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Mandatory minimum sentences proposed for firearms trafficking



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Mandatory minimum sentences proposed for firearms trafficking Posted 23/03/2015 by Cat Barker

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The Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (2015 Bill), listed for debate in the House of Representatives this week, includes amendments to introduce mandatory minimum sentences for firearms trafficking that failed to pass the Senate in an earlier Bill. The Government has linked these new amendments to the review of the Martin Place siege.

Earlier Bills

The former Labor Government introduced amendments to Commonwealth firearms trafficking offences in the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 (2012 Bill), following an agreement reached in June 2012 by Commonwealth, state and territory ministers on combating firearms crime. The Bill lapsed ahead of the 2013 federal election. The Bills Digest contains background on the agreement and the number and sources of illicit firearms in Australia.

In July 2014, the current Coalition Government introduced amendments to firearms offences in the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 (2014 Bill). As outlined in the Bills Digest, most of the amendments

were the same or similar to those included in the 2012 Bill. Both included amendments to expand the offences to cover firearms parts as well as whole firearms and introduce new offences for international firearms trafficking. The key difference was that:

• the 2012 Bill sought to establish two sets of offences (‘basic’ offences, with maximum penalties of 10 years imprisonment, and aggravated offences, with maximum penalties of life imprisonment) and

• the 2014 Bill sought to retain a single set of offences with maximum penalties of 10 years imprisonment, but introduce mandatory minimum penalties of five years imprisonment (as committed to in The Coalition’s policy to tackle crime).

The Senate Legal and Constitutional Affairs Legislation Committee considered the 2014 Bill and reported in September 2014. Despite concerns raised in submissions to its inquiry, the majority of the Committee did not recommend any changes to the firearms amendments, but did recommend some amendments to 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').

Labor Senators (in additional comments) and the Greens (in a dissenting report) recommended the provisions introducing mandatory minimum sentences be removed from the Bill.

Opposition amendments to remove the provisions that would have introduced mandatory minimum sentences were passed in the Senate with the support of Greens Senators and independent Senators Xenophon and Leyonhjelm. The Bill as amended was passed by the Senate on 9 February 2015 and the House of Representatives on 23 February 2015 and is now an Act.

Current Bill

Schedule 6 of the 2015 Bill would introduce mandatory minimum penalties of five years imprisonment for the offences of domestic firearms trafficking (Division 360 of the Criminal Code Act 1995) and international firearms trafficking (Division 361). The Explanatory

Memorandum notes that this amendment would implement an election commitment and provides the following justification:

There are clear and serious social and systemic harms associated with firearms trafficking, and the introduction of a mandatory minimum penalty of five years‘ imprisonment for offences under Division 360 and the new Division 361 reflect the gravity of supplying firearms and firearm parts to the illicit market. The entry of even a small number of illegal firearms into the Australian community can have a significant impact on the size of the illicit market, and, due to the imperishable nature of firearms, a firearm can remain within that market for many years. This provides a growing pool of firearms which can be accessed by groups who would use them to commit serious and violent crimes, such as murder. For example, in 2012, firearms were identified as being the type of weapon used in 25% of homicides in Australia (Australian crime: Facts and figures 2013, Australian Institute of Criminology). Failure to enforce harsh penalties on trafficking offenders could lead to increasing numbers of illegal firearms coming into the possession of organised crime groups who would use them to assist in the commission of serious crimes.

The Minister for Justice’s media release states that the amendments ‘also reflect the Australian Government’s commitment to act quickly to implement the firearms-related recommendations from the joint Commonwealth-NSW Review into the Martin Place Siege’.

The report on the joint Commonwealth-New South Wales review of the Martin Place siege was finalised in January 2015 and released on 22 February 2015. It included four recommendations relating to firearms, none of which related specifically to offences or penalties (they were focused on the proposed National Firearms Interface and simplifying regulation of the legal firearms market). However, the report noted the reforms in the 2014

Bill (including but not limited to introduction of mandatory sentencing) and stated that ‘[p]assage of the Bill would strengthen the Commonwealth’s ability to tackle illegal trafficking of firearms and firearm parts into and out of Australia’.

The Greens remain opposed to the amendments, and called on the Government to wait for the recommendations of a Senate inquiry into firearms due to report on 26 March 2015. The Shadow Attorney-General reportedly told The Guardian that Labor’s position also remains unchanged.

The Parliamentary Library is preparing a Bills Digest for the 2015 Bill. Members, Senators and their staff can contact the Library if they would like to speak to a researcher.