Gavin Marshall (Victoria, Deputy-President) Share this | Link to this | Hansard source

The committee is considering the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 as amended and amendment (2) on sheet 7736, moved by Senator Wright.

Concetta Fierravanti-Wells (NSW, Liberal Party, Parliamentary Secretary to the Minister for Social Services) Share this | Link to this | Hansard source

I want to address some of the issues that were raised by those opposite. Senator Collins made some comments in relation to the government supporting the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. We agreed to this legislation without the mandatory minimum sentences to ensure that other important measures contained in the bill were passed without further delay. These important measures included introducing offences for the trafficking of firearms and firearm parts into and out of Australia and expanding the offences for trafficking firearms within Australia to include parts. We took to the election a commitment to implement tougher penalties for gun-related crime, and that is why we are now reintroducing the minimum sentences into this legislation.

Can I also address some of the comments that were raised in relation to the Parliamentary Joint Committee on Human Rights, in relation to a number of issues. Firstly, in relation to arbitrary detention we believe that there are appropriate limitations and safeguards in place to ensure that detention is reasonable, necessary and proportionate to each individual case. We consider that the mandatory minimum penalties for firearm trafficking are reasonable and necessary to deter people from diverting firearms into the illicit market, where they can be accessed by criminals and used in the commission of serious and violent crimes. Given that the provisions do not impose a mandatory nonparole period, the actual time a person will be incarcerated will remain at the discretion of the sentencing judge. And, consistent with these concerns raised by that committee, the government has amended the explanatory memorandum for the bill to note that the mandatory minimum sentence is not intended as a guide to the nonparole period, which in some cases may differ significantly from the head sentence. This level of judicial discretion provides protection against arbitrary detention and demonstrates the government's commitment to limiting any infringement against this right. The provisions include a number of other limitations and safeguards against arbitrary detention, including that they do not apply to children—those under the age of 18—and do not prevent appeal of a conviction or of any sentence above the mandatory minimum.

Issues were also raised in relation to the Parliamentary Joint Committee on Human Rights in relation to the right to a fair trial. We do not believe that the mandatory minimum for firearms trafficking offences contravenes a person's right to a fair trial. The minimum term of imprisonment will only apply if a person is convicted of an offence as a result of a fair trial, in accordance with such procedures as are established by law. Furthermore, the penalty does not prevent the appeal of a conviction or of any sentence above the mandatory minimum. And I note that the validity of mandatory minimum penalties for aggravated people-smuggling offences in the Migration Act was upheld as constitutionally valid by the High Court in the matter of Magaming v The Queen.

Can I also address the issue of advice from the Law Council of Australia suggesting that mandatory minimums reduce the likelihood of offenders pleading guilty. The government notes the concerns of the Law Council of Australia in relation to mandatory minimum sentencing; however, the government is of the firm view that the introduction of these penalties will send a strong deterrent message to those who would otherwise engage in firearms trafficking.

We note that the Law Council of Australia has suggested that the presence of mandatory minimum sentences reduces the likelihood of offenders pleading guilty as offenders are aware that a guilty plea will still result in the prescribed minimum sentence. However, the government has not attached a non-parole period to the mandatory minimum sentence to ensure there is still an incentive to enter a guilty plea as the particular circumstances of each case will be considered by the court and the sentencing judge will be able to exercise their discretion in determining the amount of time that an offender actually spends in jail.

The CHAIRMAN: The question is that schedule 6 stand as printed.

Bill, as amended, agreed to.

Bill reported with amendments; report adopted.