David Shoebridge (NSW, Australian Greens) Share this | Hansard source

We're in a remarkable position here. The Labor government introduced the initial bill that had enormous support across the community that was an actual response to some of the appalling racist attacks that we've seen against the Jewish community, particularly in my home city of Sydney, and that would have dealt with some of the ongoing, persistent and appalling attacks against the LGBTQI+ community and would have given some comfort to those in our multicultural community who have been attacked because of their Muslim faith. There was an opportunity here to present legislation that would have brought us together and established real and important protections that would have promoted community safety and could have stepped against division. It had gone through good process and had been well considered. Then, because they have been led by the noes of the coalition in their ongoing, divisive, aggressive, far-right, Trumpian attack on basic things like the rule of law and common decency in politics—because they've been dragged there by the coalition—they decided at midnight last night to ram into this legislation a whole series of noxious, unwarranted, damaging provisions about criminal penalties with mandatory minimum sentences.

Labor has taken something good that we knew would work and that had widespread support amongst the legal fraternity and communities across the country and rammed into it mandatory minimum sentences because they're scared of the coalition. They are running scared. We have a government that is being driven by the opposition and is scared of standing up for what they know is right.

We know that thousands and thousands of Labor Party members are offended by what the Albanese government is doing, because they've included it—forced it on Labor politicians—in Labor's own policy platform. Labor's own policy platform rightfully opposes mandatory sentences. I'll read it:

Labor opposes mandatory sentencing. This practice does not reduce crime but does undermine the independence of the judiciary, lead to unjust outcomes and is often discriminatory in practice.

Time after time in the last 12 months we've had elected Labor senators and members of parliament come out and say they oppose mandatory sentencing because it tears down the independence of judiciary and replaces careful consideration by a judge who can take all the circumstances of someone's life and the nature of the offending into account and craft a sentence that is just. It destroys the independence of judiciary and replaces a judge's opinion with that of a politician when it comes to criminal sentencing. They've said it time after time, and every time that has been right, because mandatory sentencing attacks the independence of judiciary. It tears down one of the core tenets of our society that I thought this place would unite around—rule of law and having penalties decided not by politicians but by judges. But, because they are so utterly spineless and utterly unable to make a principled argument and take a stand against the opposition, they caved in during the small hours of last night.

It's not just Labor's own platform. I want to be clear that the Greens' platform has said consistently that we will oppose mandatory sentencing. In 2020, the Law Council of Australia—not exactly the most left-wing organisation in the country—said:

Mandatory minimum sentences are abhorrent to the whole notion of sentencing where judicial discretion is essential and can result in perverse jury decisions …

What does that last bit—perverse jury decisions—mean? That means that if you want to put people who have committed these offences behind bars then don't do mandatory sentencing. If the jury knows that this person is absolutely going to go to jail for six years or seven years or whatever the mandatory minimum is and they're a bit troubled about the nature of the evidence—they may be thinking, 'Well, it wasn't that bad' or whatever a jury might be thinking about the issue in front of them—then, the Law Council is saying, there will inevitably be fewer convictions. I'd say that applies not just to juries but to judges as well. The courts are much more likely to put a really strict interpretation on each and every element of the offence if they know that at the end of it they have no discretion on sentencing and must put the person in jail for six years.

So we have the coalition beating their chest and saying mandatory minimum sentences are going to keep the community safe, when all the evidence we have says it won't; it will do the exact opposite. It will make it harder to get convictions. It will certainly mean far more trials are contested, because who on earth would cop a plea if they're going to get a mandatory minimum sentence? It's far less likely you'll have people cooperating with the police, and, in relation to the number of incidents where both the AFP and the New South Wales police say they're not sure who is funding or causing these individuals to do these appalling attacks—you may have some career criminal who is being directed by a foreign agent or by someone locally; the career criminal commits the offence—if you have a mandatory sentence, what incentive is there for them to cooperate and tell who actually funded them and where the directions came from, because, win, lose or draw, they're going to jail for six years mandatory minimum? It makes it far harder for police.

We know what works in this space—working with communities, listening to the evidence, joining this country together, not dividing it like this. Labor and the coalition between them have turned something that could have absolutely united us all in fighting against antisemitism, in fighting against racism, in fighting against intolerance to the LGBTQ community into this ugly, nasty bit of politics. There is something rotten in the way the two major parties in this country ignore the evidence, drive this toxic politics and create bad laws like this with no scrutiny.

The Greens know there are elements, particularly in the original bill, that are essential to deal with some of the hate crimes that we're seeing. We'll take some measurable good. We've been trying to say to the government, 'Work with the rest of the chamber here, the diversity of the crossbench, and don't just be dragged by Peter Dutton to the single lowest common denominator.' But Labor can't help themselves, can they? They just can't help themselves. They keep surrendering time after time. There's no principle that they won't sully, and that's why we're here with these mandatory minimums. We know mandatory minimums won't work. We know they're going to fight against all of the purported intent of this bill. Shame on you both for doing this.