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Monday, 13 February 2017
Page: 699


Senator WONG (South AustraliaLeader of the Opposition in the Senate) (17:59): by leave—I move opposition amendments (1) to (3) on sheet 8037 together:

(1) Schedule 1, item 1, page 3 (lines 4 to 8), omit the item, substitute:

1 Subsections 360.2(1) and (2) of the Criminal Code

Repeal the subsections, substitute:

Basic offence

(1) A person commits an offence if:

(a) the person engages in conduct that constitutes an offence (the underlying offence) against a firearm law; and

(b) the person does so in the course of trade or commerce:

   (i) among the States; or

   (ii) between a State and a Territory, or between 2 Territories; and

(c) the primary element of the underlying offence involves:

   (i) the disposal of a firearm or a firearm part by the person; or

   (ii) the acquisition of a firearm or a firearm part by the person.

Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.

Aggravated offence—disposing or acquiring 50 or more firearms or firearm parts in 6 month period

(2) A person commits an offence if:

(a) the person engages in conduct on one or more occasions that constitutes an offence (the underlying offence) against a firearm law; and

(b) the person does so in the course of trade or commerce:

   (i) among the States; or

   (ii) between a State and a Territory, or between 2 Territories; and

(c) the primary element of the underlying offence involves:

   (i) the disposal of a firearm or a firearm part by the person; or

   (ii) the acquisition of a firearm or a firearm part by the person; and

(d) the conduct on any occasion, or on 2 or more occasions taken together, results in the disposal, or acquisition, by the person of:

   (i) 50 or more firearms; or

   (ii) 50 or more firearm parts that might be used to constitute one or more firearms; or

   (iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and

(e) if the disposal or acquisition of the firearms or parts mentioned in paragraph (d) resulted from conduct on 2 or more occasions taken together—the occasions of conduct occurred during a 6 month period.

Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.

Provisions relating to basic offence and aggravated offence

(2A) There is no fault element for any of the physical elements described in paragraphs (1) (a) and (2) (a), other than the fault elements (however described), if any, for the underlying offence.

(2B) To avoid doubt:

(a) in determining whether the conduct referred to in paragraph (1) (a) or (2) (a) constitutes the underlying offence, any defences or special liability provisions (however described) that apply in relation to the underlying offence have effect; and

(b) a person may be convicted of an offence against subsection (1) or (2) even if the person has not been convicted of the underlying offence; and

(c) for the purposes of subsection (2)—it is immaterial whether:

   (i) the underlying offence is the same on each occasion; or

   (ii) the conduct constituting the underlying offence is the same on each occasion; or

   (iii) the firearms or firearm parts to which the conduct relates are of the same kind.

(2C) Absolute liability applies to paragraphs (1) (b) and (c) and (2) (b), (c) and (e).

Note: For absolute liability, see section 6.2.

(2D) Strict liability applies to paragraph (2) (d).

Note: For strict liability, see section 6.1.

Definitions

1A Before subsection 360.3(1) of the Criminal Code

Insert:

Basic offence

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

Repeal the paragraph, substitute:

(a) the person takes or sends a thing from one State or Territory to another State or Territory; and

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

(ab) the person does so in the course of trade or commerce:

   (i) among the States; or

   (ii) between a State and a Territory, or between 2 Territories; and

1C Subsection 360.3(1) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.

1D After subsection 360.3(1) of the Criminal Code

Insert:

Aggravated offence—taking or sending 50 or more firearms or firearm parts in 6 month period

(1A) A person commits an offence if:

(a) the person takes or sends (on one or more occasions) one or more things from one State or Territory to another State or Territory; and

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

(c) the person does so in the course of trade or commerce:

   (i) among the States; or

   (ii) between a State and a Territory, or between 2 Territories; and

(d) the person does so intending that any of the firearms or parts will be disposed of in the other State or Territory (whether by the person or another); and

(e) the person knows that, or is reckless as to whether:

   (i) the disposal of any of the firearms or parts; or

   (ii) any acquisition of any of the firearms or parts that results from the disposal;

would happen in circumstances that would constitute an offence against the firearm law of that other State or Territory; and

(f) the conduct on any occasion, or on 2 or more occasions taken together, results in the taking, or sending, by the person of:

   (i) 50 or more firearms; or

   (ii) 50 or more firearm parts that might be used to constitute one or more firearms; or

   (iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and

(g) if the taking or sending of the firearms or parts mentioned in paragraph (f) resulted from conduct on 2 or more occasions taken together—the occasions of conduct occurred during a 6 month period.

Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.

Provisions relating to basic offence and aggravated offence

(1B) Absolute liability applies to paragraphs (1) (ab) and (1A) (c) and (g).

Note: For absolute liability, see section 6.2.

(1C) Strict liability applies to paragraph (1A) (f).

Note: For strict liability, see section 6.1.

(1D) To avoid doubt, it is immaterial for the purposes of paragraphs (1A) (b) and (f) whether the firearms or firearm parts are of the same kind.

Definitions

1E Subsection 360.3(2) of the Criminal Code (at the end of the definition of firearm )

Add "or (1A) (e) (as the case requires)".

1F Subsection 360.3(2) of the Criminal Code (definition of firearm part )

Omit "(1) (c)", substitute "(1) (c) or (1A) (e) (as the case requires)".

(2) Schedule 1, item 3, page 3 (lines 17 to 21), omit the item, substitute:

3 Before section 360.4 of the Criminal Code

Insert:

360.3AB Double jeopardy and alternative verdicts

Double jeopardy

(1) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.

(2) However, subsection (1) does not prevent an alternative verdict under subsection (4).

(3) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.

Alternative verdict—aggravated offence not proven

(4) If, on a trial for an aggravated offence, the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;

it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

Definitions

(5) In this section:

aggravated offence means an offence against subsection 360.2(2) or 360.3(1A).

basic offence relating to an aggravated offence means:

(a) if the aggravated offence is an offence against subsection 360.2(2)—an offence against subsection 360.2(1); or

(b) if the aggravated offence is an offence against subsection 360.3(1A)—an offence against subsection 360.3(1).

3A Subsection 361.2(1) of the Criminal Code (heading)

Repeal the heading, substitute:

Basic offences

3B Subsection 361.2(1) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.

3C Subsection 361.2(2) of the Criminal Code

Repeal the subsection.

3D Subsection 361.2(3) of the Criminal Code (heading)

Repeal the heading.

3E Subsection 361.2(3) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.

3F Subsections 361.2(4) and (5) of the Criminal Code

Repeal the subsections, substitute:

Aggravated offence—importing 50 or more prohibited firearms or firearm parts in 6 month period

(4) A person commits an offence if:

(a) the person imports (on one or more occasions) one or more things; and

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

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

(d) importing each firearm or part was prohibited under the Customs Act 1901:

   (i) absolutely; or

   (ii) unless certain requirements were met; and

(e) if subparagraph (d) (ii) applies in relation to an occasion of importation—the person fails to meet any of those requirements; and

(f) any occasion of importation, or 2 or more occasions taken together, results in the importation by the person of:

   (i) 50 or more firearms; or

   (ii) 50 or more firearm parts that might be used to constitute one or more firearms; or

   (iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and

(g) if the importation of the firearms or parts mentioned in paragraph (f) resulted from 2 or more occasions of importation taken together—the occasions of importation occurred during a 6 month period.

Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.

Provisions relating to basic offence and aggravated offence

(5) Absolute liability applies to paragraphs (1) (d), (3) (d) and (4) (d) and (g).

Note: For absolute liability, see section 6.2.

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

Note: For strict liability, see section 6.1.

(7) To avoid doubt, it is immaterial for the purposes of paragraphs (4) (b) and (f) whether the firearms or firearm parts are of the same kind.

3G Subsection 361.3(1) of the Criminal Code (heading)

Repeal the heading, substitute:

Basic offences

3H Subsection 361.3(1) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.

3J Subsection 361.3(2) of the Criminal Code

Repeal the subsection.

3K Subsection 361.3(3) of the Criminal Code (heading)

Repeal the heading.

3L Subsections 361.3(3) and (4) of the Criminal Code (penalty)

Repeal the penalty, substitute:

Penalty: Imprisonment for 20 years or a fine of 5,000 penalty units, or both.

3M Subsections 361.3(5) and (6) of the Criminal Code

Repeal the subsections, substitute:

Aggravated offence—exporting or entering for export 50 or more prohibited firearms or firearm parts in 6 month period

(5) A person commits an offence if:

(a) the person (on one or more occasions) exports, or enters for export from Australia, one or more things; and

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

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

(d) exporting, or entering for export, each firearm or part was prohibited under the Customs Act 1901:

   (i) absolutely; or

   (ii) unless certain requirements were met; and

(e) if subparagraph (d) (ii) applies in relation to an occasion of exportation or entry for export—the person fails to meet any of those requirements; and

(f) any occasion of exportation or entry for export, or 2 or more occasions taken together, results in the exportation or entry for export by the person of:

   (i) 50 or more firearms; or

   (ii) 50 or more firearm parts that might be used to constitute one or more firearms; or

   (iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and

(g) if the exportation or entry for export of the firearms or parts mentioned in paragraph (f) resulted from 2 or more occasions of exportation or entry for export taken together—the occasions of exportation or entry for export occurred during a 6 month period.

Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.

Provisions relating to basic offence and aggravated offence

(6) Absolute liability applies to paragraphs (1) (d), (3) (d), (4) (d) and (5) (d) and (g).

Note: For absolute liability, see section 6.2.

(7) Strict liability applies to paragraphs (3) (e), (4) (e) and (5) (e) and (f).

Note: For strict liability, see section 6.1.

(8) To avoid doubt, it is immaterial for the purposes of paragraphs (5) (b) and (f) whether the firearms or firearm parts are of the same kind.

(3) Schedule 1, page 4 (after line 7), at the end of the Schedule, add:

6 Section 361.6 of the Criminal Code

Before "A person", insert "(1)".

7 At the end of section 361.6 of the Criminal Code

Add:

(2) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.

(3) However, subsection (2) does not prevent an alternative verdict under subsection (5).

(4) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.

(5) If, on a trial for an aggravated offence, the trier of fact:

(a) is not satisfied that the defendant is guilty of the aggravated offence; but

(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;

it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.

(6) In this section:

aggravated offence means an offence against subsection 361.2(4) or 361.3(5).

basic offence relating to an aggravated offence means:

(a) if the aggravated offence is an offence against subsection 361.2(4)—an offence against subsection 361.2(1) or (3); or

(b) if the aggravated offence is an offence against subsection 361.3(5)—an offence against subsection 361.3(1), (3) or (4).

I want to make some brief comments about these amendments. As flagged in my speech in the second reading debate, the opposition proposes to amend this bill to create aggravated offences for firearms trafficking. I have referenced previously the government's deep division and disunity on guns, and Labor is in the position of having to push for tougher rules against firearms trafficking.

This amendment would create aggravated offences for cross-border firearms trafficking and international firearms trafficking under divisions 360 and 361 of the Criminal Code. These offences would target the worst forms of firearms trafficking and attract a maximum penalty of life imprisonment, 7,500 penalty units or both, which would bring the maximum penalty for firearms trafficking up to the maximum penalty for drug trafficking. The opposition believes that the serious nature of supplying firearms and firearm parts to the illicit market warrants this significant penalty. The imperishable nature of firearms also means that illicit firearms remain a serious threat to the Australian community for many years. During this time they can all too easily fall into the hands of criminal gangs or terrorists.

Labor sought to pass these measures some five years ago as part of the Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012, a bill which passed the House with the support of the coalition, then in opposition, and the crossbench. Although the bill did not pass the Senate prior to the 2013 federal election, the Senate committee inquiry into the 2012 bill, conducted by both government and opposition senators, supported the introduction of such aggravated offences for firearms trafficking. As I said, these measures were introduced five years ago. It is disappointing that this work was not taken up by the coalition when they won government. With growing gun crime in our communities and continual reports of mass firearms trafficking through the media and otherwise, we believe that toughening our firearms trafficking laws as laid out in the amendments is appropriate.

The offences would capture trafficking of 50 or more firearms, 50 or more firearm parts that might be used to make one or more firearms, or a combination of both firearms and parts such that the sum of actual firearms and firearms that might be constituted by the parts is 50 or more. This could occur all on one occasion or on two or more occasions. This will target firearms trafficking enterprises engaged in the mass distribution and exchange of firearms. The threshold quantity of 50 or more firearms or firearm parts for the aggravated offences is identical to that in the bill that Labor introduced in 2012. It is a threshold quantity significantly higher than those in existing state or territory offences. That is because the aggravated offences attract a maximum penalty of life imprisonment, which is obviously a very serious penalty. Basic offences for firearms trafficking will still apply to trafficking which does not reach this threshold, which attracts a maximum penalty of 20 years, 5,000 penalty units or both.

As I referenced earlier today, the Australian Criminal Intelligence Commission estimates there are up to 600,000 illegal guns in our community. Ten thousand of these are predicted to be handguns, which, of course, are the weapon of choice for many criminal elements. The amendments that the opposition is proposing will send a strong message about the seriousness with which the parliament views firearms trafficking and allow our courts to lock up the worst traffickers for life. I commend the amendments to the chamber.