Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

Thank you, Cobby, for continuing on there. I was very interested to hear about you and your use of firearms.

Having worked and advocated for police for many years, I know about the issue of firearm trafficking in this country. In fact, 15 years ago in my electorate of Fowler, Cabramatta—which is at the centre—was not only the heroin capital of the country but also the firearms exchange of our nation. For law enforcement agencies, firearms trafficking is very, very significant. I cannot remember the number of firearms in use in this country, but the last time I saw indications from the Institute of Criminology, I think there were one-point-something million firearms supposedly in the hands of about 300,000 registered firearm users. The truth is that the number of firearms in our community varies greatly because of illegal trafficking of firearms. It is a pretty well-known fact that many of the firearms that come from outside the country originate through the Chinese market, but the vast majority of trafficking of firearms in this country occurs by theft. Theft on police officers is certainly one but security guards and others are main targets for people trying to access illegal firearms.

There are many other variants of trafficking firearms—for instance, people manufacturing firearms. I recall when I was a young fellow that it was common to see if you could make a firearm using crackers. I am sure that does not happen these days, but making a 'bunger gun', as I think they used to be called, and giving it to somebody would actually be caught by this legislation. You might say that if you were a minor it would not have any great impact. Maybe the police would not act on it; maybe they would exercise their discretion. But under the provisions that are being put forward tonight, there would be no discretion other than the police deciding not to act. Certainly if the matter were to be prosecuted it would be an in issue of mandatory sentencing. That is where I would like to start.

There are a whole lot of variations, and any of those opposite who have had the opportunity to appear in court will know that every case is different. Cases might fall into similar categories but they are individually different. The very purpose of this bill is to amend the Criminal Code to set mandatory sentence penalties as well as penalties for offences in trafficking firearms parts under division 360 of the Criminal Code—that is for trafficking within Australia—and trafficking firearms within and without Australia under division 361 of the Criminal Code. Under the provisions of this bill, the following penalties would apply for each of those offences: a mandatory minimum sentence of imprisonment for five years and a maximum penalty of imprisonment for 20 years or a fine of 5,000 penalty points, or both.

The basis for the government bringing this legislation here tonight is that they are, in my opinion, labouring under the belief that mandatory sentencing serves as a deterrent and that it would cause individuals to rethink their actions before entering into the illegal conduct. As I said, I had the opportunity to represent police officers in this country for many years, and I know that most of the people I would represent would ordinarily say that mandatory sentencing is a good thing. I think the police are from time to time amazed about how tough we can be on crime. I think one of the things that underpins this is that there is no evidence that mandatory sentencing has acted to deter any category of crime in this country. Mandatory sentencing is not a new thing; it seems to occur when politicians want to act tough and do something when they are not really doing anything, so we impose mandatory sentencing and therefore our courts will apply it and it looks like we are tough on crime. I do not think that is the way we should be looking at this.

There are a couple of things that, for me, sets a lot of our criminal justice system apart from what applies in many parts of the world. Firstly, we do have a system that operates without fear or favour, and that is something to be very proud of. We have a jury system that, in the main, works very effectively. But there is plenty of anecdotal evidence that, in a jury system, when mandatory sentencing is applied it is very easy for a juror to take the view that 'If I do this, this is the absolute consequence. I know that in finding someone guilty I, not the judge, am going to impose the mandatory sentence.' That probably gives the opportunity for a jury to opt to find person guilty on a lesser charge and not the one that requires mandatory sentencing. I put that forward as an issue that could have the impact of undermining the application of criminal justice through our system and one which relies on the orderly function of a jury.

It is simply a matter of record that we on this side of the House have opposed mandatory sentencing on a number of occasions. In February last year we successfully moved amendments in the Senate to remove the introduction of mandatory sentencing from the government's Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. In August last year we again successfully moved amendments to remove the introduction of mandatory sentencing from the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. It was not simply an issue of politics and having a position opposite to that of the government that drove that But it is an underpinning view if not a very clear philosophical position of Labor that we believe in the proper functioning of our criminal justice system.

Unlike other state players, we do not have a system where we hand-pick judges from some predetermined list. As I said earlier, we can pride ourselves in a judicial system which works without fear or favour. Yet what we are trying to do is to hamstring the application of justice in those criminal proceedings—in this case, in respect of the traffic of firearms—and to hamstring judges. And judges apply sentencing after someone is found guilty.

I just want to make the connection from a jury feeling that they are not only finding a person guilty but also, in fact, by that, imposing a mandatory minimum sentence themselves, to a judge who can weigh the circumstances upon which a person has been found guilty. As I said at the outset, those of us who have appeared in courts know that there will be individual case matters that need to be considered on each and every occasion.

So we disagree with the government that this will add to, in this case, the reduction of firearms trafficking. I do not think it will add to the abilities of our police, who do a sterling job out there at the moment; they need every assistance they can get, but I do not think this will do anything to assist them in chasing down those who want to become involved in firearms trafficking for various reasons.

The mere notion that there is a mandatory minimum sentence is hardly likely to dissuade a criminal enterprise or criminal entities from getting involved. And, where people are apprehended, it also may affect whether they enter into a plea of guilty. It has been a long while since I looked at the criminal justice system but, as I recall it, in somewhere around 75 per cent or possibly 80 per cent of cases—brought by either the police directly or the departments of public prosecution operating in each of the state and territory jurisdictions—people handed in pleas of guilty. People will plead that way and then eventually seek to mitigate their involvement, with a view to sentence provisions. If the only prospect is of a mandatory sentence applying, there is no great utility in the accused pleading guilty; they may as well let the prosecution and the police run their case.

So I just think that this is not good policy. I do not think it has been good policy in previous attempts by the government to bring this into other pieces of legislation. I do not think it adds to the protection of our community, and I do not think it adds to our criminal justice system. For those reasons, I oppose what the government intends to do here. I am happy to support any measures the government brings forward that will impact on the criminal justice system in a positive way, and more than happy to be working in partnership with the government and the minister at the table if they want to bring forward legislation to enhance our crime-fighting ability throughout the country.

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