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Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014

Schedule 2 Firearms trafficking offences

   

Criminal Code Act 1995

1  Section 360.1 of the Criminal Code (heading)

Repeal the heading, substitute:

360.1   Disposal and acquisition of a firearm or firearm part

2  Subsection 360.1(1) of the Criminal Code

After “firearm” (first occurring), insert “or a firearm part”.

3  Paragraphs 360.1(1)(a), (b) and (c) of the Criminal Code

After “firearm” (wherever occurring), insert “or part”.

4  Subsection 360.1(2) of the Criminal Code

After “firearm” (first occurring), insert “or a firearm part”.

5  Paragraphs 360.1(2)(a), (b) and (c) of the Criminal Code

After “firearm” (wherever occurring), insert “or part”.

6  Section 360.2 of the Criminal Code (heading)

Repeal the heading, substitute:

360.2   Cross-border offence of disposal or acquisition of a firearm or firearm part

7  Subparagraphs 360.2(1)(b)(i) and (ii) of the Criminal Code

After “a firearm”, insert “or a firearm part”.

8  Subsection 360.2(3) of the Criminal Code

Insert:

firearm part means either of the following within the meaning of the firearm law concerned:

                     (a)  a firearm part;

                     (b)  a part of, or for, a firearm or weapon.

9  Section 360.3 of the Criminal Code (heading)

Repeal the heading, substitute:

360.3   Taking or sending a firearm or firearm part across borders

10  Paragraph 360.3(1)(a) of the Criminal Code

After “a firearm”, insert “or a firearm part”.

11  Paragraph 360.3(1)(b) of the Criminal Code

After “firearm”, insert “or firearm part”.

12  Subparagraphs 360.3(1)(c)(i) and (ii) of the Criminal Code

After “firearm”, insert “or firearm part”.

13  Subsection 360.3(2) of the Criminal Code

Insert:

firearm part means either of the following within the meaning of the firearm law mentioned in paragraph (1)(c):

                     (a)  a firearm part;

                     (b)  a part of, or for, a firearm or weapon.

14  After section 360.3 of the Criminal Code

Insert:

360.3A   Mandatory minimum penalties

             (1)  The court must impose a sentence of imprisonment of at least 5 years for a person convicted of an offence against this Division.

             (2)  Subsection (1) does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

15  Section 360.4 of the Criminal Code

Before “This”, insert “(1)”.

16  At the end of section 360.4 of the Criminal Code

Add:

             (2)  Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:

                     (a)  an act or omission that is an offence against this Division; or

                     (b)  a similar act or omission;

an offence against the law of the State or Territory.

             (3)  Subsection (2) applies even if the law of the State or Territory does any one or more of the following:

                     (a)  provides for a penalty for the offence that differs from the penalty provided for in this Division;

                     (b)  provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence against this Division;

                     (c)  provides for a defence in relation to the offence that differs from the defences applicable to the offence against this Division.

             (4)  A person punished for an offence against a law of a State or Territory referred to in subsection (2) in respect of particular conduct cannot be punished for an offence against this Division in respect of that conduct.

17  Application of amendments

The amendments made by items 1 to 16 apply in relation to conduct engaged in on or after the commencement of those items.

18  At the end of Part 9.4 of the Criminal Code

Add:

Division 361 International firearms trafficking

361.1   Definitions

                   In this Division:

export a thing, means export the thing from Australia.

firearm has the same meaning as in the Customs (Prohibited Imports) Regulations 1956 .

firearm part has the same meaning as in the Customs (Prohibited Imports) Regulations 1956 .

import a thing, means import the thing into Australia, and includes deal with the thing in connection with its importation.

traffic in a thing that is a firearm or a firearm part means:

                     (a)  transfer the thing; or

                     (b)  offer the thing for sale; or

                     (c)  invite the making of offers to buy the thing; or

                     (d)  prepare the thing for transfer with the intention of transferring any of it or believing that another person intends to transfer any of it; or

                     (e)  transport or deliver the thing with the intention of transferring any of it or believing that another person intends to transfer any of it; or

                      (f)  guard or conceal the thing with the intention of transferring any of it or the intention of assisting another person to transfer any of it; or

                     (g)  possess the thing with the intention of transferring any of it.

For the purposes of paragraph (d), preparing a thing for transfer includes packaging the thing or separating the thing into discrete units.

361.2   Trafficking prohibited firearms or firearm parts into Australia

Customs Act prohibits imports absolutely

             (1)  A person commits an offence if:

                     (a)  the person imports a thing; and

                     (b)  the thing is a firearm or firearm part; and

                     (c)  the person imports the firearm or part with the intention of trafficking in the firearm or part; and

                     (d)  importing the firearm or part was prohibited under the Customs Act 1901 absolutely.

Penalty:  Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

             (2)  Absolute liability applies to paragraph (1)(d).

Note:          For absolute liability, see section 6.2.

Customs Act prohibits imports if requirements not met

             (3)  A person commits an offence if:

                     (a)  the person imports a thing; and

                     (b)  the thing is a firearm or firearm part; and

                     (c)  the person imports the firearm or part with the intention of trafficking in the firearm or part; and

                     (d)  importing the firearm or part was prohibited under the Customs Act 1901 unless certain requirements were met; and

                     (e)  the person fails to meet any of those requirements.

Penalty:  Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

             (4)  Absolute liability applies to paragraph (3)(d).

Note:          For absolute liability, see section 6.2.

             (5)  Strict liability applies to paragraph (3)(e).

Note:          For strict liability, see section 6.1.

361.3   Trafficking prohibited firearms or firearm parts out of Australia

Customs Act prohibits exports absolutely

             (1)  A person commits an offence if:

                     (a)  the person exports a thing, or enters a thing for export from Australia; and

                     (b)  the thing is a firearm or firearm part; and

                     (c)  the person exports, or enters for export, the firearm or part with the intention of trafficking in the firearm or part; and

                     (d)  exporting the firearm or part was prohibited under the Customs Act 1901 absolutely.

Penalty:  Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

             (2)  Absolute liability applies to paragraph (1)(d).

Note:          For absolute liability, see section 6.2.

Customs Act prohibits exports if requirements not met

             (3)  A person commits an offence if:

                     (a)  the person exports a thing; and

                     (b)  the thing is a firearm or firearm part; and

                     (c)  the person exports the firearm or part with the intention of trafficking in the firearm or part; and

                     (d)  exporting the firearm or part, or entering the firearm or part for export, was prohibited under the Customs Act 1901 unless certain requirements were met; and

                     (e)  the person fails to meet any of those requirements.

Penalty:  Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

             (4)  A person commits an offence if:

                     (a)  the person enters a thing for export from Australia; and

                     (b)  the thing is a firearm or firearm part; and

                     (c)  the person enters the firearm or part for export with the intention of trafficking in the firearm or part; and

                     (d)  entering the firearm or part for export was prohibited under the Customs Act 1901 unless certain requirements were met; and

                     (e)  the person fails to meet any of those requirements.

Penalty:  Imprisonment for 10 years or a fine of 2,500 penalty units, or both.

             (5)  Absolute liability applies to paragraphs (3)(d) and (4)(d).

Note:          For absolute liability, see section 6.2.

             (6)  Strict liability applies to paragraphs (3)(e) and (4)(e).

Note:          For strict liability, see section 6.1.

361.4   Defence—reasonable belief that conduct is justified or excused by or under a law

                   A person is not criminally responsible for an offence against this Division if:

                     (a)  at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and

                     (b)  had the conduct been so justified or excused—the conduct would not have constituted the offence.

Note:          A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3)).

361.5   Mandatory minimum penalties

             (1)  The court must impose a sentence of imprisonment of at least 5 years for a person convicted of an offence against this Division.

             (2)  Subsection (1) does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed.

361.6   Double jeopardy

                   A person punished for an offence against this Division in respect of particular conduct cannot be punished for an offence against section 233BAB of the Customs Act 1901 in respect of that conduct.

Note:          A similar provision for the opposite case is set out in subsection 233BAB(7) of the Customs Act 1901 .

Customs Act 1901

19  Subsection 183UA(1) (paragraph (c) of the definition of offence )

After “Division 307”, insert “or 361”.

20  Subsection 183UA(2A)

After “Division 307”, insert “or 361”.

21  Paragraph 183UA(3)(b)

After “Division 307”, insert “or 361”.

22  Subparagraph 210(1)(a)(iv)

After “Division 307”, insert “or 361”.

23  Subsection 233BAB(7)

Repeal the subsection, substitute:

             (7)  A person punished for an offence against subsection (5) or (6) in respect of particular conduct cannot be punished, in respect of that conduct, for an offence against:

                     (a)  section 233; or

                     (b)  Division 361 of the Criminal Code (about international firearms trafficking).

Note:          A similar provision for the opposite case to paragraph (b) is set out in section 361.6 of the Criminal Code .