Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

Labor welcomes measures to improve Commonwealth criminal justice arrangements, and we are pleased that the government is bringing this bill before the Senate to build on the reforms undertaken in these areas by the former Labor government. While the opposition supports the intent of this bill, we share the concerns of people or agencies and state prosecutors about mandatory, minimum sentences for firearms trafficking offences. Labor will move amendments to remove the imposition of mandatory minimum sentencing, and I will explain our position on this in more detail soon.

The bill includes amendments to ban the importation of substances which have a psychoactive effect that are not otherwise regulated or banned. The bill seeks to ensure that the Australian Customs and Border Protection Service officers have appropriate powers to stop these substances at the border. It seeks to correct an error in the definition of the minimum, marketable quantity in respect of a drug analogue of one or more listed, controlled drugs. It seeks to introduce new international firearms trafficking offences, amend existing cross-border firearms offences and streamline the international transfer of prisoners regime within Australia and clarify the processes involved. It seeks to amend certain slavery offences to clarify that they have universal jurisdiction and validate access by the Australian Federal Police to certain investigatory powers in designated state airports.

I will summarise Labor's position on each of the six schedules to this bill. I will address our concerns regarding the mandatory sentencing provisions in schedule 2 last, to provide a more detailed rationale for our proposed amendments.

Schedule 1 of the bill will implement amendments that were announced in June 2013 by the former Labor government. It represents the Commonwealth legislative component of a broader national response to the new psychoactive substances (NPS) and was developed by the Intergovernmental Committee on Drugs (IGCD) and endorsed by the Commonwealth, state and territory ministers at the Law, Crime and Community Safety Council on 4 July 2014. As outlined in the IGCD document, there are at least two overseas schemes that incorporate a reverse-onus component, those in New Zealand and Ireland. The scheme proposed in the bill is similar to that used in Ireland. Schedule 1 will amend the Criminal Code Act 1995 (the Code), and the Customs Act 1991 to strengthen the Commonwealth's ability to respond to the new and emerging illicit drugs known as 'new psychoactive substances'.

New psychoactive substances are designed to mimic the psychoactive effects of illicit drugs, but their chemical compositions are not captured by existing controls on those drugs. Evidence suggests that manufacturers design the chemical structures of psychoactive substances to avoid these controls and prohibitions. The amendments in schedule 1 will fill the regulatory gap between when psychoactive substances first appear and when they are controlled by other parts of the Criminal Code or the prohibited imports regulations. These measures will ensure that new psychoactive substances cannot be imported in the period during which the government assesses their harms and considers the appropriate controls to place on them. The measures take a precautionary approach to dealing with psychoactive substances. They are intended to work in parallel with and not to replace any of the existing schemes which regulate the importation of illicit drugs and of substances with a legitimate use in Australia. The rationale for restricting NPS is the same as that which applies to other drugs—that is, to reduce the harms associated with them. NPS are often marketed as 'legal highs' and professionally packaged, which can give the impression that they are safer to use than illicit drugs with similar effects. However, very little is known about their health impacts, especially their longer-term impacts.

Schedule 3 will amend the International Transfer of Prisoners Act 1997 (the ITP Act), which governs Australia's international transfer of prisoners (the ITP scheme). The ITP scheme aims to promote the successful rehabilitation and reintegration into society of a prisoner, while preserving as far as possible the sentence imposed by the sentencing country. This is a voluntary scheme which requires the consents of the prisoner, the Attorney-General, the relevant transfer country and, where applicable, the relevant Australian state or territory to or from which the prisoner wishes to transfer. It has become clear that improvements to the ITP Act are required to clarify and streamline the process—to make the scheme more straightforward, to make it operate more efficiently and to reduce unnecessary burdens and resources required to process ITP applications. The amendments in this schedule seek to address these issues with the effect being timelier processing of applications, a reduced resource burden and improved usability of the legislation by prisoners while still maintaining prisoners' rights and due process.

Schedule 4 amends the Code to clarify that slavery offences in section 270.3 have universal jurisdiction. This approach accords with the prohibition of slavery as a jus cogens, or peremptory norm, of customary international law; meaning that it is non-derogable and applies at all times and in all circumstances, and that it is one which is expressly prohibited by a number of treaties to which Australia is a party. It is consistent with Australia's recognition of universal jurisdiction as a well-established principle of international law, and as one which extends to a range of crimes including crimes against humanity.

The purpose of schedule 5 is to validate action undertaken by a member of the AFP, or a special member under the Commonwealth Places (Application of Laws) Act 1970, for an investigation of an applied state offence in relation to a Commonwealth place that would otherwise have been invalid because the Commonwealth place was not, for a time, a designated state airport. Its retrospective application is limited to the period starting 19 March 2014 and ending on 16 May 2014 and refers only to those investigatory powers specified in subsection 5(3A) of the Commonwealth Places (Application of Laws) Act 1970. Schedule 6 will make minor and technical amendments to the Code, to the Financial Transaction Reports Act 1988 (the FTR Act), and to the Surveillance Devices Act 2004. The purpose of the amendment to the FTR Act is to give permanent effect to an exemption granted by the AUSTRAC CEO in relation to account-blocking obligations of cash dealers in certain circumstances. A consequential amendment will also be made to the Surveillance Devices Act 2004 to remove reference to an offence against a repealed section of the FTR Act. These amendments will give permanent effect to an exemption granted by the AUSTRAC CEO from an obligation for cash dealers to block accounts in certain circumstances. This exemption was granted by the AUSTRAC CEO due to the fact that the obligation was largely duplicative of safeguards in the Anti-Money Laundering and Counter-Terrorism Financing Act 2006.

In addition, schedule 6 will make minor amendments to section 301.11 of the Code to correct an error in the definition of a 'minimum marketable quantity' in respect of a drug analogue of one or more listed border-controlled drugs. This error occurred when section 301.11 was inserted into the Code in November 2012 by the Crimes Legislation Amendment (Serious Drugs, Identity Crime and Other Measures) Act 2012.

I would now like to address the provisions of schedule 2, which Labor supports, and to explain the rationale for amendments we are moving to remove the imposition of mandatory minimum sentencing. This schedule will implement amendments to expand existing Commonwealth firearms offences to cover firearm parts as well as whole firearms, which were previously included in the Crimes Legislation (Unexplained Wealth and Other Measures) Bill 2012 introduced by the former Labor government, but which lapsed ahead of the 2013 federal election. Schedule 2 will: create new international firearm offences of trafficking prohibited firearms and firearm parts into and out of Australia—a new division 361 of the code; extend the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in division 360 of the code to include firearm parts as well as firearms; and introduce a mandatory minimum five-year term of imprisonment for the new offences in division 361 and existing offences in division 360 of the code.

The Senate Legal and Constitutional Affairs Legislation Committee conducted an inquiry into the bill and tabled a report on 2 September last year. Labor senators agreed with the majority of the report, except for the recommendation made in respect of the proposed mandatory minimum sentences for firearm-traffic offences. The only justification that I can recall from the evidence on that occasion was the suggestion that the only rationale for this was that it was a coalition election commitment. We raised our concerns regarding this provision in additional comments included in the committee report. I draw attention to the fact that the Senate inquiry received evidence from peak law organisations and state prosecutors to outline their strong opposition to this provision, and I thank those agencies for raising their concerns—particularly as it had been highlighted that this was an LNP coalition election commitment. Again, it seems that the coalition were not listening. I hope that they are listening now.

I would also like to highlight that the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers produced by the Attorney-General's Department—the minister's own department—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. Mandatory minimum sentences are uncommon in Australian law; therefore, the controversial element of this bill remains the introduction of mandatory minimum sentencing.

In November 2012 the then Labor government introduced the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 into the House of Representatives. This bill lapsed in the Senate at the end of the 43rd Parliament. As part of this bill, Labor introduced a maximum penalty of life imprisonment for these offences. This would have made the maximum penalty for trafficking in firearms the same as the maximum penalty for trafficking in drugs. This is not uncommon for such a serious offence. It was intended that the new basic offences would attract a penalty of 10 years imprisonment consistent with the existing firearms trafficking offences. However, it was proposed that the aggravated offences would attract a higher penalty of life imprisonment—the same as the maximum penalty applied to drug trafficking. This maximum penalty was designed to send a very strong message that trafficking large numbers of illegal firearms is just as dangerous and potentially deadly as trafficking large amounts of illegal drugs and that the same maximum penalty should apply.

In this particular instance, Labor is of the view that the imposition of mandatory minimum sentencing for firearms trafficking offences should be avoided. A better course of action would be to implement a regime of penalties for firearms trafficking offences reflecting that proposed by Labor when it was in government. Labor senators urge the government to adopt a similar sentencing regime in relation to the proposed firearms trafficking offences. This would send a strong message to serious criminals but avoid the issues associated with mandatory minimum sentences and better preserve judicial discretion.

There is no evidence that mandatory sentencing laws have a deterrent effect, but there is clear evidence that they can result in injustice because they remove the discretion of a judge to take into account particular circumstances, which may result in unintended consequences. In addition, mandatory sentencing removes any incentive for defendants to plead guilty, leading to a longer, more contested and more costly trial. Labor opposes mandatory sentencing and detention regimes because they are often discriminatory in practice and have not proved effective in reducing crime or criminality.

The opposition will move amendments to remove the imposition of mandatory minimum sentencing, and I look forward to crossbench support. Indeed, perhaps the government is now listening and we can attract government support as well.