort to make sure that we can provide support to the victims of child sexual offences but also to come down very hard on those that are perpetrating these crimes. We've invested $70 million into the Australian Centre for Countering Child Exploitation, which is bringing together the best investigators from across the Home Affairs portfolio, working with their state and territory colleagues as well as international colleagues. Because, as the Attorney pointed out, the trajectory in terms of the numbers of complaints received by the Australian Federal Police continues to grow and compound each year.
And with the proliferation of offensive material online, now with people paying for per-view, it is a vile crime. It's a vile thought that somebody in Australia is paying for a child in another jurisdiction - the Philippines, for example - to be sexual abused at the direction of the person here in Australia.
And so I think the community expectation to date has not been met in terms of the way in which these sentences apply. And the Government now has listened to the public and is acting, and as the Attorney points out, I hope the Labor Party is able to support this through the Senate in a way that they weren't able to in the last Parliament.
QUESTION: Mr Porter, you mentioned the percentage of people that haven't done time and the growth in the number of complaints. Can you quantify how many people might have escaped prison because of these…?
CHRISTIAN PORTER: I can get that total number for you. 18,000 complaints does not mean 18,000 charges. So, the charges will be a subset of that group, nonetheless very substantial. But of people who are charged and convicted, 28 per cent don't spend a day in prison. And one of the reasons for that is not merely that the courts are offering a range of alternative dispositions, such as fines, but also that there's a great tendency to suspend terms of imprisonment. So, someone might receive a 2-year term of imprisonment, have that term suspended, which in effect means if they don't reoffend during that period, they don't spend a day in jail. But we do have those total figures, I just don't have them to hand.
QUESTION: Just even the size of the Internet and the complexities of it; is it a bit like shooting fish in a barrel, trying to go after this stuff?
CHRISTIAN PORTER: Well, it I think demonstrates the need for where you are able to properly investigate, form a brief, able to sustain that brief to a charge, able to sustain the charge to a conviction in a court, that the penalty has to be absolutely meaningful, not merely for the specific deterrence against that individual, because we do see great amounts of recidivism and repeat offending in this area. But you have to send a very clear message. And the Commonwealth law does, as you point out, apply in a range of circumstances, which very much include online predatory and paedophilic behaviour, but also this thing that we know happens and that we work very hard to police, of Australians travelling to other countries, near Asian neighbours, to offend against children in those countries. And you'll appreciate that they're not the easiest things to investigate. We invest, as Peter has noted, a great deal of resourcing and effort into investigating both online predatory behaviour, but also this child sex tourism and offending behaviour, which is of the most grotesque type. And where we catch people and convict them, there have to be very, very serious penalties so that people know that there is a very serious consequence for trying to engage in this behaviour. The difficulties of investigating and convicting are very much speaking to the fact that you need very serious penalties as a matter of general deterrence.
QUESTION: Attorney, it's been suggested that most of the growth in these types of crimes are young people sexting each other. Is there a chance that you could just end up putting a lot of young people in jail for sending sex messages to each other?
CHRISTIAN PORTER: [Interrupts] Well, it's not targeted at that. So, if you have a look at Section 16AAC, which has got exclusions, the scheduling of the offences, largely speaking, that set the minimum mandatory penalties, don't apply to persons who are aged under 18 years. So, it is effectively targeting adults.
QUESTION: Most people is approved- convicted of these kinds of crimes under state laws, aren't they? And that this is only going to affect people prosecuted [indistinct] federal?
CHRISTIAN PORTER: Well, it's correct that, obviously, as the Commonwealth Government, we are making sentencing laws for Commonwealth offences. You'll generally find as the breakdown that physical offending that occurs inside a state jurisdiction will be prosecuted under state law. So, the Criminal Code of Western Australia, for instance, here. But there are two very broad types - and this is a broad summary, but I think it's a relatively accurate summary - very broad types of offending the Commonwealth deals with. The type of offending that you see online, because of the telecommunications power and under the Commonwealth Constitution, and also trafficking the movement of people from Australia to commit offences overseas, these are very, very important and very unfortunately growth areas of offending, which we absolutely have to get on top of.
Importantly also, the interface with the state laws is for the second tier of seriousness of offending, where you had to have committed a first strike beforehand. The first strike will include a commission of a state offence. So for instance, if someone travelled overseas, or if someone was using an internet service to distribute child abuse material and they'd previously been convicted of a physical offence against a child at state law, they would have their one strike on the book. And so therefore could be liable to the minimum mandatory penalty under the Commonwealth law for the second offence.
QUESTION: These didn't pass two years ago. What makes you think that they will pass this time?
CHRISTIAN PORTER: Well, I think the need for them has grown even since the time that they were first introduced two years ago. I mean, having a number of complaints come into the AFP hit 18,000 which was double the year before. So double the amount of complaints that existed at the time that the legislation was first introduced indicates the need. We continuously see these people trying to travel overseas to offend against children. We continually see these people trying to travel overseas to offend against children. Every parent's worst nightmare is their child being groomed online. So, the online component to this is unfortunately something that we all need as a society to combat. And that's not just about sentencing, but sentencing has to be a big part of that. I think the pressure to do something here will exist for the Opposition, and I think that even Anthony Albanese himself has said that there has to be some policies of Government which were introduced as legislation which went to a full general election, which have been sustained policy which have won a mandate, that Labor have to rethink their position on. It's up to them to rethink their position on it.
But if ever there was a policy that needed Labor to rethink their position on, this surely must be it.
QUESTION: Are you confident though you can get it through the Senate and get crossbenchers on your side?
CHRISTIAN PORTER: Well I mean I would prefer on a mainstream concern of mainstream Australia that the mainstream parties were able to reach a bipartisan position. But equally I consider that there were some amendments to this bill, particularly around the maximum offences that were worked on both with the Nick Xenophon Team, when Centre Alliance was called that, but now the Centre Alliance senators and members. So, I would very much hope that we've got a strong case here with the crossbench. But ultimately, you know, this is a mainstream concern, a real concern for every Australian out there in the suburbs with kids, who access the internet. Why can't we have Labor supporting fair, reasonable and rational legislation? They have said that their position was an in-principle position, that they would never support any type of minimum mandatory terms. Those exist for homicide offences right across Australia. The State Labor Party introduced them in this jurisdiction for 3-strike burglaries. The Federal Labor Government introduced minimum mandatories for people smuggling offences. So the idea that there's some blanket in-principle objection to having reasonable, cautious, minimum mandatory terms for the most serious offences just doesn't wash.
This is just a matter of making a decision inside the internal processes of the Labor Party.
QUESTION: Have there been any changes made to the legislation to, I guess, try and get it through? Or is it basically the same?
CHRISTIAN PORTER: Essentially, some of the changes were predicated on the fact that I think it might have been Nick Xenophon suggested some increases to maximums around the offence categories that we're dealing with. We looked at all of those. We have increased some of the maximums here along the lines of the suggestion, what- in effect is the suggestion of Centre Alliance senators. So I am hoping that those types of compromises would be likely to get further support from the crossbench in the Senate.
QUESTION: Has there been resistance in the judiciary, which has tended traditionally to be against any mandatory sentencing movements? You said [indistinct] cautious approach but have judges indicated, or judicial agencies offered any opposition?
CHRISTIAN PORTER: Well, judges don't make policy. And judges don't come out - sitting judges - and comment on policy. Policy's a matter for government. But, look, I have heard the arguments before, as a state attorney-general. I recall bringing in mandatory terms of imprisonment for assaults on police officers, serious assaults on police officers in WA. And yeah, certain segments of the legal fraternity who view that as not the policy they would adopt, said that you shouldn't do it because it won't have any effect. And we had a 40 per cent decrease in assaults on police in a very, very short period of time. So, what we're hoping is that this is the type of deterrence that you need. It's not the only policy that you need, but you must have serious sentencing when you've got this level of serious offending.
QUESTION: You don't think it will lead to less guilty pleas? I mean there might be more not guilty pleas? Longer court processes [audio skip] and that doesn't really help it either.
CHRISTIAN PORTER: So I should note that there is one instance in which the minimum mandatory can be adjusted down. It would still be a mandatory term of imprisonment, but that relates precisely to that issue. So that the structured rewards for an early guilty plea or assisting authorities, which sit at about 25 per cent discounts under the common law, are preserved in this bill. So we still maintain the encouragement incentive for people to plead guilty and to assist authorities. But if a minimum mandatory penalty otherwise applied, that person is still going to spend time in jail.
QUESTION: Can I ask Mr Dutton a question, sorry? There's been a suggestion that you're considering extending the remit of ASD to go after sex offenders, child sex offenders, using computer equipment seized. Is that something you're currently considering?
PETER DUTTON: Well, I presume you're referring to a report in News Limited, I think it was at the time, which was completely inaccurate. I think Mr Pezzullo, the Secretary of the department, made comment in relation to that as well. There was some discussion at the time and I think it's important to note it here as well. If you have a server for example, which is sitting in Europe, and ASD has the ability to disrupt that server, that is a server that's conveying live images of children being sexual abused, that's within the ASD remit. There's a question about whether or not if that server was sitting in Sydney with the same crime group, even if it was operated from Europe out of Sydney, that that wouldn't be in scope. That is that we wouldn't be able to disrupt the transmission of those live sex acts against children whether they were perpetrated on children here in Australia or elsewhere, but if they were routed through those servers. So, that was the basis of some of the discussion at the time. But the report, as you know, was thoroughly inaccurate.
QUESTION: So wasn't the point of the document, the ASD document that was leaked to News Corp, that there was a plan to extend the ASD's capability?
PETER DUTTON: Well again, there was a misrepresentation in the reporting of it. I'm not going to comment on the document because obviously that's still a matter that's with the AFP. So I just refer you back to comments I just made.
QUESTION: Could I just ask you a question on another matter if that's okay?
PETER DUTTON: Yes, sure.
QUESTION: You've used your discretion I think thousands of times over the years to allow people to come into Australia, I think including asylum seekers. Why is the case of the Tamil family on Christmas Island any different?
PETER DUTTON: This is obviously a very emotional case and these matters don't come before Ministers unless they're very serious matters and to go through the detail of each of these requires time, which we've done over a period of time in relation to this case. As you know the father arrived in 2012 by boat; the mother in 2013. The family told their story to initially those people that were involved in assessment of the case at the tribunal. They were found not to be refugees. They then went to the Federal Magistrates Court. They were found not to be refugees in that jurisdiction. They went to the Federal Court, they were found not to be refugees there and then they further delayed it by going or seeking leave to go to the High Court and the same result for them. So no court, nobody at all that's looked at this case has determined that these people are owed protection. Obviously, part of the reason – and this has been published in the last 24 hours or so – the judgment, which is publicly available from one of the matters where this case was considered, noted of course that the father had been back to Sri Lanka on a number of occasions, had travelled to Qatar I think it was, maybe Kuwait as well, and therefore it was difficult to make out that you would be persecuted if you were returned back to Sri Lanka, having gone back there either for work or for holiday. So there are always complexities in these cases, which is why I say it takes time to contemplate them, but at no stage have these people ever been given any false hope that they would stay here. In fact, from day one, long before they had children, they were told that they would never settle in Australia and we've been very definite about that. The Prime Minister made his comments yesterday and this is a matter obviously now that's before the courts, so we'll allow that process to unfold. Ministers, including myself, have made decisions in relation to this matter over a long period of time and I'd also note that 1,500 people in similar family units, with young children, have gone back to Sri Lanka because of course the civil war is long over and those people, having come by boat, accepted that they weren't refugees and went back and there are other people in the queue as well behind them who might still have legal appeals that haven't yet been finalised, that will return back to Sri Lanka at the appropriate time as well. At the same time that we've done that, we've brought in, the year before last, more people through the Refugee and Humanitarian Program than any year in the last 30. Now because we have a cap of 18,750 places each year under the Refugee and Humanitarian program, we necessarily must take those that are most in need. So we can't take people that have been found not to be refugees in the Refugee and Humanitarian Program, but we have taken for example – and I've really made this a focus of the program – we have taken Yazidi women in great numbers because they of course were sold and traded by ISIL members. They were used as sex slaves; many of them slaughtered and in their cases, they have been compelling, they have made out the case that they're owed protection and they are now living in Australia and they've started a new life. So we've got to weigh all of these matters up, but that's the circumstance in relation to this matter.
QUESTION: Minister Dutton, wasn't part of the problem of something that you've just referred to in your answer, the number of appeals and the length of time it takes...
PETER DUTTON: Yes, it is.
QUESTION: And what can be done ... [inaudible]
PETER DUTTON: The Attorney has commissioned work in relation to the AAT as part of a general review there, including in relation to migration matters and we're still contemplating that; but that's one prospect of dealing more expeditiously with some of these matters. But in the end, people have the ability to appeal; that's their legal right, but you can't appeal, refuse the umpire's decision and then delay and delay and delay through subsequent appeal processes, and then say it's unfair that you've been here so long and therefore you've established those connections to the community. It doesn't cut both ways. So I believe there should be judicial consideration of these matters and that people should have their day to review the Minister's decision, to have all of the facts contemplated, but I do think it's excessive when it goes on for a number of years. I think it's unfair to the children in this case where the parents were given a very definite decision that they weren't going to stay here in Australia many years ago and the kids have been drawn through, or dragged through that process in the subsequent years as well. So it's a very tough case.
QUESTION: If the Federal Court hearing tomorrow finds against the youngest child's appeal, how soon would the family be deported?
PETER DUTON: Well, we'll wait to see what the Court has to say and we'll deal with it at that stage.
QUESTION: Mr Porter, do you have any compassion for the two children involved in this?
CHRISTIAN PORTER: Well, I think that everyone would have compassion. But equally speaking, in Government, we have compassion for those people - men, women, and children - who lost their lives at sea. And so we're faced day to day with the very difficult choices in individual matters which have a cumulative and broader effect. And I think Peter, myself, the Prime Minister - when you face a decision which might look compassionate on its face but which we know as a matter of real, observed experience has the very real effect of opening up a trade where children lose their lives at sea, then there is a wider compassionate element to this which we have to take into account, which is what we all do.
QUESTION: Lawyers representing the family have said that some parts of the process in rejecting their claims were flawed, with one of the accusations being that the mother was giving evidence on the phone without hearing properly or a proper translation. Is that fair?
CHRISTIAN PORTER: Well, I mean, I've not read every single transcript, but what I would say about the layers of appeal - as Peter Dutton as Home Affairs Minister has noted - the layers of appeal, the stringency of the system is that people who want to object or challenge a ruling that they are not fitting inside the migration category of a refugee in Australia are offered the fairest, most reasonable system that exists anywhere in the world. And of course, the layers of appeal and [audio skip] to argue and opportunities to argue against the conclusion that the family in question are not refugees has gone on for years. So I would say this: that the system for appealing a decision in Australia is fairer than it is and more reasonable than it is and more stringent than it is anywhere else in the world. And the point that Peter makes is that ultimately, right up to the level of the High Court in many cases, where there is a decision that says that a person or persons do not meet the relevant criteria to be assessed as refugees, that is the umpire's decision that the Government has to abide with and that we as a society all bind ourselves to.
QUESTION: Minister, has the Albanese line 'have a heart' surprised you at all?
PETER DUTTON: Look, I don't want to get into the politics, which Mr Albanese has done in the last 24 hours. I think there have been some cheap shots against the Prime Minister, which I think reflect more poorly on members of the Labor Party than they do anybody else. Don't forget that these people arrived in 2012 and '13. The Labor Party was still in power. When they arrived, they went into detention and fortunately, thank God, this family never went to the bottom of the ocean, but as Christian just pointed out, 1,200 people did. I get a bit frustrated sometimes that there is no voice for the 1,200 because when you speak to the sailors and you speak to the Australian Border Force maritime officers, who were pulling the half-eaten bodies of children out of the water; they were young, innocent boys and girls and we aren't going to return back to those days. I've not had a death at sea on my watch. I suspect Mr Albanese, sitting around the Cabinet table with Tony Burke and Chris Bowen and others, still lives with the images and still lives with the shame of having conducted themselves in a way that resulted in those 1,200 people drowning at sea. So as I said in the last couple of days, I'm not taking a morals lecture from the Labor Party. We have a process in place which allows us to be the second most generous nation in the world in terms of the intake of refugees and people through our humanitarian program. We look compassionately at cases – hundreds of them – each year. They never make it to the media, but we're able to provide an outcome for a child with a terminal illness, somebody who's had a stroke here visiting grandchildren or children; we're able to provide compassionate support in those cases. But in this case, where we had 1,200 people drown at sea, Labor had put thousands of children into detention – we've got all of those children out of detention – we have not had a death at sea, as I say. We are not going back to Labor's days. So Mr Albanese I think needs to show some leadership here in a way that he hasn't done in the last 48 hours. He wants to make himself out to be Mr Compassionate and Mr Popular by telling people what they want to hear – that's what happened when Labor was last in power. These boats that we've seen since the election, have started their journey again because of the Medivac Bill and because people thought that Labor was going to be elected. That's the reality of it. Now, we cleaned the mess up in the Howard years, we cleaned it up in the Abbott years and we are not going to allow our country to go back to days where people smugglers are running our border management system again. We're not going to allow that. But as I say, at the same time; 18,750 people have come in this year through the Refugee and Humanitarian Program. That's the best that we can do and if people seek to drag matters out for years and years and years, then that is an issue for them, but there are 1,500 people from Sri Lanka who came here originally by boat who have gone back – exactly the same family units: young boys and girls, mums and dads that wanted a better future in Australia – but as we've said, we're not going to allow people to settle who come by boat and we'll look at individual cases, as we've done here, but clearly every decision maker, right to the High Court, has found that these people are not refugees.
QUESTION: Mr Dutton, just one other question. Several company CEOs have said they're going to give their workers time off to attend climate strikes, including the CEO of the company Atlassian.
Should CEOs stick to their knitting on this sort of issue?
PETER DUTTON: Atlassian - you're not up on the current modern talk of my 15 year old...Look, I would say that those decisions are a matter for the companies; I don't have any comment on it.
Alright, thank you.