David Feeney (Batman, Australian Labor Party, Shadow Minister for Justice) Share this | Hansard source

I rise on behalf of the opposition to respond to these amendments, which have only just been given to me now. I am prepared to offer the support of the opposition for these two amendments, and I would like to speak very briefly about that, if I may.

I am supporting these amendments on the basis that, with respect to the first one concerning the exclusion of fungi and other natural items from the legislation, it is consistent with the Senate report into this matter. The debate was well ventilated in that report and I would commend it to the House.

In the second instance, I am supporting this on the basis that, as I comprehend it—and I just want to be absolutely clear about my intent—by adding the Victorian and Queensland anticorruption bodies to the bill, we are ensuring that this legislation enables the authorities to access tax returns in those jurisdictions on the same basis that tax returns may be accessed in other Australian jurisdictions. On that basis, I am happy to offer the opposition's support.

Question agreed to.

by leave—I move opposition amendments that stand in my name and have been circulated in the House:

(1) Schedule 2, item 14, page 16 (lines 17 to 24), omit the item.

(2) Schedule 2, item 18, page 21 (lines 13 to 18), omit section 361.5.

These amendments would have the effect of removing those parts of the bill that prescribe a mandatory minimum sentencing requirement. The regulation of firearms in Australia is primarily a state and territory matter. However, the Commonwealth has a longstanding role in regulating the import and export of firearms and firearms parts. The controversial element of this bill, insofar as the Labor Party is concerned, is the introduction for the first time of mandatory minimum sentencing.

The parliamentary secretary, in that small part of his presentation when he was not reading from his notes, alluded to the heritage of this fine upstanding piece of legislation—that heritage, of course, being that it is a Labor initiative and Labor bill.

The coalition have changed one element, and that one element I seek to contest now. Labor introduced, as part of its bill in 2012, a maximum penalty for these offences of life imprisonment. That was a significant improvement on what had preceded it. This would make the maximum penalty for trafficking in firearms the same as the maximum penalty for trafficking in drugs. Our view is that that was utterly appropriate. It was designed to send a very strong message that trafficking large numbers of illegal firearms is just as dangerous and potentially deadly as trafficking large amounts of illegal drugs, and the same maximum penalty should apply.

The Senate Legal and Constitutional Affairs Legislation Committee conducted an inquiry into this bill and tabled a report on 2 September 2014. There, Labor senators agreed with the majority of the report except for the recommendations made in respect of the proposed mandatory minimum sentences for firearm traffic offences. We wish to draw attention to the strong opposition of the peak law organisations and state prosecutors who submitted evidence to that inquiry in respect of mandatory minimum sentencing.

Labor also wishes to highlight that the guide to framing Commonwealth offences, infringement notices and enforcement powers produced by the Attorney-General's Department states that minimum penalties should be avoided. This is because they interfere with judicial discretion to impose a penalty appropriate in the circumstances of a particular case, may create an incentive for a defendant to fight charges even where there is little merit in doing so, preclude the use of alternative sanctions such as community service orders that would otherwise be available in part 1B of the Crimes Act 1914, and lastly may encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions.

The fact that this government has ignored its own recommendations in this should surprise no-one given their failure to support their own promises in every other field of public policy. Nonetheless, Labor is of the view that the imposition of mandatory minimum sentences for firearms-trafficking offences should be avoided. The better approach would be to implement a regime of penalties for firearms-trafficking offences reflecting the approach proposed by Labor when it was in government.

In November 2012, the then Labor government introduced the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 into the House of Representatives. This bill, which lapsed in the Senate at the end of the 43rd Parliament, expanded existing cross-border firearms-trafficking offences in the Criminal Code 1995 and introduced new international firearms-trafficking offences. It introduced new aggregated offences for dealing in 50 or more firearms and firearm parts. It was intended that the new basic offences would attract a penalty of 10 years imprisonment, consistent with existing firearms-trafficking offences; however, it was proposed that the aggregated offences would attract a higher penalty of life imprisonment. As I said earlier, the same maximum penalty applied to drug trafficking. In the words of the then Minister for Justice, 'This would send a very strong message that trafficking in firearms and the violence it creates will not be tolerated.'

Labor senators urge the government to adopt a similar sentencing regime in relation to the proposed firearms-trafficking offences. We believe this would still send a very powerful message to criminals, but avoid the issues associated with mandatory minimum sentencing and better preserve judicial discretion as outlined so eloquently in the government's own framework documents

While there is no evidence that mandatory sentencing laws will have a deterrent effect, there is very 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, often leading to longer, more contested and more costly trials. The opposition has moved these amendments consistent with this very strongly-held view.

I finish on the note that is laid out in the Australian Labor Party's national platform that it is the strongly-held view of my party that mandatory minimum sentencing is often discriminatory in practice and has not proved effective in reducing crime or criminality, and so we oppose mandatory sentencing and detention regimes. I commend the amendments to the House.

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