Wednesday, 25 October 2017
Criminal Code Amendment (Firearms Trafficking) Bill 2017; Consideration in Detail
Deputy Speaker, thank you for allowing me to contribute to this debate. In my former career as a legal practitioner, I had the distinction and the honour of being able to serve as the President of the Law Society of Tasmania in 1993, and then I had the privilege of serving as the state representative on the Law Council of Australia. In my time dealing with the legal profession and, in particular, dealing with the political side of the legal profession—that is, in the Law Council of Australia and the Law Society of Tasmania—I have yet to experience an issue like this where a minister of the Crown, the Minister for Justice, has described the courts, the Law Council of Australia, the law societies, the Australian Institute of Criminology, the Sentencing Advisory Council of Victoria and other esteemed bodies as 'infected with leftist ideology'. This is an extraordinary attack on the rule of law and the separation of powers which this minister should be ashamed of. But I'm afraid there is absolutely no shame for this minister. He does not listen to the legal profession, and he ought to listen to the legal profession.
There are perfectly good reasons of principle for the minister to listen to these issues and the arguments with respect to the rejection of mandatory minimum sentencing. These are important questions of principle, but this minister is without principle when he considers this issue. He relies purely upon base politics. Indeed, the government's own Attorney-General's Department's paper 'Guide to framing Commonwealth offences, infringement notices and enforcement powers' states that mandatory minimums should be avoided. We know that there are important considerations which operate to ensure that juries are unlikely to convict when they know that people face mandatory minimum sentences. The Law Council just last week said that mandatory sentences actually make it harder to prosecute criminals by removing the incentive for anyone to plead guilty or to provide information to police. There is every incentive for the defendant to fight on and appeal against convictions. Minister, mandatory minimums let guilty people off the hook. You understand that, or you should understand that, and you should listen to the legal profession.
The Criminal Code Amendment (Firearms Trafficking) Bill 2017 will lead to unintended outcomes because mandatory minimums remove judicial discretion. This is at the heart of the separation of powers. The Law Council of Australia has provided very significant examples as to how this will produce injustice. The first example is:
Former Victoria Police Chief Commissioner, Simon Overland, inadvertently carried a magazine containing live rounds of ammunition on a flight from Melbourne to Canberra in 2010. Prior to travelling, Mr Overland had removed a firearm from his bag, but forgot to take out the magazine. Under the proposed laws he may be facing a mandatory five year jail term.
That is what happens when you remove judicial discretion.
In the next example, a farmer who has never been overseas goes to the US and attends a gun show. He finds a gun part that he thinks would be helpful to use in controlling pests when he returns to the farm. He buys one for himself and he buys one for his mate down the road that he intends to sell to him. This is a situation very similar to that which was referred to previously. He gets caught returning to Australia when he's going through Customs. He is honest, as we all must be, when dealing with the officer and tells the officer that he intends to sell one of the parts to a friend. Minister, that would satisfy the elements of trafficking, and this defendant would be facing a mandatory five years in prison. A judge, the person who should be determining the sentence, would have no choice but to jail him.
The third example is that a prominent businessman exported gunpowder cartridges, primer and propellant from Australia to Papua New Guinea without a permit when the Lae pistol club was short of ammunition after the defendant's home in Lae, where the club's ammunition was stored— (Time expired)