Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I welcome the opportunity to address this legislation, because it is fundamentally flawed. The minister does need to take into account the views of the legal profession, in particular the concerns that have been expressed by the New South Wales Director of Public Prosecutions, the Tasmanian Director of Public Prosecutions, the Australian Human Rights Commission and Law Society of New South Wales. We know that the legal profession as a whole, in a single voice, oppose minimum mandatory sentences, and we know why that is the case: because they simply do not work. We know that they are not capable of putting people in jail, because the juries do not convict. We know that, where there is an opportunity for a judge to exercise sentencing discretion, the justice of the case can be met. We know that, where you impose a mandatory minimum sentence, you can't take into account the individual circumstances of the case—the justice, that is, that has been handed out by the judiciary for nearly a thousand years. It's vitally important that we respect the separation of powers and that we reserve to the judiciary the power to adjudge as to the sentence, taking into account the maximum sentence, which of course will be determined by this place.

The Labor proposal is that we absolutely condemn gun running and gun smuggling by increasing the maximum sentence. That sends the appropriate message to the judiciary and the general public that we are very strongly against gun smuggling. But the answer is never—never—to impose mandatory minimum sentencing. The experience wherever mandatory minimum sentencing is imposed is that it is unsuccessful. It is not capable of dealing with the evil that it is designed to combat. We know that the incentive for a defendant facing a mandatory minimum sentence is to fight the charge. We know that—when it comes to a question of fettering the discretion that's available to a judge, whether it's admitting somebody to bail or dealing with an issue of the sentence—the judge needs to have regard to all of the circumstances, particularly the circumstances of the commission of the offence and the personal circumstances of the defendant.

This is not the way to deal with the evil of gun trafficking. We know that the examples that have been given by the Law Council of Australia provide powerful evidence of the injustice that will be visited upon any defendant that is facing a mandatory minimum sentence.

Before I was interrupted, I gave an example of a prominent businessman who exported gunpowder cartridges, primer and propellant from Australia to Papua New Guinea without a permit, when the Lae Pistol Club was short of ammunition after the defendant's home in Lae, where the club's ammunition was stored, was destroyed in a fire. The defendant disguised the export in order to try to get the items into Papua New Guinea quickly. The magistrate who sentenced him accepted that he was a passionate sporting shooter and was only motivated to assist the club. All of the ingredients are there to enable that defendant to be sentenced to a minimum mandatory term of five years under this legislation.

We know that the circumstances of the case need to be taken into account in determining what a just sentence is for the individual circumstances of the case. We know that this justice minister—this justice minister with a tin ear—needs to be listening to the legal profession. He needs to be concerned about the principles that are involved here, rather than base politics.

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