Criminal Code Amendment (Firearms Trafficking) Bill 2017 - Second Reading


25 OCTOBER 2017

As the member for Hotham has ably set out in this chamber, Labor will support tougher penalties for firearms trafficking but what we won't support are ineffective measures.

The reintroduction of these measures is a desperate attempt by the coalition to distract from the fact that they are hopelessly divided on guns. Labor will seek to remove the mandatory minimum sentences because they don't work. We need to draw a distinction in this House between being tough on crime and being dumb on crime. Labor will listen to the experts because we want to make sure that we have less gun crime in Australia. We're proposing amendments to introduce new offences for aggravated firearms trafficking, but we won't support measures which will simply cause judges to be less likely to convict.

In the case of mandatory minimum sentences, the Attorney-General's Department document 'Guide to framing Commonwealth offences, infringement notices and enforcement powers' states that minimum penalties should be avoided on the basis that they interfere with judicial discretion to impose a penalty appropriate to the circumstance of a particular case; that they may create an incentive for a defendant to fight charges even when there's little merit in doing so; that they may preclude the use of alternative sanctions such as community service orders; and that they may encourage the judiciary to look for technical grounds to avoid a restriction on sentencing discretion, leading to anomalous decisions. The Senate Legal and Constitutional Affairs Legislation Committee received a wide range of evidence from stakeholders in inquiries on the two previous bills, which strongly opposed the imposition of mandatory sentences.

The Law Council of Australia has written most extensively on this issue. In their policy discussion paper on mandatory sentencing in May 2004, they went through in considerable detail the risks that mandatory sentencing creates. They noted that mandatory sentencing is inconsistent with Australia's international obligations, including the prohibition against arbitrary detention, in article 9 of the International Covenant on Civil and Political Rights. The right to a fair trial and the provision of prison sentences must, in effect, be subject to appeal, as per article 14 of the International Covenant on Civil and Political Rights. They also noted that mandatory minimums may breach Australia's obligations under articles 3, 37 and 40 of the Convention on the Rights of the Child.

More importantly than our international obligation is the simple fact that mandatory minimum sentences make it less likely for convictions to be recorded and can lead to manifest unfairness. The Law Council gave examples of instances in which mandatory sentencing has led to outcomes which I don't think any member of this House would believe are just. They give the example of a 16-year-old with one prior conviction who received a 28-day prison sentence for stealing a bottle of spring water—a month in jail for stealing a bottle of water. A 17-year-old first-time offender received a 14-day prison sentence for stealing orange juice and Minties. I have to say, I went to a decent school, and I'm afraid there were classmates of mine who at some stage would have shoplifted orange juice and Minties, but I don't think anyone would have thought that they should have received a fortnight behind bars. The Law Council gives the example of a 15-year-old Aboriginal boy who received a 20-day mandatory sentence for stealing pencils and stationery and died while in custody. An Aboriginal woman, a first-time offender, received a 14-day prison sentence for stealing a can of beer. These manifestly unjust outcomes occurred as a result of mandatory sentencing.

The Law Council points to research which found that, when the public is fully informed about the particular circumstances of a case and an offender, there is a 90 per cent tendency to view judge's sentences as appropriate. That is from work by Geraldine Mackenzie and co-authors, published in 2012, in the Australian and New Zealand Journal of Criminology. The Law Council notes too that the imposition of mandatory minimum sentences can lead to unjust outcomes. The Law Council concludes by quoting the then Australian Human Rights Commissioner, the 'Freedom Commissioner', Mr Tim Wilson, now the member for Goldstein. He said:

… mandatory sentencing 'is an incremental stake stabbed in the heart of the foundations of our liberal democracy because it assumes that a centralised government with less information can make better decisions about individual cases than a decentralised courts with more information'.

The member for Goldstein has always stood for freedom, or so he tells us, so it will be interesting to those on this side of the House to see whether he exercises his freedom of conscience to cross the floor and vote with the Labor Party and uphold the principles that he stood for when he was Human Rights Commissioner—the principles he stood for in 2014 when he described mandatory sentencing as 'an incremental stake stabbed in the heart of the foundations of our liberal democracy'.

The criminologist Mark Kleiman describes the trade-off between severity and certainty in his book, When Brute Force Fails, and points out that, if you want to have less crime and less punishment, you need to recognise that offenders who are driven by the present are much more likely to respond to certainty—to the probability of conviction—than to severity, to the duration of the sentence. If you are thinking about committing a serious weapons offence, you are probably living in the moment and it is relatively unlikely that severity will play a bigger role in your mind than certainty. Yet that is the trade-off that this bill fails to recognise.

The Law Council noted that mandatory minimum sentences could increase Indigenous incarceration rates. We on this side of the House believe that incarceration should be added to the Closing the Gap targets, given that Australia's Indigenous incarceration rate is high and rising. Indeed, our overall incarceration rate is now the highest it's been since 1901. In all the time since Federation, Australia has never locked up as large a share of our population as we do today, with 207 out of every 100,000 adults currently behind bars. It's a higher incarceration rate than in Canada, Japan, France, India, Germany, Indonesia or Britain. We are incarcerating a higher share of our population than we have since Federation, at a time, over the last two decades, in which the murder rate and car theft rates have fallen significantly.

This comes at a significant cost to Australians, given that incarceration costs around $300 a day and $110,000 a year. In the United States, where nearly one per cent of adults are behind bars, there's a bipartisan movement towards being smarter on crime, recognising that we need to make better use of monitoring technology and that there are smarter approaches than mandatory sentences. This is a bipartisan push from Democrats and Republicans in the United States. It's a smart-on-crime measure, exactly the opposite of what we see in this government's call for mandatory sentences. We have a government that says we need mandatory sentences in order to make sure offenders are put behind bars. But the Law Council tells us that they will do just the opposite, because when mandatory sentences are in place judges and juries may be less likely to convict, knowing that there is no sentencing discretion.

Finally, I want to do something which is a little unusual in this place, which is to pay tribute to those on the other side of the House. One of the great legacies of the Howard government was the package of gun reforms put in place after the Port Arthur massacre. It is too easy to forget how quickly Australia acted at that time. The police ministers' meeting took place 12 days after the Port Arthur massacre, before all of the 35 victims had been laid to rest. It is to the credit of John Howard and Tim Fischer that they were willing to act and tighten our firearms laws. We refer to the gun buyback, the 600,000 firearms—about a fifth of all guns in Australia—that were handed back into police stations. But it's important to remember, too, the tightening of licensing and regulation requirements, the restrictions on access to semi-automatic weapons and the limits that were placed on sales.

The United States occasionally misreads the lessons of Australia's tightening of gun laws, which took place in 1997-98. Disappointingly, following the mass shooting in Las Vegas that took place so recently, Leah Libresco wrote in The Washington Post that mass shootings were too rare in Australia prior to the buyback to show any evidence of progress and that the Australian gun law tightening did not provide clear evidence for the United States.

In fact, that is not true. If we define a mass shooting as the killing of five or more victims, Australia was experiencing an average of one mass shooting per year in the decade leading up to Port Arthur. In the decade afterwards, there was not a single mass shooting. The odds of this being due to chance alone are less than one in 100.

But the work that Christine Neill and I did when I was at the Australian National University found this had a significant impact on reducing gun deaths—principally through reducing gun suicides. After all, the person most likely to kill you with a gun is yourself. We found when we looked at the time series that the reforms seemed to cause the death rate to fall a little faster. But, in particular, if we looked at cross-state differences and compared jurisdictions where more weapons were bought back and those where fewer weapons were bought back, the largest fall in gun deaths occurred in the jurisdictions where the most guns were bought back. We didn't see any evidence of displacement effects, and we estimated that the firearm reforms of 1996 save around 200 lives year.

It is in no way in my political interest to praise those on the other side of the House, but it is vital for our friends in the United States to get a clear-eyed reading of the impact of the Australian gun reforms of 20 years ago. They were smart gun reforms. They were supported by this side of the House. We supported them because they were based on clear evidence.

We call on the coalition today to make sure that their firearms measures are, again, based on clear evidence. We call on them to listen to the Law Council and to prosecutors, who say that mandatory sentences may make us less safe, not more safe.

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Cnr Gungahlin Pl and Efkarpidis Street, Gungahlin ACT 2912 | 02 6247 4396 | [email protected] | Authorised by A. Leigh MP, Australian Labor Party (ACT Branch), Canberra.