Chapter 2
Key issues
Issues raised
2.1
The committee received 15 submissions, primarily focused on issues
pertaining to the proposed ban on the importation of new psychoactive
substances (NPS) and the introduction of mandatory minimum sentences for
firearms trafficking offences. These two issues are discussed in the following
sections.
New psychoactive substances
Policy approach and consultation
2.2
The committee received a number of submissions in support of the
proposed ban on the importation of NPS, as well as some against the ban, or in
favour of specific amendments.
2.3
Submissions from law enforcement agencies and state prosecutors were generally
supportive of the proposal to ban the importation of NPS.[1]
For example, the Australian Crime Commission (ACC) submitted that:
At this time, the health implications of new psychoactive
substances [are] unclear. For this reason, the ACC recommends that the
Government maintain a zero-tolerance approach towards new psychoactive
substances, and believes that it is appropriate to place the onus on importers
of psychoactive substances to establish that the substance has a legitimate
use. The Bill, which focuses on the psychoactive nature of the substances in
this market rather than on individual chemical structures, provides an
effective and sustainable legislative response to this complex and
ever-evolving market. The Bill will prevent individuals and crime groups from
importing new psychoactive substances until such time as the Government is
satisfied that the substance does not pose a significant risk to the Australian
community, taking into account health and sociological risks. The response has
been developed following wide-ranging consultation with Commonwealth, state and
territory agencies and is considered appropriate. For this reason, the ACC
strongly supports the implementation of the Bill.[2]
2.4
Four submissions focused specifically on the impact of the proposed ban
on the importation of plant material and urged that an exemption be created.[3]
The details of these submissions are discussed separately below.
2.5
Finally, a number of submissions challenged the Government's proposed
policy more generally, on the basis that it would capture a very broad range of
conduct or that alternative models would be more effective.
2.6
The Bar Association of Queensland argued:
The proposed definition of 'psychoactive substances' is very
wide capturing any substance which when consumed might induce a wide range of
effects, including, as alternatives, dependence or addiction and or significant
change of thinking, behaviour, perception, awareness or mood. As a result,
potentially a large number of substances have been rendered illegal imports.
...The Association is of the opinion that it would be
preferable to legislate specifically for those substances which have been found
to be causing harm, for example, through hospital emergency admissions (in this
country or elsewhere). If a particular substance is being chemically imitated,
then it may be appropriate, again based on the basis of the incidence of harm,
to legislate, generally, against chemical imitators of that illicit substance.
This would avoid the uncertainty associated with a general
prohibition of all psychoactive substances and would focus the criminal
prohibition on the prevention of identified harm.[4]
2.7
The Bar Association of Queensland further noted that the offence created
by proposed section 320.3 would 'extend to importing harmless substances that
are dressed up to represent that they are a serious drug alternative' and it
was 'not clear why the law should be concerned with conduct of that kind'.[5]
It made that point that a person that mislabelled poisons ran the risk of being
prosecuted for other offences, such as manslaughter or murder.[6]
2.8
The Tasmanian Office of the Director of Public Prosecutions noted, but
did not comment on, the model adopted in New Zealand to address NPS. Under this
model, responsibility is placed on:
...NPS producers to develop products that are no more than a
low risk of harm. Manufacturers must now clinically test products before they
can be legally sold. A unit within the Ministry of Health oversees the
importation, manufacture and sale of these products under tight regulations
that requires approval by a Psychoactive Substances Expert Advisory Committee.
The committee must have relevant expertise in pharmacology, toxicology,
neuroscience, medicine and any other areas the Authority considers relevant.[7]
2.9
The Eros Association – an adults only retail association – suggested
that this model had been 'very effective in reducing the availability and range
of NPS'.[8]
The Eros Association submitted that 'regulation, testing and control is the
best option' to 'reduce the impact of NPS on public health and make existing
criminal laws more effective in responding to this emerging issue'.[9]
Ms Patten, Chief Executive Officer (CEO) of the Eros Association, explained
that the industry selling NPS was already self-regulated but that it would be
'happy to adopt' a regulatory model similar to that in New Zealand.[10]
2.10
Happy Herb Company – a business operating in Australia and the United
States that sells 'herbs, herbal extracts and other nature products' –
advocated that:
...an evidence-based regulatory approach to the issue of drugs
in society, recommending that this be treated as a public health matter rather
than a criminal one. Prohibition simply enlarges the black market, as the
public demand for psychoactive substances does not diminish in accordance with
supply.[11]
2.11
The Attorney-General's Department (AGD) explained that the proposed
policy was part of a 'consensus approach' and had been adopted after a process
of consultations with stakeholders, state and territory governments and
counterparts in New Zealand.[12]
It provided the following explanation as to why a pre-market assessment scheme,
similar to that implemented in New Zealand, was rejected in favour of the proposed
approach:
Exploration of the issues underlying such a scheme, including
the constitutional considerations, obtaining national agreement (including
possibly seeking a referral of powers), and setting up and implementing a new
regulatory regime for psychoactive substances, would be an extremely lengthy
process. During this time, the status quo would continue. Importers would
continue to import substances designed to get around border controls based on
chemical structure. Untested and unsafe products would continue to be presented
as legal alternatives to illicit drugs and they would continue to cause harm to
individuals and the community.
A pre-market assessment scheme would also be contrary to the
Government's approach to NPS, which is to list substances as border controlled
drugs in the Criminal Code as evidence about their use and harms has
become available. It would similarly be contrary to recent moves in a number of
jurisdictions, such as New South Wales, Queensland and South Australia, to
comprehensively ban substances that seek to mimic the effects of illicit drugs.
The Department notes that the New Zealand Psychoactive
Substances Act 2013 allows psychoactive substances assessed as 'low risk'
to be manufactured and sold in New Zealand. Initially, the New Zealand
Government provided interim approval for the manufacture and sale of a small
number of psychoactive products. However, on 8 May 2014, it withdrew all those
approvals following continued reports of severe adverse reactions. In these
circumstances, and where no psychoactive substances have yet been approved for
manufacture and sale in New Zealand, the Department considers that a pre-market
assessment scheme should be approached with caution.[13]
The importation of plant material
2.12
A number of submissions raised concerns that the proposed measures aimed
at banning NPS would capture the importation of plants, seeds, herbs, fungus,
and botanical extracts, which are used for legitimate purposes but technically
have, often mild or undesirable, psychoactive effects.[14]
Dr Alistair Hay suggested that this is particularly the case for importers of
plants who are not interested in their psychoactive effects and where the
identification of such material would require the services of highly skilled
persons.[15]
2.13
Moreover, it was argued that the proposed exemptions would not
adequately address this issue because many of these materials had not yet been
listed under the Therapeutic Goods Act 1989 or Food Standards
Australia New Zealand Act 1991. For example, Mr Torsten Wiedemann submitted
that many commonly imported medicinal and culinary herbs would not fall within
the 'food' exemption because they do not have 'a long history of traditional
consumption in Australia or New Zealand'.[16]
While the Therapeutic Goods Act 1989 creates a mechanism by which some
of these goods can be registered and thus lawfully imported, it was argued that
the process and cost of doing so would be prohibitive.[17]
2.14
The point was made by some submitters that because the chemical
structure of plants cannot be altered, the justification relied on to ban NPS
in the manner proposed by the bill did not apply.[18]
As the Happy Herb Company argued:
Dangerous plants can be, and already are, easily prohibited
through existing legislation without importers being able to circumvent that
legislation through making minor modifications to the molecular structure of
the substance; this is the crucial difference between a naturally occurring
plant and a compound created in a laboratory...Though the goal of this law should
be to support better health and well-being outcomes for all Australians, if
plants and botanical extracts are not excluded from the jurisdiction of this
bill then Australian citizens and businesses will be deprived of their
legitimate right to import, study and use numerous harmless and benign herbs.[19]
2.15
The Happy Herb Company outlined the impact the proposed ban would have
on its business:
We would have to immediately conduct a massive audit of every
single herb that is sold throughout our retail outlets...There are potentially an
awful lot of herbs that could fall under the remit of the legislation. So we
would have to immediately figure out which herbs were going to be affected and
revamp a lot of our catalogues and our online shop and negotiate with our
suppliers and manufacturers to create different products. You might have a
herbal product which contains five or 10 separate herbs, and if any of those
contains a single one of these herbs, like a very mild caffeine-type substance,
we would have to reformulate that product. We would have to find alternative
supplier arrangements. It will definitely be a large body of work, and I expect
it would impact on our bottom line significantly, eventually.[20]
2.16
It was suggested by a number of submitters that the proposed ban should
be amended to include an exemption for the importation of plant material and
associated extracts for non-drug related purposes.[21]
As a model, these submissions pointed to an exemption in New South Wales (NSW)
legislation that otherwise criminalises the supply, manufacture or advertising
of psychoactive substances: section 36ZE(1)(h) of the Drug Misuse and
Trafficking Act 1985 (NSW) provides that these offences do not apply to 'any
plant or fungus, or extract from a plant or fungus, that is not, or does not
contain, a substance specified in Schedule 1'.
2.17
In response to these concerns and questions posed by the committee at
the public hearing, AGD stated the following:
The ban is not intended to affect the importation of plants,
herbs and fungi for horticultural, agriculture or botanical purposes. Plants,
herbs and fungi are unlikely to be affected by the ban, in particular because
the Australian Customs and Border Protection Service (ACBPS) is unlikely to
detain and seize them under these provisions. However, the Department is aware
that New South Wales has exempted plants and fungi and their extracts from its
regime in the Misuse of Drugs Act 1986.
The Department is currently examining the possibility of
exempting plants from the offence of importing a prohibited psychoactive
substance under proposed section 320.2 of the Bill. However, any changes to the
Bill or exemptions to the offence in proposed section 320.2 are a matter for
Government.[22]
Proving a 'psychoactive effect'
2.18
Some submissions and evidence from witnesses revealed concerns that the
definition of a 'psychoactive effect' was too broad, inherently subjective, and
difficult to prove in practice given the lack of published research on NPS.[23]
2.19
While the Law Council of Australia did not make a formal submission on
this issue, the committee was directed to its Policy Statement: Rule of Law
Principles, which relevantly states that:
The intended scope and operation of offence provisions should
be unambiguous and key terms should be defined. Offence provisions should not
be so broadly drafted that they inadvertently capture a wide range of benign
conduct and are thus overly dependent on police and prosecutorial discretion to
determine, in practice, what type of conduct should or should not be subject to
sanction.[24]
2.20
The Tasmanian Office of the Director of Public Prosecutions submitted
that:
Experts employed with the Forensic Sciences Services of
Tasmania (FFST) have been consulted in relation to these submissions and have
highlighted some potential difficulties with proving NPS offences. Although
FFST can provide a certificate of analysis identifying what the substance is,
whether it falls through the gaps and allows for the proposed offences in the
Bill to be laid, there is a potential issue with proving that the substance has
a psychoactive effect. Whilst an expert such as a toxicologist or pharmacologist
can usually provide evidence about the effects of drugs, based on clinical
trials, research and published articles, FSST has advised the Tasmanian DPP
that the problem with the experimental drugs we are seeing on the market now,
is that there is no or little in the way of experimental clinical trials and
therefore very little in the way of published research. Unless an offender
makes admissions about the psychoactive effects of a substance, the Crown will
be required to prove the substance and that it has a psychoactive effect. This
evidence would need to be led from an expert, who is qualified to give such
evidence.
If this Bill is passed, the concern of FSST and this office
is, if expert evidence is required to prove the offence, whether the available
literature will be sufficient to prove the offence. FSST has advised that the
current approach is to deal with the matter on a case by case basis. In the
absence of clinical trials, evidence about a NPS is obtained from what
literature is available – e.g. case reports in relation to people who have
taken the drug and/or other available reviews. The amount of available
literature on a NPS currently depends on how long the drug has been on the
market and who has been using it.
If the Bill is to be passed in its current form, the
Tasmanian DPP recommends that a body of scientific research needs to be
undertaken to assist law enforcement agencies and prosecution services with
proving these offences.[25]
2.21
The Northern Territory Police Force, while supporting the proposal to
increase Customs' powers at the border, noted that the Misuse of Drugs Act (NT)
was amended on 11 February 2014 to remove all references to 'psychoactive and
psychotropic effects, on the basis that it was difficult for an expert to give such
evidence given the differing effects of substances on individuals'. It
suggested that '[t]he terminology is subjective, and the interpretation would
be broad and open to legal challenge'.[26]
2.22
In relation proving the proposed offences, AGD conceded that there would
be 'challenges' to doing so but suggested the offences would only be 'used when
appropriate'. AGD suggested that the offences were 'secondary to the main aim
of the bill, which is to enable Customs to act in response to a substance of
concern that does not fall within one of the listed illicit drugs'.[27]
As to how one would prove a substance gave rise to a 'psychoactive effect', AGD
suggested the following:
In broad strokes in relation to psychoactivity, there are
probably two things: (1) the chemical composition of what it is that you are
analysing, the substance of concern and (2) existing evidence based on what
effect those substances will have if ingested and just the physiological effect
of those substances when they are ingested.[28]
2.23
ACBPS also explained its approach to implementing the proposed ban at an
operational level:
If Customs and Border Protection finds a good that has come
across the border and seizes it, in some cases there is going to be a very
clear indication to us that that particular substance is a new psychoactive
drug because it is marketed that way—it is commercially available as 'kronic'
or whatever the product may be. There will be some subnarrative under the title
saying, 'This will give you a legal high,' or those sorts of things. That is a
fairly good indicator to us in Customs that it is potentially a new
psychoactive substance and that we ought to put the onus back on the importer
to demonstrate to us whether there is a risk to health or whatever that might
be.
Here is where we get to the point of agreement. The
capability to determine that risk is immature. We can only make those
judgements, at this point in time, on the labelling of those substances. If a
delegate within Customs has to make a decision on whether an importer ought to
have those goods released to him or her I would, at this point in time, set a
high threshold for my officers. I would require scientific, clinical evidence.
Otherwise, the risk transfers to the Customs and Border Protection officer
making that decision to release a substance into the community which
potentially has a risk which is unknown. So your comment is right: it is an
immature capability in terms of that determination.[29]
...But if [the substance] is unlabelled, or it is concealed,
that is a very difficult thing to do. We would then have to go through a
process of seeking guidance and advice from the Commonwealth Medical Officer,
health officials, the [Therapeutic Goods Administration] and various clinical
evidence and we would have to determine all that.[30]
Reversal of the evidentiary onus of
proof
2.24
The Human Rights Committee of the Law Society of NSW raised concerns
about the proposed reversal of the evidentiary onus of proof in relation to the
exemptions listed in proposed sections 320.2(2) and 320.3(3), which are not
essential elements of the offence:
In the Committee's view, proposed ss 320.2 and 320.3
represent a direct violation of Art 14(2) of the International Covenant on
Civil and Political Rights ("ICCPR"). The Compatibility Statement
argues that the reversal is reasonable because it is a regulatory offence and
the defendant would have more knowledge about the information forming the basis
of the offence.
However, while the UN Human Rights Committee has determined
that the onus can be reversed for civil regulatory offences (see Morael v
France (207/86), the plain words of Article 14(2) make it clear that it is
specifically prohibited in relation to criminal charges. The Committee submits
that seeking to provide for more expeditious prosecutions is neither a
sufficient nor legitimate reason for circumventing the presumption of innocence
and the requirement that the prosecution prove every element of the offence,
which are fundamental principles of human rights and criminal justice.[31]
2.25
While the Law Council of Australia did not make a formal submission on
this issue, the committee was directed to its Policy Statement: Rule of Law
Principles, which relevantly states:
The state should be required to prove, beyond reasonable
doubt, every element of a criminal offence, particularly any element of the
offence which is central to the question of culpability for the offence. Only
where a matter is peculiarly within the defendant's knowledge and not available
to the prosecution, should the defendant bear the onus of establishing that
matter. Even then the defendant should ordinarily bear an evidential, as
opposed to legal burden.[32]
2.26
The Law Council of Australia also directed the committee to the Guide
to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers,
produced by AGD, which states that:
If an element of the offence is difficult for the prosecution
to prove, imposing a burden of proof on the defendant in respect of that
element may place the defendant in a position in which he or she would also
find it difficult to produce the information needed to avoid conviction. This
would generally be unjust. However, where a matter is peculiarly within the
defendant's knowledge and not available to the prosecution, it may be
legitimate to cast the matter as a defence.[33]
2.27
Mr Odgers SC, representing the Law Council of Australia, responded to
questioning on this issue with the following:
I am hesitant, because I have not discussed this with my
colleagues or indeed with the Law Council itself, and therefore what I say
immediately needs to be taken with that in mind...But let me say this: there is a
distinction between the onus of proof and an evidential burden. Certainly the
Law Council has always strongly opposed or at least been concerned about
circumstances in which there is a reversal of the onus of proof—that is, that
instead of the prosecution having to prove some element of an offence the
defence has to prove the absence of that element. However, there is less
concern with evidential burdens. Evidential burdens are burdens placed on a
party to raise an issue, to adduce at least some evidence that raises the
question about a particular aspect of an offence, such as to then, once the
issue is raised, put the burden on the prosecution to prove that matter. If the
evidential burden is not met then the prosecution can simply proceed on the
assumption that the issue does not arise and there is no need to prove it.[34]
Mandatory minimum sentences for firearms trafficking offences
2.28
A number of submissions, particularly from peak law organisations and
state prosecution departments,[35]
were strongly opposed to the introduction of mandatory minimum sentences for
the proposed firearms trafficking offences.[36]
For example, the NSW Director of Public Prosecutions submitted the following:
It was the experience in NSW when there were a number of
people smuggling cases before the NSW Courts that the accused did not enter
pleas of guilty because of the mandatory minimum sentence and all the trials
ran the full course. This had a significant impact on the District Court to
dispose of other work and on the resources of the [Commonwealth Director of
Public Prosecutions]...Additionally trials with a mixture of Commonwealth and
State offences by reason alone of the combined effect of State and Commonwealth
provisions are more complex cases to prosecute. The inclusion of a mandatory
minimum sentence in this mix will add to the overall complexity.[37]
2.29
The Human Rights Committee of the Law Society of NSW submitted that,
'[a]s a rule of law matter', it opposed mandatory minimum sentencing:
Mandatory sentences are more likely to result in
unreasonable, capricious and disproportionate outcomes as they remove the
ability of courts to hear and examine all of the relevant circumstances of a
particular case. As a result, mandatory sentencing can produce
disproportionately harsh sentences and result in inconsistent and
disproportionate outcomes. Further, there is no evidence that the harsher
penalties provided by mandatory sentencing have any deterrent value. The
Committee notes the suggestion in the Compatibility Statement that judicial
discretion is preserved because there is no minimum non-parole period proposed.
However, with respect, the Committee's view is that a mandatory minimum
sentence by definition fetters judicial discretion.
As such, the Committee's view is that mandatory minimum
sentences violate Article 9 of the ICCPR as they amount to arbitrary
deprivations of liberty. The Committee notes for example the UN Human Rights
Committee's decision in C v Australia (900/1999) on lack of individual
justification for deprivations of liberty.
Further, the Committee submits that mandatory minimum
sentences are likely to be a breach of Article 14(5) of the ICCPR because that
Article requires a sentence (not only a conviction) to be reviewable on appeal.
That could not happen if the sentence is the mandatory minimum.[38]
2.30
The Law Council of Australia recommended that the mandatory sentencing
measures be removed from the bill, but, in the event this did not occur,
requested a revision of the Explanatory Memorandum to make clear that the Government
intended that:
- the sentencing discretion be left unaffected in respect of
the non-parole period;
- in appropriate cases there may be significant differences
between the non-parole period and the head sentence; and
- the mandatory minimum is not intended to be used as
a sentencing guidepost (where the minimum penalty is appropriate for ‘the least
serious category of offending’).[39]
2.31
The Law Council of Australia suggested this approach on the basis of
concerns that:
...the mandatory minimum sentence will be seen as a 'sentencing
guidepost' which specifies the appropriate penalty for the least serious case.
This would mean that courts would feel constrained to impose a non-parole
period that is the usual proportion (about 2/3 of the head sentence) and, even
then, only in the least serious case.
The Law Council considers that, in principle, the non-parole
period should be completely open-ended, so that in appropriate cases extremely
low non-parole periods could be imposed. In the Law Council’s view any adoption
of a form of mandatory sentencing should only be to indicate that general
deterrence must be given special weight in sentencing in this context. In this
way, some of the Law Council's concerns regarding the mandatory sentences in
the Bill may be mitigated.[40]
2.32
Similarly, the Tasmanian Office of the Director of Public Prosecutions
suggested that, if the mandatory sentence provisions remain in the bill,
amendments be incorporated to allow a judge to depart from the mandatory
minimum sentence in the following circumstances:
-
The offender was under 18 or over 18 but under 21 at the time the
offence was committed or at the time of sentencing; and / or
-
The offender suffered with a cognitive impairment; and / or
-
The imposition of the mandatory minimum sentence would not be in
the public interest; and / or
-
Exceptional circumstances exist that would justify a sentencing
judge departing from the mandatory minimum sentence.[41]
2.33
In response to these concerns at the public hearing, AGD stated the
following:
The penalty will ensure that high probability offenders
receive sentences proportionate to the seriousness of their offending. However,
the mandatory minimum will not carry with it a specified nonparole period; nor
will it apply to minors. This will supply Courts with the discretion to set
custodial periods appropriate to the circumstances of the offender and the
offence while also sending a clear signal about the seriousness of the offence.[42]
2.34
In response to questions on notice, AGD stated that it was 'not aware of
specific instances where sentences for the trafficking of firearms or firearms
parts have been insufficient' but that the introduction of mandatory minimum
sentences for firearms trafficking offences implemented the Government's
election commitment. Further, it indicated that the non-binding Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers
did not prohibit their use, though recommended they be avoided.[43]
Committee view
2.35
The committee considers that the bill contains measures to improve
Commonwealth criminal justice arrangements in Australia. The committee's
specific comments on the proposed amendments are as follows.
2.36
The committee also notes that in the present case, some likely
amendments to the bill were provided to the committee at a late stage, and have
therefore not been exposed to the full inquiry process and to the considered
scrutiny of interested stakeholders.
New psychoactive substances
2.37
The committee appreciates the complexity of designing a policy that
effectively addresses the emergence of new and untested psychoactive substances
in Australia. There is currently not enough evidence to suggest that pre-market
assessment schemes, such as that trialled in New Zealand, are effective.
2.38
The committee notes concerns that the definition of a 'psychoactive
effect' in the bill is broad and captures many legitimate substances. However,
it highlights the point made by Mr Odgers SC that it is 'not uncommon' for
criminal legislation to be drafted in a way that catches criminal activity of a
'very, very low seriousness or culpability' and that in these situations it is
important that prosecutorial discretion is maintained.[44]
Evidence from AGD and ACBPS suggests that they are acutely aware of the broad
reach of this proposed ban and will apply discretion to the use of their powers
or the offences.
2.39
The committee also notes concerns about the proposed reversal of the
evidentiary burden of proof in respect of the offences that would be created by
proposed sections 320.2 and 320.3. However, this applies only in relation to
the exemptions listed and not the elements of the offence. It is
satisfied that, given the emerging nature of untested and potentially harmful
NPS, it is appropriate for importers to prove the intended use of a substance
and that it falls within an exemption, a matter peculiarly within the knowledge
of the importer. The committee also notes that an evidentiary burden only
requires a defendant point to some evidence that suggests a reasonable
possibility that the matter exists or does not exist (section 13.3 Criminal
Code), for the prosecution to then disprove the matter beyond reasonable doubt
(section 13.1 Criminal Code).[45]
2.40
The committee is concerned that, in the event an individual is
prosecuted for importing a psychoactive substance, there will be significant challenges
in successfully prosecuting a case because of the difficulty in proving that a
substance, when consumed, has the capacity to induce a 'psychoactive effect',
as defined in the proposed amendments. Of particular concern is the inherent
subjectivity in this definition, along with the real possibility that there
would be no published research on the effects of many new psychoactive
substances.
2.41
Evidence provided in submissions and from witnesses at the public
hearing was that the proposed ban on the importation of psychoactive substances
would unfairly extend to plant material and extracts. AGD was unable to convince
the committee why this was so, and why an exemption, similar to that provided
for in NSW legislation, had not been considered or adopted. However, it was
made clear that it was unlikely that legitimate importers of plant material
would be captured by the legislation in practice. AGD has indicated it would
consider exempting plants from the offence of importing a prohibited
psychoactive substance under section 320.2 of the bill.[46]
On the evidence before it, the committee is of the view that such an exemption
would be prudent and reduce the potential for unintended consequences to arise
from the proposed amendments.
Recommendation 1
2.42
The committee recommends that the bill be amended to exempt plants and
their extracts from the application of Schedule 1.
Mandatory sentencing for firearms
trafficking offences
2.43
The committee acknowledges the concerns of the various peak law
organisations and state prosecutors regarding the implementation of mandatory
minimum sentences for firearms trafficking offences. However, the Government
must respond to community concern about serious crime and the need to ensure
that offenders receive sentences that reflect the seriousness of their offence.
The committee draws attention to the fact that the proposed mandatory minimum
sentences would not apply to children and do not impose a minimum non-parole
period on offenders. To a certain degree, this will preserve a court's
discretion in sentencing and ensure sentences imposed by courts are
proportionate and take into account the circumstances of the offence and the
offender.
2.44
Nevertheless, the committee sees merit in the recommendation of the Law
Council of Australia that the Explanatory Memorandum be edited to ensure judges
retain a greater level of discretion in sentencing. This proposal strikes a
finer balance between community views on the need for tougher sentencing for
serious crime and the views of the legal profession and others that judges'
sentencing discretion must not be unduly restrained.
Recommendation 2
2.45
The committee recommends that the Government amend the Explanatory
Memorandum to make clear that it is intended that: sentencing discretion should
be left unaffected in respect of the non-parole period; in appropriate cases
there may be significant differences between the non-parole period and the head
sentence; and that the mandatory minimum is not intended to be used as a
sentencing guidepost (where the minimum penalty is appropriate for 'the least
serious category of offending').
Recommendation 3
2.46
Subject to the preceding recommendations, the committee recommends that
the bill be passed.
Senator the Hon Ian Macdonald
Chair
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