Wednesday, 10 February 2016
Criminal Code Amendment (Firearms Trafficking) Bill 2015; Second Reading
I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2015. The purpose of the bill is to amend the Criminal Code Act 1995—the Criminal Code—to set new mandatory minimum penalties and maximum penalties for the offences of, firstly, trafficking firearms and firearms parts within Australia—in division 360 of the Criminal Code; and, secondly, trafficking firearms and firearms parts into and out of Australia—in division 361 of the Criminal Code. For each of the offences in these divisions the following penalties are proposed: a mandatory minimum sentence of imprisonment for five years, and maximum penalties of imprisonment for 20 years or a fine of 5,000 penalty units, or both.
The coalition government has introduced this bill, which would see the introduction of mandatory minimum sentencing for those found guilty of trafficking illegal firearms, despite the parliament rejecting these measures not once but twice already in 2015. Labor has previously successfully opposed the introduction of mandatory minimum sentencing with the support of the Greens party and crossbench support in the Senate in both February 2015 and August 2015. The Australian Labor Party maintains its position that the introduction of mandatory minimum sentences for those convicted of firearms trafficking offences should be avoided. That is on the basis that the Australian Labor Party is opposed in principle and in all circumstances to the imposition of mandatory minimum sentences. And I will speak more to that in a moment.
We note that these provisions have already been considered and rejected by parliament twice. The government has failed on two occasions to justify the need for these provisions, and I foreshadow that they will fail for a third time. While Labor supports the government's intentions to protect the community from gun related violence—of course we do—we urge this government to adopt a similar sentencing regime in relation to the proposed firearms trafficking offences as prevails in other areas and in other jurisdictions of law. We believe in sending a strong message to serious criminals, but we seek to avoid the issues associated with mandatory minimum sentences.
As I said earlier, in February 2015 Labor successfully moved amendments in the Senate to remove the introduction of mandatory minimum sentencing which was then contained in the government's Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. In August 2015 Labor was again successful in moving amendments in the Senate to remove the introduction of mandatory minimum sentencing, on that occasion, in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015.
There is no convincing evidence to prove mandatory minimum sentencing acts as a deterrent. In fact, the government's own department says mandatory minimum sentences may create an incentive for a defendant to fight charges, even in hopeless cases. The Attorney-General's Department's own document, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, states at 3.1 that minimum penalties should be avoided. That is in the Attorney-General's Department's own guidelines. It goes on to say that this is because, inter alia, they interfere with the 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 where there is little merit in doing so; they may 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, which then leads to anomalous decisions.
In inquiries for the two previous bills over the course of 2015, the Senate Committee on Legal and Constitutional Affairs received evidence from a number of submitters who strongly opposed the introduction of this amending legislation. The Law Council of Australia referred to a number of unintended consequences of mandatory sentencing, which include:
The Australian Human Rights Commission noted that these amendments give rise to the potential for injustices to occur and:
… run counter to the fundamental principle that punishment … should fit the crime.
We also note the concerns previously raised by state prosecutors, who believe that these provisions can lead to unjust results and impose a significant burden on the justice system. On this third occasion, the committee received a majority of submissions that raised significant concerns about mandatory minimum sentences. The Law Council of Australia submitted that:
Increasing the maximum penalty to 20 years imprisonment or a fine of 5,000 penalty units, or both, reflects community concern regarding the potential seriousness of the offence.
We, of course, support a harshening of the sentences. But we remain absolutely resolved to the principle that mandatory minimum sentences are an inappropriate mechanism. Many submissions acknowledged that it was appropriate to increase the maximum penalties and that an increase in penalties acknowledges the gravity of firearms-trafficking offences. On this question we do not have a debate. The Australian Human Rights Commission submitted that:
… the imposition of mandatory minimum sentences raises the real prospect that the sentence imposed will be disproportionate to the culpability of the offender or the gravity of the particular offence because it is set without regard to the individual circumstances of the offender and context of the particular offence.
While there is no evidence that mandatory sentencing laws have a deterrent effect, there is clear evidence that they can result in injustice, because they remove the discretion of a judge to take into account particular circumstances that may result in unintended consequences. In addition, mandatory sentencing removes any incentive for the defendants to plead guilty, leading to longer, more contested and more costly trials. Time and time again I have heard law enforcement officers complain that mandatory minimum sentencing actually operates as a barrier to good investigations because it removes the capacity for a miscreant to cooperate with police or other authorities on the basis that they might receive a reduced sentence. In that sense, it can impede investigations.
Twice already the parliament has debated this proposal, rejecting it. The introduction of the Criminal Code Amendment (Firearms Trafficking) Bill 2015 shows that the minister has failed to comprehend the arguments posed by the experts, by the stakeholders and even by the Attorney-General's Department with regard to mandatory sentencing. There are currently no mandatory minimum penalties found in the Criminal Code Act 1995. I again draw attention to the Attorney-General's document, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which specifically stipulates that minimum penalties should be avoided. I also refer to evidence previously given by the Attorney-General's Department, where it stated that it was:
… not aware of specific instances where sentences for the trafficking of firearms or firearm parts have been insufficient.
What an inadequate basis upon which to build this case by the government. While we note that the Attorney-General has the power to direct the CDPP to not prosecute an offender in certain circumstances, the government has given no indication that it would consider using this power when cases of injustice occur. Furthermore, the Attorney-General also can revoke an order at any point. We note that the current Attorney-General has already revoked an order introduced by the previous Attorney-General in relation to people-smuggling offences.
While the minister accuses Labor of being soft on crime and enjoying the pure politics of that banal statement, he has continued to prove his ignorance by not listening to the experts and the advice of those who understand the complexities and sensitivities of such cases. In 2012 Labor introduced legislation that would have increased the maximum penalty for firearms trafficking to life imprisonment. That would have made it the same as the maximum penalty for drug trafficking. The proposals put forward by the Abbott and Turnbull governments actually contain watered down penalties—most recently of 20 years—and the government has yet to explain why it is doing this. The measures introduced today are also mostly symbolic and they do not include specified non-parole periods. This proves again that you can change the salesman but you have not changed the product. This is a government that is very keen to parade its law and order credentials on the back of the primitive artifice of mandatory minimum sentences but has rejected Labor's proposed legislation that would have increased the maximum penalty. Labor believes that this government has failed to explain the need for mandatory minimum sentences. That has now been proven time and time again in Senate inquiries. We cannot support this bill in its present form.
Let me conclude my remarks by saying that this is, sadly, an instance of pure politics. This is not an instance of good public policy. The reason the government has served this issue up for a third time to the parliament, knowing full well what the mood of this parliament is, is that it seeks to win a primitive tabloid conversation about the virtues of mandatory minimum sentences. How ironic, perhaps, that that debate arrives on a day when we are talking about closing the gap, because time and time again we have seen mandatory minimum sentences have perverse and distorting results. We have seen the discretion of judges restricted and, as a consequence, we have seen poor law and order justice outcomes. We have seen incarceration where it is unnecessary for minor crimes. We have seen time and time again our incarceration rates going up and, as we know, it is cheaper to send someone to Harvard for a year than to imprison them for a year.
So maximum penalties, harsher penalties where appropriate, and a stronger and better resourced police force—all of this Labor is up for, but a primitive conversation aimed at nothing more than winning a few hearts and minds in a tabloid-standard conversation is not good public policy and it is not good justice. It is petty politics in an election year and the government should be ashamed of itself.