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2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Justice, the Hon Michael Keenan MP)
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2016
GENERAL OUTLINE
1. This Bill amends the Criminal Code Act 1995 (Criminal Code) to set new mandatory
minimum penalties and maximum penalties for the offences of:
trafficking firearms and firearms parts within Australia (in Division 360 of the
Criminal Code), and
trafficking firearms and firearms parts into and out of Australia (in Division 361 of
the Criminal Code).
For each of the offences in these Divisions, the following penalties will apply:
a mandatory minimum sentence of imprisonment for five years, and
maximum penalties of imprisonment for 20 years or a fine of 5,000 penalty units, or
both.
2. The mandatory minimum sentence 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. In addition, the introduction of a mandatory minimum
sentence of imprisonment for five years for these firearms trafficking offences implements
the Government's Keeping illegal guns off our streets and our communities safe election
policy released on 26 June 2016.
FINANCIAL IMPACT
3. The Bill will have no financial impact on Government revenue.
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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 2016
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
4. This Bill provides a mandatory minimum sentence and increased maximum penalties
for the offences of:
trafficking firearms and firearms parts within Australia (in Division 360 of the
Criminal Code), and
trafficking firearms and firearms parts into and out of Australia (in Division 361 of
the Criminal Code).
For each of the offences in these Divisions, the following penalties will apply:
a mandatory minimum sentence of imprisonment for five years, and
a maximum penalty of imprisonment for 20 years or a fine of 5,000 penalty units, or
both.
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 their 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. The mandatory minimum sentence 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. In addition, the
introduction of a mandatory minimum sentence of imprisonment for five years for these
firearms trafficking offences implements the Government's election commitment made in the
Government's Keeping illegal guns off our streets and our communities safe election policy
released on 26 June 2016.
Human rights implications
6. 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.
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7. This right is engaged by the new mandatory minimum sentence of imprisonment for
five years and the increased maximum penalties for each of the firearms trafficking offences
in Divisions 360 and 361 of Part 9.4 of the Criminal Code.
8. 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.
9. The mandatory minimum penalty of imprisonment for five years and the 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 given that the
penalties 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.
10. The mandatory minimum penalty of imprisonment for five years and the increased
maximum penalties for firearms trafficking offences are necessary to ensure that 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
introduction of a mandatory minimum penalty and increased penalties for the offences more
adequately reflects the gravity of supplying firearms and firearm parts to the illicit market.
The entry of even a small number of illegal firearms into Australia can have a significant
impact on the community. 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 2014, firearms were
identified as being the type of weapon used in 15% of homicides in Australia and 22% of
homicides where a weapon was used (Recorded Crime - Victims, Australia, 2014, Australian
Bureau of Statistics).
11. The mandatory minimum penalty of imprisonment for five years and the 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 maximum penalties are sufficiently high to allow courts to impose appropriate
punishments for the most serious firearms trafficking offences. The mandatory minimum
sentence is proportionate as the amendments do not impose a minimum non-parole period for
offenders. Indeed, the mandatory minimum is not intended as a guide to the non-parole
period, which in some cases may differ significantly from the head sentence. Further, the
amendments do not apply the mandatory minimum penalties to children (those under the age
of 18). This preserves judicial discretion in sentencing to take into account minors' particular
circumstances. In this way, any risk that the sentencing of lower culpability offenders could
amount to arbitrary detention is removed.
Treatment of minors
12. Subsections 360.3A(2) and 361.5(2) to be inserted into the Criminal Code by the Bill
provide that the mandatory minimum penalty otherwise in force for the trafficking of
firearms does not apply if it is established on the balance of probabilities that the person was
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aged under 18 years when the offence was committed. This preserves judicial discretion
when sentencing to take into account the particular circumstances of minors.
13. As this provision is framed as an exception to the law on mandatory minimums, the
provisions in the Criminal Code regarding defences will apply. As a result, the defendant
bears an evidential burden regarding their age, meaning they need to adduce or point to
evidence that suggests a reasonable possibility that they are under 18 (see section 13.3 of the
Criminal Code). If the defendant discharges that evidential burden, the prosecution must
prove beyond reasonable doubt that the defendant is aged over 18 (see section 13.3 of the
Criminal Code).
14. In this situation, a defendant will be in a better position to point to evidence of his or
her age, such as a birth certificate or a passport. This approach is consistent with the
Commonwealth Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers which refers to the settled principle that it is appropriate to cast a matter
as an evidential burden defence where a matter is peculiarly within a defendant's knowledge
and not necessarily known to the prosecution.
Treatment of individuals with significant cognitive impairment
15. The mandatory minimum sentences in the Bill do not impose a minimum non-parole
period for offenders. Indeed, the mandatory minimum is not intended as a guide to the
non-parole period, which in some cases may differ significantly from the head sentence.
16. This will preserve a court's discretion in sentencing, and will help ensure that
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.
17. 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.
18. Taken together, the discretion in setting the non-parole period and the mental
impairment defence in the Criminal Code ensure that mandatory minimum sentences will not
result in the unjust treatment of individuals with a significant cognitive impairment.
Conclusion
19. The new mandatory minimum penalty 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 that these measures may limit those rights and freedoms, such
limitations are reasonable, necessary and proportionate to achieving reductions in gun-related
crime.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides that the Act is the Criminal Code Amendment (Firearms
Trafficking) Act 2016.
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 360.3(1) of the Criminal Code (penalty)
20. Item 1 provides that for the following offences:
cross-border disposal or acquisition of a firearm or firearm part (subsection 360.2(1)
of the Criminal Code), and
taking or sending a firearm or firearm part across borders (subsection 360.3(1) of the
Criminal Code)
the maximum penalty is imprisonment for 20 years or a fine of 5,000 penalty units, or both.
21. The existing maximum penalty for each of the firearms trafficking offences listed in
item 1 is 10 years imprisonment or a fine of 2,500 penalty units, or both. The increased
maximum penalty is necessary to ensure that the serious offences of trafficking firearms
within Australia, and into and out of Australia, are matched by commensurate punishments.
22. 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.
23. The new maximum penalty reflects the seriousness of the conduct covered by the
offences, to address the clear and serious social and systemic harms associated with this
trade.
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Item 2 - After section 360.3 of the Criminal Code
24. Item 2 inserts a new subsection (360.3A(1)) after section 360.3 to introduce
mandatory minimum penalties for the offences under Division 360. This will for the first time
introduce a minimum sentence for firearms trafficking offences under the Criminal Code.
25. The Commonwealth has adopted a range of measures in response to the threat posed
by illicit firearms, one of which is sentencing people convicted of firearms trafficking
offences to mandatory minimum prison terms. Mandatory minimum sentences, when applied
to individuals convicted of serious offences, are an effective way to deter potential offenders
from firearms trafficking. The severe mandatory penalties associated with the firearms
trafficking sentencing regime accord with the criminality of firearms smuggling, but must be
carefully directed towards those whose individual culpability also justifies mandatory terms
of imprisonment.
26. The mandatory minimum penalty will not apply if it is established on the balance of
probabilities that the person was aged under 18 years when the offence was committed
(subsection 360.3A(2)). This preserves judicial discretion when sentencing to take into
account the particular circumstances of minors.
27. The amendment does not prescribe a minimum non-parole period. This will preserve
a court's discretion in sentencing, and will help ensure that custodial sentences imposed by
courts are able to take into account the particular circumstances of the offence and the
offender. The mandatory minimum sentence is not intended as a guide to the non-parole
period, which in some cases may differ significantly from the head sentence.
Item 3 - Subsections 361.2(1) and (3) and 361.3(1), (3) and (4) of the Criminal Code
(penalty)
28. Item 3 provides that for the following offences:
trafficking prohibited firearms or firearms parts into Australia (subsections 361.2(1)
and (3) of the Criminal Code), and
trafficking prohibited firearms or firearms parts out of Australia (subsections
361.3(1), (3) and (4) of the Criminal Code)
the maximum penalty is imprisonment for 20 years or a fine of 5,000 penalty units, or both.
29. The existing maximum penalty for each of the firearms trafficking offences listed at
item 3 is 10 years imprisonment or a fine of 2,500 penalty units, or both. The increased
maximum penalty is necessary to ensure that the serious offences of trafficking firearms
within Australia, and into and out of Australia, are matched by commensurate punishments.
30. 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.
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31. The new maximum penalty reflects the seriousness of the conduct covered by the
offences, to address the clear and serious social and systemic harms associated with this
trade.
32. Consistent with subsection 4F(1) of the Crimes Act, and Item 5 of this Bill, the
increased maximum penalties for the firearms trafficking offences in Part 9.4 of the Criminal
Code will apply only to offences committed after the commencement of the Bill.
Item 4 - After section 361.4 of the Criminal Code
33. Item 4 inserts new subsection 361.5 to apply a mandatory minimum sentence of
imprisonment for five years if a person is convicted of an offence against Division 361.
34. The minimum penalty will not apply if it is established on the balance of probabilities
that the person was aged under 18 years when the offence was committed (subsection
361.5(2)). This preserves judicial discretion when sentencing to take into account the
particular circumstances of minors. This is consistent with Division 309 of the Criminal
Code, which reduces the culpability of children who commit drug trafficking offences.
35. The Commonwealth has adopted a range of measures in response to the threat posed
by illicit firearms, one of which is sentencing people convicted of firearms trafficking
offences to mandatory minimum prison terms. Mandatory minimum sentences, when applied
to individuals convicted of serious offences, are an effective way to deter potential offenders
from firearms trafficking. The severe mandatory penalties associated with the firearms
trafficking sentencing regime accord with the criminality of firearms smuggling, but must be
carefully directed towards those whose individual culpability also justifies mandatory terms
of imprisonment.
Item 5 - Application of amendments
36. Item 5 makes it clear that the mandatory minimum sentences set out in items 2 and 4
will not apply to people charged with an offence under the Criminal Code if the conduct
constituting that offence occurred prior to the commencement of this Schedule.
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