Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2017. Labor will be supporting this bill as amended by the Senate. We will not be supporting the government amendment. Labor is tough on guns. We want laws that will protect Australians from gun violence, but we want to do it right with laws that are practically effective in making sure that gun traffickers are imprisoned. We have a responsibility to crack down on the illicit trade of guns in Australia by ensuring that offenders are punished to the full extent of the law. It is Labor's priority to ensure that our laws empower our courts to give gun traffickers the punishment that they deserve. And we want to make sure that the punishment for gun trafficking acts as an effective deterrent to reduce the rate of illicit trade.

There are currently estimated to be around 600,000 illegal weapons in the illicit market in this country. Tens of thousands of these illegal weapons are handguns, which is the weapon of choice for many of those involved in criminal activity. And, because guns are designed and built to last, once these illicit guns are in Australia, they may be available to be used as weapons for committing crimes almost indefinitely. Last year, 3,542 firearms were stolen from legal gun owners and entered the illicit firearms market. That's an increase on the previous year, so we know that gun trafficking is getting worse.

Labor will be supporting this bill as amended by the Senate, and that's because we practically wrote the bill in the form in which it's now before the House. We have made this bill tougher and we have made this bill more effective. The government presented in the Senate a piece of legislation that they must have known Labor would not support because it contained mandatory minimum sentences. But we recognised that this was a useful opportunity to make Australia's gun laws stronger. We sought amendments in the Senate to ensure that offenders are appropriately punished. We put in life sentences for serious gun traffickers, and we supported the Nick Xenophon Team in the other place, who also introduced amendments that strengthened the bill.

The government, regrettably, seems to be single-mindedly focused on attacking Labor for our position on this bill or the government's original bill, but the Nick Xenophon Team also recognises that mandatory minimums do not work. We stand with the government in wanting tougher penalties for gun traffickers, or perhaps I should say the government stands with us, because that is why the government supports our amendments in the Senate. There ought to be no room left for the government to play politics.

I say again: Labor wants courts to be able to lock up the worst kinds of gun traffickers for life. We want aggravated offences to be available that courts can apply to those who traffic more than 50 firearms or firearms parts or a combination of firearms and firearms parts within Australia in a six-month period or for the trafficking of more than 50 firearms. Those aggravated offences will attract a maximum of life imprisonment or 7,500 penalty units or both. Putting in these kinds of increased maximum penalties is modelled on the penalties that apply under divisions 302 and 307 of the Criminal Code for the trafficking of controlled drugs and the importing and exporting of commercial quantities of border-controlled drugs or plants.

The measures that have been put into this bill in the Senate were previously proposed by Labor in 2012, and, happily, they now form part of the bill, as amended by the Senate, and that's the form of this bill, I say again, that Labor will be supporting. The government have an opportunity right now to pass a law through this House that would make Australia's communities safer. But instead, they're now trying to move amendments in the House that they know Labor will not support. It is a pathetic attempt by this minister to play politics. The government have a clear choice: they can choose to pass the bill, as it was agreed to in the Senate—a stronger and more effective set of laws that has Labor's support right now—or, alternatively, they can continue, as they appear to be set on doing, to move an amendment which they know Labor will not support because the amendment inserts mandatory minimum sentences. And this failure of a minister—this hopeless, small-minded, failure of a minister—has chosen the latter course.

I'm going to say again about mandatory minimum sentences what I said just last week on the other bill that the government is pursuing, in relation to child sex offences. Mandatory minimum sentences are not the solution to Australia's crime problems. They're not the solution to Australia's gun problems. And they're not the solution to child sexual abuse, which we debated only too recently when considering the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 just last week. There is no evidence that mandatory minimum sentences act as a deterrent. In fact, they actually make Australia's criminal justice system less effective because they make juries less likely to convict.

It's for this reason that the Attorney-General's Department, the department in which this failure of a Minister for Justice actually sits and does his work, has issued formal guidelines for legislative drafting, which recommend against mandatory minimum sentences. Perpetrators who should be convicted may escape punishment altogether because mandatory minimum sentences have been included in legislation. Juries may decide not to convict, even though they think the offender is guilty, because juries may not want to inflict on an offender a sentence which they think is disproportionately harsh based on the circumstances of the crime. Mandatory minimum sentences also make offenders less likely to plead guilty, and offenders facing mandatory minimum sentences lose an incentive to provide useful information or assistance to prosecutors.

I will say this: the government has attempted, in the amendment it is now putting before the House, which seeks to reintroduce to this bill mandatory minimum sentences, to address these last two issues by including a provision allowing for a reduction of the mandatory minimum penalty if a person pleads guilty or cooperates with law enforcement agencies in the investigation of the offence. But tinkering around the edges, and that's all this is, of mandatory minimum penalties misses the point. The point is that mandatory sentences take away judicial discretion, and the tinkering doesn't change the fact that mandatory sentences don't work and that there is no evidence that they do. We do have very good evidence that juries are less likely to convict a perpetrator of a crime if mandatory minimums are in place.

Might I also say that the government is ignoring concerns that have been expressed repeatedly by the legal profession through the state and territory law societies and the Law Council of Australia, the peak body for lawyers in Australia. The Law Council has repeatedly called on the government to take the mandatory minimum penalties out of this bill and to work with Labor to make the Australian community safer. The Law Council of Australia has raised concerns that there will be unintended consequences of the mandatory minimum penalties. I'll cite the example that the member for Hotham, the shadow minister for justice, eloquently used in her speech yesterday on this bill. It's this: a farmer who has never been overseas before might go to the United States and attend a gun show; she may find a gun part which she thinks will improve the firearms she uses for controlling pests on her farm back in Australia; she might buy one for herself and buy another one that she intends to sell to a friend; she could get caught by Customs when she returns to Australia and might tell the officer that she intends to sell one of the gun parts to a friend. That scenario would satisfy the elements of trafficking that are contained in this bill. She would be facing a five-year sentence in jail under the mandatory minimum provisions.

Labor is firmly opposed to mandatory sentences. It's the role of the judiciary to make decisions about sentencing criminals, and that is what our system of justice is founded on. It is a clear separation of powers issue. It is not up to the legislature to decide what the sentences should be for individual offenders, regardless of the particular circumstances of the case. Our system of government is based on a fundamental principle of judicial independence. I should hardly need to state that in this House, but apparently, because of the ignorance of the failed Minister for Justice, I do. And there is the intent of the government to press on to seek only partisan political advantage rather than being concerned, as the government should be, about the safety of Australians. It is the role of judges to decide on sentencing, because they are impartial and unbiased. They come to each decision with a clear mind and determine what justice requires in each case. It is the role of judges to make the punishment fit the crime. That role can only be carried out by a court which has examined all of the circumstances of the particular crime, which is something that this parliament cannot seek to do in legislation.

The role of this parliament is to indicate to courts the seriousness with which parliament views different classes of crime, in particular by setting maximum penalties. The High Court of Australia is not in any doubt about the importance of setting maximum penalties. In a recent decision, just a couple of weeks back, in Director of Public Prosecutions v Dalgliesh, the Chief Justice and Justices Bell and Keane quoted with approval from a 2005 decision of the court, Markarian v The Queen. In that case, former Chief Justice Gleeson and Justices Gummow, Hayne and Callinan said:

... careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.

The High Court has been equally forthright about the importance of judicial discretion in sentencing in judgement after judgement for decades. Former Chief Justice Barwick of the High Court of Australia, a former Liberal Attorney-General, while recognising the power of the legislature to determine penalties for offences in Palling v Corfield, in 1970, said:

It is both unusual and in general, in my opinion, undesirable that the Court should not have a discretion in the imposition of penalties and sentences, for circumstances alter cases and it is a traditional function of a Court of justice to endeavour to make the punishment appropriate to the circumstances as well as to the nature of the crime.

A decade later, Chief Justice Gibbs, in Sillery v The Queen, said that even in the case of a most serious crime:

… there may exist wide differences in the degree of culpability of particular offenders, so that in principle there is every reason for allowing a discretion for the judge at trial to impose an appropriate sentence not exceeding the statutory maximum.

He said that mandatory sentencing 'would lead to results that would be plainly unreasonable and unjust'.

In the Dalgliesh decision just a couple of weeks ago, the Chief Justice and Justices Bell and Keane noted the observation of a previous High Court:

… [t]he administration of the criminal law involves individualised justice.

They then said:

The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned to do justice in that case.

Many other legal figures have voiced the same principle. John Dowd, a former Liberal Attorney-General and New South Wales Supreme Court Justice, in 2012, said: 'It is a breakdown of the rule of law and sentencing, where the court determines what is appropriate.'

Last week, when I spoke on this subject, I quoted from Nicholas Cowdery, a former New South Wales Director of Public Prosecutions, who said this about mandatory sentences:

It is unrealistic, therefore, and unjust, to prescribe a penalty or minimum penalty that must be imposed for any serious offence before it has been committed or is even in contemplation (or can even be foreseen by Parliament), before all the facts and circumstances are known and without knowing anything of the offender; and experience has shown that such measures do create injustice. Justice requires proper consideration of all the circumstances of the offence and the offender.

The Australian Human Rights Commission and the Judicial Conference of Australia have expressed similar concerns.

The government has produced no evidence that mandatory sentencing works and has not even bothered to explain its reasons for seeking to impose it. Mandatory sentences will not make our communities safer; juries are less likely to convict; perpetrators are less likely to plead guilty, and perpetrators are less likely to cooperate in bringing down the trafficking ringleaders. (Time expired)

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