David Feeney (Batman, Australian Labor Party, Shadow Minister for Justice) Share this | Hansard source

I rise to speak on the subject of these amendments to the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. This is perhaps one of those occasions when Labor's amendments, unsuccessfully moved in the House but successfully moved in the Senate, may have saved the government from itself. Let me just respond to some of the remarks made by the minister.

By way of background, let us remember that this piece of legislation is not the product or fruit of the work of the government, whether in opposition, in their pronouncements in their election manifesto, or subsequently. This legislation is the fruit of the work of the previous Labor government. Time and time again, we have seen this minister come into this chamber and self-righteously move legislation in this place which, of course, was the legislation of the former Labor government. This is no exception. The only change of substance that the government made to the legislation, which had lapsed with the election being called and the end of the last parliament, was to introduce mandatory minimum sentencing. In every other respect, the bill represented the fruit of the previous government's work and the resolve of Labor to deal with the important questions dealt with by this bill.

To be absolutely clear, this is a bill that did and does strengthen this country's regime in terms of protecting ourselves against the smuggling and transportation of illegal firearms. That is something that both sides of this House are committed to, and I think it is generally well understood that laws and law-making in this national security and policing space are at their best when they are done in a sensible, rational and bipartisan way. That is the attitude we bring to the table when we discuss these matters.

That is why it is spectacularly unhelpful for the minister to announce only a few moments ago that these amendments 'prevent us' from making Australia more secure. That kind of nonsensical hyperbole does nothing for the government's credentials. If the government seeks to avoid any innuendo that it climbs into these issues for nothing more than short-term partisan gain then it would be well advised to steer clear of such over-the-top rhetoric.

Let us be absolutely clear: what we have done here is move and support a piece of legislation written by Labor in government that reflects Labor's position that we took to the last election and the work of the previous committee. In particular, with respect to mandatory sentencing—the one issue over which we have disagreed—that does not change or resile from the fact that we have strengthened penalties in this bill, and we have strengthened them very significantly. But the government's new-found enthusiasm for mandatory sentencing—the minister quoted the ALP platform to us, saying that this was the rationale for me originally moving the amendments in this House—of course is again nothing more than hyperbole. There are many rationales, one of them, of course, being that I think the government would be very well advised to have regard for its own handbook on the subject, a document produced by the Attorney-General's Department entitled A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. At 3.1, that document states that minimum penalties should be avoided. This is because, inter alia, they interfere with judicial discretion to impose a penalty appropriate in the circumstances of a particular case. They may create an incentive for a defendant to fight charges even when there is little merit in doing so. They preclude the use of alternative sanctions such as community service orders that would otherwise be available in part IB of the Crimes Act 1914 and they may encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions.

These are issues of import; and so, while Labor has supported the strengthening of penalties in this bill, we have not supported mandatory minimum sentencing, because mandatory minimum sentencing may offer the minister a cheap talking point but does not improve or strengthen law, lawmaking or law supervision in this country.

Let's be very clear: in creating an incentive for a defendant to fight charges, one takes away from our policing and judicial authorities the opportunity to enter into important bargaining and plea bargaining negotiations with a potential criminal. That, of course, ultimately has the effect of weakening our capacity to investigate and go after the big fish in this very serious world of criminal activity.

We believe these amendments have strengthened the bill. This is a bill, as I said, Labor supports on the basis that we wrote it. We support it because we are proud of the fact that it strengthens this country's regime in fighting the scourge of illegal firearms and we are confident that, in strengthening the penalties found herein and avoiding the simple talking points that the government clings to around mandatory sentencing, we have actually made for better lawmaking in this county.

Question agreed to.

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