Wednesday, 19 August 2015
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015; In Committee
I move Australian Greens amendment (1) on sheet 7736:
(1) Schedule 5, page 10 (lines 1 to 26), to be opposed.
The Australian Greens share the strong concerns raised by the Law Council of Australia and others about the introduction of a new form of extended criminal liability into the Commonwealth Criminal Code. Schedule 5 would amend the Criminal Code to insert the concept of 'knowingly concerned' as an additional form of secondary criminal liability into section 11.2. That would mean that where persons are knowingly concerned in the commission of an offence under the Criminal Code and the Crimes Act they would be liable for the offence. The problem with this change is that it adds a new category of criminal liability to an already extensive secondary liability regime under the Criminal Code. The existing regime already makes it an offence to attempt or to aid and abet or to conspire with another to commit an offence. The concept of 'knowingly concerned' was specifically considered and rejected twice as a form of secondary liability when the Criminal Code was being delivered.
In her wrap-up of the bill, Senator Fierravanti-Wells tried to assuage concerns I had raised about the amorphous nature of adding this concept and said that there would be a requirement to have intentionally participated in the commission of the offence, but that begs the question why then they could not be prosecuted under an existing category of criminal liability such as conspiracy or aiding and abetting. From a human rights and rule of law perspective, we should always set a high hurdle of necessity before sweeping new forms of criminal liability are introduced to Australia. In this case, legal commentators overwhelmingly agree the government has not come even close to justifying why we need this new concept of 'knowingly concerned' or what it would actually add in practical terms to the existing extended liability provisions in the Criminal Code. For these reasons, the Australian Greens do not support the changes to introduce the concept of 'knowingly concerned' as a general principle of criminal responsibility and this amendment would remove schedule 5 from the bill.
As senators will see on the running sheet, this amendment is identical to opposition amendment (1) on sheet 7743. So obviously we support this amendment. As indicated in my second reading contribution, 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. We have heard some arguments about particular matters, particular issues or about certain areas but nothing that justifies the blanket application of this vague legal concept, we have been told, with respect to 'knowingly concerned'. The government has highlighted particular categories offence where the concept of 'knowingly concerned' is required including drug and drug importation offences and insider trading of fences. 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'.
Labor believes that the proposed change in relation to the introduction of 'knowingly concerned' is a major change to the Criminal Code and that, as such, there is a process that needs to be followed. 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 a full consultation in relation to any proposed general change to the Model Criminal Code. 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 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. We would suggest that the government proceed with that approach, rather than an attempt at a blanket change without consultation and with processes that are appropriate to the Model Criminal Code.
As I indicated previously, the concept of 'knowingly concerned' was included previously in the Crimes Act but was not carried over to the Criminal Code when it was drafted in the 1990s. It has been made very clear by the Commonwealth Director of Public Prosecutions that the absence of 'knowingly concerned' has since become a significant impediment to the effective investigation and prosecution of individuals who have intentionally involved themselves in crime but who are disconnected from the physical aspects of an offence.
These issues are exacerbated because modern technology allows offenders to participate in crime in increasingly remote ways—for example, by engaging with co-offenders or by conducting offences on line. The Commonwealth Director of Public Prosecutions has advised that 'knowingly concerned' would be particularly helpful in prosecuting serious and organised criminal activity.
The bill supports our law enforcement agencies by ensuring that people who knowingly support and enable crimes like the importation of illegal drugs, fraud and insider trading can be held responsible, despite the fact that they were not the person who was taking delivery of the drugs, handing over the money or forging the signature and thereby using the provisions to obtain lesser sentences.
The CHAIRMAN: The question is that schedule 5 stand as printed.
I move the amendment on sheet 7748 regarding penalties for firearms trafficking:
(1) Schedule 6, items 1 to 3, page 11 (lines 5 to 23), omit the items, substitute:
1 Subsection 360.3(1) (penalty)
Repeal the penalty, substitute:
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.
The amendment does several things. Firstly, it alters schedule 6 to remove mandatory minimum sentencing of five years for cross-border firearms trafficking offences. Secondly, it strengthens the penalties associated with these offences from 10 years to 20 years. I believe my amendment strikes an important balance between maintaining the role of the courts in the consideration of penalties for cross-border firearms trafficking offences and increasing the suite of penalty tools available to the courts in sentencing associated with these offences.
Mandatory sentencing removes the ability of our judges to take into account the unique circumstances surrounding each offence before rendering a conviction and issuing a sentence. Taking the consideration and application of penalties out of the hands of the courts and putting them into the hands of politicians is dangerous, irresponsible and in direct conflict with the spirit of the Constitution. It is for these reasons that I have put forward my amendment, and I commend this amendment to the Senate.
I want to indicate that the Australian Greens will not be supporting this amendment, which aims to raise the maximum penalty for the particular offence to 20 years imprisonment. This would make this penalty much higher and inconsistent with analogous offences under other Commonwealth or state laws—for instance, under the New South Wales Crimes Act threatening violence with a firearm has a maximum penalty of 10 years; stealing a firearm has a maximum penalty of 14 years. There is no evidence at this stage before the Australian Greens or from the Attorney-General's Department or others that the existing maximum is insufficient to achieve the outcome that is desired. If the maximum penalty does need revision, then it is a strong maxim of the Australian Greens that that should be done carefully, based on a more holistic review and not just doubling the penalty because it seems like a good idea.
Labor will be supporting these amendments. The Abbott government has continued to accuse Labor of not putting up a fight 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, and this simply is not the case.
Back in 2012, Labor introduced legislation that would have increased the maximum penalty for firearm trafficking to life imprisonment. That would have made it the same as the maximum penalty for drug trafficking, and our position in this case is consistent with that position taken in 2012. While 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 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 the provisions have already been considered and rejected by this parliament, and that the government has failed to justify the need for such provisions.
The Senate Legal and Constitutional Affairs Committee received evidence from a number of submitters who strongly oppose the introduction of these amendments. The Law Council of Australia referred to a number of unintended consequences of mandatory sentencing, which include undermining the community's confidence in the judiciary and the criminal justice system as a whole. For Senator Brandis's benefit—although he is not in the chamber at the moment—I should perhaps reiterate that point: the Law Council of Australia were concerned that this approach would undermine the community's confidence in the judiciary, one of Senator Brandis's principle concerns.
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. In the committee hearings I questioned the DPP and asked, 'Can you not find some justification for this?' And really all they could allude to was that it was government policy, with no justification.
While there is no evidence that mandatory sentencing laws have a deterrent effect, there is clear evidence that they can result in injustice because they remove the discretion of a judge to take into account particular circumstances that may result in unintended consequences. In addition, mandatory sentencing removes any incentive for defendants to plead guilty, leading to longer, more contested and more costly trials.
Labor supports the intention to protect the community from gun-related violence. We do not support the introduction of mandatory minimum sentences. While there is no evidence that mandatory sentencing laws have a deterrent effect, there is clear evidence that they can result in injustice because they remove the judge's discretion. We have consistently urged the government to replace the imposition the of mandatory minimum sentences for firearm-trafficking offences with increased penalty provisions, with particular reference to the reforms proposed by Labor back in 2012.
Senator Lazarus's proposal to increase the maximum penalty for firearms to 20 years does send a strong message to serious criminals but also avoids the issues associated with mandatory minimum sentences. The proposal is consistent with the most serious firearm offences in most states and territories, and for these reasons we will support Senator Lazarus's amendment.
I support Senator Lazarus's amendment, and I did support the government in terms of the 'knowingly concerned'. Even though I had reservations in relation to that, I think that prosecutors indicate that in respect of 'knowingly concerned' there are issues in terms of dealing with insider trading, fraud in commercial activities, child exploitation rings and the like. So I just want to put that on the record.
In relation to this particular amendment, the committee, at paragraph 2.38 of its report, made a point in relation to the submission and the evidence given by Ms Jane Dixon QC on behalf of Liberty Victoria in relation to both 'knowingly concerned' and the mandatory minima. An example is given where a husband and wife are travelling together and the husband is a mad keen sporting shooter and he is taking his guns over to New Zealand, stupidly but perhaps not with any really dangerous plans. If his wife fills out the card she is perhaps knowingly concerned, even though she is only very peripherally involved in what he does. She could end up, because of this extension, with a further potential provision of mandatory sentencing. 'Knowingly concerned' does have a lot of good work to do in terms of dealing with those offences difficult to prosecute. For drug dealers, child pornography rings, insider trading, fraud and commercial offences it has a useful role in getting those people convicted. But in the example given by Ms Jane Dixon QC, in that part of it relating to the offence, technically what is indicated could be seen to be arms trafficking, even though there is no evil intent on the part of that person. You take away complete discretion of the courts with the mandatory minima. Even though the nonparole period could still be set by the court at a fairly low level, the person is being stigmatised with a minimum five-year jail sentence, and that concerns me.
So I would be grateful if the government can explain how it deals with that issue of taking away the court's discretion as to mandatory minima. I think the example given at paragraph 2.38 at page 20 of the committee's report is a telling one, and it does concern me greatly. That is why I believe it is appropriate to support Senator Lazarus's amendment.
We have noted the concerns that have been raised in your question, Senator Xenophon, and in the comments that were made by Senator Collins as well. We note the concerns in relation to mandatory minimum sentencing; however, we believe that the introduction of these penalties will send a strong deterrent message to those who would otherwise engage in firearm trafficking.
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, we have not attached a nonparole period to mandatory minimum sentences. This will ensure that 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 still be able to exercise his or her discretion in determining the amount of time that an offender will spend in custody.
In relation to your comments, Senator Lazarus, we are happy to have a conversation about increased penalties, but we also need to think seriously about the policy implications of this. We believe that the mandatory minimum sentence of five years will act as a strong deterrent for those who would otherwise engage in illegal firearm trafficking. It is a policy that we have considered in conjunction with states and territories. We think it is important to prevent these crimes and we believe that what we are offering here is a preventative measure, not a cure. We are open to any measures that could stop illegal guns at the border, but we also need to think about the ramifications of quickly moving through an amendment like this without consulting with our law enforcement agencies, our prosecution agencies and the states and territories.
During my comments I also raised some of the questions about the possibility of this amendment and the potential perverse effects of that. We think that these considerations are important, and we should consult on them through the channels such as the Law, Crime and Community Safety Council and the Firearms and Weapons Policy Working Group. We think that mandatory minimum sentences do send a strong message to criminals: try and smuggle illegal drugs into the country and you will get caught.
As I said, the government is prepared to have a conversation about increased penalties as well but that conversation should involve proper consultation and the consideration of its implications. For that reason, the government will not be supporting Senator Lazarus's amendment.
The CHAIRMAN: The question is that amendment (1) on sheet 7748 be agreed to.
I move Australian Greens amendment (2) on sheet 7736 to oppose schedule 6 of the bill.
(2) Schedule 6, page 11 (lines 1 to 23), TO BE OPPOSED.
Schedule 6 of this bill introduces mandatory minimum sentencing of five years imprisonment for firearm trafficking offences. In its 22nd report of the 44th Parliament, the Parliamentary Joint Committee on Human Rights found that the mandatory sentencing amendments proposed in schedule 6 of this bill were 'likely to be incompatible with the right to a fair trial and the right not to be arbitrarily detained'—a human right which the Australian government has signed up to and has ratified.
Mandatory sentencing provisions have long been shown to be ineffective and unfair. For this reason, the Australian Greens have always opposed them whenever governments of any persuasion have sought to introduce them in what is often a populist bid to look like they are being tough on crime. Mandatory minimum sentencing laws remove the time honoured role for judges to exercise discretion and judgement by being able to take into account the circumstances surrounding a particular offence and offender.
There is absolutely no evidence that mandatory sentencing reduces crime, so why would a government want to introduce it? Again, one cannot help but come to the conclusion it is about looking like they are doing something, playing to a populist notion that having this kind of provision will actually prevent crime when in fact there is no evidence that that is the case. There is, however, much evidence that mandatory minimum sentencing can lead to manifest injustice. The Attorney-General's own department has confirmed under questioning that it is not aware of any cases where the current sentences for trafficking a firearms or firearm parts have been insufficient.
Senator Fierravanti-Wells has wanted to assuage our concerns about this provision by saying that because there would be a capacity for judges to use their discretion in relation to the setting of parole periods that that should be enough to allay our concerns. But of course the actual charge is a significant matter in that that is the charge and the sentence that a person would be subject to, and that would be on their record irrespective of the particular circumstances surrounding the offence. And it is that ability of a judge to judge, essentially, to look at the circumstances and to determine what is an appropriate sentence that is being removed by this proposed schedule.
The other issue I would raise is that the Senate recently conducted an inquiry into the capacity of law enforcement agencies to reduce gun violence in Australia. A lot of evidence was taken in that inquiry as to the derivation of illicit firearms in Australia. While there was a lot of huff and puff and a lot of assertions and claims being made about so-called porous borders—the coalition is very fond of using the term 'border' to press panic buttons in the Australian population—there was actually very little evidence before the inquiry to show that the main source of illicit guns in Australia, in the black market, is from trafficking. Certainly it is something that we need to be wary of. We need to look at strong laws to prevent trafficking; the Australian Greens are not complacent about that. But if the government is serious about guns getting into the hands of criminals then they need to look at the whole situation and they need to look at what will be effective changes to the law and not just changes that make it look like they are doing something when in fact there is no evidence that minimum mandatory sentencing would work.
For all these reasons, the Australian Greens are moving an amendment to remove schedule 6 from the bill.
As indicated in the running sheet, Labor's amendment is identical to the Greens. I have elaborated previously on our reasons for wanting to see minimum mandatory sentencing removed. Indeed, we have had this debate here before, we have determined this matter before and it seems to be a pattern of behaviour from the Abbott government or maybe it is just the Attorney-General to keep presenting things back to the Senate that we have already previously determined.
I think the key point here is that we still have not heard anything new in the argument to justify introducing minimum mandatory sentencing. Senator Fierravanti-Wells said we have got a policy and we have had comes consultations with states and territories. With respect to Senator Fierravanti-Wells, that is not what we heard in the committee inquiry. With respect to the position of the states and territories, the state prosecutors and very significant stakeholders in this field are all saying we have significant problems here.
As Senator Wright indicated, we asked in the hearings: can you give us some cases at least which justify taking this approach. The Attorney-General's Department could not do so because their own guidelines recommend that they not do so. I do understand that the government took to the last election a policy position here but the key point here and the key point to the Senate yet again is that it was not a considered policy position and it was not a position that had been consulted adequately to make such significant changes with such significant effects. Whilst we were happy to support Senator Lazarus's amendment, without it succeeding in the Senate we revert to our previous position, which is that schedule 6 should be removed.