Bill
Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
passed, as at 2015-11-26. Attorney-General portfolio.
- Sponsor
- Not recorded
- Portfolio
- Attorney-General
Recorded stages
- introduced — 2015-03-19
- second reading — 2015-03-19
- second reading — 2015-08-11
- second reading — 2015-08-12
- second reading — 2015-08-12
- committee — 2015-08-12
- third reading — 2015-08-12
- introduced — 2015-08-12
- second reading — 2015-08-12
- second reading — 2015-08-17
- second reading — 2015-08-18
- second reading — 2015-08-19
- second reading — 2015-08-19
- committee — 2015-08-19
- third reading — 2015-08-19
- other — 2015-08-20
- other — 2015-11-10
- passed — 2015-11-10
- royal assent — 2015-11-26
Divisions
- David Feeney by leave—I move amendments (1) and (2), as circulated in my name, together: (1) Schedule 5, page 10 (lines 1 to 26), omit the Schedule. (2) Schedule 6, page 11 (lines 1 to 23), omit the Schedule. I rise to speak to Labor's concerns about two of the proposed elements found in the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. Labor is concerned about the insertion of 'knowingly concerned' as a secondary form of criminal liability, and the introduction of mandatory minimum sentences for firearms trafficking offences. As detailed in my speech on the second reading, we note the strong opposition held by peak law organisations with respect to these amendments, and we note the lack of consultation that has occurred with respect to this bill. Not only has the government failed to engage with stakeholders with regard to these amendments, but it has also failed to justify the need for an additional form of secondary criminal liability to apply to all offences in the Criminal Code. 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 addressed the concerns raised without the need to include 'knowingly concerned'. Labor believes that the proposed change in relation to the introduction of 'knowingly concerned' is a major change to the Model Criminal Code. Leading up to the adoption of the Model Criminal Code in 1995, there was a long consultation. The consultation occupied some years and included some of Australia's leading criminal practitioners. There ought to be a full consultation in relation to any proposed general change to the Model Criminal Code. As the Australian Human Rights Commission noted in a submission to the Senate committee, it is difficult to anticipate the impact of extending this form of liabilit — 2015-08-12, House of Representatives: negative, ayes 46, noes 80
- Penny Wright I move Australian Greens amendment (1) on sheet 7736: (1) Schedule 5, page 10 (lines 1 to 26), to be opposed. The Australian Greens share the strong concerns raised by the Law Council of Australia and others about the introduction of a new form of extended criminal liability into the Commonwealth Criminal Code. Schedule 5 would amend the Criminal Code to insert the concept of 'knowingly concerned' as an additional form of secondary criminal liability into section 11.2. That would mean that where persons are knowingly concerned in the commission of an offence under the Criminal Code and the Crimes Act they would be liable for the offence. The problem with this change is that it adds a new category of criminal liability to an already extensive secondary liability regime under the Criminal Code. The existing regime already makes it an offence to attempt or to aid and abet or to conspire with another to commit an offence. The concept of 'knowingly concerned' was specifically considered and rejected twice as a form of secondary liability when the Criminal Code was being delivered. In her wrap-up of the bill, Senator Fierravanti-Wells tried to assuage concerns I had raised about the amorphous nature of adding this concept and said that there would be a requirement to have intentionally participated in the commission of the offence, but that begs the question why then they could not be prosecuted under an existing category of criminal liability such as conspiracy or aiding and abetting. From a human rights and rule of law perspective, we should always set a high hurdle of necessity before sweeping new forms of criminal liability are introduced to Australia. In this case, legal commentators overwhelmingly agree the government has not come even close to justifying why we need this new concept of 'knowingly concerned' or what it would actually add in practical terms to the existing extended liability provisions in the Criminal Code. For these reasons, the Austral — 2015-08-19, Senate: negative, ayes 30, noes 31
- Gavin Marshall The committee is considering the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 as amended and amendment (2) on sheet 7736, moved by Senator Wright. Concetta Fierravanti-Wells I want to address some of the issues that were raised by those opposite. Senator Collins made some comments in relation to the government supporting the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014. We agreed to this legislation without the mandatory minimum sentences to ensure that other important measures contained in the bill were passed without further delay. These important measures included introducing offences for the trafficking of firearms and firearm parts into and out of Australia and expanding the offences for trafficking firearms within Australia to include parts. We took to the election a commitment to implement tougher penalties for gun-related crime, and that is why we are now reintroducing the minimum sentences into this legislation. Can I also address some of the comments that were raised in relation to the Parliamentary Joint Committee on Human Rights, in relation to a number of issues. Firstly, in relation to arbitrary detention we believe that there are appropriate limitations and safeguards in place to ensure that detention is reasonable, necessary and proportionate to each individual case. We consider that the mandatory minimum penalties for firearm trafficking are reasonable and necessary to deter people from diverting firearms into the illicit market, where they can be accessed by criminals and used in the commission of serious and violent crimes. Given that the provisions do not impose a mandatory nonparole period, the actual time a person will be incarcerated will remain at the discretion of the sentencing judge. And, consistent with these concerns raised by that committee, the government has amended the explanatory memorandum for the bill to note that the mandatory minimum sentence i — 2015-08-19, Senate: negative, ayes 30, noes 34
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