Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2017, which is currently before the House. I'm proud that I have served as a former director of the Law Council of Australia. I'm proud to have served as a President of the Law Society of Tasmania. I'm also proud to stand against the imposition of mandatory minimum penalties as a question of principle.

There is no doubt in my mind that this government has lost any sense of principle. It's operating purely on politics at present, which is evidenced by the disgraceful attack today in connection with the legislation concerning mandatory sentencing of child sex offenders. These are very serious issues. As was very eloquently indicated by the member for Watson, these serious matters should not be used in order to drag down the dignity and responsibility of this parliament. When you're dealing with important issues of principle—like national security, paedophilia and questions of the safety of our public—we should stand on principle, and we shouldn't get down into the gutter. We shouldn't be dealing with the political aspects of these matters, but this government, I'm afraid, is all about politics at present. It is under pressure, and it is trying to search for distractions. In its search for distractions, it is lashing out across areas of policy, and it's now rested on this legislation, which has been around for quite some time. Indeed, an earlier version of this bill was introduced into the 44th Parliament, and the bill was passed by the House of Representatives but had not been passed by the Senate when the parliament was dissolved on 9 May 2016.

The bill operates to amend the Criminal Code Act 1995 to increase maximum penalties and to introduce mandatory minimum penalties for firearms-trafficking offences. As I indicated earlier, Labor does not support the introduction of mandatory minimum sentences in the context of this legislation. I, as a former President of the Law Society of Tasmania and having served on the Law Council of Australia, cannot support this legislation whilst it contains mandatory minimum sentences. Labor, in a principled way, supports the increase of maximum penalties, as this sends an appropriate message as to community concern surrounding firearms trafficking and, indeed, all serious firearms offences. There are existing offences and penalties for firearm trafficking, particularly with respect to cross-border firearms trafficking—that is, between one Australian state or territory and another. There is a further offence with respect to international firearms trafficking. This applies to trafficking prohibited firearms or firearms parts in or out of Australia. The two offences—that is, international and cross-border firearms trafficking—have the same maximum penalties.

In addition to the lapsed bill, there have been prior attempts by this government to legislate mandatory minimum sentences of five years imprisonment for firearms-trafficking offences. The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 and the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 were introduced, and they included amendments to maximum penalties. Both bills became law, but only after amendments in the Senate removed the provisions that would have introduced mandatory minimum sentences.

An earlier version of this bill has received consideration by the Senate Legal and Constitutional Affairs Legislation Committee. The majority made no recommendation in relation to mandatory sentencing provisions but requested that the government:

The dissenting report of the Labor senators maintained the ALP position that the 'introduction of mandatory minimum sentences for firearms trafficking should be avoided'. The Labor senators indicated:

… that effective deterrence is achieved by increasing penalties applicable to the most serious firearms offenders, rather than by imposing prison terms on the least serious offenders.

They added:

Increasing maximum penalties for firearms trafficking reflects community concern about the consequences of serious firearms offences, and [there is] the regime of penalties proposed by Labor when it was in Government. It [sends] a strong message to serious criminals about the consequences of firearms trafficking.

The explanatory memorandum offers no evidence to support the idea that mandatory minimum sentences for firearms trafficking will enhance or sustain Australia's firearms control regime by deterring potential offenders.

Finally, the Labor senators noted:

… that there is evidence suggesting that imposing mandatory minimum penalties in fact has the opposite effect.

Indeed, we heard about this issue at length in the recent address to this House in connection with child sex offenders. There is much evidence to suggest that juries will decline to convict where they know there's a mandatory minimum sentence to be imposed.

The Law Council of Australia has repeated the position it took in relation to the 2015 bill, which was to support increased maximum penalties and to oppose mandatory minimum sentences. The Law Council of Australia made a very comprehensive submission, as did the Australian Human Rights Commission. Both organisations, and others, oppose the introduction of mandatory minimum sentences.

It is important, indeed very important, to highlight the submissions made by the Law Council of Australia with respect to the 2015 bill. The Law Council expressed in strong terms, I might say in the strongest terms, its:

… unconditional opposition to mandatory sentencing as a penalty for any criminal offence on the basis that raises the potential for unintended consequences …

Those consequences, as detailed in the submission, include:

The contribution of the previous speaker, the member for Canberra, addressed that. They go on:

There is also the very important issue of the:

finally the Law Council indicated—

people we should be protecting, such as—

indigenous peoples, young adults, juveniles, persons with a mental illness or cognitive impairment and the impoverished.

The Law Council's submission also highlighted that the New South Wales Director of Public Prosecutions opposed the introduction of mandatory minimum sentences for firearms trafficking offences on the following basis. It said:

It was the experience in NSW when there were a number of people smuggling cases before the NSW Courts that the accused did not enter pleas of guilty because of the mandatory minimum sentence and all the trials ran the full course. This had a significant impact on the District Court to dispose of other work and on the resources of the [Commonwealth Director of Public Prosecutions] … Additionally trials with a mixture of Commonwealth and State offences by reason alone of the combined effect of State and Commonwealth provisions are more complex cases to prosecute. The inclusion of a mandatory minimum sentence in this mix will add to the overall complexity.

It's also important to note:

… the Tasmanian Office of the Director of Public Prosecutions noted that mandatory sentencing provisions 'can lead to unjust results' and that, if it is thought desirable to have some form of mandatory minimum sentencing scheme, then it should be drafted in such a way—

Debate interrupted.

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