Matt Keogh (Burt, Australian Labor Party) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2017. We're here again on this legislation because the government is more focused on political pointscoring than good public policy to protect our community. We could have had such good law if the government had agreed some two years ago, but alas its bloody-mindedness delivers us back here today.

The Labor Party and I support tougher penalties for firearm trafficking, but mandatory sentencing is an ineffective measure. Labor has consistently opposed the use of mandatory sentencing regimes for firearm trafficking, as in other cases. This is because these sorts of regimes impose unacceptable restrictions on judicial discretion and independence and undermine the fundamental rule-of-law principles. The rule of law underpins Australia's legal system and ensures that everyone, including governments, is subjected to the law and that citizens are protected from arbitrary abuses of power.

Mandatory sentencing is also inconsistent with Australia's voluntarily assumed international human rights obligations. Back in 2015, Labor successfully moved amendments in the Senate to remove the introduction of mandatory minimum sentences contained in the government's Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. Later, Labor successfully moved amendments to remove the introduction of mandatory minimum sentencing in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015.

Now the coalition government has introduced the Criminal Code Amendment (Firearms Trafficking) Bill 2017, which would see the introduction of mandatory minimum sentencing for those found guilty of trafficking illegal firearms. The Australian Labor Party maintains its position that the introduction of these minimum sentences should be avoided. These provisions have now been considered three times and rejected three times by this parliament, including by this parliament in relation to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. The government has, for a fourth time, failed to justify the need for these proposed provisions. The reintroduction of these measures is a desperate attempt by the government to distract from the fact that it is hopelessly divided on the issue of guns. Labor has proposed amendments to introduce new offences for aggravated firearm-trafficking offences, with maximum sentences of life in prison.

Mandatory sentencing laws are arbitrary, and they limit an individual's right to justice by preventing judges from imposing an appropriate penalty based on the unique circumstances of each offender and of each offence. Such regimes are costly, and there is a lack of evidence as to their effectiveness as a deterrent and their ability to reduce crime. Mandatory sentencing results in unjust, harsh and disproportionate sentences where the punishment does not fit the crime. It is not possible for parliament to know in advance whether a minimum mandatory penalty will be just and appropriate across the full range of circumstances in which an offence may be committed. There are already numerous reported examples of mandatory sentences that have been handed down and applied with anomalous and unjust results. When adopted, mandatory sentencing fails to produce convincing evidence to demonstrate that increases of these sorts of penalties actually deter any crime. It also has the potential to increase the likelihood of recidivism because prisoners are placed in a learning environment for crime when they otherwise would not be, which reinforces a criminal identity and fails to address the underlying causes of the crime.

The minister's own department says that mandatory sentences may create an incentive for a defendant to fight charges even in hopeless cases. The Attorney-General's Department document Guide to framing Commonwealth offences, infringement notices and enforcement powers states at 3.1 that minimum penalties should be avoided. Of course, this is just another example of the government failing to follow its own policy. This, of course, is because such sentences interfere with judicial discretion to impose a penalty appropriate to the circumstances of the case; they create an incentive for a defendant to fight the charges even when there is little merit in doing so; they preclude the use of alternative sanctions, such as a community service order, that would otherwise be available under the Crimes Act; they encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to quite anomalous decisions and outcomes; and they even serve to encourage law enforcement to prefer lesser charges in order to avoid perverse results.

The Senate Legal and Constitutional Affairs Legislation Committee received evidence from a number of stakeholders in inquiries for the two previous bills that strongly opposed the introduction of these amendments. The Law Council of Australia said that it had consistently opposed the use of mandatory sentencing regimes because mandatory sentencing regimes undermine fundamental principles underpinning the independence of the judiciary and the rule of law. Those are not just words; they are meaningful points about the foundation of our democracy in this country. The Australian Human Rights Commission said that they had concerns with mandatory sentencing because it could 'run counter to the fundamental principle that punishment for criminal offences should fit the crime'. How can anyone actually argue against that proposition? State prosecutors also had concerns that these provisions could lead to unjust results and impose a significant burden on the justice system itself.

Public safety is incredibly important, and we should be doing what we can at all stages to promote the reduction of crime, but when we stack up the evidence it becomes clear that mandatory sentencing in this regard simply doesn't work. Proponents of mandatory sentencing argue that, when faced with knowing that they would go to prison, potential offenders would not commit such crimes. While a superficially attractive argument—superficial like all of this government's policies, in fact—the fault in this argument comes down to the idea of knowing. What they never appreciate is that the people involved in such crimes do so with the supreme belief that they won't get caught. The reality is that the penalties that the offenders would confront if they thought they'd get caught are already sufficient to deter and will be more so with the increase in maximum sentences that we propose. Such crimes are committed by those who don't think that they are going to get caught. So, no, it is not the case that potential offenders know what they may face, nor do they care. Mandatory sentencing also removes the discretion of a judge to take into account particular circumstances and removes any incentive for the defendant to plead guilty, which leads to longer, more contested and more costly trials for the state. It also means that witnesses have to be brought before the court when they otherwise would not necessarily have had to be.

In a classic from the minister for overreach, the member for Stirling, when he was speaking yesterday on the bill, he spoke about the need for mandatory minimums to 'guarantee the judiciary will impose an appropriate minimum sentence'. I have this to say to the minister: increasing maximums will result in higher sentences. The task of sentencing is that justice be done in all the circumstances, and mandatory minimums inhibit that. Criticising the appropriateness of sentences was tried by some of your ministerial colleagues recently, and the minister would be well advised for once to try not to overreach in this area and be a little bit more circumspect in the way in which he refers to the job of the third arm of government, the judiciary. Such critiques of our judiciary actually risk undermining confidence in our judicial system, and they further demonstrate the minister's own lack of understanding of the criminal justice system. For the Minister for Justice, you would think it might be useful to at least have a passing understanding of how it all works. However, such a high level of competence appears to be all too much for this government to muster in this and many other portfolios.

The Australian Labor Party maintains its opposition to mandatory sentencing for firearms. We note these provisions have already been considered and rejected by parliament numerous times, and the government has failed to justify the need for such provisions now.

Imprisonment also has to be recognised as being very expensive. With all this talk of debt and deficit, you would think that the government would think twice before coming up with a policy that is costly and ineffective. It costs more than $350 a day to keep a person in jail and more than $600 a day to keep a juvenile in detention. In states where mandatory sentencing has operated for the longest period of time—unfortunately often my own state of Western Australia—taxpayers are forced to cover the cost of higher rates of imprisonment. In 2013, the Senate Legal and Constitutional Affairs References Committee found that, while crime rates had declined in Australia, the rate of imprisonment had actually increased. The committee considered that one of the factors contributing to the increased rate of incarceration was the introduction of mandatory sentencing regimes. I can only surmise that, as these costs are actually borne by the states and not the Commonwealth, the government just doesn't care.

As I said before, the reality is that this legislation is more about politics than policy. Last year, the government lost control of its members on the issue of guns. Tony Abbott, the member for Warringah, and the member for Wentworth were willing to let the dangerous Adler A110 lever-action shotgun into Australia in exchange for a vote in the Senate. The National Party voted to let an incredibly dangerous firearm into Australia, causing a split between the Nationals and the Liberals on the floor of our Senate. The Deputy Prime Minister—for now—Barnaby Joyce, contradicted the Prime Minister's position on guns, even on national television.

What's worse is that members of the coalition, members of the Prime Minister's own party, then came out in favour of weaker gun laws. Under the Liberal government's watch, a record number of weapons have entered the black market here in Australia. The Australian Criminal Intelligence Commission estimates that currently there are more than 260,000 firearms in the illicit firearms market and possibly as many as 600,000. They estimate that 10,000 of these are handguns. Yet these proposals put forward by the Abbott and Turnbull governments to tackle firearm trafficking contain maximum sentences of only 20 years.

The Turnbull government's proposed measures are an ineffective and expensive distraction from its disastrous record on firearms. Prosecutors should be able to pursue higher penalties in the worst gun-trafficking cases, and we support that. We are seeking to amend this bill to implement the provisions which we proposed when we were in government—an aggravated offence for firearm trafficking with a maximum sentence of life imprisonment, the same as the maximum penalty for drug trafficking; and new aggravated offences for people who traffic 50 or more firearms or firearm parts either within Australia or across our borders in a six-month period, for which the maximum penalty would be life imprisonment. This will actually send a strong message that trafficking firearms, and the violence and destruction it creates in our community, will not be tolerated—as opposed to the petty politicking that is being played by the 'Minister for Overreach', the Minister for Justice in this government.

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