Josh Frydenberg (Kooyong, Liberal Party) Share this | Link to this | Hansard source

by leave—I move government amendments (1) and (2) together.

(1) Schedule 1, item 1, page 6 (after line 33), after paragraph 320.2(2)(i), insert:

  (ia) a plant or fungus, or an extract from a plant or fungus; or

(2) Schedule 6, page 39 (before line 3), before item 1, insert:

Anti -Money Laundering and Counter -Terrorism Financing Act 2006

1A Section 5 (after paragraph (s) of the definition of designated agency )

  Insert:

  (sa) the Independent Broad-based Anti-corruption Commission of Victoria; or

1B Section 5 (paragraph (t) of the definition of designated agency )

  Repeal the paragraph, substitute:

  (t) the Crime and Corruption Commission of Queensland; or

1C After paragraph 122(3)(g)

  Insert:

  (ga) if the entrusted investigating official is the Commissioner of Taxation or a taxation officer—the disclosure is:

     (i) of information relating to a communication under section 43 or 45; and

     (ii) for the purposes of, or in connection with, the performance of the entrusted investigating official's duties;

1D After subsection 122(3)

  Insert:

  (3A) Without limiting subparagraph (3)(ga)(ii), a disclosure for the purposes of, or in connection with, the performance of an entrusted investigating official's duties includes a disclosure of a kind mentioned in subsection 355-50(2) in Schedule 1 to the Taxation Administration Act 1953.

1E Application of amendments

  The amendments made by items 1C and 1D apply to disclosures of information on or after the commencement of those items (whenever the information was given under section 49 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006).

I propose two amendments to the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. The first amendment will specifically exclude plants, fungi and their extracts from the ban on the importation of psychoactive substances in schedule 1 of the bill. This amendment will address issues raised by the Senate Legal and Constitutional Affairs Legislation Committee in its report on the bill. The ban is intended to stop people from importing new synthetic versions of known drugs. While it was highly unlikely that Customs or AFP officers would stop and seize innocuous plants, herbs and fungi under the original provisions contained in the bill, these amendments will give importers of harmless substances greater certainty that the ban will not inadvertently affect them.

The second amendment will enhance Australia's anti-money laundering regime through amendments to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. The amendments will provide legislative certainty for the Australian Taxation Office to raise taxation assessments when it uses information obtained under section 49 of the AML/CTF Act to match taxpayers with funds entering or leaving Australia. This will enhance the ATO's ability to catch tax cheats and will bolster the budget's bottom line.

This government is committed to fighting corruption wherever it lies. The amendments will enable the Victorian Independent Broad-based Anti-corruption Commission—IBAC—to assess financial intelligence to more effectively investigate corruption, as well as replace the Crime and Misconduct Commission of Queensland with the Crime and Corruption Commission of Queensland in the list of agencies permitted to access financial intelligence.

The minister has also approved minor additions to the explanatory memorandum of the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. In addition, schedule 2—which relates to firearm offences—was made in response to concerns raised by the Legal and Constitutional Affairs Legislation Committee and the Parliamentary Joint Committee on Human Rights. The explanatory memorandum has been amended to reflect that the new mandatory minimum sentence for firearms-trafficking offences is not intended as a guide to the nonparole period, which in some cases may differ significantly from the head sentence. The amendment emphasises the government's intention of preserving a court's discretion in sentencing.

The addition to schedule 5, relating to validating airport investigations, will provide additional information—in the statements of compatibility with human rights—about the bill's engagement with rights under the ICCPR to outline that the bill is compatible with those rights. The addition includes a discussion on the right to an effective remedy and the right to a fair trial and fair hearing rights, following recommendations received from the Parliamentary Joint Committee on Human Rights in its 10th report of the 44th Parliament about the bill. I recommend these amendments to the House.

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

I rise on behalf of the opposition to respond to these amendments, which have only just been given to me now. I am prepared to offer the support of the opposition for these two amendments, and I would like to speak very briefly about that, if I may.

I am supporting these amendments on the basis that, with respect to the first one concerning the exclusion of fungi and other natural items from the legislation, it is consistent with the Senate report into this matter. The debate was well ventilated in that report and I would commend it to the House.

In the second instance, I am supporting this on the basis that, as I comprehend it—and I just want to be absolutely clear about my intent—by adding the Victorian and Queensland anticorruption bodies to the bill, we are ensuring that this legislation enables the authorities to access tax returns in those jurisdictions on the same basis that tax returns may be accessed in other Australian jurisdictions. On that basis, I am happy to offer the opposition's support.

Question agreed to.

by leave—I move opposition amendments that stand in my name and have been circulated in the House:

(1) Schedule 2, item 14, page 16 (lines 17 to 24), omit the item.

(2) Schedule 2, item 18, page 21 (lines 13 to 18), omit section 361.5.

These amendments would have the effect of removing those parts of the bill that prescribe a mandatory minimum sentencing requirement. The regulation of firearms in Australia is primarily a state and territory matter. However, the Commonwealth has a longstanding role in regulating the import and export of firearms and firearms parts. The controversial element of this bill, insofar as the Labor Party is concerned, is the introduction for the first time of mandatory minimum sentencing.

The parliamentary secretary, in that small part of his presentation when he was not reading from his notes, alluded to the heritage of this fine upstanding piece of legislation—that heritage, of course, being that it is a Labor initiative and Labor bill.

The coalition have changed one element, and that one element I seek to contest now. Labor introduced, as part of its bill in 2012, a maximum penalty for these offences of life imprisonment. That was a significant improvement on what had preceded it. This would make the maximum penalty for trafficking in firearms the same as the maximum penalty for trafficking in drugs. Our view is that that was utterly appropriate. It was designed to send a very strong message that trafficking large numbers of illegal firearms is just as dangerous and potentially deadly as trafficking large amounts of illegal drugs, and the same maximum penalty should apply.

The Senate Legal and Constitutional Affairs Legislation Committee conducted an inquiry into this bill and tabled a report on 2 September 2014. There, Labor senators agreed with the majority of the report except for the recommendations made in respect of the proposed mandatory minimum sentences for firearm traffic offences. We wish to draw attention to the strong opposition of the peak law organisations and state prosecutors who submitted evidence to that inquiry in respect of mandatory minimum sentencing.

Labor also wishes to highlight that the guide to framing Commonwealth offences, infringement notices and enforcement powers produced by the Attorney-General's Department states that minimum penalties should be avoided. This is because they interfere with judicial discretion to impose a penalty appropriate in the circumstances of a particular case, may create an incentive for a defendant to fight charges even where there is little merit in doing so, preclude the use of alternative sanctions such as community service orders that would otherwise be available in part 1B of the Crimes Act 1914, and lastly may encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions.

The fact that this government has ignored its own recommendations in this should surprise no-one given their failure to support their own promises in every other field of public policy. Nonetheless, Labor is of the view that the imposition of mandatory minimum sentences for firearms-trafficking offences should be avoided. The better approach would be to implement a regime of penalties for firearms-trafficking offences reflecting the approach proposed by Labor when it was in government.

In November 2012, the then Labor government introduced the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 into the House of Representatives. This bill, which lapsed in the Senate at the end of the 43rd Parliament, expanded existing cross-border firearms-trafficking offences in the Criminal Code 1995 and introduced new international firearms-trafficking offences. It introduced new aggregated offences for dealing in 50 or more firearms and firearm parts. It was intended that the new basic offences would attract a penalty of 10 years imprisonment, consistent with existing firearms-trafficking offences; however, it was proposed that the aggregated offences would attract a higher penalty of life imprisonment. As I said earlier, the same maximum penalty applied to drug trafficking. In the words of the then Minister for Justice, 'This would send a very strong message that trafficking in firearms and the violence it creates will not be tolerated.'

Labor senators urge the government to adopt a similar sentencing regime in relation to the proposed firearms-trafficking offences. We believe this would still send a very powerful message to criminals, but avoid the issues associated with mandatory minimum sentencing and better preserve judicial discretion as outlined so eloquently in the government's own framework documents

While there is no evidence that mandatory sentencing laws will have a deterrent effect, there is very 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, often leading to longer, more contested and more costly trials. The opposition has moved these amendments consistent with this very strongly-held view.

I finish on the note that is laid out in the Australian Labor Party's national platform that it is the strongly-held view of my party that mandatory minimum sentencing is often discriminatory in practice and has not proved effective in reducing crime or criminality, and so we oppose mandatory sentencing and detention regimes. I commend the amendments to the House.

Josh Frydenberg (Kooyong, Liberal Party) Share this | Link to this | Hansard source

We do not accept the opposition's amendments, and it is for a number of reasons. Firstly, we have a strong history of ensuring that the punishment fits the crime. In the event that we are talking about the trafficking of guns and the impact that that has on innocent members of our community, we believe that these mandatory minimum sentences are thereby appropriate. Secondly, it is not just occurring in the Australian jurisdiction; it has been adopted in other jurisdictions—namely, in the United Kingdom, where they have a mandatory minimum sentence of five years or three years for someone aged 16 or 17 who applies to the possession, acquisition, manufacture, sell and transfer. Also, if you look to Queensland, they have a mandatory minimum sentence of between 18 months and five years, all to be served in a corrective services facility. Thirdly, Labor's opposition, or Labor's amendments in this case, to our bill is based on the false understanding that if you have mandatory minimum sentences it prolongs the case of a trial. In fact, there is evidence to suggest that it does not lead to defendants not pleading guilty, because what it means is that you are now getting punishments that actually fit the crime, and we take into account what is the harm to the community of these gun offences. So it is that misguided view that the opposition has that the mandatory minimum penalties make trials longer and more stressful that we challenge here today.

Mr Feeney interjecting—

That is what we challenge here today. We do not support the opposition's amendments.

Russell Broadbent (McMillan, Liberal Party) Share this | Link to this | Hansard source

I put the question that the amendments now be agreed to.

Question negatived.

Original question agreed to.

Bill, as amended, agreed to.