Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2016 on behalf of the opposition and I indicate at the outset that, with amendments, the opposition will be supporting this bill. We welcome the chance to strengthen Australia's laws to combat firearms trafficking. There is a growing firearms problem in Australia, and there is growing gun crime in our communities. The Australian Criminal Intelligence Commission estimates that there are as many as 600,000 illicit firearms in the community. Once firearms fall into the illicit market, it is extremely difficult to get them back, and they can all too easily end up, as we know, in the hands of criminals, gangs and terrorists. We can and we must do more to tackle illicit firearms.

The Australian community rightly expects the government of the day to take responsible and effective steps to crack down on gun crime. On this measure, the government is failing the community. We saw this most clearly last year, when this government was at war with itself on firearms policy. It was a government so focused on its own internal division that it could not provide the leadership Australians expect their government to show on matters of community safety. Today we see the Turnbull government trying to distract the community from this division. When leadership is called for, what we see yet again is cheap politics. Instead of putting forward sensible measures which would address this problem, the government continues to put forward failed Abbott government measures in a desperate attempt to distract from the fact that it is hopelessly divided on guns.

The bill proposed by the government would see the introduction new mandatory minimum sentences of five years for the offences of trafficking firearms and firearms parts within Australia; and trafficking firearms and firearms parts into and out of Australia. It would also amend maximum penalties to imprisonment for 20 years or a fine of 5,000 penalty units or both.

This is the third time that this Liberal government has attempted to introduce mandatory minimum sentences for firearms-trafficking offences. On each previous occasion, the Senate has wisely rejected such measures, and I ask the Senate to consider doing so again. The opposition has circulated an amendment to remove the mandatory minimum penalties in this bill. The reason for this is very simple: mandatory minimum sentences do not work. State prosecutors, including the directors of public prosecutions in New South Wales and Tasmania, have criticised them. The legal profession is opposed to them. Experts agree they are ineffective in making the community safer. One would have hoped that that is the measure that the government of the day should apply, not cheap politics.

In fact, in its very own document, A guide to framing Commonwealth offences, infringement notices and enforcement powers, the Attorney-General's own department says that mandatory sentences should be avoided. In that document, Senator Brandis's department states that mandatory minimum sentences 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; and may encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions. And reviews of the implementation of such provisions confirm these concerns.

In December 2015, the Northern Territory Department of the Attorney-General and Justice published a review of the Northern Territory Sentencing Amendment (Mandatory Minimum Sentences) Act 2013. It was assessed that the introduction of mandatory minimum prison terms 'resulted in an increase in the length of time and number of court appearances required to finalise defendants who pled guilty, and may have contributed to a decrease in the percentage of defendants with a final guilty plea'. In other words, you tie up more of the court's time and get fewer outcomes. Not only do these measures drain precious law enforcement resources; they increase the chances of reoffending. It is therefore unsurprising that the government has been unable to provide any evidence in the EM to this bill to support the idea that mandatory minimum sentences for firearms trafficking will enhance or sustain Australia's firearm's control regime by deterring potential offenders.

Of course, this chamber and the Australian people have not forgotten that this government has been playing politics with our world-leading gun laws for more than a year. We all saw just how cynically the coalition could behave when we learnt that the government was trading guns for votes. Trying to use the mass importation of a rapid-fire lever-action for its own political gain has to be one of the low points over the last few years. It was a government willing to trade community safety for partisan advantage—a shameful episode. And, of course, when it suited them, the Turnbull government also welched on its deal with Senator Leyonhjelm. It broke its word to a senator and it failed in its most important duty: to ensure the safety of the Australian community.

Who can forget last year, when we saw Prime Minister Turnbull and his predecessor, Mr Abbott, openly contradict each other on the floor of the House of Representatives? Then, in this chamber, we saw the National Party split from the Liberals on the floor of the Senate, with cabinet ministers being very conveniently absent and Nationals senators voting to let a dangerous weapon into the country. On national television, we saw the Deputy Prime Minister, Mr Joyce, contradict Mr Turnbull's position. And we saw members of the government, including Senator McKenzie, Senator Williams, the member for Parkes, the member for Flynn and the member for Moore all calling for a weakening of our gun laws. This bitter division on guns, the way this has played into the Liberal—

Alex Gallacher (SA, Australian Labor Party) Share this | Link to this | Hansard source

Senator Wong, resume your seat. Senator Williams?

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I have just come into the chamber. I am just gobsmacked by the statement by Senator Wong.

Sue Lines (WA, Australian Labor Party) Share this | Link to this | Hansard source

There is no point of order. Resume your seat, Senator Williams. Senator Wong.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I suppose the truth hurts, Senator Williams. This bitter division on guns and this weakness of leadership and the division inside the government, which was played out so clearly on the floor of both the House and the Senate through that time has very real consequences. We have a government that is much more focused on internal division and on playing political games than on good, strong and effective policy. In fact, on this government's watch, a record number of weapons have flooded into the illicit market. The Australian Criminal Intelligence Commission estimates that 10,000 of the guns in the illicit market are handguns—the weapon of choice for gangs and criminals.

We can and must do more to stop guns flowing into the illicit market, whether it be through illegal importation, theft or other methods. And we can and must do more to find these guns and stop them being trafficked across state boundaries. The reintroduction of the ineffective measures that are set out in this bill, for a third time, is not amongst the appropriate responses. It is just an attempt to distract from the fact that we see a government still divided on guns.

The opposition has also circulated an amendment to introduce new aggravated firearms trafficking offences, with a maximum penalty of life in prison. I propose to expand on the detail of the amendment in the committee debate rather than in the second reading debate. Labor believe that the amendments we propose, comprising tough new aggravated offences, alongside the higher maximum penalty for the basic firearms trafficking offences in the bill, which we support, will send a clear message that gun trafficking is as serious as drug trafficking and will attract the same severe penalties.

We all saw the government's real commitment to gun control last year, when it was prepared, extraordinarily, to trade guns for votes and water down Australia's gun laws. The opposition had sincerely hoped that the government's approach to our gun laws could have improved this year. Unfortunately, it does not appear to have been the case. That is a disappointment to all Australians who want to see effective action taken against gun crime.

The opposition will continue to fight for tough gun laws. While the Turnbull government reheats failed Abbott government proposals, we are putting forward strong and sensible measures that will actually contribute to the fight against firearms trafficking. I commend the opposition amendments, to be moved in the Committee of the Whole. I would encourage the government to approach this area of policy not with tired political games but with a sensible approach to ensure that we do in fact make our community safer.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

When it comes to debating gun control measures, or what appear to be gun control measures, in this house that come from the Turnbull government or from any Liberal-National government, one needs to look at them very closely. Increasingly, this government is seen to walk both sides of the road. They try to make out on the public record that they are concerned about public safety and that they are attempting to deal with gun crime. But, when you look at the actual detail, they have not brought forward measures that would actually deliver in that sense. The question that is very relevant to this debate is why that is. It is because there are competing interests between the Nationals and some Liberals, particularly around the issue of winning support.

I saw this at very close quarters in the New South Wales parliament with the rise of the shooters party. They were first elected to that parliament in 1995. I understand it was the first parliament where they gained elected representatives. From that moment, sadly with the Labor Party as well as the Liberal Party and the Nationals, there was a real courting of the section of the community that votes largely on issues to do with greater availability of firearms. How this will play out is very troubling for the security and the safety of people here in this country.

We need to be very mindful of that factor—that so much of how the government handle firearms issues is now coloured by their interests in trying to make out that they are out there looking after the gun lobby, everything from individual shooters across to the actual industry itself, from the importers to those who sell firearms. They are trying to make out that they are out there looking after the shooters and looking after the industry by weakening gun control measures. We see that so clearly with the National Firearms Agreement being weakened and with the relevant minister recently being outed on how he refers to that fine document. I have put on the record many times that that is one issue that I do pay credit to the former Prime Minister John Howard for. The current minister calls it 'red tape' and is now working with the industry on how they will deal with that red tape. That is the lens that we have to examine in the debate that is before us now.

If the Turnbull government were serious about reducing gun crime, they would toughen up on imports, tighten licensing and increase coordination between state and federal law enforcement agencies. There is a lot of talk these days across so many areas—education and transport—of industry about how we have to have consistency across the country. When it comes to something so obvious as consistency with regard to laws covering firearms and the movement of firearms in their sale, there is virtually no consistency in all.

Having that coordination between state and federal law enforcement agencies would include requiring the various state police forces to have well-functioning digital databases where information could be readily shared between law enforcement agencies at a state, territory and federal level. How logical is that? I am sure there are people in those agencies who have probably been trying to achieve that but are getting stymied because what works for the pro-gun lobby is not having that coordination in place. They do not want the restrictions and they do not want that data to be available on lost and stolen weapons.

There are a lot of wrong things going on in this industry, and I would really ask anybody who comes in on this debate to not try and distort the Greens' position to make it seem like we want to shut down guns and not allow anybody to have a gun, even sporting shooters. We totally acknowledge there is a place for that, but what has to be primary is public safety, and that is certainly not being delivered by the legislation before us.

Just staying with this theme about the need for well-functioning digital databases in Queensland their firearms registry is a joke. It is well known that it is so antiquated that it is virtually useless. It is largely nonshareable and does not capture very important information. This is where we need to identify that it is a priority. What we have is the government coming up with that favourite line of conservatives, banging the law-and-order drum and trying to scare people and talking about increased sentences, when we know for a fact that that will not reduce gun crime. We know that is the case. If you look at some of the work that has come out of the Australian Criminal Intelligence Commission, they have put out a report. They said:

… illegal importation accounts for a comparatively small percentage of illicit firearms.

I put that on the record that. Again, it is about identifying the problem. It is a furphy saying the problem here is external. The problem is internal. We are now into 2017 and we still have not got the coordination of these databases so we know about the movement of guns out into the illegal market. Clearly the government are barking up the wrong tree here. We saw that again with how the whole debate around the Adler played out—about importing that and the magazine extensions that were involved there. They have been very deceptive about how all this is playing out.

I also want to raise that I understand the Labor Party have amendments and that their position on mandatory sentencing is consistent with ours. We are pleased to support those amendments because we know that increased sentences are largely ineffective in reducing crime. There have been so many studies on this, and I really do imagine that most people are aware of this. There was a recent one from BOCSAR, and they said:

Increasing the length of stay in prison beyond current levels does not appear to impact on the crime rate after accounting for increases in arrest and imprisonment likelihood.

Again: is the government really serious about public safety, about ensuring that there are not more firearms moving into the illegal market? When you look into the detail of it you really find it hard to take the government seriously on what they say they want to achieve here.

Each Australian jurisdiction maintains a separate firearms registry and details, and individual licence holders are required to advise the appropriate registry when they dispose of or receive a firearm from interstate. But the accuracy of that is what is being questioned. In fact, in this day and age, having a well-functioning digital database where this information can be readily shared should be the starting point here. At the moment a powerful gun lobby is increasingly operating in this country. We know from various boasts from sections of the pro-gun lobby in this country—some of the statements made in the last federal election—of close contacts with the National Rifle Association in the States, with advice and sometimes personnel coming from that organisation on how to elevate support for a pro-firearm stance, a stance to weaken gun-control measures. That is penetrating the electoral process here.

So, we need to have that awareness, because this bill before us is not going to achieve what the government is making out that it will. Public safety is not the primary factor here. It is really a smokescreen—saying that action is being taken when it is largely business as usual for the firearm lobby and the intersection between the illegal market and the legal use of firearms. This is not the advance that we needed, and the Greens will continue to take up this matter and support a number of the amendments before us. Thank you.

John Williams (NSW, National Party) Share this | Link to this | Hansard source

I welcome this legislation, the Criminal Code Amendment (Firearms Trafficking) Bill 2016, and let me explain why. I supported the gun buyback by the Howard government. At the time I had eight guns and rifles and I had to hand one in, a semiautomatic .22. It did not worry me one bit to get paid to hand it back, because I saw it as a dangerous weapon—a semiautomatic—the reason being that if it holds 10 shots in a magazine then you might shoot off four shots for some vermin or whatever you are trying to kill and then the weapon is left loaded, ready to go—dangerous. I have never been a big fan of semiautomatics.

But I discussed this with one of my state National Party friends some years back. The taxpayer spent over $300 million buying the guns back, the rifles back, from innocent people, who were innocent enough to hand them in. We set up a register of the rifles' and guns' ownership. It did not worry me, when I was a young fella living in South Australia—you had to register your guns back in the seventies. If you bought an air rifle, you took it down to the police station and registered it. They had the name of who owned that air rifle. So, registration never worried me one bit. It was part of my life. And you, Acting Deputy President Gallacher, coming from South Australia: if you ever bought any weapons you would be in the same situation.

What I found frustrating was that the innocent people did the right thing: handed their weapons in. The taxpayers of Australia forked out the $304 million to buy the weapons back when they were destroyed or whatever back then. And we have a situation in which a black market exists in firearms. Now, I think it would be the scariest experience of your life if you were working at a service station at two o'clock in the morning and someone walked in and put a pistol to your face. That would be scary, and, sadly, it does happen. Where does the weapon come from? It is probably stolen or brought in on the black market. So, I think this is good legislation because it has a mandatory minimum sentence of five years for anyone trafficking in weapons or weapon parts.

The reason we have to have this is because of what John Laws calls jelly judges. How often do we see people charged with serious crime and the punishment does not fit the crime? It simply does not. A minimum sentence is a strong message to those out there who are contemplating trafficking weapons and the black marketing of them—bring them in from China somehow in containers stashed away, hidden, and it is up to Customs to keep doing their fine job to keep a close eye on what actually comes into our country as far as the black market goes, and what is stashed, hiding in containers and various packages. But seeing this sends a strong message that if you get involved in the black marketing of weapons and you sell them on the streets—Mr Acting Deputy President, I would say it would be a fair guess that if you gave me $1,000 in cash and I went to some parts of Sydney then within a day I would have a black market pistol. I say that with confidence.

Concetta Fierravanti-Wells (NSW, Liberal Party, Minister for International Development and the Pacific) Share this | Link to this | Hansard source

A day? A couple of hours!

John Williams (NSW, National Party) Share this | Link to this | Hansard source

It would not take that long, Senator Fierravanti-Wells? No, it would not take that long. Give me $1,000 cash; I will put on a wig, a beard, an earring, some jeans and thongs and go underground to see if I could buy a weapon in Sydney. I think at the end of the day I would have a black market weapon, for sure.

But the point I make, again, is that the Howard government led the debate with the states to bring in the laws, a register—tougher gun laws. We handed our guns in. Senator Wong was saying that I support slackening the laws. No. With the Adler, under class A—shotguns are in class A—I wanted the Adler seven shot to go into class B. As a farmer, I can have a class B rifle; I can get a 44 Magnum 10 shot repeater under class B. Why wouldn't you put a seven shot shotgun in class B? I see it as a tool of trade for the farmers, especially helicopter shooting of wild pigs. I had one senator say to me, 'You can't shoot wild pigs with shotguns!' I said, 'Of course you do.' In fact, Mark Coulton, the member for Parkes, was telling me that in a helicopter day out over the Gwydir wetlands last year 900 pigs were shot. They use No. 4 cartridges and No. 5, used for shooting much smaller birds or whatever—pests. They use SGs or SSGs—large lead shells. That was a tool of the trade. I would like to have seen that go into category B, as Minister Troy Grant, the police minister in New South Wales, suggested. I think he was right. It was not easing the gun laws. It was in class A and it had been there for many years. Class A is too lenient for a seven-shot repeat shotgun. There is no problem at all for the slow-moving projectile from a double-barrel or single-barrel gun.

Back to this debate, all my life I have heard of people committing various criminal activities—terrible crimes. Then you hear their punishment and you think, 'What is the judge doing? Oh, they were brought up in a single family. They had a bad upbringing; they were neglected; they were beaten or whatever.' The punishment does not fit the crime—we hear of that situation so often. It must be terribly frustrating for the police who get out there and catch the criminals and DPP prosecutors put them through the court. They are found guilty but when it comes to sentencing, it is just a smack on the hand with a feather.

I support this legislation and I have wanted it for many years. I am glad to see it coming through at a federal level. I thought we would have to go through the states, and so it is good it is coming through the federal parliament so that it sends a clear message right across Australia, which says: 'You break the law, you traffic in illegal weapons. You try to bring our society down, you try to make money out of this by putting weapons in the hands of people who should not have hold of them—people who would rob banks or service stations or commit murder and serious harm to fellow Australians.' They should be punished severely, and this legislation does exactly that.

In winding up, I have explained why the gun buyback was there and why the Adler seven shot should have gone into category B. That is the case for the National Firearms Agreement between the states to work through that issue. I am very pleased to see these minimum laws come in, because, as I say for a third time, we see so many judges and magistrates hand out punishments that simply do not fit the crime. If that is going to be the case, we will see more of this legislation come through state and federal parliaments over the years ahead. When we see judges handing out a punishment that is too lenient, too soft, there is no deterrent for the general public to commit that crime. There has to be a deterrent, and then people know that if they go in for trafficking guns or weapons and pistols and if they get caught—and it is highly likely that they will—it is five years in the pen minimum. It is a very good thing to send a strong message to the minority of Australian people who wish to get involved in this industry and do the wrong thing that this is what you are going to face under the legislation. I support the legislation.

Lisa Singh (Tasmania, Australian Labor Party, Shadow Parliamentary Secretary to the Shadow Attorney General) Share this | Link to this | Hansard source

The reintroduction of these measures is clearly a desperate attempt by government to distract from the fact that it is hopelessly divided when it comes to guns—among other things. Of course, Labor supports tougher penalties for firearms trafficking, but we will not support measures which are ineffective. What we seek to do is to remove the mandatory minimum sentences which do not work and instead we propose amendments to introduce new offences for aggravated firearms trafficking with a maximum sentence of life in prison.

Let's recap on the history of this bill. The coalition government introduced it to give effect to mandatory minimum sentences to those found guilty of trafficking illegal firearms, despite the last parliament rejecting these measures twice. Yet here we are again, Groundhog Day, with the introduction of this bill. In February 2015, Labor successfully moved amendments in the Senate to remove the introduction of mandatory minimum sentencing contained in the government's Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. In August 2015 Labor was again successful in moving amendments in the Senate to remove the reintroduction of mandatory minimum sentences, this time in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. Now we have the Criminal Code Amendment (Firearms Trafficking) Bill 2016 before us.

There is no convincing evidence to prove that mandatory minimums act as a deterrent, and presumably that is the whole point of the government's intent in this legislation. We know this because the minister's own department has said that mandatory sentences may create an incentive for a defendant to fight charges, even in hopeless cases. The Attorney-General's Department's document, 'Guide to framing Commonwealth offences, infringement notices and enforcement powers' states at 3.1 that minimum penalties should be avoided. The government is ignoring its own departmental advice. Why did the Attorney-General's Department say they should be avoided? Because they, inter alia, may: 'interfere with judicial discretion to impose a penalty appropriate in the circumstances of a particular case'; '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 IB of the Crimes Act 1914'; and 'encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions'.

Further to all of that evidence which the government had before it, the Senate Committee on Legal and Constitutional Affairs received evidence from a number of stakeholders in inquiries for the two previous bills, which I outlined earlier, who strongly opposed the introduction of those amendments. The Law Council of Australia referred to a number of unintended consequences of mandatory sentencing, which included '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 'run counter to the fundamental principle that punishment should fit the crime'. There were also concerns previously raised by state prosecutors, who believed that these provisions could lead to unjust results and impose a significant burden on the justice system.

Here we have the government moving into its rhetoric, unfortunately, which it continues to do rather than look at the facts, rather than look at the evidence, rather than a look at its own government department's advice. But this, I think, all comes down to the government's bitter division and disunity within itself on gun control. It has still not come out and supported the measures that we put forward, and now it is 2017. So, yes, Labor will stand on the side of reason and will push for tough new penalties to allow judges to put the worst gun traffickers away for life. And Labor will, as I mentioned, recognise that tougher penalties for firearms trafficking is an important step when looking at the evidence provided.

Last year was a very telling year in gun control. The government lost on gun control last year. Tony Abbott and Prime Minister Malcolm Turnbull were both willing to let the dangerous Adler A110 lever action shot gun into Australia in exchange of course, as we know, for a vote in this place. The National Party then split from the Liberals on the floor of the Senate, voting to let a dangerous weapon into this country. The Deputy Prime Minister, Barnaby Joyce, then contradicted Malcolm Turnbull's position on national television and members of Malcolm Turnbull's own party came out in favour of weaker gun laws. It was an absolute shemozzle. And that shemozzle has not gone away. That division is still there within this government. If we needed to see any evidence of that division in the last week, it was the resignation of Senator Bernardi from the Liberal Party, who simply could not stomach the rank hypocrisy within this government any longer. But under this government's watch, a record number of weapons have flooded into the illicit market. Right now the Australian Criminal Intelligence Commission estimates that there are more than 260,000 firearms in the illicit firearms market and possibly as many as 600,000. The commission estimates that 10,000 of these are hand guns, the weapon of choice for gangs and criminals and the like. But of course the government is too divided to fight it.

The Liberal Party and the Nationals are too divided on guns to take meaningful action to address this issue of illicit firearms. The reintroduction of these very ineffective measures for the third time in this place is just an attempt to distract from the fact that they are still divided. It is about smoke and mirrors to show that they are doing something. Well that something is certainly not good enough.

The Labor Party is the only party that is willing to protect our world-leading gun laws. Coming from the state of Tasmania and recognising the steps that former Prime Minister John Howard made—something very much supported by both sides of parliament after that atrocious and terrible event that occurred in Port Arthur—I have a duty to ensure that we have and continue to have world-leading gun laws, not a weakening of them and not the introduction of these illicit firearms of the magnitude that I just outlined coming into this country.

The proposals put forward by the Abbott and Turnbull governments to tackle firearms trafficking only contain maximum sentences of 20 years. Labor believes that prosecutors should be able to pursue tougher penalties for the worst forms of firearms trafficking. In 2012, Labor introduced legislation that would have created an aggravated offence for firearms trafficking with a maximum sentence of life imprisonment, the same as the maximum penalty for drug trafficking. These measures passed the House of Representatives with the support of the coalition at that time. But the bill lapsed in the Senate at the end of the 43rd Parliament. So Labor is seeking to amend this bill to implement these provisions, which we proposed when we were in government. That is the consistent nature, the consistent policy position of this party as opposed to the constant inconsistency that we continue to see from the coalition. These amendments that we put forward are for new aggravated offences for people who traffic 50 or more firearms or firearm parts either within Australia or across its borders in a six-month period. The maximum penalty for these offences will be life imprisonment and this will send a very strong message that trafficking in firearms and the violence that it creates will not be tolerated.

The Liberals are proposing ineffective measures in order to distract from the fact that they are weak on gun control. Labor is proposing tougher measures to create new aggravated offences with the strongest penalties available—that is, life imprisonment. And only Labor can be trusted to protect Australia's world-leading gun laws. The government's fixation on mandatory minimum sentences makes, I think, a hollow mockery out of the Australian people's desire for our community to be safe. It really does make a mockery of it. If the government really does support tougher gun laws, it will vote for Labor's tough aggravated trafficking offences.

I would like to highlight the importance of why we should be delivering this, not just for the community but also because we are a part of something a bit broader. We are part of a number of treaties when it comes to dealing with trafficking of firearms. Looking at it from a criminal justice angle, for example, not only is there the United Nations Convention against Transnational Organized Crime but also the Protocol against the Illicit Manufacturing of and Trafficking In Firearms, their Parts and Components and Ammunition supplementing the United Nations Convention against Transnational Organized Crime treaty series. I understand we have signed that protocol; I think we have not yet ratified it, and I would hope to see that we do that. There is the Arms Trade Treaty as well. There are a number of instruments other than those important treaties that we also need to take into account as to why this is important when we are talking about the trafficking of firearms, because it could be trafficking within our country, out of our country or into our country; it could be trafficking of parts of guns, whole guns, all of the components or the ammunition. All of that needs to be taken into account. That is our multilateral framework that we act upon when looking into how we form policies to make our community safe and go forward with tougher gun laws.

Finally, I want to highlight the fact that this government, as I think I made fairly clear, is not serious about tough gun laws. Labor are pursuing tough new penalties to allow judges to put the worst gun traffickers away for life because we are serious about tough gun laws. That is the whole point and meaning behind our amendments. We all know that the government trades its vote with some crossbench senators in this place, but I cannot think of a more important issue right now to not trade a vote in relation to than not weakening gun laws. Yet last year we saw the government do just that. We saw the government trade guns for votes. Mr Turnbull and Mr Abbott at that time contradicted each other on the floor of parliament. The Nationals then split from the Liberal Party, voting to weaken our gun laws. Do you really think that division has gone away? The government is too busy fighting within itself to come up with effective policies to fight gun crime.

I outlined figures from the Australian Criminal Intelligence Commission of 600,000 illegal weapons in circulation in Australia. The fact that the community is simply at risk with these numbers of guns circulating illegally in the market should be something to cause alarm for this government. That should be a reason in itself for the government to not trade guns for votes. Once guns enter that illegal market, they are difficult to get back. We do not want to see in our community these illegal guns stay on the streets and be available to criminals, gangs and terrorists. That is why we need these tough gun laws, and that is why Labor, in putting our amendments forwards, very much hope the government will support them.

We have had enough, though, of the Prime Minister's weakness on guns. We have had enough of the Prime Minister's backflips on a number of policy issues and the fact that he does not stand for what he believes in anymore, but weakness on guns is simply unacceptable. It is beyond the pale. We are moving these substantial amendments to this bill, to create the new aggravated firearms trafficking offences, because we need serious action, not absurd and childish game-playing within the Liberal and National parties. I hope the coalition stop wasting the time of this Senate and the time of the Australian community and start acting on the tougher gun laws that Labor have put forward. They should stop wasting time on things that simply do not work. I hope that they join Labor in putting serious gun traffickers away for life, and the only way to do that is to support Labor's amendments.

Skye Kakoschke-Moore (SA, Nick Xenophon Team) Share this | Link to this | Hansard source

I rise to speak on the Criminal Code Amendment (Firearms Trafficking) Bill 2016. This bill is identical to the bill introduced in the 44th Parliament. The bill before us amends the Commonwealth Criminal Code in order to set new mandatory minimum penalties and maximum penalties for the offences of trafficking firearms and firearm parts within Australia and trafficking firearms and firearm parts into and out of Australia. Under the government's proposal, each of these offences in the Commonwealth Criminal Code will apply the following penalties:

… a mandatory minimum sentence of imprisonment for five years, and

maximum penalties of imprisonment for 20 years or a fine of 5,000 penalty units, or both.

This bill and its predecessor have been the subject of two Senate inquiries. During both of the inquiries, submissions raised significant concerns about mandatory minimum penalties. The Nick Xenophon Team supports the intent of this bill but shares the concerns of agencies and state prosecutors about mandatory minimum sentences for firearm trafficking offences.

This is the fourth time the parliament has considered similar provisions related to mandatory minimum sentences to those proposed in this bill. Similar provisions were included in the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 and the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. While both bills were passed, in each case this only occurred after amendments in this chamber removed mandatory minimum sentence provisions. The Nick Xenophon Team maintains that mandatory minimum sentences are inappropriate and that these provisions should be rejected once again. Currently, there are no mandatory minimum penalties in the Commonwealth Criminal Code. Mandatory minimum penalties do exist in the Commonwealth Migration Act, at section 236B, which contains mandatory minimum sentences for certain people-smuggling related offences. However, this is a rare example.

There is no doubt that firearms cause serious harms and that firearms trafficking offences are serious crimes that pose a significant threat to community safety. The Nick Xenophon Team acknowledges the government's objective of ensuring that sentences reflect the seriousness of the offences they relate to. However, we cannot support the provisions relating to mandatory minimum penalties, because to do so would contravene the separation of powers by limiting the role of the judiciary. The mandatory minimum sentence provisions in this bill would thereby operate as a partial restriction of judicial discretion that would hamper the sentencing judge's ability to hand down a sentence that is appropriate after taking into account all of the circumstances of the individual case. It is the role of the legislature to forbid certain conduct through laws. The community relies on us to strike the right balance when passing laws designed to keep them safe. The role of the judiciary is to apply those laws with the expertise and knowledge they have acquired as judicial officers to each and every case on an individual basis. In doing so, they are utilising their judicial discretion to determine what penalty should apply for contravening those laws.

Mandatory minimum sentences depart from the fundamental principle that punishment for criminal offences should fit the crime. By arbitrarily establishing a minimum sentence in advance for every case of a particular type, mandatory minimums risk disproportionate outcomes in individual cases where the specified minimum is not justified in the circumstances. Unjust outcomes result from mandatory minimums where the circumstances of a particular case indicate that a lesser penalty is in fact appropriate.

I bring to the attention of the chamber the current version of the publication A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers produced by the Attorney-General's Department advising that minimum penalties should not be used. Specifically, at page 38 the government's guide states:

While there are some examples of minimum penalties for Commonwealth offences, fixed or minimum penalties should also be avoided for the following reasons:

Fixed and minimum penalties can interfere with the discretion of a court to impose a penalty appropriate in the circumstances of a particular case.

Defendants may be less likely to cooperate with authorities if such cooperation cannot be reflected in sentencing. Fixed and minimum penalties create an incentive for a defendant to fight charges, even where there is little merit in doing so.

Fixed and minimum penalties preclude the use of alternative sanctions available in Part IB of the Crimes Act, such as community service orders. In particular cases, these alternatives provide a more effective mechanism for deterrence or rehabilitation.

Industry confidence in an enforcement system directed at industry regulation is undermined where less serious cases do not result in lesser penalties.

The judiciary may look for technical grounds to escape restrictions on sentencing discretion when faced with minimum penalties, leading to anomalous decisions.

These guidelines illustrate that the contentious element of this bill remains the introduction of mandatory minimum sentencing. Mandatory minimum sentences are uncommon in Australian law with only a handful of examples in state legislation and in the example I previously noted.

The research is clear on mandatory minimum sentences that show they disproportionately affect poor, minority and disadvantaged groups in society. There is no evidence that mandatory minimum sentences reduce crime, but there is much evidence that it can lead to manifest injustice. Despite strong criticism from criminology experts, judicial officers and the legal profession it is concerning that this government remains determined to remove the courts' power to impose a penalty it sees fits, even though all the evidence suggests that this does not actually assist in crime prevention. There is no evidence that mandatory minimum sentences act as deterrents to firearms trafficking. The explanatory memorandum to the bill asserts that these amendments will achieve 'reductions in gun-related violence', without producing any evidence from Australia or overseas to justify such an assertion.

We believe that effective deterrence is achieved by increasing penalties applicable to the most serious firearms offenders rather than the imposition of mandatory prison terms at the other end of the scale. Increasing maximum penalties for firearms trafficking would adequately reflect genuine community concern about the consequences of firearms offences. We understand the government wanting to send a strong message to criminals about the consequences with this bill, although we believe that increasing the maximum penalties is appropriate, necessary and sufficient to achieve the government's aim here. For the reasons I have outlined, the Nick Xenophon Team will be supporting Labor's amendment to remove the provisions in this bill for mandatory minimum sentences.

The Nick Xenophon Team will also be supporting Labor's amendment to introduce new offences for aggravated firearms trafficking. These offences would apply to the trafficking of 50 or more firearms or firearm parts in a six-month period, with a maximum penalty of life imprisonment or 7,500 penalty units or both. This would make the maximum penalty for trafficking in firearms the same as the maximum penalty for trafficking in drugs, with no mandatory minimum for these offences. There have been a number of high-profile matters, like the 120 Glock pistols that found their way to New South underworld figures after being illegally imported by a gun-smuggling ring, or the cache of six fully automatic assault rifles and 96 semi-automatic handgun frames that were due to be imported to Australia last year, if they had not been intercepted in the US. The infiltration of these illegal firearms into our society could have had catastrophic consequences. The Nick Xenophon Team acknowledges that these new offences are designed to tackle the worst types of gun trafficking and for that reason we support Labor's amendment.

On behalf of the Nick Xenophon Team I will be moving an amendment to Labor's amendment that will increase the maximum penalty for the basic firearms trafficking offence from 20 years to 30 years imprisonment. The Nick Xenophon Team believes that increasing the maximum penalty for this offence sends a strong, decisive message to both the community and potential offenders that trafficking firearms is not acceptable and the consequences for doing so will meet with harsher penalties.

Debate adjourned.