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

by leave—I move amendments (1) and (2), as circulated in my name, together:

(1) Schedule 5, page 10 (lines 1 to 26), omit the Schedule.

(2) Schedule 6, page 11 (lines 1 to 23), omit the Schedule.

I rise to speak to Labor's concerns about two of the proposed elements found in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. Labor is concerned about the insertion of 'knowingly concerned' as a secondary form of criminal liability, and the introduction of mandatory minimum sentences for firearms trafficking offences.

As detailed in my speech on the second reading, we note the strong opposition held by peak law organisations with respect to these amendments, and we note the lack of consultation that has occurred with respect to this bill. Not only has the government failed to engage with stakeholders with regard to these amendments, but 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 addressed 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 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 a full consultation in relation to any proposed general change to the Model Criminal Code. As the Australian Human Rights Commission noted in a 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 and, indeed, this has already occurred in relation to a number of offences in Commonwealth legislation.

Let me now turn to the issue of mandatory minimum sentencing. 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, where we successfully removed mandatory minimum sentencing for the trafficking of firearms into Australia. In 2012, Labor introduced legislation that would have increased the maximum penalty for firearms trafficking to life imprisonment, and that would have made it the same maximum penalty as presently exists for drug trafficking. Whilst Labor supports the government's intention 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 would avoid the issues and the perverse consequences that are 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 these provisions have already been considered and rejected by the parliament and that the government has failed, yet again, to justify the need for these provisions. The Senate Committee on Legal and Constitutional Affairs 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 in 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 that they 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.

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 cannot support the bill 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. We also 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.

The opposition will move amendments in this House to remove schedules 5 and 6 of the bill, which would introduce the concept of knowingly concerned as a secondary form of criminal liability and the imposition of mandatory minimum sentencing. I commend our amendments to the House.

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