Dissenting Report of the Australian Labor Party
While Labor Senators agree with the majority of the report, we have
serious concerns about some of the proposed amendments and do not support the
Bill being passed in its current form.
In particular, Labor is concerned about the insertion of 'knowingly
concerned' as a secondary form of criminal liability and the introduction of
mandatory minimum sentences for firearm trafficking offences. We note the
strong opposition held by peak law organisations with regard to these
amendments and lack of consultation that has occurred with respect to this
Introduction of knowingly concerned
The government has argued that the need has arisen to introduce the
concept of knowingly concerned as a secondary form of liability into section
11.2 of the Criminal Code.
The ability to effectively prosecute alleged offences against
Commonwealth law remains the critical objective of the Commonwealth Director of
Public Prosecutions (CDPP). It is important that the CDPP have both the
resources and powers to achieve this objective.
However, Labor Senators are not convinced that the provisions in
Schedule 5 of the Bill support this objective. We note the evidence provided by
the Law Council of Australia (LCA), who strongly oppose the introduction of
The proposal to introduce knowingly concerned as part of the
law of complicity in the Criminal Code – making it applicable to all Commonwealth
offences, offences numbering in the hundreds – is a radical change which has
been proposed without apparent consultation with States and Territory
jurisdictions and against a background of its rejection on three prior
occasions in the Model Criminal Code process.
Not only has the government failed to engage with stakeholders with
regard to these amendments, it has also failed to justify the need for an
additional form of secondary criminal liability to apply to all offences in the
The government has highlighted particular categories of offences where
the concept of knowingly concerned is required, including drug and drug
importation offences and insider trading offences. However, all of the offences
identified have already been drafted in a way that address the concerns raised
without the need to include knowingly concerned.
We agree with the recommendation of the LCA that where there is a need to
extend criminal complicity, the proposed amendments should be specific to that
Labor Senators are also concerned about the uncertainty surrounding the
concept of knowingly concerned. We note the concerns raised by the LCA in
relation to how the provisions have been drafted and the dangers arising out of
'vaguely defined laws'.
We believe that the introduction of such a vague and open-ended concept as
knowingly concerned is inconsistent with the fundamental principle of the rule
of law, which requires that 'the Criminal Code should be precise enough to
allow people to readily ascertain prohibited conduct'.
Labor senators recommend that Schedule 5 of the Bill be removed.
Mandatory minimum sentences for firearm trafficking offences
The Australian Labor Party maintains its position that the introduction
of mandatory minimum sentences for those convicted of firearm trafficking
offences should be avoided. We note that these provisions have already been
considered and rejected by Parliament and that the government has failed to
justify the need for such provisions.
The committee received evidence from a number of submitters who strongly
opposed the introduction of these amendments. For example, the LCA referred the
committee to a number of unintended consequences of mandatory sentencing, which
include '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.
We also note the concerns previously raised by state prosecutors, who
believe that these provisions 'can lead to unjust results'
and impose a significant burden on the justice system.
Labor Senators believe that the government has failed to explain the
need for mandatory sentencing provisions. We draw attention to the
Attorney-General's Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers, which specifically stipulates that minimum
penalties should be avoided.
We also refer to evidence previously given by the Attorney-General's
Department, where it stated that it was 'not aware of specific instances where
sentences for the trafficking of firearms or firearm parts have been
While we note that the Attorney-General has the power to direct the CDPP
to not prosecute an offender in certain circumstances, the government has given
no indication that it would consider using this power when cases of injustice
occur. Furthermore, the Attorney-General also can revoke an order at any point.
We note that the current Attorney-General has already revoked an order
introduced by the previous Attorney-General in relation to people smuggling
Labor Senators are of the view that the government should instead
implement a regime of penalties for firearm trafficking offences, similar to
the one set out in the Crimes Legislation Amendment (Organised Crime and Other
Measures) Bill 2012.
This Bill was introduced in November 2012 by the then Labor Government and
proposed the introduction of new aggravated offences for firearm dealing which
would attract a higher penalty of life imprisonment. These provisions would
still send a strong message to serious criminals while minimising the risk of a
miscarriage of justice.
Labor senators recommend that the imposition of mandatory minimum
sentences for firearms trafficking offences be replaced with increased penalty
provisions, as set out in the Crimes Legislation Amendment (Organised Crime and
Other Measures) Bill 2012.
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