Wednesday, 1 May 2024

Bills

Sentencing Amendment (Sentencing Practices for Child Sexual Offences) Bill 2024

Introduction

Michael O’BRIEN (Malvern) (09:37): I move:

That I introduce a bill for an act to amend the Sentencing Act 1991 in relation to the sentencing of an offender for a child sexual offence and for other purposes.

I think this is one of the most important bills that the Parliament of Victoria can consider this year. This bill is about closing a loophole, a loophole in our law which is being exploited by paedophiles to avoid justice for their crimes. It is adding gross insult to victim-survivors of child sexual abuse, particularly historical child sexual abuse. This is a loophole which has come about because the Parliament voted on a bipartisan basis to abolish suspended sentencing in 2013 and courts have interpreted that to not have retrospective effect. What this means is that when somebody is convicted of a historical child sexual offence they are sentenced under the laws and practices at the time of the offence, not at the time of the conviction. What this has now meant is that people who are convicted of historical child sexual offences are still able to access suspended sentencing. In the case of Stewart Carter, who is a very brave victim-survivor who has campaigned for this change, he saw his perpetrator sentenced to a three-year term of imprisonment and walk out the court door. He did not serve a day in jail, did not serve an hour of community service, did not pay one dollar in fines despite being a convicted child sex offender. This is an appalling loophole, and we must act as a Parliament to close it.

This was a loophole which was identified by the federal Royal Commission into Institutional Responses to Child Sexual Abuse in 2017. It was a recommendation of the royal commission that there be changes made across the states and territories. The recommendation was:

State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending …

That was a 2017 recommendation. In July 2018 the Victorian Labor government accepted that recommendation. But since July 2018, since that recommendation was accepted by the government of the day, the continuing government, nothing has happened. That loophole has remained. Every single day that loophole remains open we are denying justice to victim-survivors of historical child sexual abuse. Every day that loophole remains open we are seeing paedophiles exploiting it and walking free from jail when they have been convicted and sentenced to a term of imprisonment. It is not just in Stewart Carter’s case, where he was the victim-survivor and had to endure that; we have seen it happen in other recent cases as well. It led to the Office of Public Prosecutions of this state putting out a statement on 14 March 2023 which states in part:

Suspended sentences have since been abolished in Victoria, but are still an available sentencing option for offences committed before their abolition.

There is no doubt that this loophole exists. There is no doubt that this loophole is being exploited. I know it is not the practice of the government to allow private members bills to be considered in this place, but I ask the government to consider this very carefully, because there is only one group in our society who benefits from this loophole remaining open and that is child sexual offenders. This bill simply implements a commitment that the Labor government made back in July 2018.

We used to hear from the member for South Barwon when we would bring up private members bills, and he would say words to the effect of ‘You don’t have a right to introduce anything; this is the government’s chamber.’ Well, the government has not acted for six years. Paedophiles are using this loophole that the government has left open for six years. So for goodness sake can we actually act as adults, as a Parliament? We all agree this loophole needs to be closed. Here is a bill – a simple nine-clause bill – to close it, to try to make sure that paedophiles cannot continue to benefit from it and to try to give justice to victim-survivors of historical child sexual abuse. This is one of the most important bills the Parliament, I think, will consider this year. It would mean so much to so many people. I ask the government to do the right thing and allow this bill to be introduced. Let us close this loophole and let us deliver justice for victims of historical child sexual abuse.

Nina TAYLOR (Albert Park) (09:42): I will commence the discussion by outlining the fact that of course this is a procedural debate, noting that the matters that have been raised are extremely sensitive. I do not in any way wish to resile from the extreme sensitivity of the matters and the delicacy of the matters and the ramifications when there are any modifications to the laws which pertain to victims that have been referred to of a certain nature in the debate thus far. I do take seriously, and we as a government do take seriously, this subject matter, as we have always done and will continue to do. I do not wish to be patronising in saying this, but of course such matters – and I think this goes without saying – have to be considered very carefully and respectfully, because we are talking about those that have been treated in a very disrespectful or other way, and that could be in a very grave manner. I am speaking very broadly because every such case is individual.

But I will say that we do not simply react to a private members bill. I will take exception to this sense that ‘simple’ is a manner in which these matters can be handled. I would also like to reiterate on behalf of the government that I do not think it is appropriate to suggest that there is a simple remedy when it comes to addressing matters of this seriousness and delicacy, because anyone with any kind of experience with the law – and I think that includes members of Parliament, who are legislators fundamentally – would know that any kind of modification of any law always has a consequence and a ramification.

Carefully considering and respectfully evaluating the ramifications of any such changes or otherwise, as opposed to simply reacting, is absolutely paramount, bearing in mind the ramifications for the broader community. Within that context I will say the government very much carefully considers and respectfully evaluates the matters which have been brought before this chamber, respecting the fact that this is a procedural debate, and therefore I am not going to elaborate on the further delicacies and nuances of the matters which have been raised.

We do have a government program that has been set out. We have been very transparent and very forthright with the government program, which all members of this chamber would be very aware of, but that does not in any way take away in any sense or any nuance the seriousness of the matters which have been put forward in this procedural debate. On that note, I hope that the opposition will understand that when we are looking at the nature of the matters which are being sought to be transacted, we must be extremely prudent. Using words such as ‘simple’ when we are looking at the nuances and potential ramifications of modifications to the law can be potentially manipulative when we are looking at those who can be impacted by any such modifications to the law. I would suggest that it is very, very necessary to be careful about the nature of the language that is used with regard to the subject matter that is being debated at this point in time.

On that note, I will say that the government is not seeking to proceed beyond the procedural motion that is here before us in the chamber. There is a government program – we have been transparent about that – but we will say we are not in any way resiling from the seriousness and the nuance and the delicacy of the matters that are being sought to be transacted in this way by the opposition.

Emma KEALY (Lowan) (09:47): I rise today to speak in strong support of the member for Malvern’s introduction of the Sentencing Amendment (Sentencing Practices for Child Sex Offences) Bill 2024. To respond to the member for Albert Park, who has just said that this is about looking at the consequences and the ramifications of this legislation not being amended, I want to make it very, very clear that the ramifications of this government refusing to allow this bill even to be introduced to this place is that we have a rejection of the royal commission’s investigation into these matters and the recommendation that any historical child sex offenders be sentenced in accordance with current sentencing arrangements as opposed to sentencing arrangements when the offences occurred.

I refer back to comments by Stewart Carter; this is a case in point that has been utilised through the media and also by the member for Malvern. Imagine being a 10-year-old child who was sexually abused by your schoolteacher and coming forward decades later, having the courage to tell your story decades later, and then finding out, once you have aired that story to the world, that that person who was just convicted is walking free without spending a single day behind bars. That is the ramification of not even allowing this important change to legislation to be heard in this place. If you have concerns about what the ramifications would be, let us debate them, but the Labor government have had six years to make this legislative change. For six years thousands upon thousands of Victorians who were sexually abused as children have not come forward because they do not think it is worth the public knowing that they were sexually abused when they were young by people of responsibility who are now being protected by legislation that allows them to walk free.

This is nothing more than the Labor government running not just a protection racket for the government’s failure to act to close this legislative loophole to make sure that historical child sex offenders – paedophiles – are penalised in the way that they should be but also a protection racket for those exact paedophiles. I am absolutely disgusted that this legislation will not even be allowed to be introduced by the Allan Labor government. That is something that every backbencher should consider as well. This is what you are allowing to happen in this place – that this bill will not even be debated let alone considered at all.

I would also like to take up comments by the member for Albert Park, who said there is not a simple way to make this legislative change. The member for Malvern has worked very, very closely with the legal fraternity, taking on the recommendations of the royal commission. It is a very simple change. What I would recommend to the government is that you actually allow this bill to be introduced so you can review the legislative changes. Look at the bill. If you are not happy with it, then make an amendment, as we do in this house. It is Westminster tradition to do that. This is far more important than just saying, ‘It’s not our idea. We didn’t do it. It’s not our fault that we have done nothing for six long years to support our most vulnerable people in our community and to allow children who were abused decades ago to be able to have their day in court,’ knowing the paedophile is the person who has had a critical impact on the outcomes in their life, on their mental health, on their ability to have a relationship, on their ability to hold down a job.

This is such an important legislative change, and to not even allow this bill to be heard and introduced in this place is absolutely disgraceful. This is the worst display of partisanship I have ever seen in this place. The Labor government are willing to sell off their whole pride when they have done nothing for six years and they have protected paedophiles from getting the penalties that they deserve. You are leaving behind sexual victims of the past who have carried this their whole life. It should be heard. Allow this. Please consider. Please caucus amongst yourselves today right here in this chamber. Allow this bill to be introduced. Allow this bill to be introduced so that we can debate it and get the proper penalties in place for paedophiles.

Paul EDBROOKE (Frankston) (09:52): I would start by acknowledging that in the chamber today there could actually be victim-survivors, so I will be fairly careful in the way I word my contribution at the moment. I do not support changing the government business program for the introduction of this amendment, as I understand it, to suspended sentences retrospectively. They have been suspended, but the period prior to that suspension is what we are looking to apply to those offenders that were actually sentenced in that period before the sentencing was abolished.

This amendment is new to me. I have not had time to read through it. But I would say, along with the member for Albert Park, I have not had a chance to read this proposed amendment, but sentencing legislation, as I saw and as many other people saw when the Frankston serial killer legislation went through, is rarely simple. It is very difficult and complex, and it requires a lot of advice from lawyers as well. So while I would say that I do not support the government business program being altered to allow this, I will say that we would like to take the time to get things right on this side. If there is this very serious issue which makes a gap, you will see no more strident supporter of victim-survivors than me. You will see no person who draws a harder line on sex and child sex abusers than me. But we must get this right.

If there is action to be taken on this matter, I think from our side of the house there is a conduit to the minister to actually go to the minister. Let us talk about it. Let us get the expert advice. Let us do it right the first time, make the amendment which will not have carryover effects that we have not perceived and make sure that we do it right. While I do not support it this time, I say there is a route going forward, and it is not interrupting the government business program as we sit here today.

As I have said, this is not an argument about supporting paedophiles or not supporting victim-survivors; it is a very tight procedural debate about whether we should be interrupting the government business program with an amendment to come through. Not just this week but there are many weeks we sit in this house when there is much time for the opposition to be able to talk to the government if they would like to do that. I do not support the amendment going through and interrupting the government business program.

Cindy McLEISH (Eildon) (09:55): I rise to support the introduction of the private members bill. It makes me wonder, listening to the contributions from the member for Frankston and the member for Albert Park and even the reactions of those opposite, whether they understand what this place is and how it is supposed to operate. For as long as I have been here, on the daily program there has been a section to introduce bills: ‘Introduction of bills’. It is on the daily program. This is not interrupting the government business program; this is part of the normal procedure and what happens. If members are going to argue about it, I urge you to have a look at the daily program, which is emailed to you.

The SPEAKER: Member for Eildon, through the Chair.

Cindy McLEISH: I urge you, Chair, to counsel some of the members on the other side.

The SPEAKER: Order! You will not reflect on the Chair, member for Eildon.

Cindy McLEISH: We have the introduction of a bill by the member for Malvern, the Shadow Attorney-General, about a particularly important issue that we have: closing a loophole with regard to sentencing for child sexual abusers – for paedophiles – that at the moment are allowed to get away with absolutely abhorrent behaviour. We know that. In my first term in government the coalition introduced an inquiry which led to the Betrayal of Trust report. Members from both sides – it was a joint parliamentary committee – sat on that inquiry. When they spoke on that report it tore them apart. Members of Parliament from both sides of the house were in tears talking about what had been presented to them. It was harrowing to listen to the contributions from the committee members about what had happened, because this is such a serious issue. Everybody in this chamber was committed to doing all that they could to bring these people to justice and to make sure that victims had what they should have had all the time.

Now we have got this problem where there is a loophole that needs to be closed. Stewart Carter, as an adult – as the member for Lowan mentioned – had been sitting on his big issue for years and years and years: as a child he was abused. It takes a lot of courage to carry this burden. He came out and said, ‘This is what happened to me.’ When it went to court the judge acknowledged what had happened, but because it had happened before the changes were made, the perpetrator was able to walk free. This should not happen. Members opposite say they have not had a chance to read it. Of course they have not, because when you introduce a bill you are letting people know that you are planning to introduce a bill and typically the next day the detail is made available.

I know the Premier thinks very strongly about these matters. We had very recently the apology to those that in care had been abused and neglected. We had a very public apology, and it too was heart-wrenching. The Premier also acknowledged, on the inquiry into Beaumaris Primary School – and this is a direct quote:

Carrying these stories is a heavy burden, and while I know it won’t undo the pain …

and it goes on. She understands the pain that people who have been abused suffer. She would understand people like Stewart Carter, who has come forward as an adult, and the pain that he has suffered and the burden that he has carried with him all of his life and into adulthood. He wants to see that change, and I think there are others like him. We need to be responsible. This is not a partisan matter; this is something that everybody in this chamber should be agreeing to.

The Betrayal of Trust inquiry that we had led to the federal government having the Royal Commission into Institutional Responses to Child Sexual Abuse. It recommended that state and territory governments introduce legislation to provide for sentences for child abuse offences to be set in accordance with the sentencing standards at the time of sentencing, not the time of offending. That was in 2017; we are now in 2024. It was over six years ago.

This is a simple solution. For the member for Albert Park to suggest otherwise – the bill itself has only nine clauses. It is not complex; it is closing a loop, and it is a simple remedy. The Shadow Attorney-General has done the work. He is diligent, he understands and knows the issues, and he should be allowed to introduce this legislation.

Mathew HILAKARI (Point Cook) (10:00): I oppose any changes to the government business program, but I do take on face value that the opposition is genuinely concerned about this. This is not about the politics of the day but about a very serious issue. Of course I want to start by acknowledging survivors and that the impacts of historical child sex abuse should be condemned. They are horrendous crimes of course.

A member interjected.

Mathew HILAKARI: They are crimes against the most vulnerable people in our community, and I appreciate that people might want to talk across the chamber over this issue, but maybe I think you might reflect on that.

The SPEAKER: Through the Chair, member for Point Cook.

Mathew HILAKARI: Sentencing legislation is actually difficult and complex. It is one of the most complex things that we do deal with as legislators, because it goes on to have effects on both the survivors and those who are sentenced. There is a balance that is needed between justice for victims and for the community and those obligations that we have under the human rights charter. Removing suspended sentences for historical offences is something that we must consider, but consider carefully. The opposition, around suspended sentences, does note that these are difficult decisions to deal with, given that they considered and kept suspended sentences for historical offences when abolishing suspended sentences in Victoria previously. There are limitations. There are limitations that the opposition recognised previously when they were in government. There are limitations that still exist today. That the period of imprisonment imposed does not exceed three years in the County Court and Supreme Court and two years in the Magistrates’ Court is a limitation for the use of suspended sentences currently.

The SPEAKER: Member for Point Cook, this is a procedural debate. I ask you not to talk to the bill.

Mathew HILAKARI: I will not talk to a bill that I am yet to see. I do not support a change in the government business, an introduction of a bill, to change the agenda of this Parliament this week, to make sure that we get on with the important bills that we have in front of us and give the due time and consideration to those bills. I do not support the bill.

The SPEAKER: The member for Prahran, by leave. Is leave granted?

Leave refused.

Assembly divided on motion:

Ayes (30): Brad Battin, Jade Benham, Roma Britnell, Tim Bull, Martin Cameron, Annabelle Cleeland, Chris Crewther, Gabrielle de Vietri, Sam Groth, Matthew Guy, Sam Hibbins, David Hodgett, Emma Kealy, Tim McCurdy, Cindy McLeish, James Newbury, Danny O’Brien, Michael O’Brien, Kim O’Keeffe, John Pesutto, Tim Read, Richard Riordan, Brad Rowswell, Ellen Sandell, David Southwick, Bridget Vallence, Peter Walsh, Kim Wells, Nicole Werner, Jess Wilson

Noes (51): Juliana Addison, Colin Brooks, Josh Bull, Ben Carroll, Anthony Cianflone, Sarah Connolly, Chris Couzens, Jordan Crugnale, Lily D’Ambrosio, Daniela De Martino, Steve Dimopoulos, Paul Edbrooke, Eden Foster, Matt Fregon, Ella George, Luba Grigorovitch, Bronwyn Halfpenny, Katie Hall, Paul Hamer, Martha Haylett, Mathew Hilakari, Melissa Horne, Natalie Hutchins, Lauren Kathage, Sonya Kilkenny, Nathan Lambert, Gary Maas, Alison Marchant, Kathleen Matthews-Ward, Steve McGhie, Paul Mercurio, John Mullahy, Tim Pallas, Danny Pearson, Pauline Richards, Tim Richardson, Michaela Settle, Ros Spence, Nick Staikos, Natalie Suleyman, Meng Heang Tak, Jackson Taylor, Nina Taylor, Kat Theophanous, Mary-Anne Thomas, Emma Vulin, Iwan Walters, Vicki Ward, Dylan Wight, Gabrielle Williams, Belinda Wilson

Motion defeated.