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Schedule 1—Amendments

Schedule 1 Amendments

   

Criminal Code Act 1995

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 30 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 30 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)”.

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 30 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 30 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 30 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 30 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.

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).