Crimes Legislation Amendment Bill 2014


Senator Seselja:  (Australian Capital Territory) (17:52): I believe when I left off before question time I was saying that the government does believe that mandatory minimum sentences are necessary and will act as a strong deterrent for those who would otherwise engage in illicit firearms trafficking. As I said, the bill introduces mandatory minimum sentences of five years imprisonment for offenders charged with trafficking firearms or firearm parts, though this does not apply to minors. The introduction of even a small number of firearms or firearm parts into the illicit market can have a significant impact on the community.

 This provision aims to ensure that offenders receive sentences proportionate to the seriousness of their offending. The government believes that mandatory minimum sentences will act as a strong deterrent for those who would otherwise engage in illicit firearms trafficking. This is a similar view to that taken by the Queensland and United Kingdom governments, which have both introduced mandatory minimum sentences for firearms trafficking offences. The introduction of this penalty is appropriate to ensure that high-culpability offenders receive sentences proportionate to the seriousness of their offending, while providing the courts with discretion to set custodial periods consistent with the particular circumstances of the offender and the offence.

The Australian government believes that the current approach to firearms policy strikes an appropriate balance between the interests of those with a genuine need to have access to firearms and the interests of the broader community to live safely and securely. However, the government also recognises and respects the importance of preserving discretion in sentencing and the court's ability to take into account the particular circumstances of the offence and the offender. Therefore, there is no nonparole period prescribed by the amendments and the actual time a person is incarcerated will be at the discretion of the sentencing judge. The absence of the nonparole period will allow courts to take into account factors such as cognitive impairment, the public interest and the broader circumstances of the offence when setting the period offenders spend in custody.

I also note that all mandatory minimum penalties for firearm trafficking offences will not apply to those under the age of 18. This again preserves judicial discretion in sentencing by ensuring that the courts can take into account minors' particular circumstances. This approach is consistent with the application of mandatory minimum sentences for offences under the Migration Act 1958 for minors involved in people smuggling offences. It is also consistent with Australia's obligations under the Convention on the Rights of the Child.

There has been some concern about this provision and the government notes the concern of the Law Council of Australia in relation to mandatory minimum sentences. However, the government is of the firm belief that the introduction of these penalties will send a strong deterrent message to those who would otherwise engage in firearms trafficking. The government notes that the Law Council of Australia has suggested the presence of mandatory minimum sentences reduces the likelihood of offenders pleading guilty. This is because offenders are aware that a guilty plea will still result in the prescribed minimum sentence; they are therefore less likely to enter the a guilty plea, which in turn results in trials running their full course.

However, as I mentioned earlier, given that the government has not attached a nonparole period to the mandatory minimum sentences, this ensures there is still an incentive to enter a guilty plea as the particular circumstances of each case will be considered by the court and the sentencing judge. That to me seems to be an eminently sensible approach.

The government has noted the concerns of the Parliamentary Joint Committee on Human Rights in relation to arbitrary detention. However, the government believes that there are appropriate limitations and safeguards in place to ensure that the detention is reasonable, necessary and proportionate to each individual case and therefore not arbitrary. Consistent with the concerns raised by the committee, the government has amended the explanatory memorandum of the bill, which now notes that the mandatory minimum sentence is not intended as a guide to the nonparole period, which in some cases may significantly differ from the head sentence.

I would also like to briefly note the elements of this bill regarding the International Transfer of Prisoners Scheme. Australia's International Transfer of Prisoners Scheme promotes the successful rehabilitation and reintegration into society of a prison, whilst preserving the sentence imposed by the sentencing country in the prisoner's home country. The scheme is important the community safety and ensures that prisoners can be reintegrated into that country's community and appropriately monitored, supervised and supported during the enforcement of the sentence.

The International Transfer of Prisoners Act 1997, which governs the International Transfer of Prisoners Scheme, came into operation nearly 20 years ago. While it has been effective in enabling prisoners to be transferred back to Australia and out of Australia to their home country, there are opportunities to make this scheme more efficient, more timely and simplified. The existing processes will be streamlined in a number of ways. This includes improving arrangements governing unviable transfer applications, implementing time frames for reapplications and simplifying the process of notifying and seeking the consent of the transfer country.

In conclusion, the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 is an important update to our nation's criminal law so that it remains in step with the key issues of the day. We all know that the consequences of this kind of criminal activity are all too real. We know them well. We see, tragically, that gun-related violence and drug-related deaths are an all too common feature in our community. The Australian government believes very strongly in ensuring that we have the appropriate laws to deal with these issues and also in ensuring that we have the appropriate balance of people's civil liberties. I believe that this bill strikes that balance and I commend it to the Senate.