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Criminal Code Amendment (Firearms Trafficking) Bill 2017

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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.

 



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.

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.

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.



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.

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).

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.

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.

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.

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.

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

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.