Jacinta Collins (Victoria, Australian Labor Party, Shadow Cabinet Secretary) Share this | Hansard source

When we were last dealing with this bill, I was in continuation in relation to the opposition's second reading contribution. I was in the process of outlining the various measures incorporated within this bill. I will continue where I left off with respect to measures to amend the Proceeds of Crime Act 2002 to increase penalties for failing to comply with a production order or with a notice to a financial institution in proceeds of crime investigations. The bill will amend the Proceeds of Crime Act to address ambiguity in the provisions, streamline the appointment of proceeds of crime examiners and support the administration of confiscated assets by the Official Trustee.

The bill will also give the Independent Commissioner Against Corruption of South Australia—ICAC SA—whose office became operational in September 2013, the ability to access information from Commonwealth agencies consistent with other state anti-corruption bodies, defences for certain Commonwealth telecommunications offences and the ability to apply for certain types of search warrants.

There are measures to update references to reflect the new name and titles associated with the Queensland Crime and Corruption Commission consequential to the Crime and Misconduct Commission Amendment Act 2014 for Queensland coming into force. There are measures to clarify when a variation to controlled operations would require deputy commissioner or commissioner approval and to clarify that an authority for a controlled operation must not be varied if it would alter the criminal offences to which the controlled operation relates. There are measures to amend two paragraphs in the Classification (Publications, Films and Computer Games) Act 1995 for consistency with current Commonwealth drafting practices and to correct an amendment to the act made by the Classification (Publications, Films and Computer Games) Amendment (Classification Tools and Other Measures) Act 2014.

The bill also includes amendments to insert the concept of being 'knowingly concerned' in the commission of an offence as an additional form of secondary criminal liability in section 11.2 of the Criminal Code; and amendments to introduce mandatory minimum sentences of five years imprisonment for firearm trafficking.

While Labor supports the majority of measures in this bill, which will improve Commonwealth criminal-justice arrangements, we have serious concerns with some of the proposed amendments. In particular, Labor is concerned about the insertion of knowingly concerned as a secondary form of criminal liability and the introduction of mandatory minimum sentences for firearm trafficking offences. We note the strong opposition held by peak law organisations with regard to these amendments and the lack of consultation that has occurred with respect to this bill.

Labor is concerned about the uncertainty surrounding the concept of knowingly concerned. We note the concerns raised by the Law Council of Australia in relation to how the provisions have been drafted and the dangers arising out of 'vaguely defined laws'. We believe that the introduction of such a vague and open-ended concept as knowingly concerned is inconsistent with the fundamental principles of the rule of law:

… which requires that the Criminal Code should be precise enough to allow people to readily ascertain prohibited conduct …

The government has argued that the need has arisen to introduce the concept of knowingly concerned as a secondary form of liability into section 11.2 of the Criminal Code. The ability to effectively prosecute alleged offences against Commonwealth law remains the critical objective of the Commonwealth Director of Public Prosecutions, the CDPP. It is important that the director of pubic prosecutions has both the resources and powers to achieve this objective. However, I am not convinced that the provisions in schedule 5 of the bill support this objective. Labor notes the evidence provided by the Law Council of Australia, who strongly oppose the introduction of knowingly concerned. They state:

The proposal to introduce knowingly concerned as part of the law of complicity in the Criminal Code—making it applicable to all Commonwealth offences, offences numbering in the hundreds—is a radical change which has been proposed without apparent consultation with States and Territory jurisdictions and against a background of its rejection on three prior occasions in the Model Criminal Code process.

Not only has the government failed to engage with stakeholders with regard to these amendments but also it has failed to justify the need for an additional form of secondary criminal liability to apply to all offences in the Criminal Code.

The government has highlighted particular categories of offences where the concept of knowingly concerned is required, including drug and drug-importation offences and insider-trading offences. However, all of the offences identified have already been drafted in a way that address the concerns raised without the need to include 'knowingly concerned' in such a blanket way.

Labor believes that the proposed change in relation to the introduction of knowingly concerned is a major change to the Model Criminal Code. Leading up to the adoption of the Model Criminal Code in 1995, there was a long consultation. The consultation occupied some years and included some of Australia's leading criminal practitioners. There ought to be full consultation in relation to any proposed general change to the Model Criminal Code. No Australian state or territory, besides the ACT, has the offence of knowingly concerned nor does the United Kingdom. Introduction of a general offence in the Commonwealth Criminal Code could lead to confusion in trials where the accused are charged with both state and Commonwealth offences. Uniformity is important for drug law offences where the state and Commonwealth offences may well figure in the same trial.

Labor does not oppose the introduction of the element of knowingly concerned in relation to individual offences in appropriate cases. Indeed, this has already occurred in relation to a number of offences in Commonwealth legislation. As the Australian Human Rights Commission noted in its submission to the Senate committee, it is 'difficult to anticipate the impact of extending this form of liability to all offences'.

Labor cannot support schedule 5 in its current form. We urge the government to conduct a proper consultation process before proceeding with any change to the Model Criminal Code. We agree with the recommendation of the Law Council of Australia that where there is a need to extend criminal complicity the proposed amendments should be specific to that offence only.

With respect to mandatory minimum sentencing, once again, here, ideology triumphs over rational public policy in the Abbott government. The Abbott government has continued to accuse Labor of not putting up a fight-back against organised crime because of our successful amendments to the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, which removed mandatory minimum sentencing for the trafficking of firearms into Australia. But that is simply not the case.

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.

Minister Keenan's proposal contains a watered-down penalty of 10 years. The government has yet to explain why it is doing this, other than to claim that it was an election commitment, with no justification. Minister Keenan's measures are also mostly symbolic, as they do not include specified non-parole periods.

There is little evidence that mandatory sentences work as a deterrent. In fact, the government's own department says that mandatory sentences may create an incentive for a defendant to fight charges, even where there is little merit in doing so.

We want tougher penalties on gun trafficking and the government has watered these down. Whilst Labor supports the government's intentions to protect the community from gun-related violence, we urge the Abbott government to adopt a similar sentencing regime in relation to the proposed firearms trafficking offences. This would send a strong message to serious criminals but avoid the issues associated with mandatory minimum sentences.

The Abbott government continues to not heed the advice of experts who understand the complexities and sensitivities of such cases. The Australian Labor Party maintains its position that the introduction of mandatory minimum sentences for those convicted of firearm trafficking offences should be avoided. We note that these provisions have already been considered and rejected by the parliament and that the government has failed to justify the need for such provisions.

The Senate Legal and Constitutional Affairs Legislation Committee received evidence from a number of submitters who strongly opposed the introduction of these amendments. The Law Council of Australia referred to a number of unintended consequences of mandatory sentencing, which included 'undermining the community's confidence in the judiciary and the criminal justice system as a whole'.

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.

Labor believes that the government has failed to explain the need for mandatory sentencing provisions. I, again, draw attention to the Attorney-General's Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which specifically stipulates that minimum penalties should be avoided. These are the Attorney-General's own guidelines. I, again, reiterate this point, as we did the last time when this government presented these provisions: the Attorney-General's Guide to Framing Commonwealth Offences 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.

While we note that the Attorney-General has the power to direct the Commonwealth Director of Public Prosecutions 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 can also 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.

I urge the government to replace the imposition of mandatory minimum sentences for firearms trafficking offences with increased penalty provisions, as set out in the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012. This bill was introduced in November 2012 by the then Labor government and proposed the introduction of new aggravated offences for firearm dealing, which would attract a higher penalty of life imprisonment. These provisions would still send a strong message to serious criminals, while minimising the risk of a miscarriage of justice.

While Labor supports most of the provisions in this bill that improve criminal justice arrangements, we continue to have serious concerns about the implications of schedules 5 and 6 of the bill as they stand.