Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2017
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Justice, the Hon Michael Keenan MP)
THIS EXPLANATORY MEMORANDUM TAKES ACCOUNT OF AMENDMENTS
MADE BY THE SENATE TO THE BILL AS INTRODUCED
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2016
GENERAL OUTLINE
1. This Bill amends the Criminal Code Act 1995 (Criminal Code) to put in place
aggravated offences of:
trafficking 50 or more firearms or firearms parts within a six month period within
Australia (in Division 360 of the Criminal Code), and
trafficking 50 or more firearms or firearms parts within a six month period into or out
of Australia (in Division 361 of the Criminal Code).
2. A maximum penalty of life imprisonment, or a fine of 7,500 penalty units, or both,
will apply to those offences.
3. The Bill also increases the maximum penalty for the base offences of trafficking
fewer than 50 firearms or firearm parts from 20 years' imprisonment to 30 years'
imprisonment.
4. The aggravated offences and the increased maximum penalties aim to more
adequately reflect the serious nature and potential consequences of supplying firearms and
firearm parts to the illicit market.
FINANCIAL IMPACT
5. The Bill will have no financial impact on Government revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Firearms Trafficking) Bill 2017
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011. To the extent that the measures in the Bill may limit those rights and
freedoms, such limitations are reasonable, necessary and proportionate in achieving the
intended outcomes of the Bill.
Overview of the Bill
2. This Bill amends the Criminal Code Act 1995 (Criminal Code) to put in place
aggravated offences of:
trafficking 50 or more firearms or firearms parts within a six month period within
Australia (in Division 360 of the Criminal Code), and
trafficking 50 or more firearms or firearms parts within a six month period into or out
of Australia (in Division 361 of the Criminal Code).
3. A maximum penalty of life imprisonment, or a fine of 7,500 penalty units, or both,
will apply to those offences.
4. The Bill also increases the maximum penalty for the base offences of trafficking
fewer than 50 firearms or firearm parts from 20 years' imprisonment to 30 years'
imprisonment.
5. These offences ensure that firearms traffickers can be held responsible for the
consequences of supplying firearms into the illicit market from both domestic and
international sources. The offences also support efforts to prevent the diversion of firearms
into illicit markets overseas. Due to its enduring nature, a firearm can remain within the illicit
market for many years and be accessed by serious and organised crime groups for use in the
commission of violent crimes.
6. The aggravated offences and increased maximum penalties aim to more adequately
reflect the serious nature and potential consequences of supplying firearms and firearm parts
to the illicit market.
Human rights implications
7. The Bill engages the right to freedom from arbitrary detention under Article 9(1) of
the ICCPR. Article 9(1) of the ICCPR states that:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.
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8. This right is engaged by new life sentences for the aggravated offences and increased
penalties in Divisions 360 and 361 of Part 9.4 of the Criminal Code.
9. In addition to having a lawful basis for detention, the prohibition on arbitrary
detention under Article 9(1) requires that in all circumstances, the detention of the particular
individual must be justified as reasonable, necessary and proportionate to the end that is
sought.
10. Life sentences for the aggravated offences and increased maximum penalties are
reasonable to achieve the legitimate objective of ensuring that the courts are able to hand
down sentences to firearms trafficking offenders that reflect the seriousness of their
offending. Importantly, the new penalties are reasonable as they will only be applied by a
court if a person is convicted of an offence as a result of a fair trial in accordance with the
procedures as established by law. Further, the new penalties for the firearms trafficking
offences will apply only to offences committed at or after the commencement of the
amendments.
11. Life sentences for the aggravated offences and increased maximum penalties for
firearms trafficking offences are necessary to ensure the serious offences of firearms
trafficking are matched by commensurate punishments. There are clear and serious social and
systemic harms associated with firearms trafficking, and the increased penalties for the
offences more adequately reflect the gravity of supplying firearms and firearm parts to the
illicit market. The entry of even a small number of firearms into Australia's illicit firearms
market can have a significant impact on the community.
12. Due to their imperishable nature, firearms can remain within that market for many
years and be accessed by individuals and groups who would use them to commit serious and
violent crimes, such as murder. For example, in 2015 firearms were identified as being the
type of weapon used in 11% of homicides in Australia and 17% of homicides where a
weapon was used (Recorded Crime - Victims, Australia, 2015, Australian Bureau of
Statistics).
13. Life sentences for the aggravated offences and increased maximum penalties for
firearms trafficking offences are proportionate in that they continue to support the courts'
discretion when sentencing offenders. It is the Australian Government's responsibility to
enshrine maximum penalties for Commonwealth offences in legislation, and the new
penalties are sufficiently high to allow courts to impose appropriate punishments for the most
serious firearms trafficking offences. Life sentences for the aggravated offences and
increased maximum penalties are also proportionate as the amendments do not impose a
minimum non-parole period for offenders.
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Treatment of individuals with significant cognitive impairment
14. Life sentences for the aggravated offences and increased maximum penalties do not
impose a minimum non-parole period for offenders.
15. This will preserve a court's discretion in sentencing, and will help ensure custodial
sentences imposed by courts are able to take into account the particular circumstances of the
offender, including any mitigating factors such as cognitive impairment.
16. In addition, section 7.3 of the Criminal Code provides that a person is not criminally
responsible for an offence if at the time of carrying out the conduct the person was suffering
from a mental impairment that affected their ability to know the nature and quality of the
conduct, know that the conduct was wrong or was unable to control the conduct. The onus is
on the defendant to bring forward evidence supporting their cognitive ability.
17. Taken together, the discretion in setting the non-parole period and the mental
impairment defence in the Criminal Code ensure that life sentences and increased maximum
penalties will not result in the unjust treatment of individuals with a significant cognitive
impairment.
Conclusion
18. Life sentences for the aggravated offences and increased maximum penalties for
firearms trafficking offences in the Criminal Code as set out in the Bill are compatible with
the human rights and freedoms recognised or declared in the international instruments listed
in the definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. To the extent these measures may limit those rights and freedoms, such limitations
are reasonable, necessary and proportionate to achieving reductions in gun-related crime.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides that the Act is the Criminal Code Amendment (Firearms
Trafficking) Act 2017.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table. Item 1 in the table provides that sections 1 and 2, which concern the formal aspects
of the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence
on the day on which the Bill receives Royal Assent. Item 2 in the table provides that the
Schedule to the Bill, which contains the amendments to the Criminal Code, will commence
on the day after the Bill receives the Royal Assent.
Clause 3 - Schedules
Schedule 1--Amendments
Item 1 - Subsections 360.2(1) and 360.2(2) of the Criminal Code
3. Item 1 repeals the offence previously in subsection 360.2(1) and the provision for
absolute liability in subsection 360.2(2) and replaces them with a basic offence (new
subsection 360.2(1). which is the same in substance as the repealed offence), and an
aggravated offence (new subsection 360.2(2)).
Basic offence
4. The basic offence in subsection 360.2(1) is the same in substance as the repealed
offence in subsection 360.2(1). This offence was introduced in the Crime Legislation
Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002.
5. Item 1 increases the penalty for this offence to 30 years' imprisonment or a fine of
5,000 penalty units, or both. The original penalty was a fine of 10 years' imprisonment or a
fine of 2,500 penalty units.
6. The increased maximum penalty is necessary to ensure the serious offences of
trafficking firearms within and into and out of Australia are matched by commensurate
punishments. Consistent with the principles set out in the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers, the increased maximum penalty
will be adequate to deter and punish the offence. This ensures sentences imposed by courts
can continue to take into account the particular circumstances of the offence and the offender.
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7. The new maximum penalty reflects the seriousness of the conduct covered by the
offences, and addresses the clear and serious social and systemic harms associated with the
illicit firearms trade.
Aggravated offence
8. The aggravated offence in subsection 360.2(2) relies on the same underlying conduct
as the basic offence, but with the added element that the conduct, on two or more occasions,
results in the disposal or acquisition of 50 or more firearms or firearm parts within a six
month period.
9. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or
both.
Fault elements, absolute liability and strict liability
10. Subsection 360.2(2A) provides that there are no fault elements in relation to the
physical elements of the offence in paragraphs 360.2(1)(a) and (2)(a). This is appropriate, as
the relevant fault elements are those that apply to the underlying offence against the relevant
state or territory firearm law.
11. Subsection 360.2(2C) contains the same provisions in relation to the fault elements
and strict and absolute liability as in the original offence and also applies them to the
corresponding elements of the aggravated offence.
12. In addition, subsection 360.2(2D) applies strict liability to paragraph 360.2(2)(d)
relating to the conduct resulting in the acquisition or disposal of more than 50 firearms or
firearm parts over a six month period. Strict liability is set out in section 6.1 of the Criminal
Code. The effect of applying strict liability to an element of an offence means no fault
element needs to be proven and the defence of mistake of fact is available.
13. Given the defendant would be aware whether or not they had disposed of or acquired
large numbers of firearms or firearm parts, requiring the prosecution to prove beyond
reasonable doubt that a person knew they had done so, or was reckless as to whether or not
they had done so, would be overly onerous. It could also undermine deterrence if suspects
can avoid conviction by arguing they were unaware of how many firearms or firearm parts
they were acquiring or disposing of.
Provisions to avoid doubt
14. Subsection 360.2(2B) sets out a range of circumstances in which the offences in
paragraphs 360.2(1)(a) and 360.2(2)(a) will apply. These are intended to avoid doubt rather
than define the offences.
15. Paragraph 360.2(2B)(a) sets out that any defences that apply in relation to the offence
against the relevant state or territory firearm law have effect.
16. Paragraph 360.2(2B)(b) sets out that even if a person has not been convicted of the
offence against the relevant state or territory firearm law, they can still be convicted of an
offence against paragraphs 360.2(1)(a) and 360.2(2)(a).
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17. Paragraph 360.2(2B)(c) sets out that for the aggravated offence it does not matter
whether:
i) the underlying offence is the same
ii) the conduct in subsection 360.2(2) is the same or different, or
iii) the firearms or firearm parts are of the same or different kind.
Items 1A and 1B
18. Items 1A and 1B amend the existing offence of taking or sending a firearm or firearm
part across State or Territory borders and re-labels it the basic offence. These provisions have
no practical effect.
Item 1C
19. Item 1C increases the penalty for this offence to 30 years' imprisonment, or a fine of
5,000 penalty units, or both. This replaces the current penalty of 10 years' imprisonment, or a
fine of 2,500 penalty units or both.
20. The increased maximum penalty is necessary to ensure the serious offences of
trafficking firearms within and into and out of Australia are matched by commensurate
punishments. Consistent with the principles set out in the Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers, the increased maximum penalty
will be adequate to deter and punish the offence. This ensures that sentences imposed by
courts can continue to take into account the particular circumstances of the offence and the
offender.
21. The new maximum penalty reflects the seriousness of the conduct covered by the
offences, and addresses the clear and serious social and systemic harms associated with the
illicit firearms trade.
Item 1D
22. Item 1D introduces an aggravated offence (subsection 360.3(1A)) relating to the
offence of taking or sending a firearm across state or territory borders.
23. The elements of the aggravated offence are the same as for the basic offence, with the
additional elements in paragraphs (f) and (g). That is, that the conduct resulted in the sending
or taking across borders of 50 or more firearms or firearm parts during a six month period.
24. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or
both.
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Strict and absolute liability
25. Paragraph 360.3(1B) applies absolute liability to the elements of the offence:
that the conduct was in the course of trade or commerce for the basic offence
(paragraph (1)(ab))
that the conduct was in the course of trade or commerce for the aggravated offence
(paragraph (1A)(c)), and
for the aggravated offence, that the conduct occurred within a six month period
(paragraph (1A)(g)).
26. Paragraph 360.3(1C) applies strict liability to whether the conduct in the aggravated
offence resulted in the taking or sending of more than 50 firearms or firearm parts.
27. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying
strict liability to an element of an offence means no fault element needs to be proven and the
defence of mistake of fact is available.
28. Given the defendant would be aware whether or not they had disposed of or acquired
large numbers of firearms, or firearm parts, requiring the prosecution to prove beyond
reasonable doubt that a person knew they had done so, or was reckless as to whether or not
the they had done so, would be overly onerous. It could also undermine deterrence if suspects
could avoid conviction by arguing they were unaware of how many firearms or firearm parts
they were taking or sending across state or territory borders.
29. Paragraph 360.3(1D) sets out that, for the aggravated offence, it is immaterial whether
the firearms or firearm parts are of the same kind.
Item 1E
30. Item 1E ensures that for the aggravated offence, a firearm is defined in relation to the
firearm law referred to in the aggravated offence (paragraph 360.3(1A)(e)).
Item 1F
31. Item 1F ensures that for the aggravated offence, a firearm part is defined in relation to
the firearm law referred to in the aggravated offence (paragraph 360.3(1A)(e)).
Item 3
32. Item 3 adds section 360.3AB which sets out double jeopardy and alternative verdicts.
33. Subsection 360.3AB(1) sets out that a person may not be convicted of a basic offence
if they have been convicted or acquitted of a related aggravated offence alleged to have been
committed within the same period. However, an alternative verdict is still allowed
(subsection 360.3(AB)(2)).
34. Subsection 360.3AB(3) sets out that a person who has been convicted or acquitted of
a basic offence cannot be convicted of a related aggravated offence if the conduct that
constitutes the basic offence is part of the conduct for the alleged aggravated offence.
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35. Subsection 360.3AB(4) allows an alternative verdict of guilt in relation to a basic
offence if the trier of fact is not satisfied a person is guilty of an aggravated offence.
36. Subsection 360.3AB(5) defines the aggravated offences and the basic offences as
being those related to the relevant aggravated offence.
Importation offences
Item 3A
37. Item 3A replaces the heading of the offence in 361.2(1) with a new heading reflecting
that it is the basic offence.
Item 3B
38. Item 3B increases the penalty for the basic offence 361.2(1) to imprisonment for 30
years, or a fine of 5,000 penalty units or both. This replaces the current penalty of 10 years'
imprisonment, or a fine of 2,500 penalty units, or both.
Item 3C
39. Item 3C repeals subsection 361.2(2) of the Criminal Code which applied absolute
liability to the element of the offence in paragraph 361.2(1)(d) that importation of the firearm
or firearm part was prohibited absolutely.
Item 3D
40. Item 3D repeals the heading for the offence in 361.2(3).
Item 3E
41. Item 3E increases the penalty for the basic offence in subsection 361.2(3) to
imprisonment for 30 years, or a fine of 5,000 penalty units or both. This replaces the current
penalty of 10 years' imprisonment, or a fine of 2,500 penalty units, or both.
Item 3F
42. Item 3F:
repeals subsection 361.2(4) of the Criminal Code which applied absolute liability to
the element of the offence in paragraph 361.2(3)(d) - that importation of the firearm
or firearm part was prohibited unless certain requirements were met
repeals subsection 361.2(5) of the Criminal Code which applied strict liability to the
element of the offence in paragraph 361.2(3)(e) - that the requirements for
importation were not met, and
introduces an aggravated offence of importing 50 or more firearms or firearm parts in
a six month period.
10
43. The elements of the aggravated offence are the same as for the basic offences, with
the additional elements in paragraphs 361.2(4)(f) and (g). That is, that the conduct resulted in
the importation of 50 or more firearms or firearm parts during a six month period.
44. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or
both.
45. Paragraph 361.2(5) re-applies the absolute liability previously in subsections 361.2(2)
and 361.2(4) in relation to the basic offences to:
paragraph 361.2(1)(d) - that importation of the firearm or firearm part was prohibited
absolutely, and
paragraph 361.2(3)(d) - that importation of the firearm or firearm part was prohibited
unless certain requirements were met
and applies it in relation to the aggravated offences to:
paragraph 361.2(4)(d) - that importation of the firearm or firearm part was prohibited
absolutely or unless certain requirements were met, and
paragraph 361.2(4)(g) - that the conduct occurred within a six month period.
46. Paragraph 361.2(6) re-applies strict liability previously in subsection 361.2(5) in
relation to the basic offence to:
paragraph 361.2(3)(e) - the fact that import requirements were not met
and applies it in relation to the aggravated offence to:
paragraph 361.2(4)(e) - the fact that import requirements were not met, and
paragraph 361.2(4)(f) - that the conduct resulted in the importation of 50 or more
firearms or firearm parts.
47. Paragraph 361.2(7) says that for the avoidance of doubt, it is immaterial whether the
firearms or firearm parts are of the same kind.
Export offences
Item 3G
48. Item 3G replaces the heading of the offence in 361.3(1) with a new heading reflecting
that it is the basic offence.
Item 3H
49. Item 3H increases the penalty for the basic offence 361.3(1) to imprisonment for 30
years, or a fine of 5,000 penalty units, or both. This replaces the current penalty of 10 years'
imprisonment, or a fine of 2,500 penalty units, or both.
11
Item 3J
50. Item 3J repeals subsection 361.3(2) of the Criminal Code which applied absolute
liability to the element of the offence in paragraph 361.3(1)(d) that exporting the firearm or
firearm part was prohibited absolutely.
Item 3K
51. Item 3K repeals the heading for the offence in 361.3(2).
Item 3L
52. Item 3L increases the penalty for the basic offences in 361.3(3) and (4) to
imprisonment for 30 years, or a fine of 5,000 penalty units, or both. This replaces the current
penalty of 10 years' imprisonment, or a fine of 2,500 penalty units, or both.
Item 3M
53. Item 3M:
repeals subsection 361.2(5) of the Criminal Code which applied absolute liability to
the element of the offence in paragraphs 361.2(3)(d) and 361.2(4)(d) - that exporting,
or entering for export, a firearm or firearm part was prohibited unless certain
requirements were met
repeals subsection 361.2(6) of the Criminal Code which applied strict liability to the
element of the offence in paragraphs 361.2(3)(e) and 361.2(4)(f) - that the
requirements for export, or entering for export, were not met, and
introduces an aggravated offence of exporting, or entering for export, 50 or more
firearms or firearm parts in a six month period.
54. The elements of the aggravated offence are the same as for the basic offences, with
the additional elements in paragraphs 361.3(4)(f) and (g). That is, that the conduct resulted in
the sending or taking across borders of 50 or more firearms or firearm parts during a six
month period.
55. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or
both.
56. Paragraph 361.3(6) re-applies absolute liability previously in subsections 361.3(2) and
361.2(5) for the basic offences to:
paragraph 361.3(1)(d) - that exportation of the firearm or firearm part was prohibited
absolutely, and
paragraphs 361.3(3)(d) and (4)(d) - that exporting, or entering for export, the firearm
or firearm part was prohibited unless certain requirements were met
12
and applies it to the aggravated offence to:
paragraph 361.3(5)(d) - that export, or entry for export, of the firearm or firearm part
was prohibited absolutely or unless certain requirements were met, and
paragraph 361.3(5)(g) - that the conduct occurred within a six month period.
57. Paragraph 361.2(7) re-applies strict liability previously in subsection 361.2(6) for the
basic offence to:
paragraph 361.3(3)(e) and (4)(e) - the fact that export requirements were not met
and applies it for the aggravated offences to:
paragraph 361.3(5)(e) - the fact that export, or entry for export, requirements were not
met, and
paragraph 361.3(5)(f) - that the conduct resulted in the export, or entry for export, of
50 or more firearms or firearm parts.
58. Paragraph 361.3(8) says that for the avoidance of doubt, it is immaterial whether the
firearms or firearm parts are of the same kind.
Item 6
59. Item 6 inserts a subsection (1) marker in front of section 361.6 as Item 7 inserts
additional subsections.
Item 7
60. Item 7 adds additional provisions relating to double jeopardy and alternative verdicts
for offences in Division 361.
61. Subsection 361.6(2) sets out that a person may not be convicted of a basic offence if
they have been convicted or acquitted of an aggravated offence within the same period.
However, an alternative verdict is still allowed (subsection 361.6(3)).
62. Subsection 361.6(4) sets out that a person who has been convicted or acquitted of a
basic offence cannot be convicted of a related aggravated offence if the conduct that
constitutes the basic offence is included in the conduct for the aggravated offence.
63. Subsection 361.6(5) allows an alternative verdict of guilt in relation to a basic offence
if the trier of fact is not satisfied a person is guilty of an aggravated offence.
64. Subsection 361.6(6) defines the aggravated offences and the basic offences as being
those related to the relevant aggravated offence.
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