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

Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

In moving these amendments, the shadow minister for justice has confirmed what we already know: Labor is soft on crime and soft on criminals. To take away schedules 5 and 6 from this bill will take away the tools that our police and the DPP need to prosecute crooks. We are opposing these amendments because we have been advised by our operational agencies that they are needed to tackle the threat of serious and organised crime.

We know that Labor have got form on this. When they were in office for six years they degraded the ability of our policing agencies to do their job. The Crime Commission, in particular, our most powerful law enforcement agency, were savaged by the previous government. They had their budget cut by one-third; they had their personnel cut by one-third. There were cuts to the Australian Federal Police, to other Australian law enforcement agencies and to Customs that actually allowed more illicit guns to come into the community. The Labor Party have form on this. And to remove schedules 5 and 6 is another example that they cannot be trusted to protect the Australian community from serious and organised crime.

Exactly the same thing has been done with the amendments in the bill that have been moved in the other place. Amendments to remove schedules 5 and 6 have just been moved by the shadow minister for justice here in this House but, in the Senate, they have been moved by the Australian Greens. So the Labor Party joins with the Australian Greens in stopping reforms that our law enforcement agencies need in order to do their jobs to tackle serious and organised crime.

Removing schedule 5 will remove the concept of 'knowingly concerned,' which has previously been included in the Commonwealth Crimes Act. The DPP have advised us that the absence of the term 'knowingly concerned' is a significant impediment to their ability to effectively investigate and prosecute individuals who have intentionally involved themselves in a crime but who are disconnected from the physical aspects of the offence.

These issues become worse because of modern technology that allows offenders to, increasingly, participate in crimes in remote ways—for example, by engaging with co-defenders or conducting offences online. The CDPP has advised that the inclusion of 'knowingly concerned' would be particularly helpful in prosecuting serious and organised criminal activity. Why is that the case? Because the kingpins of crime, the serious and organised criminals, are smart enough to remove themselves from the physical aspects of the offence. So for the DPP to go after the kingpins of crime, the serious and organised criminals, they need this schedule—the application of 'knowingly concerned'—in the bill, to do their job of catching crooks. This is something that the Labor Party now wants to deny them.

The bill will support our law enforcement agencies and the CDPP, by ensuring that people who knowingly support and enable crimes, such as the importation of drugs, fraud and insider trading, will actually be held responsible, despite the fact that they were not the person taking direct delivery of the drug, handing over the money or forging the signature. Removing schedule 5 from the bill removes the ability of our agencies to do their job. I am really astonished that the Labor Party would take the same position as the Australian Greens, who are complete outliers on things to do with the safety of the Australian community. The fact that Labor have taken that position, I think, tells you everything about where they stand on these issues.

If I can move on to schedule 6, which the opposition also wants to remove from the bill. Schedule 6 imposes mandatory minimum sentences for firearms trafficking. We want to impose mandatory sentencing because we believe that it sends the strongest possible signal that we will not tolerate gun crime. One illegal gun in the community can do enormous damage. We want to ensure that, if you are smuggling guns, you will face the full force of Australian law. A good way of ensuring that that is the case is to send the message that, if you smuggle guns or gun parts, you will face a minimum sentence. The amendments will be significant in our fight against organised crime. Regardless of the number of articles that have been trafficked, it is necessary for us to enforce substantial penalties for all trafficking offences, with the aim of preventing even one more gun from moving into the illicit firearms market.

We consider that it is appropriate to introduce minimum sentencing of five years. (Extension of time granted) We believe the introduction of a mandatory minimum sentence will act as a strong disincentive for people seeking to illegally import and export firearms, and firearms parts, in and out of Australia. A similar view is being taken by the government of the United Kingdom, which has also introduced mandatory minimum sentences for firearms trafficking offences.

In seeking to move amendments that remove schedules 5 and 6 from this bill, the Labor Party are signalling in the strongest possible way that they have learnt nothing from their period in government. They did not prioritise the safety of the Australian people. They consistently took resources away from our policing agencies. They consistently had a record of not standing up against organised and serious crime. Frankly, were these amendments to be passed, it would neuter some of the most effective and important aspects of this bill, a bill that is important to tackle serious and organised crime around Australia.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

The question is that the amendments be agreed to.

Michael Keenan (Stirling, Liberal Party, Minister for Justice) Share this | Link to this | Hansard source

I present the replacement explanatory memorandum for this bill.