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

Thank you very much, Mr Speaker. I join with others in congratulating you on your unanimous election as Speaker of this House.

I rise to speak on this bill, which contains a range of measures to improve the Commonwealth's criminal justice arrangements, including amendments to: improve the operation and effectiveness of the serious drug and precursor offences in part 9.1 of the Criminal Code Act 1995, the Criminal Code; to amend the Criminal Code to clarify the war crime offence of 'outrages upon personal dignity' in a non-international armed conflict; to expand the definition of 'forced marriage' in the Criminal Code to include circumstances in which a victim does not freely and fully consent because he or she is incapable of understanding the nature and effect of a marriage ceremony; to increase the penalties for the forced marriage offences in the Criminal Code to ensure they are commensurate with the most serious slavery-related facilitation offences; to rectify certain administrative inefficiencies, address certain legislative anomalies and clarify provisions in part 1B of the Crimes Act 1914 relating to federal offenders; to allow the interstate transfer of federal prisoners to occur at a location other than a prison; to facilitate information sharing about federal offenders between the Attorney-General's Department and relevant third-party agencies; to amend the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 to clarify and address enforceability issues and operational constraints identified by the Australian Transaction Reports and Analysis Centre, AUSTRAC; to allow the Integrity Commissioner to perform his or her functions more efficiently and effectively, while improving the general operation of the Law Enforcement Integrity Commissioner Act 2006; to amend the Australian Crime Commission Act 2002 to improve the efficiency and effectiveness of the Australian Crime Commission's special operations and investigations; 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; to further amend the Proceeds of Crime Act 2002 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; to give the Independent Commissioner Against Corruption in South Australia, whose office only became operational in September of 2013, the ability to access information from Commonwealth agencies, consistent with other anti-corruption bodies found in other states of our Commonwealth, defences for certain Commonwealth telecommunications offences and the ability to apply for certain types of search warrants; 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 in Queensland coming into force; to clarify when a variation to controlled operations would require deputy commissioner or commissioner approval, and 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; and, lastly, 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 to introduce mandatory minimum sentences of five years imprisonment for firearm trafficking.

While Labor supports the great majority of measures found in this bill, which will improve Commonwealth criminal justice arrangements, we have serious concerns about some of the proposed amendments and do not support the bill being passed in its current form. 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 in particular, 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 that arise 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 principle of the rule of law, a principle which requires that the Criminal Code 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 CDPP have both the resources and the powers to achieve this important objective. However, Labor is 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 the concept of 'knowingly concerned':

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 key stakeholders with regard to these amendments it has also 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 addresses the concerns raised without the need to include 'knowingly concerned'.

Labor believes that the proposed change in relation to the introduction of 'knowingly concerned' would be 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 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 Commonwealth and state offences. Uniformity is important for drug law offences where state and Commonwealth offences may well figure in the same trial. Labor do not oppose the introduction of the element 'knowingly concerned' in relation to individual offences in appropriate cases, and indeed this has already occurred in relation to a number of offences in Commonwealth legislation. As the Human Rights Commission noted in its submission to the Senate committee inquiry into the bill:

… it is difficult to anticipate the impact of extending this form of liability to all offences.

Labor cannot support schedule 5 of this bill in its current form. We urge the government to conduct a proper consultation process before proceeding any further with changes 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.

I turn to the question of mandatory minimum sentencing. Once again, alas, ideology has triumphed over rational public policy in this government. The 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. This is simply not the case.

In 2012, Labor introduced legislation that actually 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 15 years. The government has yet to explain why it is doing this. Minister Keenan's measures are also mostly symbolic, as they do not include specified nonparole 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 very little merit in doing so.

Labor wanted tougher penalties on gun trafficking, and the government has watered them down. Whilst Labor support the government's intention to protect the community from drug related violence, we urge the Abbott government to adopt a similar sentencing regime in relation to the proposed firearm-trafficking offences. This would send a strong message to serious criminals, but it avoids the issues the many fraught issues associated with mandatory minimum sentences.

This outburst from Tony Abbott is just another example of the Abbott government not listening to the experts or heeding the advice of those who understand the complexities and sensitivities of such cases. Labor maintain our 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 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'. 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 the 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 A guide toframing Commonwealth offences, infringement notices and enforcement powers, which 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 CDPP 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 firearm-trafficking offences with increased penalty provisions, as set out in the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012. That bill was introduced in November 2012 by the then Labor government and proposed the introduction of new aggregated offences for firearms 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.

I thank the House.

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