Fact Check: Did Labor oppose the Government's attempts to strengthen Australia's gun laws?

Australia's gun laws returned to the headlines in the wake of last month's horrific terrorist attack in Christchurch and the subsequent revelation that senior One Nation figures had met with and sought donations from the United States' National Rifle Association.

The claim

One Nation's leader in Queensland, Steve Dickson, was filmed saying the party would "have the testicles of the Government in our hand at every given stage" if it gained the balance of power.

He was also seen in the Al Jazeera investigation saying that "guns, in the scheme of things, are still going to be the be-all and end-all".

The morning after the investigation was broadcast, Attorney-General Christian Porter told ABC News Breakfast the Coalition was "utterly stringent in protecting Australians and maintaining the strength and stringency of our gun laws".

"In fact, as a Government, we have twice tried to pass increased penalties and mandatory minimum penalties for gun traffickers, which has been opposed by the Labor Party," Mr Porter said.

So, did the Coalition twice try to pass increased penalties and mandatory minimum penalties for gun traffickers?

And were these moves opposed by the Labor Party?

RMIT ABC Fact Check investigates.

The verdict

Part of Mr Porter's claim is correct and part of it is incorrect.

Since it was returned to office in 2013, the Coalition has made two attempts to increase maximum penalties for firearms trafficking offences.

Labor did not oppose these. Indeed, it tried to introduce higher maximum penalties.

But Labor has opposed the Coalition's repeated attempts to introduce mandatory minimum five-year jail terms for firearms traffickers.

A quick look at major gun reform in Australia

As well as tougher laws, a gun buyback scheme was introduced in the wake of the Port Arthur massacre.

The Howard Coalition government introduced sweeping gun control reforms in the immediate wake of 1996's Port Arthur massacre, in which 35 people were killed.

Federal, state and territory governments entered into the National Firearms Agreement (1996), which provided for restrictions on automatic, semi-automatic and pump action rifles, as well as shotguns.

It also ushered in stricter requirements for the registration and storage of firearms, among other measures.

A national gun buyback scheme saw more than 640,000 firearms handed in.

In 2002, following a shooting at Monash University, reforms aimed at controlling illegal trade in firearms and restricting the use of handguns were introduced as part of the National Firearm Trafficking Policy Agreement and National Handgun Control Agreement.

These three agreements were intended to strengthen gun laws and encourage the adoption of consistent legislation in all states and territories.

It's important to note that these agreements are just that: agreements, not law.

Each state and territory government is independently responsible for the regulation of the use, possession and sale of firearms in its jurisdiction.

The federal government is responsible for the regulation of the importation of firearms, both in and out of Australia and between the states and territories.

What are the penalties for firearms trafficking?

In 2013, when the Coalition was returned to power, the maximum penalties for illegal firearms trafficking were a fine of up to 2,500 penalty units (equal to $425,000 at the then Commonwealth penalty unit priceof $170), imprisonment for up to 10 years, or both.

Today, the maximum penalties remain the same: a fine of up to 2,500 penalty units (equal to $525,000 at the current Commonwealth penalty unit price of $210), imprisonment for up to 10 years, or both.

Did the Coalition try to introduce higher maximum penalties for firearms traffickers?

Yes, it did.

Since 2013, the Coalition has made two attempts to increase maximum penalties for firearms trafficking offences, in the Criminal Code Amendment (Firearms Trafficking) Bill 2015 (the December 2015 bill) and the Criminal Code Amendment (Firearms Trafficking) Bill 2016 (now 2017), (the 2016-17 bill).

In both bills, the Coalition proposed increasing the maximum penalties for trafficking firearms or firearms parts to a fine of 5,000 penalty units (equal to $1.05 million), 20 years imprisonment, or both — a doubling of the existing maximum penalties.

Did Labor oppose the higher maximum penalties?

No, it didn't.

Labor voiced support for the increased maximum penalties proposed in the December 2015 bill.

In February 2016, then-shadow minister for justice, David Feeney, told the House of Representatives that Labor "of course, support a harshening of the sentences".

He pointed to the fact that Labor had already tried, in 2012, to introduce increased maximum penalties in its Crimes Legislation Amendment (Organised Crime and Other Measures) Bill.

Labor's 2012 bill followed an agreement between Commonwealth, state and territory ministers to a range of measures targeting gun crime, including the introduction of a new category of "aggravated offences" for firearm trafficking, with a maximum penalty of life imprisonment. This bill lapsed at the end of parliament in 2013.

The Coalition's December 2015 bill also lapsed at the dissolution of the parliament, in May 2016.

Labor also supported the Coalition's proposal for stronger penalties in the 2016-17 bill. Indeed, the Opposition sought to introduce even higher maximum penalties.

Labor proposed the introduction of a category of "aggravated offences" to be applied to convictions for importing or exporting, taking or sending, or disposing or acquiring more than 50 firearms or firearm parts in a six-month period.

For people convicted of "aggravated offences", Labor suggested maximum penalties of 7,500 penalty units (close to $1.6 million), life imprisonment, or both.

In the same 2016-17 bill, the Nick Xenophon Team also introduced an amendment to increase the maximum imprisonment for non-aggravated offences to 30 years, a proposal supported by Labor.

Debating the bill in February 2017, Leader of the Opposition in the Senate Penny Wong said Labor believed "the amendments we propose, comprising tough new aggravated offences, alongside the higher maximum penalty for the basic firearms trafficking offences in the bill, which we support, will send a clear message that gun trafficking is as serious as drug trafficking and will attract the same severe penalties".

The version of the bill passed by the Senate in February 2017 included the new maximum penalties for "aggravated offences" proposed by Labor, and kept the maximum financial penalty for "basic offences" at 5,000 penalty units, but raised the maximum prison sentence for basic offences to 30 years.

The bill was still awaiting debate in April 2019, when it lapsed at the dissolution of parliament ahead of the May election.

Did the Coalition try to introduce mandatory minimum prison sentences for firearms traffickers?

Yes, it did.

The Coalition attempted to introduce mandatory minimum sentences of five years for firearms traffickers in four bills. Two of those attempts were in the bills already mentioned that also dealt with increased maximum penalties (the December 2015 bill and the 2016-17 bill).

The other two attempts were in earlier bills: the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 (the 2014 bill), and Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (the March 2015 bill).

In each of these four bills, children under the age of 18 were excluded from the minimum jail terms, and no minimum non-parole term was set.

In the 2016-17 bill, the Coalition also introduced an amendment to allow a court to discount the mandatory minimum sentence if an offender pleads guilty, and/or co-operates with law enforcement agencies, in a bid to "encourage guilty pleas and cooperation by offenders".

Did Labor oppose mandatory minimum sentences?

Yes, Labor consistently opposed the introduction of mandatory minimum jail terms.

Labor moved an amendment in the Senate to remove the mandatory minimum prison sentences from the 2014 bill, and the amended bill was passed by both houses in February 2015.

Labor again opposed the proposal for mandatory minimum sentences in the Coalition's March 2015 bill, and again, the Senate voted in favour of amendments (introduced by the Australian Greens) to remove them.

The amended bill passed both houses in November 2015.

Labor voiced opposition to the measure in the Coalition's December 2015 bill, which lapsed without a vote when parliament was dissolved.

Labor also moved amendments against mandatory minimum sentences in the 2016-17 bill.

The mandatory minimum sentences were removed from the bill, and this amended bill was passed by the Senate in February 2017.

Later that year, in the House of Representatives, the Coalition reintroduced them, with Labor again in opposition.

The bill was still awaiting debate in the Senate in April 2019, when it lapsed at the dissolution of parliament.

Why did Labor oppose the mandatory minimum jail terms?

The Coalition made election commitments in 2013 and 2016 to introduce mandatory minimum sentences for firearms traffickers.

In debating the first bill in July 2014, the then-minister for justice, Michael Keenan, said the introduction of this type of penalty was "appropriate to ensure that high culpability offenders receive sentences proportionate to the seriousness of their offending".

The Coalition held this position throughout the course of the debate.

In 2017, Mr Keenan said "a combination of mandatory minimum sentences and increased maximum penalties would send the strongest possible message that the illegal trafficking of guns will not be tolerated", and would "create the strongest possible deterrent".

Over the years, Labor pointed a range of sources that advised against the use of mandatory minimum sentences.

These included the Attorney-General's Department, the Australian Law Reform Commission, the Law Council of Australia, and the Australian Human Rights Commission.

Concerns were also raised by the New South Wales and Tasmanian Offices of the Director of Public Prosecutions.

Some of these groups made submissions advising against mandatory minimum penalties to parliamentary inquiries that explored the issue.

Labor ministers pointed to a document published by the Attorney-General's Department: The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

According to the department, the guide is designed to assist Australian government departments "draft criminal offences, infringement notices and enforcement provisions that are intended to become part of Commonwealth law".

"Australian Government departments should refer to the guide when drafting these kinds of provisions," the guide states.

In the chapter on penalties, it is advised that "general, fixed and minimum penalties should not be used".

"Other than in rare cases, Commonwealth offences should carry a maximum penalty rather than a fixed penalty and should not carry a minimum penalty."

The guide from the Attorney-General's Department states that fixed or minimum penalties should be avoided, in part because:

  • they can interfere with the discretion of a court to impose a penalty appropriate to a particular case;
  • defendants may be less likely to cooperate with authorities if their cooperation cannot be reflected in sentencing;
  • they preclude the use of alternative sanctions, such as community service orders, which in some cases can provide a more effective mechanism for deterrence or rehabilitation; and
  • the judiciary may look for technical grounds to escape restrictions on sentencing discretion, leading to anomalous decisions.

When the first bill was introduced in 2014, Mr Keenan said the absence of any specified non-parole period, and the exclusion of minors from minimum jail terms, would provide "courts with discretion to set custodial periods consistent with the particular circumstances of the offender and the offence".

In the most recent bill, the Coalition moved an amendment to allow a court to discount the mandatory minimum sentence if the offender pleads guilty, and/or co-operates with law enforcement agencies.

Detective Inspector Dale Davies with a gun seized in raids conducted jointly by police and customs in Perth in 2013. Photo: ABC News: Courtney Bembridge

What do the experts say?

Associate Professor Philip Alpers from the University of Sydney School of Public Health, and founding director of GunPolicy.org, told Fact Check: "Christian Porter seemed to be suggesting that his Government has been a staunch supporter of gun control laws.

"But Australia's firearm laws do not belong to Canberra.

"In reality, the Commonwealth can do little more than raise penalties for federal crimes like arms trafficking, or ban a few weapon imports under Customs regulations.

"Under the Constitution, day-to-day gun control legislation rests solely with each state and territory.

"Mr Porter holds little to no power to prevent the gradual weakening in every state and territory of the resolutions they signed up to in John Howard's 1996 National Firearm Agreement."

Samantha Lee, lawyer and president of Gun Control Australia, agreed that state and territory gun laws are "incrementally being watered down".

However, she said that "even though responsibility for firearm laws predominantly rests with the states, there are various initiatives the Commonwealth could be taking to prevent the weakening of the gun laws".

Ms Lee said a federal government could focus on its role as facilitator between the states and territories through the Council of Australian Governments, to "have the premiers commit to preventing the further erosion of gun laws", similar to the facilitatory role played by the Howard government in 1996.

For example, as the "monitor and controller of the importation of firearms", the federal government could "undertake a national audit of state and territory gun laws to assess compliance with the 1996 Port Arthur Agreement", and ban the importation of semi-automatic handguns, she said.

Dr Samara McPhedran, director of the Homicide Research Unit and deputy director of the Violence Research and Prevention Program at Griffith University, and former Chair of the International Coalition for Women in Shooting and Hunting (WiSH), did not agree that Australia's gun laws are being "watered down".

"Australia's gun law framework remains virtually the same as when it was introduced more than 20 years ago," Dr McPhedran said.

"The last major change was in 2017, when all jurisdictions agreed to ban lever-action shotguns with a magazine capacity of more than five rounds of ammunition. This is hardly 'watering down'.

"Firearm trafficking is widely recognised as a significant component of serious and organised crime in Australia, and disrupting the black market in guns is an ongoing concern for law enforcement," she said.

"Nobody would dispute that firearm trafficking is an extremely serious matter, and requires significant legal responses.

"With that said, mandatory sentencing is a very contentious area – not just in relation to gun trafficking, but more generally.

"Politicians typically argue that mandatory sentencing is a response to public demands for harsher punishments and perceived leniency of courts, but this should not lead us to overlook the importance of matters such as judicial discretion, the rule of law, and whether sentencing has any impact on deterrence."

 

Principal researcher: Lucinda Beaman, Sydney editor

Additional research: Natasha Grivas

For full story, please visit the RMIT ABC FactCheck website.

30 April 2019

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30 April 2019

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  • Fact Check

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