House debates

Wednesday, 25 October 2017


Criminal Code Amendment (Firearms Trafficking) Bill 2017; Second Reading

12:15 pm

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

Mr Deputy Speaker, I thank you for the opportunity to speak in continuation on the Criminal Code Amendment (Firearms Trafficking) Bill 2017. Before I was interrupted, I was speaking about the fact that mandatory sentencing provisions can lead to unjust results. If it is thought desirable to have some form of mandatory minimum sentencing scheme, then it should be drafted in such a way that it allows the court to exercise its discretion apart from the minimum mandatory sentence, if a particular case calls for it.

The submission that was made by the Australian Human Rights Commission to the Senate inquiry held on 6 January 2016 is instructive. This comprehensive submission sets out in detail by reference to legal principle and also to experience elsewhere, particularly in Canada, that mandatory minimum sentences do not—that is, do not—assist the orderly administration of justice. Paragraph 30 of the submission says:

If a sentence is fixed in advance without regard to the circumstances of the offence and the offender, and the court is not permitted to make an assessment of whether such a sentence is appropriate, then the sentence is bound to be arbitrary. There will be no rational or proportionate correlation between the deprivation of liberty and the particular circumstances of the case.

It is also significant to note there's been considerable judicial criticism of mandatory sentencing both on a court being required to impose a mandatory sentence and also in an academic setting. The Hon. Wayne Martin, Chief Justice of Western Australia, in his then capacity as Chair of the National Judicial College of Australia, addressed a federal crime and sentencing conference on 11 February 2012 on the topic of sentencing issues in people-smuggling cases. His observations as to the efficacy of mandatory sentencing are particularly appropriate in the context of this particular legislation. As at 2012, His Honour noted:

On at least 11 occasions … judges imposing the mandatory minimum sentence of 5 years imprisonment for people smuggling have made observations critical of the mandatory minimum varying degrees of stridency.

His Honour stated:

When a legislature is considering exercising the power to set a minimum bound for the exercise of the sentencing discretion, it will hopefully take account of the fact that the prescription of a minimum sentence creates the risk that a court may be required to impose a sentence which is disproportionate to the culpability of the offender, or the seriousness of the offence, or which may prejudice the prospects of rehabilitation and which is to that extent unjust, and will evaluate those risks against the perceived advantages of a mandatory minimum sentence.

These are all very important issues of judicial principle in an area of core competency for judges. It should not be overlooked that errors in sentencing may be able to be rectified upon appeal in certain circumstances, and the law relating to the application of sentencing principles is well traversed and is comprehensive. In fact, it's interesting to note Chief Justice Martin's observations within his address to the federal crime and sentencing conference as to the residual application of sentencing principles, notwithstanding the specification of a mandatory minimum. We as lawmakers should take into account the submissions of the Law Council of Australia, the Human Rights Commission and other civil liberties organisations that have made submissions in connection with this legislation or the prior attempts to impose mandatory minimum sentencing.

In summary, the grounds which I seek to emphasise as the basis upon which this House should oppose, in this legislation, the imposition of mandatory minimum sentences are as follows. Firstly, the fettering of judicial discretion is inappropriate, as a matter of principle. It is generally for the judiciary to determine appropriate punishment. Secondly, there is little, if any, evidence that the imposition of mandatory minimum sentences works to reduce or deter crime. There is certainly nothing in the explanatory memorandum to support the proposition put forward by the minister. The imposition of a mandatory minimum sentence can lead to unjust or unduly harsh sentences. The imposition of mandatory minimum sentences is inconsistent with Australia's human rights obligations, particularly concerning arbitrary detention and the ability to appeal sentences.

12:20 pm

Photo of Anne AlyAnne Aly (Cowan, Australian Labor Party) Share this | | Hansard source

This bill was first introduced in 2016 to see the introduction of mandatory minimum sentencing for those found guilty of trafficking illegal firearms. Parliament has already rejected these specific measures twice: once in February 2015, specifically around minimum sentencing, and again in August 2015, again around minimum mandatory sentencing. But it seems that the justice minister is determined to introduce something that just doesn't work. The government go on about listening to the advice of experts. It seems that they roll out the experts when it suits them.

Let's hear what the experts have to say about mandatory minimums. The Minister for Justice's own department says that they create an incentive for a defendant to fight charges. The Attorney-General's Department's own guide to framing Commonwealth offences states that minimum penalties should be avoided because, firstly, they interfere with judicial discretion to impose a penalty appropriate to the circumstances of a case; secondly, they preclude the use of alternative sanctions such as community service orders; and, thirdly, they may encourage the judiciary to look for technical grounds to avoid restriction on sentencing discretion. The Law Council of Australia refers to a number of unintended consequences of mandatory minimum sentencing, including undermining community confidence in the judiciary and criminal justice system. And state prosecutors have raised the concern that mandatory minimums could lead to unjust results and impose significant burdens on the justice system.

So does the government only take the advice of experts and brag about it when it suits them? We know the justice minister is notorious for being totally out of his depth. He continues to think that he knows better than the experts; better than even his own department. While he continues to pursue this bill to distract from the coalition's bitter division on guns, the government have actually lost control of guns and risk undermining Australia's strict gun control laws, which are the envy of nations around the world. Under this minister's watch, a record number of weapons have flooded the illegal market. There are currently as many as 600,000 illegal firearms in the market, and yet the government are divided on gun control. Just two weeks ago we had Bridget McKenzie on Q&A stating that she would like to see gun laws relaxed. Both Tony Abbott and the Prime Minister were willing to allow the Adler A110 shotgun into Australia in exchange for votes. The government are willing to trade the safety of Australians for votes and ignore the advice of experts to pursue a measure that will not—I repeat: will not—be effective in curbing the importation of dangerous weapons, which has grown exponentially under their watch. Indeed, in WA, the minister's home state and my home state, the number of guns stolen has doubled in a year. Last year, around 3½ thousand guns were stolen from legal gun owners and entered into the illegal market—an increase of around 630 from the previous year.

I want to turn my attention a little bit to the kinds of debates we have around gun control and gun laws here in Australia. We often hear those who are for the relaxation of gun laws and want to water down the gun laws say that guns don't kill people, that people kill people. It certainly is a popular mantra among those who argue that our strict gun laws are unfairly targeting legal gun owners. This is what I would say to people: it's not that guns kill people, certainly, but that people with guns kill people.

I want to talk a little bit about the recent incident in Las Vegas because the Las Vegas shooter—that man who managed to inflict so much harm and so much tragedy in such a short space of time—actually had no background of violence. Like many mass shooters that are terrorists or non-terrorist actors, he led a fairly unextraordinary life. He was unknown to police and law enforcement. These are the kinds of people about whom neighbours say: 'Oh, but he was such a lovely man. I can't believe that he's carried out this atrocious act.' And in fact in Pantucci's research there is a typology of lone-wolf actors, which includes terrorists and mass shooters. The research confirms that there is a group of lone actors who are, for all purposes, law-abiding citizens who tend to get access to guns, either legally or illegally, and carry out acts of mass shooting.

My own research on what I termed the rapid escalation to violence also confirmed that there was a group of terrorist actors—that is what I looked at—who do have these unextraordinary backgrounds and unextraordinary histories. Should these people have the opportunity to accumulate or to access illegal firearms, then, through the rapid escalation of violence, through a will to commit violence, they are likely to use them in atrocious tragedy acts killing innocent people.

One of the key factors that we have in assessing the risk to public safety is looking at how we stop or create opportunities for crime and then how we mitigate those opportunities. In maintaining public safety, it's absolutely vital that we remove opportunities for criminals, terrorists and violent actors to have access to firearms. And we have a very strong gun control regime that does that under legal firearms, but we also need to ensure that we do that with illegal firearms as well to ensure that people who may want to do harm to innocent Australians don't have access to illegal firearms. It's why we need to ensure that those who undermine or circumvent our gun laws by trading in illicit firearms get loud and clear the message that their crimes will attract the maximum possible penalty. Labor has been saying all along that we need to ensure that people who smuggle firearms; who trade in illicit firearms; who make those firearms available to terrorist actors, to criminal actors, even to people who have no extraordinary histories in violence but may want to or may be at the point of committing an act of violence—lone shooters, for example, or what we might also term lone-wolf actors—get the message that their trade in illegal firearms, the way that they are providing an opportunity to people who would do us harm by giving them access to illegal firearms by circumventing Australia's strong gun laws—which are, as I mentioned, the envy of the entire world—will attract the maximum sentence.

It's also why we need to ensure that everything we do in this space, whether it's around organised crime, whether it's around terrorism or whether it's around other forms of violent action, is effective and that the laws that we pass actually in practice have outcomes that are conducive to safety and that meet our obligations to public safety and the standards we set for public safety.

That might seem like I'm saying something as obvious as 'water is wet', but that fact seems to be lost on members of the LNP who want to play politics with this issue, because we've actually been waiting months to pass this bill. The bill, as amended by Labor to include a maximum penalty of life imprisonment—measures that were previously passed by a Labor government in 2012—received bipartisan support in the Senate. In fact, it passed the Senate in February and was introduced into the House the next day. So the government has had all of those months, from February to now, to pass this bill, but it has dillied and dallied on it because of a preoccupation with a measure that we know doesn't work. As I said at the beginning of my speech here today, there are several experts within the judiciary who attest to the fact that minimum mandatory sentencing does not work. Not only does it not work, it has adverse outcomes for and adverse impacts on the judicial system, on people's trust in the judicial system and on the capacity of the judicial system to actually incarcerate people who have committed serious crimes—in this case, in relation to the smuggling of and trade in illicit firearms. The government has had months to pass this bill. It has dillydallied on it because of its preoccupation with mandatory minimum sentencing. Importantly, that measure, of mandatory minimum sentencing, has already been rejected, twice in the past and now once again. It has already been rejected by the parliament, as I mentioned.

This government needs to take heed of all of this. Let's just stop and take stock of all of this. We've got experts who say it doesn't work. We've got a dire situation here, where we have an unprecedented number of illicit firearms out there in the market. We have evidence and research that shows that the profile of mass shooters, of terrorist actors, of violent actors, is that they are likely to go undetected by law enforcement and may have access to illegal firearms. If there is an opportunity to access illegal firearms, there could be a rapid escalation of violence that could, in a short space of time, lead to a violent act of the proportions of Las Vegas, for example. That's the evidence we've got. So we need to take stock of all of that evidence and we need to move on with this bill.

The government needs to get on with this job. Unfortunately, we're dealing with a government that has a track record of stalling and tinkering around the edges, and of weakness from its leader when it comes to dealing with some of the vocal elements on his backbench. So we have a government that is divided on gun control. Why would you be divided on gun control when our gun control policy, what Australia does, is held up time and time again around the world as a model of what to do—as a model of the ideal situation in controlling guns? And I must stop here and pay tribute to John Howard and the Howard government for passing those gun reforms quite swiftly in the face of the very terrible tragedy in Tasmania a couple of decades ago.

Let's do the right thing. Let's listen to the experts when they tell us what works and what doesn't. Let's take on board what they say about minimum mandatory sentencing. And let's understand that, in this particular instance, when we're dealing with illegal firearms trafficking, minimum mandatory sentencing undermines the judicial system but also undermines the capacity of the judicial system to actually give a penalty that fits the crime. Let's listen to the experts when they tell us that. Let's get this done. Let's stop dillydallying on matters of community safety.

I would urge the government to have a look at the numerous articles that are written by academics and to look at the profile of lone actors around violence with guns. Look at the relationship between gun ownership and access to guns, whether they are legal or illegal, and cases of domestic violence. We don't want to turn into the United States. We want to keep our gun laws. The Australian public wants to keep our gun laws the way that they are, but we want to strengthen them. We want to strengthen them by having maximum penalties for the people who smuggle and who trade in illicit firearms. So let's get this done, let's get this through, and let's stop stalling on it.

12:35 pm

Photo of Matt KeoghMatt Keogh (Burt, Australian Labor Party) Share this | | Hansard source

I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2017. We're here again on this legislation because the government is more focused on political pointscoring than good public policy to protect our community. We could have had such good law if the government had agreed some two years ago, but alas its bloody-mindedness delivers us back here today.

The Labor Party and I support tougher penalties for firearm trafficking, but mandatory sentencing is an ineffective measure. Labor has consistently opposed the use of mandatory sentencing regimes for firearm trafficking, as in other cases. This is because these sorts of regimes impose unacceptable restrictions on judicial discretion and independence and undermine the fundamental rule-of-law principles. The rule of law underpins Australia's legal system and ensures that everyone, including governments, is subjected to the law and that citizens are protected from arbitrary abuses of power.

Mandatory sentencing is also inconsistent with Australia's voluntarily assumed international human rights obligations. Back in 2015, Labor successfully moved amendments in the Senate to remove the introduction of mandatory minimum sentences contained in the government's Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. Later, Labor successfully moved amendments to remove the introduction of mandatory minimum sentencing in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015.

Now the coalition government has introduced the Criminal Code Amendment (Firearms Trafficking) Bill 2017, which would see the introduction of mandatory minimum sentencing for those found guilty of trafficking illegal firearms. The Australian Labor Party maintains its position that the introduction of these minimum sentences should be avoided. These provisions have now been considered three times and rejected three times by this parliament, including by this parliament in relation to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. The government has, for a fourth time, failed to justify the need for these proposed provisions. The reintroduction of these measures is a desperate attempt by the government to distract from the fact that it is hopelessly divided on the issue of guns. Labor has proposed amendments to introduce new offences for aggravated firearm-trafficking offences, with maximum sentences of life in prison.

Mandatory sentencing laws are arbitrary, and they limit an individual's right to justice by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offender and of each offence. Such regimes are costly, and there is a lack of evidence as to their effectiveness as a deterrent and their ability to reduce crime. Mandatory sentencing results in unjust, harsh and disproportionate sentences where the punishment does not fit the crime. It is not possible for parliament to know in advance whether a minimum mandatory penalty will be just and appropriate across the full range of circumstances in which an offence may be committed. There are already numerous reported examples of mandatory sentences that have been handed down and applied with anomalous and unjust results. When adopted, mandatory sentencing fails to produce convincing evidence to demonstrate that increases of these sorts of penalties actually deter any crime. It also has the potential to increase the likelihood of recidivism because prisoners are placed in a learning environment for crime when they otherwise would not be, which reinforces a criminal identity and fails to address the underlying causes of the crime.

The minister's own department says that mandatory sentences may create an incentive for a defendant to fight charges even in hopeless cases. The Attorney-General's Department document Guide to framing Commonwealth offences, infringement notices and enforcement powers states at 3.1 that minimum penalties should be avoided. Of course, this is just another example of the government failing to follow its own policy. This, of course, is because such sentences interfere with judicial discretion to impose a penalty appropriate to the circumstances of the case; they create an incentive for a defendant to fight the charges even when there is little merit in doing so; they preclude the use of alternative sanctions, such as a community service order, that would otherwise be available under the Crimes Act; they encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to quite anomalous decisions and outcomes; and they even serve to encourage law enforcement to prefer lesser charges in order to avoid perverse results.

The Senate Legal and Constitutional Affairs Legislation Committee received evidence from a number of stakeholders in inquiries for the two previous bills that strongly opposed the introduction of these amendments. The Law Council of Australia said that it had consistently opposed the use of mandatory sentencing regimes because mandatory sentencing regimes undermine fundamental principles underpinning the independence of the judiciary and the rule of law. Those are not just words; they are meaningful points about the foundation of our democracy in this country. The Australian Human Rights Commission said that they had concerns with mandatory sentencing because it could 'run counter to the fundamental principle that punishment for criminal offences should fit the crime'. How can anyone actually argue against that proposition? State prosecutors also had concerns that these provisions could lead to unjust results and impose a significant burden on the justice system itself.

Public safety is incredibly important, and we should be doing what we can at all stages to promote the reduction of crime, but when we stack up the evidence it becomes clear that mandatory sentencing in this regard simply doesn't work. Proponents of mandatory sentencing argue that, when faced with knowing that they would go to prison, potential offenders would not commit such crimes. While a superficially attractive argument—superficial like all of this government's policies, in fact—the fault in this argument comes down to the idea of knowing. What they never appreciate is that the people involved in such crimes do so with the supreme belief that they won't get caught. The reality is that the penalties that the offenders would confront if they thought they'd get caught are already sufficient to deter and will be more so with the increase in maximum sentences that we propose. Such crimes are committed by those who don't think that they are going to get caught. So, no, it is not the case that potential offenders know what they may face, nor do they care. Mandatory sentencing also removes the discretion of a judge to take into account particular circumstances and removes any incentive for the defendant to plead guilty, which leads to longer, more contested and more costly trials for the state. It also means that witnesses have to be brought before the court when they otherwise would not necessarily have had to be.

In a classic from the minister for overreach, the member for Stirling, when he was speaking yesterday on the bill, he spoke about the need for mandatory minimums to 'guarantee the judiciary will impose an appropriate minimum sentence'. I have this to say to the minister: increasing maximums will result in higher sentences. The task of sentencing is that justice be done in all the circumstances, and mandatory minimums inhibit that. Criticising the appropriateness of sentences was tried by some of your ministerial colleagues recently, and the minister would be well advised for once to try not to overreach in this area and be a little bit more circumspect in the way in which he refers to the job of the third arm of government, the judiciary. Such critiques of our judiciary actually risk undermining confidence in our judicial system, and they further demonstrate the minister's own lack of understanding of the criminal justice system. For the Minister for Justice, you would think it might be useful to at least have a passing understanding of how it all works. However, such a high level of competence appears to be all too much for this government to muster in this and many other portfolios.

The Australian Labor Party maintains its opposition to mandatory sentencing for firearms. We note these provisions have already been considered and rejected by parliament numerous times, and the government has failed to justify the need for such provisions now.

Imprisonment also has to be recognised as being very expensive. With all this talk of debt and deficit, you would think that the government would think twice before coming up with a policy that is costly and ineffective. It costs more than $350 a day to keep a person in jail and more than $600 a day to keep a juvenile in detention. In states where mandatory sentencing has operated for the longest period of time—unfortunately often my own state of Western Australia—taxpayers are forced to cover the cost of higher rates of imprisonment. In 2013, the Senate Legal and Constitutional Affairs References Committee found that, while crime rates had declined in Australia, the rate of imprisonment had actually increased. The committee considered that one of the factors contributing to the increased rate of incarceration was the introduction of mandatory sentencing regimes. I can only surmise that, as these costs are actually borne by the states and not the Commonwealth, the government just doesn't care.

As I said before, the reality is that this legislation is more about politics than policy. Last year, the government lost control of its members on the issue of guns. Tony Abbott, the member for Warringah, and the member for Wentworth were willing to let the dangerous Adler A110 lever-action shotgun into Australia in exchange for a vote in the Senate. The National Party voted to let an incredibly dangerous firearm into Australia, causing a split between the Nationals and the Liberals on the floor of our Senate. The Deputy Prime Minister—for now—Barnaby Joyce, contradicted the Prime Minister's position on guns, even on national television.

What's worse is that members of the coalition, members of the Prime Minister's own party, then came out in favour of weaker gun laws. Under the Liberal government's watch, a record number of weapons have entered the black market here in Australia. The Australian Criminal Intelligence Commission estimates that currently there are more than 260,000 firearms in the illicit firearms market and possibly as many as 600,000. They estimate that 10,000 of these are handguns. Yet these proposals put forward by the Abbott and Turnbull governments to tackle firearm trafficking contain maximum sentences of only 20 years.

The Turnbull government's proposed measures are an ineffective and expensive distraction from its disastrous record on firearms. Prosecutors should be able to pursue higher penalties in the worst gun-trafficking cases, and we support that. We are seeking to amend this bill to implement the provisions which we proposed when we were in government—an aggravated offence for firearm trafficking with a maximum sentence of life imprisonment, the same as the maximum penalty for drug trafficking; and new aggravated offences for people who traffic 50 or more firearms or firearm parts either within Australia or across our borders in a six-month period, for which the maximum penalty would be life imprisonment. This will actually send a strong message that trafficking firearms, and the violence and destruction it creates in our community, will not be tolerated—as opposed to the petty politicking that is being played by the 'Minister for Overreach', the Minister for Justice in this government.

12:46 pm

Photo of Brendan O'ConnorBrendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | | Hansard source

I rise to speak on behalf of federal Labor to support the amendments and raise concerns that we have with the construction of the Criminal Code Amendment (Firearms Trafficking) Bill 2017. As a former Minister for Justice and Home Affairs, I take child sex offences very seriously. Indeed, in one of my first acts as minister, I introduced legislation to ensure that we had sufficient sanctions against the grooming and procuring of children online. That legislation was enacted in 2009. I also enacted legislation that went to ensuring we screen people who work with children in the Commonwealth jurisdiction. Up until then, there were screening provisions in state legislation, but the previous conservative federal government had done nothing to ensure that screening arrangements for adults working with children were also required within the Commonwealth jurisdiction. I'm honoured to have enacted that legislation; it was really a response to deficiencies in the law not recognising that the internet was being used increasingly to seek to groom and procure children. The former Labor government is very proud of those initiatives. As I have said, it was in a sense a belated act by this country; it should have happened earlier.

When, as minister, I enacted legislation on working with children and to bring in serious sanctions against those who choose to groom and procure children online, I did not seek to politicise that matter. Indeed, we understand that everyone in this place supports every effort by law enforcement agencies and the courts to deal with child sex abuse and child sex offences. That's why we have been concerned with the language of the minister and the government in asserting otherwise. When I was enacting such legislation, which is certainly similar in its subject matter—very serious legislation—we sought the support of the opposition at the time and didn't seek to politicise that. That's why we have some concerns in relation to the provision that we contest—namely, mandatory sentencing.

It's not just that we have a concern in principle with mandatory sentencing; it is known that it is sometimes more difficult to prosecute more serious crimes when, indeed, such penalties, which do not provide discretion for the courts, are put in place. So, from our point of view, we do this with a view to ensuring that we jail for those most egregious and disgusting offences that are conducted by adults against children, and we want the government to desist from continuing to assert that in any way we're soft on crime in this area.

12:50 pm

Photo of Mark DreyfusMark 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)

1:05 pm

Photo of Bob KatterBob Katter (Kennedy, Independent) Share this | | Hansard source

I strongly endorse the remarks of the previous speaker, the shadow Attorney-General. I was asked by one of the most powerful people in this place and I said, 'You know, you have to put up with a bunch of bludgerigar ministers.' He said, 'Who would you say are the failures?' I said, 'Well, start with Minister Keenan, because he's the only person in one week who can put the whole government in jeopardy, with statements that clearly indicated that someone had flagrantly lied to Leyonhjelm putting'—

Photo of Steve IronsSteve Irons (Swan, Liberal Party) Share this | | Hansard source


Photo of Bob KatterBob Katter (Kennedy, Independent) Share this | | Hansard source

That's an order, Mr Deputy Speaker. The government which I belonged to in Queensland was much maligned as being a right-wing extremist government—the Bjelke-Petersen government. In my 20 years in that parliament, when we were ruling, I can't remember one single case of a reverse onus of proof or any mandatory sentencing. We might have been a bunch of extremist rednecks, but even extremist rednecks can realise that you don't have mandatory sentencing. Like the shadow Attorney-General, who I applaud for his speech, Minister Keenan, as I understand it, is a lawyer. There is no excuse if you are a lawyer. He knows the implications of what they're doing here.

Let me give you a case, Mr Deputy Speaker. This actually occurred in the Kennedy electorate. They're not allowing me to give their name out, so I must respect my constituent in that area. He had been away and he hadn't seen all his accounts. One of his accounts was for his licence fee, which was due. He went over time, so his gun licence was automatically suspended, abolished—done away with. Then six armed police in flak jackets—bulletproof jackets!—surrounded a prominent businessman in the town. He was the president of the local Rotary Club, as I understand it, and president of the local golf club. They surrounded his house and were carrying automatic weapons. Now, if this legislation goes through, this person, who has done absolutely nothing wrong, is going to be put in jail for five years!

The people in government complain: 'Oh, the cost of government. We can't afford to make welfare payments.' Well, we've had three proposals cutting welfare payments in the last week. When the much-maligned Bjelke-Petersen government fell, we had 2,000 people in jail. There are now 8,000 people in jail in Queensland, so who are the rednecks? Who are the extremists—us, who only had 2,000 people in jail, or those who have 8,000 people in jail?

The implications for the public purse here are quite profound. I had to do a cost analysis of the cost of putting a juvenile in prison, and it turned out that it was $580,000 a year. These prisoners are costing us half a million dollars a year! If he wants to go away and throw decent law-abiding citizens into jail and turn them into criminals, and impose upon the taxpayers half a million dollars a year in cost structures, then this would be the bludgerigar of all bludgerigar ministers, this one!

There is no intelligent person that could agree with him on this issue. Having finished that, this minister consulted with virtually nobody on his proposals. He knows everything about everything, so he didn't have to consult with anyone that knew anything about the issue.

As to the police: well, you know, it suits the police—and I'm not knocking the police for it—to have nobody with guns except the police. Well, we know what sorts of states they are where the only people with guns are police in uniforms. We know what sorts of states they are.

Now I turn to the general issue of guns. The strongest people to assail the improper use of guns are we gun owners. I mean, every time there is a death with guns, we get flogged to death. So we are the people that desperately want no deaths with guns. We are the people most at risk.

The fair dinkumness of this place! The three huge massacres in Australia—Hoddle Street, Surry Hills and Port Arthur—were all committed by people that were illegally in possession of a firearm. So much for the usefulness of your laws! But why did not the police apprehend these people? In those cases, it was not a matter of the Tarasoff rule. But the ruling in the Tarasoff case in the United States says that a psychologist or a psychiatrist cannot divulge that a person is dangerous, unless the person specifies that he's going to shoot Joe Bloggs. That's the ruling from the Tarasoff case. The rule should be reversed so that, once they think that he's dangerous, they have an onus to disclose that. But the rule works the other way—and there's good reason for that: to protect your patients and all that sort of thing—so that you cannot divulge it, when you know the patient is dangerous, unless he actually specifies who he's going to shoot. Well, in the cases of Surry Hills, Hoddle Street, Port Arthur, and, if you like, Wickham Terrace in Brisbane, going back a fair bit, they weren't specifying anyone. They were just going to go down there and spray lead everywhere. They were nut cases. Their psychologists and psychiatrists knew them to be nut cases and knew they were dangerous. And the rule says they can't divulge that. Well, that rule needs to be reversed.

As to the effectiveness of gun laws: there is a very naive belief in this place that the more you ban guns, the fewer murders you have with guns. In the three years before Port Arthur and the ban on guns, there were 107 deaths with guns in Australia. In the three years after the ban, there were 129 deaths with guns. In other words, if you ask, 'What was the effect of the bans?' the effect of the bans was to put the number of gun deaths up, not down.

In Europe, guns were banned in East Germany, as they are in all totalitarian countries. They ban guns and only the people in uniforms are allowed to have guns; that's characteristic of totalitarian regimes, of course. But in Switzerland—one of the more civilised countries on earth; a central European country—every single home has a gun by law and has nine rounds of ammunition for the gun. So we have two countries side by side: one bans guns; in the other, every single household has a gun. I might add: Switzerland has never been invaded. There's a good reason why you don't invade a country where there are two million people that can shoot you, and know how to shoot you. The highest death rate with guns in Europe is in East Germany. The lowest death rate with guns in Europe is in Switzerland. You say, 'This is a bit weird.' Well, quite frankly, I think it is a bit weird. In every interview I do, the interviewer always steps on the dingo trap; if you leave it out there then sure enough he will step on it, every time. He says, 'What about America?'—like, you know, he's got me. 'What about America? You left America out. There are deaths with guns all the time in America.' Well, where are the deaths coming with guns in America?

Oh, look at this: the worst case is District of Columbia—Washington, DC—with 11 deaths for every 100,000 people, easily the highest in the United States. In fact, no other state gets to double figures. Guess where the most stringent, restrictive gun laws exist in America? Need I tell you, it's under federal legislation; it is Washington, DC. The politicians there also want to protect themselves a bit. But there it is: the state with highest death rate from guns in the United States is District of Columbia—Washington, DC.

The states with the lowest death rate from guns—in fact, one of them doesn't even have a death rate at all—are North Dakota and South Dakota, the hunting states. When I went to South Dakota I went to the biggest gun shop in the world; it was really exciting for me! North Dakota and South Dakota are hunting states and they have the highest ownership of firearms of any state on earth yet they have the lowest rates of death from guns. I don't purport to understand why this phenomenon occurs, but it does occur. If you go down to your local clay pigeon shoot, you will see your local doctors, your local Lions Club members and your local diesel fitter in charge of the council workshops. You will see all the most prominent people in the town down there enjoying having a bit of a shoot, a bit of fun and a good social outing.

I represent the Barrier Reef, and we have terrible turbidity problems. It was thought the sugar cane farms were the problem. Sugar cane now is not burned. Do you remember Fields of Fire? There are no fields of fire now; we don't burn. We put the trash, which is the leaves and cane tops, on the ground. There is an eight-inch layer of cover, so there can't be any run-off from the cane fields. Cane farms also have salination traps. I won't go into that, but there is no run-off from the cane fields. There is no mining taking place. The cost of electricity has closed down most of the mining. I don't know of any mines offhand—there will be some—that are on the Barrier Reef, so it's not coming from mining.

It seems to me quite obvious that the turbidity is coming from pigs. In one morning, two blokes with SLR rifles took out 800 pigs from a helicopter in the bush. It is very hard to hit anything from a helicopter The place is alive with pigs. They have pig shoots and might get a thousand pigs on the weekend, just blokes just going around shooting. They have a competition to see who can get the most pigs. They are enormously destructive animals because they don't attack the leaves; they attack the root systems. I had 10 acres on my property which was a little weaner irrigation paddock I was setting up. We had a flood and the whole paddock went straight down into the ocean. The pigs had taken all of the root system out and there was no underlying protection. Should we bait them? Maybe a quarter of our birds are carnivores, most certainly a tenth are carnivores, so we don't want to bait; that's not good. Should we trap them? We can use traps. We caught a cassowary and four little chicks in the trap last year. The only thing that works here is a gun; that's the only weapon you've got against pigs.

The government wants to do something about firearms coming into this country illegally. This is the most fascinating figure of all: in 2012-13, Customs screened 25 per cent of mail and seized 60,000 prohibited imports. That was with just 25 per cent inspection. If they did 100 per cent inspection, which I know would cost a whole lot of money, how many prohibited imports would they get? To put it the other way, 75 per cent of the prohibited imports are coming into the country without ever being inspected. If you want to bring an illegal firearm into the country, you've got a 75 per cent chance that you won't get caught.

They're usually sent in containers because that's how they are sending in tractors and all of our motor vehicles coming in from overseas. There are a thousand pipes on a tractor—there are pipes everywhere on a tractor for hydraulics and everything else delivering fuel to the engine. A thousand pipes. A gun is only a pipe. An X-ray will only tell you that it's a pipe. In any event, only 0.2 per cent of these containers are inspected. So the guns are coming in, in the containers, and there is only a 0.2 per cent inspection rate. And here we are throwing decent human beings into jail compulsorily for five years. They go into the clink, but is it fair dinkum? No, because they are inspecting 0.2 per cent of containers, and they are inspecting 25 per cent of mail.

This is the worst minister— (Time expired)

1:20 pm

Photo of Emma HusarEmma Husar (Lindsay, Australian Labor Party) Share this | | Hansard source

I think this is the first time where the member of Kennedy and I have agreed on something; he called this minister quite disgraceful. I rise to speak in support of the amendments to the Criminal Code Amendment (Firearms Trafficking) Bill 2017. This legislation is the product of detailed analysis and, I have to say, a great deal of cross-party negotiation over a long period. I candidly say 'cross-party', as the divisions on the other side of this House are very, very clear. I will get to that shortly.

It's important to note that it was a Labor government who first introduced similar legislation in the 43rd Parliament—legislation that was passed in this House but not ratified by the Senate. This legislation is similar because it is good legislation that will deter the illegal trafficking of guns and gun parts in Australia and offers tough penalties on those who seek to profit from this insidious trade. We are proud of our existing gun laws and actions to prevent the ownership and use of certain firearms. Labor is committed to strong legislation that will strengthen criminal penalties for gun related crime. We must do absolutely everything possible and within our power to ensure that our communities are safe. There are an estimated 600,000 weapons in the illicit firearm market, and 10,000 of those are handguns. We need to be vigilant, but above all we need to send a strong message that if individuals or groups seek to profit from illegal firearms trade they will face the full force of the law and our judicial processes.

The overwhelming majority of Australians support strong and effective gun control. As we all know, our laws are amongst the strongest in the world, and the use of firearms for nefarious actions and self-harm is amongst the lowest in the world. Recent events in the USA have borne out the effectiveness of our stance. However, while we need vigilance, we also need to send a message that our judiciary can do their job. They need tough laws that match the seriousness of the crimes. What they don't need is for their discretion to be taken from them because of differences among those sitting on the other side who are politicking and seeking to play football with this important measure. They are a weak mob that seek to divert attention from their lack of leadership. They have shown a cavalier attitude to our protection by shouting insanities in relation to mandatory sentencing. Firearms-trafficking control is not a debate for political handball or pointscoring. The attitude of the National Party, led by Barnaby Joyce, is out there in plain sight whenever he has a dummy spit, and the Prime Minister is absolutely powerless to reel him in. They were willing to let the notorious Adler shotgun into our country to buy a vote in the Senate. Buying votes on gun reform is the opposite of keeping Australians safe and protected from gun violence.

The minister's amendment reintroduces mandatory minimum sentences, which have already been knocked back by the Senate. Labor do not support the mandatory minimum sentences, because we know they just don't work. We support the bill as amended by the Senate. Mandatory minimums don't protect us and they don't protect our communities; in fact, they may make them more dangerous. The minister's own department says that mandatory sentencing will not deter people from committing any crime but will simply create greater backlogs while those who participate in these activities, whether in a minor or major fashion, are forced to fight charges no matter the weight of evidence or merit to a case. Let's face it: we could have had these laws in place eight months ago if the minister who crows about being tough had got over his obsession with mandatory sentencing. Labor supports strong laws that include the provision of imprisonment for those convicted of serious criminal activity. Seeking to undermine our hardworking judiciary to divert attention from a party divided is indeed morally bankrupt and is frankly disappointing.

The Attorney-General's Department and the Law Council are both in furious agreement that mandatory minimums do not work. Why does the justice minister believe he is above taking directions and advice from the experts? That is incredibly arrogant. We know that we need to strengthen Australia's firearms control regime to deter potential offenders.

The Australian Criminal Intelligence Commission's report on illicit firearms in Australia tells us there is a historic illicit grey market for firearms and instances of legislative loopholes relating to deactivated or inoperable firearms. Contemporary diversion methods to move firearms or firearm components to the domestic illicit firearms market include illicit imports, illicit assembly, illegal manufacture and theft.

We believe 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. We know mandatory minimums can lead to fewer prosecutions and convictions, sometimes leading juries to acquit rather than sentence, and can conflict with the role of the judiciary. Mandatory minimums produce unintentional consequences. People do not have an incentive to plead guilty or to inform the police on other's actions if they know they are facing a mandatory sentence. It builds on the incentive to fight an appeal against convictions.

Even former Prime Minister John Howard has previously commented that, as a matter of principle, he doesn't agree with mandatory sentencing and, in the end, he does think that these matters ought to be determined by judges and magistrates. It is a shame Mr Howard is only getting rolled out for his opinion on mandatory sentencing. There is no evidence that mandatory sentencing has the effect of reducing crime rates. Increasing the maximum penalties for illegal firearms trafficking provides ample ability for the court to adequately punish those who seek to use weapons to do our communities harm.

If there is one thing the people in my electorate of Lindsay expect, it's that we work together on these issues. We don't seek political gain from certain sections of the community. This is division and diversion from a desperate, disparate government that seeks to limit our rights as far as hearing an appropriate response from people who know that mandatory sentencing simply does not work.

The relevant Senate committee, the Legal and Constitutional Affairs Legislation Committee, recently heard compelling evidence from the Law Council of Australia, who referred to the consequences of mandatory sentencing's potential to undermine the 'confidence in the judiciary and the criminal justice system as a whole'. The Australian Human Rights Commission also raised their concerns, noting that these amendments would give rise to the 'potential for injustice to occur' and 'run counter to the fundamental principle that punishment should fit the crime'. These are two respected institutions that have a serious job to do. We do not take their views lightly. Why is this minister so arrogantly obsessed with mandatory minimums? Does he think he knows better than the experts?

I note that state prosecutors, whose political masters love to spruik law and order policies, also oppose mandatory sentencing on the same grounds. Further to this, the Law Council of Australia, in its submission to the Legal and Constitutional Affairs Legislation Committee:

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

        Labor will always listen to those experts and understand the consequences of action. We will always oppose mandatory sentencing, because we understand the limitations. Labor sought the amendments relating to mandatory sentencing twice in 2015 and were unsuccessful. The message is clear and unambiguous. Again, that does not mean we don't agree that severe punishment should not be meted out to serious crimes. Serious crimes require serious consequences. They also require serious consideration, not spurious shouting and accusations from those opposite.

        The Australian Crime Commission undertook a national intelligence assessment of the illegal firearms market in the first half of 2012. While the report on its assessment is not publicly available, some of the key findings were released by the Minister for Home Affairs and Minister for Justice on 29 June 2012 following a presentation of the report to the Standing Council on Police and Emergency Management. The findings included that there are over 2.75 million registered firearms in Australia held by more than 730,000 individual firearms licence holders. The ACC conservatively estimates that in the Australian illicit firearms market there are 250,000 longarms, such as rifles, and 10,000 handguns, around 6,500 of which would be semiautomatic, and the durability of firearms means that once diverted to the illicit market they remain available for decades, with the ACC tracing the oldest firearm to a revolver that was manufactured in 1888.

        This is a global challenge for our law enforcement agencies that reaches far, far beyond our shores. We want tougher penalties for gun smugglers. A single illegal firearm in the hands of a criminal—

        Photo of Mark CoultonMark Coulton (Parkes, Deputy-Speaker) Share this | | Hansard source

        Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the member for Lindsay will be given an opportunity at that time to complete her contribution.