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Monday, 13 February 2017
Page: 619

Senator KAKOSCHKE-MOORE (South Australia) (13:49): 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.