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2010 - 2011 - 2012
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT
(ORGANISED CRIME AND OTHER MEASURES) BILL 2012
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Justice,
the Honourable Jason Clare, MP)
CRIMES LEGISLATION AMENDMENT (ORGANISED CRIME AND OTHER
MEASURES) BILL 2012
GENERAL OUTLINE
This Bill amends the Proceeds of Crime Act 2002 (the POC Act) and the
Criminal Code Act 1995 (the Criminal Code).
The Bill contains measures to improve the investigation and litigation of unexplained wealth
matters, expand cross-border firearms trafficking offences and introduce new aggravated
offences for dealing in 50 or more firearms or firearm parts.
PURPOSE
Schedule 1 will amend the POC Act to strengthen the Commonwealth's unexplained wealth
regime. These amendments will ensure that the Government has strong laws to target the
substantial profits made by serious and organised crime.
Schedule 2 will amend Part 9.4 of the Criminal Code to expand existing cross-border
firearms trafficking offences to cover firearm parts, and introduce new offences for
international firearms trafficking across Australia's national borders. Schedule 2 will
introduce aggravated offences with a maximum penalty of life imprisonment where 50 or
more firearms or firearms parts are trafficked within a six month period.
FINANCIAL IMPACT STATEMENT
Schedule 1 of the Bill will improve the Commonwealth's ability to confiscate unexplained
wealth. Other items will have little or no impact on Government revenue.
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ACRONYMS AND ABBREVIATIONS
AFP Australian Federal Police
PJC-LE Parliamentary Joint Committee on Law Enforcement
POC Act Proceeds of Crime Act 2002
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
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.
An overview of measures in the Bill and their human rights implications is below.
Unexplained wealth
Overview
Schedule 1 of the Bill makes amendments to the Proceeds of Crime Act 2002 (POC Act) to
improve the Commonwealth's unexplained wealth laws.
Unexplained wealth laws were introduced in 2010 as part of a suite of reforms to more
effectively prevent, investigate and prosecute organised crime activity, and target the
proceeds of organised crime groups. The laws are located in the POC Act, which provides a
comprehensive scheme to trace, investigate, restrain and confiscate proceeds generated from
Commonwealth indictable offences, foreign indictable offences and certain offences against
State and Territory law.
Under Commonwealth unexplained wealth legislation, if a court is satisfied that there are
reasonable grounds to suspect that a person's total wealth exceeds the value of the person's
wealth that was lawfully acquired, the court can compel the person to attend court and prove,
on the balance of probabilities, that their wealth was not derived from offences with a
connection to Commonwealth power. If a person cannot demonstrate this, the court may
order them to pay to the Commonwealth the difference between their total wealth and their
legitimate wealth.
There are three types of order which can be sought in relation to unexplained wealth:
· unexplained wealth restraining orders
· preliminary unexplained wealth orders, and
· unexplained wealth orders.
Unexplained wealth restraining orders are interim orders that restrict a person's ability to
dispose of or otherwise deal with property. These provisions ensure that property is
preserved and cannot be dealt with to defeat an ultimate unexplained wealth order.
Preliminary unexplained wealth orders are orders requiring a person to attend court to
demonstrate whether or not his or her wealth was derived from lawful sources. If the court is
not satisfied that the person's wealth was not derived from an offence against a law of the
Commonwealth, a foreign indictable offence or a State offence that has a federal aspect, it
may then make an unexplained wealth order.
Unexplained wealth orders are final orders that make payable to the Commonwealth an
amount which, in the court's opinion, constitutes the difference between a person's total
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wealth and the value of the person's property which the court is satisfied did not derive from
the commission of a relevant offence. That is, the difference between their total wealth and
their wealth that has been legitimately acquired.
In July 2011, the Parliamentary Joint Committee on Law Enforcement (PJC-LE) initiated an
inquiry into Commonwealth unexplained wealth laws, the purpose of which was to examine
the operation of the existing laws, identify relevant issues and determine ways in which the
laws could be made more effective. The Committee handed down its final report in March
2012, which made 18 recommendations to improve the investigation and litigation of
Commonwealth unexplained wealth matters.
The amendments in Schedule 1 represent the first tranche of legislative measures introduced
by the Government to implement recommendations of the Committee. These amendments
will:
· ensure evidence relevant to unexplained wealth proceedings can be seized under a
search warrant
· allow the time limit for serving notice of a preliminary unexplained wealth order to be
extended by a court in appropriate circumstances, such as where a person seeks to
avoid service
· harmonise provisions relating to the payment of legal expenses for unexplained
wealth cases with those for other POC Act proceedings so as to prevent restrained and
forfeited assets being used to meet legal expenses
· allow charges to be created over restrained property to secure payment of an
unexplained wealth order as can occur with other types of proceeds of crime order
· remove a court's discretion to make unexplained wealth restraining orders,
preliminary unexplained wealth orders and unexplained wealth orders once relevant
criteria are satisfied, and
· improve the PJC-LE's oversight of unexplained wealth investigations and litigation.
Human rights implications
Schedule 1 of the Bill engages the following rights:
· right to a fair hearing in Article 14 of the International Covenant on Civil and Political
Rights (ICCPR)
· minimum guarantees in criminal proceedings in Article 14(3) of the ICCPR
· protection against arbitrary or unlawful interference with privacy provided for in
Article 17 of the ICCPR, and
· the prohibition on retrospective punishment in Article 15 of the ICCPR.
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Right to a fair hearing
Article 14 of the ICCPR guarantees equality before courts and tribunals, and, in the
determination of criminal charges, or any suit at law, the right to a fair and public hearing
before a competent, independent and impartial court or tribunal established by law.
Proceedings under the POC Act are civil proceedings heard by Commonwealth, State and
Territory courts in accordance with relevant procedures of those courts. This affords an
affected person adequate opportunity to present his or her case, such that the right to a fair
hearing is not limited. Schedule 1 will not affect the civil court procedures applicable to POC
Act proceedings. Accordingly, the Schedule engages, but does not limit, the fair trial rights
provided for in Article 14.
In some situations, applications for POC Act orders such as unexplained wealth restraining
orders or preliminary unexplained wealth orders may be heard without notice being given to
the person who is the subject of the application at the time the application is made. This is an
important feature of the laws, which serves the justified and reasonable purpose of preventing
a person from dispersing his or her assets during the time between an order being sought and
an order being made. The POC Act provides mechanisms which allow a person to quickly
contest orders made without notice. The amendments in Schedule 1 will not affect the ability
of a person to challenge the making of an order.
Minimum guarantees in criminal proceedings
The United Nations Human Rights Committee has stated that criminal charges primarily
encompass acts that are declared to be punishable under domestic criminal law, but may also
extend to acts that are criminal in nature with sanctions that, regardless of their qualification
in domestic law, must be regarded as penal. Relevant factors in considering whether charges
are criminal include whether proceedings are brought by a public authority, whether there is a
punitive element to the process and whether there are potentially serious consequences such
as imprisonment (see the Human Rights Committee's General Comment 32).
Unexplained wealth proceedings and other proceedings under the POC Act are brought by a
public authority and have the punishment and deterrence of breaches of Commonwealth law
as one of their stated objects. However, these proceedings are civil proceedings only and are
not criminal in nature - proceeds of crime proceedings cannot create any criminal liability, do
not result in any finding of criminal guilt and do not expose people to any criminal sanctions.
As a result, the amendments in Schedule 1 do not engage aspects of Article 14(3) relating to
the determination of criminal charges. However, a brief discussion of aspects of the
amendments and the protections in Article 14(3) is included below for information.
(i) Right to legal representation
Article 14(3) of the ICCPR provides that everyone shall be entitled to communicate with
counsel of his or her own choosing in the preparation of his or her defence, and to have legal
assistance assigned in any case where the interests of justice require, if he or she does not
have sufficient means to pay for it.
The POC Act currently allows people who are subject to unexplained wealth proceedings to
use certain restrained assets, or assets subject to their effective control, to meet their legal
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costs. This is different to other types of proceedings under the POC Act, which do not allow
access to such assets for this purpose and instead provide that a person may be represented by
legal aid, with relevant legal aid costs to be paid by the Commonwealth using confiscated
assets held in the Confiscated Assets Account.
In the final report of its inquiry into Commonwealth unexplained wealth laws, the
PJC-LE recommended that provisions relating to legal expenses should be harmonised so that
unexplained wealth provisions and other types of proceedings within the POC Act are treated
similarly. Schedule 1 will amend the POC Act to implement this recommendation.
The PJC-LE considered submissions and evidence from a range of community, law
enforcement and other government bodies in reaching this conclusion, including information
from the Attorney-General's Department about the rationale for harmonisation and
procedures relating to the payment of legal aid costs in proceeds of crime matters.
The POC Act takes this approach to the use of restrained assets so as to prevent the practice
of dissipating wealth on legal expenses to frustrate any potential proceeds of crime orders.
As noted, people who are subject to POC Act proceedings may seek legal representation
through legal aid if their unrestrained assets are not sufficient to meet legal costs, to ensure
that they are appropriately represented, are not disadvantaged and continue to be equal before
courts and tribunals. To the extent that Schedule 1 may limit a person's right to legal
representation, such limitations are necessary and reasonable in ensuring that wealth is not
dissipated on legal expenses to frustrate potential unexplained wealth orders and that the
Commonwealth's unexplained wealth laws operate effectively.
POC Act matters have been established as a priority civil law area for the allocation of
Commonwealth funded legal services by State and Territory legal aid commissions under the
National Partnership Agreement on Legal Assistance Services. As a matter of practice, many
jurisdictions' legal assistance guidelines provide that, when determining whether legal
assistance should be provided in relation to Commonwealth POC Act matters, any of a
person's property that is covered by a restraining order, or is likely to be covered by a
restraining order, should be disregarded for the purposes of means tests.
(ii) Determination of criminal charges - judicial discretions
Courts hearing unexplained wealth matters currently have a general discretion to decline to
make a restraining order, preliminary unexplained wealth order or final unexplained wealth
order, even if all relevant criteria for making the orders have been satisfied. Schedule 1 will
remove this discretion and will require courts to make unexplained wealth restraining orders,
preliminary unexplained wealth orders and unexplained wealth orders once satisfied that the
criteria for making these orders have been met. This will align unexplained wealth laws with
other proceeds of crime orders, which do not allow for a general discretion once the court is
satisfied of relevant criteria.
These amendments will not affect the independence of courts hearing unexplained wealth
matters. Courts will retain discretions to refuse to make the above types of orders if they
consider it in the interests of justice to do so, or in cases where the amount of suspected
unexplained wealth is less than $100,000. Provisions that allow a person to seek to have
unexplained wealth restraining orders or preliminary unexplained wealth orders revoked will
not be affected by Schedule 1, with the result that the appropriate and necessary ability of
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courts to revoke orders on application will continue. The POC Act also provides other
general appeal rights.
In the final report of its inquiry into Commonwealth unexplained wealth laws, the PJC-LE
concluded that there does not seem to be a strong case for specific judicial discretions relating
to unexplained wealth orders, stating that there are already other safeguards in place, such as:
· the requirement for a court to be satisfied that relevant criteria have been met
· the court's general discretion to refuse to make an order if it is in the public interest to
do so
· the court's ability to revoke orders if it is in the interests of justice
· the court's ability to order costs, and
· oversight of unexplained wealth laws by the PJC-LE.
With regard to oversight of unexplained wealth laws by the PJC-LE, Schedule 1 will improve
transparency by introducing new requirements for the Australian Federal Police and other
Commonwealth law enforcement agencies to provide de-identified information to the PJC-LE
each year outlining the number of matters investigated in which unexplained wealth action is
the most likely outcome and the number of unexplained wealth proceedings that have been
initiated. This is an important safeguard that supports the overall compatibility of the laws
with human rights obligations.
Right to privacy and protection of families and children
Article 17 of the ICCPR accords everyone the right to protection against arbitrary or unlawful
interference with their privacy, family, home or correspondence. This includes the right to
protection from interferences with a person's personal information and property, particularly
where it is a family home. Interferences are permissible so long as they are authorised by law
and are not arbitrary.
In order for an interference with the right not to be arbitrary, the interference must be for a
reason consistent with the ICCPR and be reasonable in the particular circumstances.
Reasonableness in this context incorporates notions of proportionality, appropriateness and
necessity. In essence, this will require that:
· limitations serve a legitimate objective,
· limitations adopt a means that is rationally connected to that objective, and
· the means adopted are not more restrictive than they need to be to achieve that
objective.
The POC Act enables courts to make a wide range of orders that result in the forfeiture of a
person's wealth or property to the Commonwealth, or in a person being required to pay a
specified amount of money to the Commonwealth. As a result, provisions of the POC Act
interact broadly with the right to protection from interference with a person's property.
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However, the Act serves the legitimate and important objective of ensuring that criminals are
not able to profit from their crimes and are deterred from further criminal activity, and
provides for a range of safeguards and procedures to ensure that it is not more restrictive than
necessary in achieving this end.
Unexplained wealth laws can require a person to pay an amount to the Commonwealth which
represents the component of their wealth that a court is not satisfied was lawfully obtained.
As with other proceeds of crime orders, this may result in a person's property, potentially
including his or her house, being used to satisfy the order, which could affect his or her
family or dependents in some circumstances.
Under the POC Act, courts have a general discretion to allow the following to be met out of
property covered by a restraining order:
· reasonable living expenses of any of the dependants of a person whose property is the
subject of a restraining order
· reasonable living expenses of the person whose property is restrained
· reasonable business expenses of that person, and
· specified debts incurred in good faith by that person.
Courts also have a general discretion to order that a specified amount be paid to a person's
dependants, if satisfied that an unexplained wealth order would cause hardship to a person's
dependants, that the specified amount would relieve that hardship and that, if the dependants
are more than 18 years of age, they had no knowledge of the person's conduct that is the
subject of the forfeiture order.
To the extent that the amendments in Schedule 1 may affect relevant rights, such limitation is
aimed at disrupting and combating serious and organised crime by improving the operation of
the Commonwealth's unexplained wealth laws.
Schedule 1 will amend existing search and seizure powers in the POC Act to allow authorised
officers to seize material they find in the course of executing a search warrant that they
believe on reasonable grounds will afford evidence for the purpose of initiating or conducting
unexplained wealth proceedings. This amendment is necessary to ensure that officers are
able to seize personal financial records, such as payslips and bank statements, that are found
in the course of executing a search warrant and will assist in establishing the components of a
person's wealth that have been legitimately acquired and those which may have been
illegitimately acquired.
Officers do not currently have the ability to seize these materials in the course of executing a
warrant under the POC Act. The amendments will not expand the grounds on which officers
are able to obtain search warrants under the POC Act or empower officers to enter a broader
range of premises than they are currently able to under the Act. Improving the ability of
authorised officers to obtain material relevant to establishing components of a person's
wealth may also have an exculpatory effect where further evidence shows that a person's
wealth was lawfully acquired.
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To the extent that any amendments made by Schedule 1 may affect a person's right to
protection against arbitrary and unlawful interference with their privacy, family, home or
correspondence, these effects are reasonable, necessary and proportionate in achieving the
intended outcomes of Schedule 1.
Prohibition against retrospective punishment
Article 15 of the ICCPR prohibits the retrospective operation of criminal laws, including the
imposition of a heavier penalty than was applicable at the time when a criminal offence was
committed.
The POC Act applies to offences and convictions regardless of whether they occurred before
or after the commencement of the Act, with the result that proceeds of crime proceedings,
including unexplained wealth proceedings, may involve consideration of offences that were
committed, or are suspected to have been committed, at any time in the past. It is necessary
for the POC Act to apply in this fashion due to the fact that criminal conduct from which a
person may have profited or gained property may continue over several years or may not be
discovered immediately.
Human rights jurisprudence views asset confiscation as a penalty capable of engaging the
prohibition on retrospective criminal laws. However, unexplained wealth orders and other
orders under the POC Act are civil asset confiscation orders that cannot create any criminal
liability, do not result in any finding of criminal guilt and do not expose people to any
criminal sanctions. Proceeds of crime proceedings are civil proceedings only.
Accordingly, the amendments in Schedule 1 do not engage the prohibition against
retrospective punishment.
Under section 179G of the POC Act, the amount of wealth a person has is calculated having
regard to property owned, effectively controlled, disposed of or consumed by the person at
any time, including before the time the Commonwealth's unexplained wealth laws
commenced. This is necessary to ensure that orders are not frustrated by requiring the precise
point in time at which certain wealth or property was acquired to be established, as this can
be extremely difficult for law enforcement agencies to obtain evidence of and prove.
To ensure that a person's wealth can continue to be calculated correctly under the existing
laws, several amendments in Schedule 1 relating to restraining orders, preliminary
unexplained wealth orders and final unexplained wealth orders are expressed to apply to
orders made after commencement only, but allow for the amendments made in Schedule 1 of
apply to those orders whether or not they relate to wealth that was acquired, or became
subject to a person's effective control, before or after commencement.
Conclusion
Schedule 1 of the Bill is 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 in achieving the intended outcomes of Schedule 1.
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Firearms trafficking
Overview
Schedule 2 of the Bill makes a number of amendments to firearms trafficking offences in Part
9.4 of the Criminal Code Act 1995 (Criminal Code).
The purpose of these new offences is to address community concerns about the illegal
possession, use, disposal and acquisition of firearms, both from domestic and international
sources. The new offences also aim to hold traffickers responsible for the consequences of
providing firearms into the black market from both domestic and international sources. The
offences are also intended to support efforts to prevent the diversion of firearms into overseas
illegal markets.
The current offence of trafficking firearms between States and Territories under Division 360
(cross-border firearms trafficking) will be amended to cover firearm parts as well as firearms,
and to include aggravated offences of acquiring or disposing, taking or sending 50 or more
firearms or firearm parts across State and Territory borders within a six month period.
The Bill will also introduce offences of trafficking firearms across Australia's national
borders, as well as introducing aggravated offences for the importation and exportation of
50 or more firearms or firearm parts without requisite approvals under the Customs Act 1901.
The penalty for the new offences for trafficking firearms across Australia's national borders
(international firearms trafficking) will be 10 years imprisonment.
The penalty for the aggravated offences for trafficking firearms between States and
Territories, or into or out of Australia, will be life imprisonment.
These penalties reflect the serious nature of supplying firearms and firearm parts to the illicit
market. A firearm can remain within the illicit market for many years. This provides a
growing pool of firearms that can be accessed by serious and organised crime groups.
Human rights implications
Presumption of innocence
The presumption of innocence is contained in article 14(2) of the International Covenant on
Civil and Political Rights (ICCPR) and is one of the guarantees in relation to legal
proceedings provided for by article 14.
The presumption of innocence imposes on the prosecution the burden of proving charges, and
guarantees that no guilt can be presumed until charges have been proved beyond reasonable
doubt. In general, consistency with the presumption of innocence requires the prosecution to
prove each element of a criminal offence beyond reasonable doubt.
The new offences created by Schedule 2 interact with the presumption of innocence by
applying absolute liability and strict liability to some elements of the offences.
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i) Absolute liability
The application of absolute liability engages the presumption of innocence because it allows
for a physical element of an offence to be proven without the need to prove fault.
The absolute liability elements for the new offences are set out below:
Offence/s Absolute liability element(s)
1 Paragraphs 360.2(1)(b), The conduct occurs in the course of trade or
360.2(2)(b), 360.3(1)(ab), commerce among the States or between a State
360.3(1A)(c) and a Territory or between two Territories.
2 Paragraphs 360.2(1)(c), 360.2(2)(c) The primary element of the underlying offence
involves disposing or acquiring a firearm or
firearm part.
3 Paragraph 360.2(2)(e) Disposal or acquisition of firearms or parts
resulted from conduct on two or more occasions
taken together - the occasions of conduct
occurred during a 6 month period.
4 Paragraph 360.3(1A)(g) Taking or sending of firearms or parts resulted
from conduct on two or more occasions taken
together - the occasions of conduct occurred
during a 6 month period.
5 Paragraphs 361.2(1)(c), The importation or exportation of the firearm or
361.2(2)(c), 361.3(1)(c), part was prohibited under the Customs Act 1901
361.3(2)(c) absolutely or was prohibited under that Act
unless an appropriate approval had been obtained.
6 Paragraphs 361.2(2)(e) The importation of the firearm or parts resulted
from two or more occasions of importation taken
together - the occasions of importation occurred
during a 6 month period.
7 Paragraphs 361.3(2)(e) The exportation of the firearm or parts resulted
from two or more occasions of exportation taken
together - the occasions of exportation occurred
during a 6 month period.
Absolute liability is appropriate and required for the element of the offence in row 1 because
it is a jurisdictional element. A jurisdictional element of an offence is an element that does
not relate to the substance of the offence, but marks a jurisdictional boundary between
matters that fall within the legislative power of the Commonwealth and those that do not.
The issue of whether the person was reckless as to the fact that the conduct occurred in the
course of trade or commerce among the states or between a State and a Territory or between
two territories is not relevant to their culpability.
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This is consistent with Commonwealth criminal law practice, as described in the Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
Absolute liability is appropriate for the element of the offence in row 2 as the prosecution
will be required to establish beyond reasonable doubt all of the elements constituting the
relevant underlying offence, including any fault elements applicable to that offence. It is not
appropriate for the prosecution to also have to prove that the person knew or was reckless as
to whether the primary element of the underlying offence involved the disposal or acquisition
of a firearm or firearm part. If this were the case, it would be reasonably easy for a defendant
to avoid criminal liability for the offence by claiming that they were unaware of the content
of the relevant State or Territory law. For similar reasons, it is not appropriate for the
defence of reasonable mistake of fact to be available to the defendant.
Absolute liability is appropriate for the elements of the offences in rows 3, 4, 6 and 7 that the
occasions of conduct occurred within a six month period. This specified period has been
included to ensure that the offence captures and targets those persons who repeatedly or
regularly traffic firearms or firearm parts, including small quantities that would amount to
large quantities over time.
It is not appropriate for the prosecution to be required to prove that the defendant knew or
was reckless as to whether the relevant conduct was all engaged in during the specified six
month period. The defendant's knowledge of the time period is not relevant to his or her
culpability and, if this were the case, it would be reasonably easy for a defendant to avoid
criminal liability for the offence by claiming that they intended to deal in the firearms over a
far longer period of time. For similar reasons, it is not appropriate for the defence of
reasonable mistake of fact to be available to the defendant.
Absolute liability is also appropriate and required for the element of the offence that the
importation or exportation of the firearm or firearm part was prohibited (see row 5). It is not
appropriate for the prosecution to also have to prove that the person knew or was reckless as
to whether the article was prohibited or required approval. If this were the case, it would be
easy for a defendant to avoid criminal liability for the offence by claiming that they were
unaware of relevant legal requirements. If the person imports or exports firearms or firearm
parts, it is reasonable to expect that person to be familiar with the requirements of the
Customs Act and comply with those rules. For similar reasons, it is not appropriate for the
defence of reasonable mistake of fact to be available to the defendant.
ii) Strict liability
If strict liability applies to physical elements of an offence, those elements can be proved
without the need to prove a corresponding fault element. However, unlike absolute liability,
the defence of honest and reasonable mistake of fact will be available to the defendant.
For the aggravated trafficking offences that apply within Australia (paragraphs 360.2(2)(d)
and 360.3(1A)(f)), strict liability attaches to the elements of the offence that that 50 or more
firearms or firearm parts (or a combination of both) were disposed of or acquired, taken or
sent on any occasion or on two or more occasions together.
For the import and export offences (paragraphs 361.2(2)(d) and 361.3(2)(d)), strict liability
applies to: the elements of the offence that 50 or more firearms or firearm parts (or a
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combination of both) were imported or exported on any occasion, or on two or more
occasions together.
Strict liability also attaches to the physical element of circumstance of the offence that an
approval had not been obtained at the time firearm or firearm parts were imported or exported
(paragraphs 361.2(1), 361.2(2), 361.3(1), and 361.3(2)).
Applying strict liability is appropriate in these circumstances, as a person disposing of,
acquiring, taking, sending, importing or exporting that quantity of firearms or firearms parts
should be expected to be aware of and comply with approval requirements. It would not be
appropriate for the prosecution to have to demonstrate that a person knew the relevant legal
requirements. However, the general defence of mistake of fact will be available to the
defendant. Therefore, if a person mistakenly believed that he or she had obtained the
required permit to import or export a firearm or firearm part, the defence of mistake of fact
would be available.
Section 361.4 engages the presumption of innocence by placing an evidential burden of proof
on the defendant that 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 the law
of the Commonwealth or of a State or Territory; and had the conduct been so justified or
excused, the conduct would not have constituted the offence. Under international human
rights law, a reverse onus provision will not violate the presumption of innocence if the law is
reasonable in the circumstances and maintains the rights of the accused. Such a provision
may be justified if the nature of the offence makes it very difficult for the prosecution to
prove each element, or if it is clearly more practical for the accused to prove a fact than for
the prosecution to disprove it.
The purpose of this section is to ensure that administrative errors or misunderstandings
occurring in the course of legitimate business do not result in convictions for offences that are
intended only to target those involved in the illegal firearms trade. For example, a bona fide
firearms dealer obtains permission from the relevant State or Territory authority for the
importation of a firearm. However, permission should have been obtained from the relevant
Commonwealth authority. The defence under section 361.4 would be available in this type of
situation.
Conclusion
The firearms trafficking measures in Schedule 2 of 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 in achieving the intended outcome of Schedule 2.
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NOTES ON CLAUSES
Clause 1: Short title
This clause provides that, when enacted, the Bill may be cited as the Crimes Legislation
Amendment (Organised Crime and Other Measures) Act 2012.
Clause 2: Commencement
This clause sets out when the Act will commence.
The Act will commence on the day after it receives Royal Assent.
Clause 3: Schedule(s)
This is a formal clause that enables the Schedules to amend Acts by including amendments
under the title of the relevant Act.
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Schedule 1 - Unexplained wealth amendments
GENERAL OUTLINE
Schedule 1 will strengthen the Commonwealth's unexplained wealth regime.
Unexplained wealth provisions were introduced into the POC Act in February 2010, as part
of a suite of reforms to more effectively prevent, investigate and prosecute organised crime
activity, and target the proceeds of organised crime groups.
On 19 March 2012, the Parliamentary Joint Committee on Law Enforcement (PJC-LE)
handed down the final report on its Inquiry into Commonwealth unexplained wealth
legislation and arrangements. In this report, the PJC-LE concluded that the unexplained
wealth provisions were not operating as effectively as Parliament had intended.
Part 1 of Schedule 1 will implement recommendations made in the PJC-LE's final report.
These amendments will
· ensure evidence relevant to unexplained wealth proceedings can be seized under a
search warrant
· allow the time limit for serving notice of a preliminary unexplained wealth order to be
extended by a court in appropriate circumstances
· harmonise provisions relating to the payment of legal expenses for unexplained
wealth cases with those for other POC Act proceedings so as to prevent restrained and
forfeited assets being used to meet legal expenses
· allow charges to be created over restrained property to secure payment of an
unexplained wealth order, as can occur with other types of proceeds of crime order
· remove a court's discretion to make unexplained wealth restraining orders,
preliminary unexplained wealth orders and unexplained wealth orders once relevant
criteria are satisfied, and
· improve the PJC-LE's oversight of unexplained wealth investigations and litigation.
Part 2 of Schedule 1 sets out how these amendments will apply.
These amendments will ensure that the Commonwealth has strong laws to target the criminal
economy; not only removing the proceeds of crime, but also preventing its reinvestment into
further criminal activity.
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Part 1 - Amendments
Proceeds of Crime Act 2002
Item 1 - Subsection 20A(1)
Item 1 amends subsection 20A(1) of the POC Act by omitting `may order' and substituting
`must order'.
Currently, a court has a discretion in deciding whether to make an unexplained wealth
restraining order, even when it is satisfied that the relevant criteria have been met. This is in
contrast to most other types of proceeds of crime orders, which a court must make if it is
satisfied that the criteria have been met.
In the PJC-LE's final report on its Inquiry into unexplained wealth legislation and
arrangements, the PJC-LE concluded:
The committee is of the view that there does not seem to be a strong case for a specific unexplained
wealth judicial discretion relating to restraining orders and preliminary orders to appear, given there
is limited impact on an individual subject to those types of orders and that there are already
significant safeguards in place, such as:
· the requirement for a court to be satisfied that the tests for the orders have been met;
· the judicial discretions of general public interest and the interests of justice tests that need
to be satisfied;
· the standard powers courts have to order costs; and
· oversight by this committee.
The additional discretion available to courts in unexplained wealth cases provides a
disincentive for proceeds of crime authorities to bring unexplained wealth proceedings, as
there is greater uncertainty of the outcome (which also leaves the authority more open to an
award of costs being made against it).
This amendment (in conjunction with the amendment made by item 3) will remove a court's
general discretion to make an unexplained wealth restraining order where the amount of
unexplained wealth is suspected to be $100,000 or more.
This amendment will provide greater certainty to parties involved in unexplained wealth
matters. The court will continue to have a discretion in deciding whether to make an order in
cases where the amount of unexplained wealth is not suspected to be $100,000 or more,
which will act as an additional safeguard in smaller cases.
While this item removes the general discretion given to a court under subsection 20A(1), a
court will still have the ability to refuse to make a restraining order under subsection 20A(4)
if it is satisfied that it is not in the public interest to make the order. A court may also refuse
to make a restraining order if the Commonwealth refuses to give an undertaking with respect
to the payment of damages or costs, or both, for the making and operation of the order under
section 21 of the POC Act.
This amendment implements Recommendation 12 of the PJC-LE's final report.
Item 2 - Subsections 20A(3A) to (3C)
Item 2 repeals subsections 20A(3A) to (3C).
17
Subsections 20A(3A) to (3C) allow a court to order that restrained property be disposed of
for the purposes of meeting a person's reasonable legal expenses. People who are subject to
proceeds of crime proceedings (other than unexplained wealth proceedings) are not entitled to
meet their legal costs from restrained property.
The ability of a person to dispose of restrained property to meet their legal costs weakens the
effectiveness of the unexplained wealth provisions by allowing the wealth suspected to have
been unlawfully acquired to be used to contest proceedings. This may lead to fewer assets
being available for confiscation if an unexplained wealth order is successful and is likely to
cause more protracted litigation.
This amendment will harmonise provisions relating to the payment of legal expenses for
unexplained wealth cases with those for other proceedings under the POC Act.
Legal aid commissions will continue to be entitled to be reimbursed for legal costs incurred
in representing people whose property is covered by a restraining order under the POC Act.
Matters under the POC Act have also been established as a priority civil law area for the
allocation of Commonwealth funded legal services by State and Territory legal aid
commissions under the National Partnership Agreement on Legal Assistance Services. As a
matter of practice, many jurisdictions' legal assistance guidelines provide that, when
determining whether legal assistance should be provided in relation to Commonwealth
POC Act matters, any of a person's property that is covered by a restraining order, or is likely
to be covered by a restraining order, should be disregarded for the purposes of means tests.
This amendment implements Recommendation 10 of the PJC-LE's final report.
Item 3 - Subsection 20A(4)
Item 3 amends subsection 20A(4) to provide that that a court may refuse to make an
unexplained wealth restraining order if it is satisfied that there are not reasonable grounds to
suspect that a person's total wealth exceeds the value of the wealth that the person has
lawfully acquired by $100,000 or more. In addition, a court will continue to be able to refuse
to make an order if it is satisfied that it is not in the public interest to make the order.
This amendment is related to item 1, which removes a court's discretion in deciding whether
to make an unexplained wealth restraining order. This amendment will act as an additional
safeguard by ensuring that court's discretion to make an unexplained wealth restraining order
is retained in matters that where the person is suspected of having less than $100,000 of
unexplained wealth.
A threshold of $100,000 was suggested by the PJC-LE after consultation with international
and domestic criminal justice stakeholders. The introduction of this threshold also reinforces
that the primary purpose of unexplained wealth provisions is to target larger cases involving
serious and organised crime, and not individuals with small amounts of wealth. Providing the
court with an additional discretion in these smaller cases will ensure that the courts have
greater powers to prevent the potential hardship arising from the use of the provisions in
cases where there are only small amounts of unexplained wealth.
This amendment implements Recommendation 12 of the PJC-LE's final report.
18
Item 4 - Subsection 20A(4A)
Item 4 amends subsection 20A(4A) by omitting `subsection (1)' and substituting `this
section'. This amendment is consequential to item 1 and reflects that a court will no longer
have a general discretion to refuse to make an order under subsection 20A(1).
Subsection 20A(4A), as amended, will still allow a court to make an order as to costs if the
court refuses to make a section 20A restraining order on other grounds (eg under
subsection 20A(4) or section 21).
Item 5 - Subsection 20A(5)
Item 5 amends subsection 20A(5) by omitting `may' and substituting `must'. This
amendment is consequential to item 1 and reflects that a court will no longer have a general
discretion to refuse to make an order under subsection 20A(1).
Item 6 - After subsection 45(6)
Item 6 inserts a new subsection (6A) at the end of section 45.
Section 45 currently causes restraining orders (with the exception of unexplained wealth
restraining orders under section 20A, which are covered by section 45A) to cease in a wide
range of situations. For example, property may cease to be covered by a restraining order if it
vests absolutely in the Commonwealth, if it is sold to satisfy the payment of a pecuniary
penalty order or if an application for forfeiture is unsuccessful.
Item 6 is related to item 20, which will insert new section 179SA into the POC Act. This will
allow charges to be created and registered over restrained property to secure the payment of
unexplained wealth amounts. In line with other provisions in the POC Act relating to
charges, unexplained wealth charges would be automatically created where a person is
subject to both an unexplained wealth order and a restraining order under the POC Act.
Item 6 will support the amendments to section 179SA by amending section 45 to provide
that, if a charge is created over restrained property under section 179SA, the restraining order
over that property will not cease to be in force until the charge over the property ceases to
have effect under proposed subsection 179SA(2). This provision means that the restraining
order will continue to cover that property even if it would usually cease under
subsections 45(1), (2), (3), or (6).
This amendment will ensure that property continues to be restrained and cannot be disposed
of or dealt with in a way that might frustrate a charge under section 179SA. It is an offence
punishable by five years imprisonment and/or 300 penalty units if a person knowingly or
recklessly contravenes a restraining order (eg by selling property, using it as collateral for a
loan or moving it out of the jurisdiction). This will ensure that property continues to be
available to secure the payment of unexplained wealth amounts.
Item 7 - Subsection 45A(1)
Item 7 repeals subsection 45A(1) and substitutes it with a new subsection covering when a
section 20A restraining order made before an application for an unexplained wealth order
ceases to be in force. This item operates in conjunction with the amendments in item 9,
which relate to restraining orders that are made at the same time as or after the application for
an unexplained wealth order.
19
Currently, section 45A establishes three ways in which an unexplained wealth restraining
order under section 20A will cease to operate:
1. An unexplained wealth restraining order has been made, but no subsequent
application for an unexplained wealth order is made within 28 days after the
restraining order was made.
2. An application for an unexplained wealth order has been made within 28 days after
the restraining order, but a court has refused to make the unexplained wealth order
and an appeal against that refusal has not subsequently been brought, or has lapsed or
been denied.
3. An application for an unexplained wealth order has been made within 28 days after
the restraining order, the court has made the unexplained wealth order, and the order
has subsequently been complied with (ie the person subject to the order has paid the
amount they are required to pay under the order), or has been successfully appealed.
In all of the above situations, the current provisions of section 45A assume that an application
for an unexplained wealth restraining order will be made before an unexplained wealth order.
However, in practice, restraining orders can also be sought after an unexplained wealth order
has been made. For example, this may occur where further property of a person is identified
after the order is made and a restraining order is then applied for to ensure that that further
property is available to satisfy the unexplained wealth order. It may also occur where an
order under subsection 179S(3) is made. As section 45A does not make any provision for
such situations, it is not clear how this section would operate.
Item 7 will insert a new subsection 45A(1) covering situations where a restraining order is
made before an application for an unexplained wealth order. Under this subsection, a
restraining order under section 20A will lapse if no application for an unexplained wealth
order was made before the restraining order was made, and no application for an unexplained
wealth order is made within 28 days after the restraining order was made.
In conjunction with the amendments made by item 9, this amendment will help make it clear
to people who are bound by a section 20A restraining order when that order ceases to have
effect.
Item 8 - Paragraph 45A(2)(c)
Item 8 repeals paragraph 45A(2)(c) and replaces it with a new paragraph that provides that a
restraining order will cease to be in force where an application for an unexplained wealth
order is made within 28 days after the making of the restraining order, but the court refuses to
make either a preliminary unexplained wealth order in connection with the application or the
unexplained wealth order, and all appeal avenues are closed.
Current paragraph 45A(2)(c) only provides for a restraining order to cease where the court
has refused to make an unexplained wealth order. However, under section 179E, a court can
only make an unexplained wealth order if the court has previously made a preliminary
unexplained wealth order. If a court refuses to make a preliminary unexplained wealth order,
then the unexplained wealth order will automatically fail. Consequently,
20
paragraph 45A(2)(c) has been amended to capture situations where a court refuses to make
either a preliminary unexplained wealth order or an unexplained wealth order.
Item 9 - After subsection 45A(3)
Item 9 inserts new subsections (3A) and (3B) after subsection 45A(3). These new
subsections govern when a section 20A restraining order made at the same time as or after an
application for an unexplained wealth order will lapse. This item operates in conjunction
with the amendment in item 7, which relates to restraining orders obtained before an
application for an unexplained wealth order.
As noted in item 7 above, the current provisions of section 45A assume that an application
for an unexplained wealth restraining order will be made before an unexplained wealth order.
However, in practice, restraining orders can also be sought after an unexplained wealth order
has been made. For example, this may occur where further property of a person is identified
after the order is made and a restraining order is then applied for to ensure that that further
property is available to satisfy the unexplained wealth order, or where an order under
subsection 179S(3) is made. As section 45A does not make any provision for this situation, it
is not clear how this section would operate. Item 9 will clarify when a section 20A
restraining order ceases to be in force, where that restraining order was made at the same time
or after and application for an unexplained wealth order.
Under item 9, a section 20A restraining order that was made at the same time as or after an
application for an unexplained wealth order would lapse in two circumstances:
1. The order would lapse under new subsection 45A(3A) if a court refuses to make a
preliminary unexplained wealth order or an unexplained wealth order, and all appeal
avenues are closed. This could be because the time for an appeal against the refusal
has expired without an appeal being lodged, an appeal against the refusal has lapsed,
or an appeal against the refusal has been dismissed and finally disposed of.
2. The order would lapse under new subsection 45A(3B) if an unexplained wealth order
is made and either the order is complied with or an appeal against the order has been
upheld and finally disposed of.
These amendments, in conjunction with the amendments made by item 7, will help to make it
clear to people who are bound by a section 20A restraining order when that order ceases to
have effect.
Item 10 - Before subsection 45A(4)
Item 10 inserts a new sub-heading, `Court may make costs order if restraining order ceases'.
This amendment is consequential to items 7 and 9, which also insert headings into
section 45A to clarify what the different subsections relate to.
Item 11 - Subsection 45A(4)
Item 11 amends subsection 45A(4) by omitting `or (2)' and substituting `(2) or (3A)'. This
amendment expands a court's ability to make costs orders under subsection 45A(4) to also
include situations where a restraining order under section 20A ceases to be in force because a
court refuses to make a preliminary unexplained wealth order or an unexplained wealth order.
As new subsection 45A(3A) substantially mirrors 45A(2) (which is already listed in
21
subsection 45A(4)), it is appropriate that the court's powers under subsection 45A(4) apply
equally to both of these subsections.
Item 12 - Section 179B (heading)
Item 12 repeals the existing section 179B heading and substitutes `179B Making a
preliminary unexplained wealth order requiring a person to appear'.
This item will ensure that the heading reflects that section 179B governs the making of
preliminary unexplained wealth orders.
Item 13 - Subsection 179B(1)
Item 13 amends subsection 179B(1) of the POC Act by omitting `may make an order' and
substituting `must make an order'.
Currently, a court has a discretion in deciding whether to make a preliminary unexplained
wealth order, even when it is satisfied that the relevant criteria have been met. This is in
contrast to most other types of proceeds of crime orders, which a court must make if it is
satisfied that the criteria have been met.
In the PJC-LE's final report on its inquiry into unexplained wealth legislation and
arrangements, the PJC-LE concluded:
The committee is of the view that there does not seem to be a strong case for a specific unexplained
wealth judicial discretion relating to restraining orders and preliminary orders to appear, given there
is limited impact on an individual subject to those types of orders and that there are already
significant safeguards in place, such as:
· the requirement for a court to be satisfied that the tests for the orders have been met;
· the judicial discretions of general public interest and the interests of justice tests that need
to be satisfied;
· the standard powers courts have to order costs; and
· oversight by this committee.
Providing the court with additional discretion in unexplained wealth cases creates a
disincentive for proceeds of crime authorities to bring unexplained wealth proceedings, as
there is greater uncertainty of the outcome (which also leaves the authority more open to an
award of costs being made against it).
This amendment (in conjunction with the amendment made by item 15) will remove a court's
discretion to make a preliminary unexplained wealth order where the amount of unexplained
wealth is suspected to be $100,000 or more.
This amendment will provide greater certainty to parties involved in unexplained wealth
matters. The court will continue to have a discretion in deciding whether to make an order in
cases where the amount of unexplained wealth is not suspected to be $100,000 or more,
which will act as an additional safeguard in smaller cases. The court also has the power to
revoke an order under subsection 179C(5) if it is satisfied that it is in the public interest or
otherwise in the interests of justice to do so.
This amendment implements Recommendation 12 of the PJC-LE's final report.
22
Item 14 - Before subsection 179B(3)
Item 14 inserts a new sub-heading, `Considering application without notice'. This
amendment is consequential to item 15, which (amongst other things) inserts a new heading
into section 179B. This heading articulates the purpose of 179B(3).
Item 15 - At the end of section 179B
Item 15 inserts a new subsection 179B(4), which provides that a court may refuse to make a
preliminary unexplained wealth order if it is satisfied that there are not reasonable grounds to
suspect that the person's total wealth exceeds the value of the wealth that the person has
lawfully acquired by $100,000 or more.
This amendment is related to item 13, which removes a court's discretion in deciding whether
to make an unexplained wealth restraining order. This amendment will act as an additional
safeguard by ensuring that the court's discretion to make a preliminary unexplained wealth
order is retained in matters where the person is suspected of having less than $100,000 of
unexplained wealth.
A threshold of $100,000 was suggested by the PJC-LE after consultation with international
and domestic criminal justice stakeholders. The introduction of this threshold also reinforces
that the primary purpose of unexplained wealth provisions is to target larger cases involving
serious and organised crime, and not individuals with small amounts of wealth. Providing the
court with an additional discretion in cases involving a smaller amount of wealth will ensure
that the courts have greater powers to prevent the potential misuse of these provisions.
This amendment implements Recommendation 12 of the PJC-LE's final report.
Item 16 - Subsection 179E(1)
Item 16 amends subsection 179E(1) of the POC Act by omitting `may make an order' and
substituting `must make an order'.
Currently, a court has a discretion in deciding whether to make an unexplained wealth order,
even when it is satisfied that the relevant criteria have been met. This is in contrast to most
other types of proceeds of crime orders, which a court must make if it is satisfied that the
criteria have been met.
In the PJC-LE's final report on its inquiry into unexplained wealth legislation and
arrangements, the PJC-LE observed that, while an unexplained wealth order may have a
significant impact upon the individual concerned, the test to be satisfied is substantial. The
PJC-LE also found that the current judicial discretion may limit the effective use of
unexplained wealth laws.
Providing the court with additional discretion in unexplained wealth cases provides a
disincentive for proceeds of crime authorities to bring unexplained wealth proceedings, as
there is greater uncertainty of the outcome (which also leaves the authority more open to an
award of costs being made against it).
This amendment (in conjunction with the amendment made by item 17) will remove a court's
discretion to make an unexplained wealth order where the amount of unexplained wealth is
$100,000 or more.
23
This amendment will provide greater certainty to parties involved in unexplained wealth
matters. The court will continue to have a discretion in deciding whether to make an order in
cases where the amount of unexplained wealth is not $100,000 or more, which will act as an
additional safeguard in smaller cases.
While the general discretion under subsection 179E(1) is being removed, the court will still
have the ability under subsection 179E(6) to refuse to make an unexplained wealth order if
the court is satisfied that it is not in the public interest to make the order.
This amendment implements Recommendation 13 of the PJC-LE's final report.
Item 17 - Subsection 179E(6)
Item 17 amends subsection 179E(6) to provide that that a court may refuse to make an
unexplained wealth order if it is satisfied that the person's unexplained wealth amount is less
than $100,000. The person's unexplained wealth amount is calculated based on the formula
in subsection 179E(2).
In addition, a court will continue to be able to refuse to make an order if it is satisfied that it is
not in the public interest to make the order.
This amendment is related to item 16, which removes a court's discretion in deciding whether
to make an unexplained wealth order. This amendment will act as an additional safeguard by
ensuring that court's discretion to make an unexplained wealth order is retained in matters
that where the amount of unexplained wealth that the person has is less than $100,000.
A threshold of $100,000 was suggested by the PJC-LE after consultation with international
and domestic criminal justice stakeholders. The introduction of this threshold also reinforces
that the primary purpose of unexplained wealth provisions is to target larger cases involving
serious and organised crime, and not individuals with small amounts of wealth. Providing the
court with an additional discretion in cases involving a smaller amount of wealth will ensure
that the courts have greater powers to prevent any potential hardship arising from the use of
these provisions.
This amendment implements Recommendation 13 of the PJC-LE's final report.
Item 18 - After subsection 179N(2)
Item 18 inserts new subsections 179N(2A) and (2B). These amendments allow a court to
make an order extending the time limit for serving notice of a preliminary unexplained wealth
order under subsection 179N(2) by up to 28 days where the court is satisfied that it is
appropriate to do so. However, a court will only be able to make such an order if the
responsible authority applies for the order before the end of the period for serving the notice.
New subsection 179N(2B) provides that the court may extend the period for serving notice
more than once.
Extending the time limit for giving notice of a preliminary unexplained wealth order will
make the provisions more flexible in circumstances where it is not possible for notice to be
given within seven days of the order being made. For example, this may cover situations
where a suspect is attempting to avoid service of the notice or is temporarily absent from the
jurisdiction. A court will have the discretion to extend the time limit for serving notice,
24
which will ensure that independent consideration is given as to whether it is appropriate to
give an extension.
This amendment implements Recommendation 9 of the PJC-LE's final report.
Item 19 - Subsection 179S(3)
Item 19 repeals subsection 179S(3) and substitutes a new subsection enabling a court to make
a restraining order under section 20A in certain circumstances.
Under subsection 179S(1), where the court has made an unexplained wealth order in relation
to a person the responsible authority may apply to the court for an order, declaring that all or
part of property within the effective control of that person be made available to satisfy the
unexplained wealth order. Subsection 179S(3) allows a court to also make a restraining order
in respect of that property to prevent it being dissipated prior to the enforcement of the
unexplained wealth order. To enable this to occur, subsection 179S(3) deems that certain
requirements relevant to the making of a section 20A restraining order have been met.
Currently, there are a number of uncertainties surrounding the effect of subsection 179S(3).
In particular, it is not clear what type of restraining order is created when an order is made
under subsection 179S(3). This may cause confusion for people subject to such an order
about their legal rights. These amendments will clarify how this section operates and make it
clear that an order made under subsection 179S(3) is a restraining order under section 20A.
If a restraining order is made under subsection 179S(3), a person with an interest in that
property has the same rights as if a restraining order under section 20A were made against
them. For example, the person can apply to have his or her interest excluded under
section 29A or to have the order revoked under section 42.
Under this item, the court may make a restraining order under section 20A over property
covered by a declaration under 179S(1), as if the requirements to obtain a section 20A
restraining order had been met. However, the court can only make an order under subsection
179S(3) following an application by the responsible authority.
This amendment will clarify what a court is required to have regard to when making an order
under subsection 179S(3) and also removes the requirement for a court to consider those
elements of a section 20A restraining order that are no longer relevant (either because they
are captured within subsection 179S(3) or have become redundant following the making of
the unexplained wealth order).
Item 20 - Section 179SA
Item 20 repeals section 179SA, which relates to the payment of legal expenses, and
substitutes new sections 179SA and 179SB relating to the creation and registration of charges
over property subject to a restraining order.
Repeal of existing section 179SA
Currently, section 179SA allows a court to order that property covered by an order under
subsection 179S(1) be used to meet a person's reasonable legal expenses arising from an
application under the POC Act, instead of being available to satisfy an unexplained wealth
order. People who are subject to proceeds of crime proceedings (other than unexplained
wealth proceedings) are not entitled to meet their legal costs from property covered by an
order under the POC Act.
25
The ability of a person to use property covered by an order under subsection 179S(1) to meet
their legal costs weakens the effectiveness of the unexplained wealth provisions by allowing
assets that would otherwise be confiscated to be used to contest proceedings. This may lead
to fewer assets being available for confiscation and is likely to cause more protracted
litigation.
This amendment will harmonise provisions relating to the payment of legal expenses for
unexplained wealth cases with those for other proceeds of crime proceedings.
Legal aid commissions will continue to be entitled to be reimbursed for legal costs incurred
in representing people whose property is covered by a restraining order under the POC Act.
Matters under the POC Act have also been established as a priority civil law area for the
allocation of Commonwealth funded legal services by State and Territory legal aid
commissions under the National Partnership Agreement on Legal Assistance Services. As a
matter of practice, many jurisdictions' legal assistance guidelines provide that, when
determining whether legal assistance should be provided in relation to Commonwealth POC
Act matters, any of a person's property that is covered by a restraining order, or is likely to be
covered by a restraining order, should be disregarded for the purposes of means tests.
This amendment implements Recommendation 10 of the PJC-LE's final report.
Inclusion of new sections 179SA and 179SB
Unexplained wealth orders create a civil debt payable to the Commonwealth. As such, an
unexplained wealth order does not attach to particular property of a person or require that
particular property be forfeited.
Other provisions in the POC Act that create a civil debt payable to the Commonwealth, such
as pecuniary penalty orders and literary proceeds orders, allow for the creation and
registration of charges over restrained property to secure payment of amounts owing to the
Commonwealth. This ensures that property is available to satisfy a pecuniary penalty order
or a literary proceeds order if a person does not pay the amount specified in the order.
However, the same power does not exist for unexplained wealth orders.
Proposed sections 179SA and 179SB will allow charges to be created and registered over
restrained property to secure payment of unexplained wealth amounts.
Under proposed subsection 179SA(1), where an unexplained wealth order has been made
against a person and the person is also the suspect in relation to a restraining order, upon the
making of the later of the orders a charge is created over restrained property to secure the
payment to the Commonwealth of the person's unexplained wealth amount.
The charge is created over the person's property and any other property over which the court
has found the person has effective control (pursuant to subsection 179S(1).
There are a number of circumstances, set out in subsection 179SA(2), in which the charge
may cease to have effect. Some of those circumstances relate directly to the unexplained
wealth order; others relate to the property the subject of the charge.
The charge will cease if a person successfully appeals against either the unexplained wealth
order or restraining order, and the relevant order is discharged by the court. If the person
pays out the unexplained wealth amount in full, the charge ceases to have effect.
26
Certain sales or disposal of property also cause the cessation of the charge. The property may
be disposed of by order of the court under Division 4 of Part 4-1, or by the owner of the
property with the consent of the court or (in certain circumstances) the Official Trustee. Sale
of the property to a purchaser for sufficient consideration, where the person has no notice of
the charge and purchases in good faith will also cause the charge to cease.
The responsible authority for the unexplained wealth order or restraining order can also
determine that a charge ceases to have effect in respect of the property. Any determination
must be in writing. This paragraph has been included to enable a responsible authority to
properly manage charges over property to secure unexplained wealth amounts. For example,
if the restrained property over which the charge was created was separately being pursued for
forfeiture under the POC Act, the responsible authority could choose to waive the charge
over the property and seek to recover the unexplained wealth amount using other means
available to it.
Subsection 179SA(3) provides that the charge is subject to all earlier encumbrances on the
property that would otherwise have priority (other than an encumbrance in which the person
who has had the unexplained wealth order made against them has an interest). For example,
if the restrained property is a house, there may be an earlier mortgage which upon disposal of
the property would be paid out prior to payment of the unexplained wealth amount.
By operation of paragraph 179SA(3)(b), the charge has priority over all other encumbrances.
Paragraph 179SA(3)(c) enables a charge to continue to have effect, despite any change in
ownership of the property. However, this is subject to the matters set out in
subsection 179SA(2). For example, if the property was sold to a third person who paid
sufficient consideration, had no knowledge that the property was subject to the charge, and
otherwise acted in good faith, the charge would be affected by the change in ownership by
virtue of paragraph 179SA(2)(d). However, if the person did know of the charge or if the
sale was not for sufficient consideration, then the conditions of paragraph 179SA(2)(d) would
not be met, and subsection 179SA(3) would apply. The property would remain subject to the
charge, and may be disposed of to satisfy the unexplained wealth amount. The purpose of
these conditions is to ensure that a person cannot frustrate a charge by selling goods to a
friend or family member below market value.
Proposed subsection 179SA(5) provides that a determination by the responsible authority for
the unexplained wealth order or restraining order that a charge ceases to have effect in respect
of the property made under paragraph 179SA(2)(e) is not a legislative instrument. This
provision has been included to assist readers, as the instrument is not a legislative instrument
within the meaning of section 5 of the Legislative Instruments Act 2003.
Proposed subsection 179SB(1) provides that where a law of the Commonwealth, or of a State
or Territory provides for a system of registration for certain types of property the Official
Trustee or the responsible authority for the unexplained wealth order or restraining order may
cause the charge created under proposed subsection 179SA(1) to be registered in accordance
with the provisions of that law. For example, if a charge was created over real property, the
Official Trustee or responsible authority would be able to register that charge in the property
register within the state where the property is located.
Once registration has taken place, subsection 179SB(2) has the effect that any person who
purchases or otherwise acquires an interest in the property is taken to have notice of the
27
charge. This means that once a charge is registered, any person who subsequently purchases
the property will be deemed to have notice of the charge for the purposes of determining
whether the charge should cease under paragraph 179SA(2)(d).
Subsection 179SB(3) provides that registration of a charge on certain types of personal
property under the Personal Property Securities Act 2009, includes the registration of data in
relation to those types of property for the purposes of paragraph 148(c) of that Act.
These amendments will improve the enforcement of unexplained wealth orders by ensuring
that restrained property can be used to satisfy an unexplained wealth order if a person does
not pay an unexplained wealth amount.
This amendment implements Recommendation 11 of the PJC-LE's final report.
Item 21 - Before subsection 179U(2)
Item 21 inserts a sub-heading `Appearing before the Committee' before subsection 179U(2).
This amendment is consequential to item 22, which inserts a new subsection increasing the
PJC-LE's oversight of investigations and litigation in relation to unexplained wealth.
Item 22 - At the end of section 179U
Item 22 inserts new subsections 179U(3) to (5), which will enhance reporting to the PJC-LE
on investigations related to unexplained wealth and unexplained wealth litigation.
Under this item, the Commissioner of the AFP will be required to report on the number of
matters investigated in the previous financial year by each enforcement agency where the
likely outcome may be the initiation of unexplained wealth proceedings, and details on how
that number has been calculated. This will provide the PJC-LE with an overview of the
number of unexplained wealth matters at investigation stage, though not all of these matters
may ultimately be litigated. The report will also be required to state the number of
applications for unexplained wealth restraining orders and unexplained wealth orders, and the
results of those applications.
The role of providing a report to the PJC-LE has been conferred upon the Commissioner of
the AFP, as the AFP has conducted the majority of proceeds of crime investigations in the
past and is the lead agency in the Criminal Assets Confiscation Taskforce. It is envisaged
that the Commissioner of the AFP is also the most likely authority to undertake litigation in
relation to unexplained wealth. Providing a consolidated response from all agencies will
ensure that the report presents a complete picture of relevant investigations and litigation
undertaken within the previous financial year.
Under proposed subsection 179U(4), the Commissioner of the AFP must provide the PJC-LE
with the report as soon as practicable after the AFP's annual report is laid before parliament
under section 67 of the Australian Federal Police Act 1979. This will ensure that reporting
under proposed subsection 179U(3) can be done in conjunction with other reporting
requirements.
Proposed 179U(5) provides that the Commonwealth Director of Public Prosecutions or Chief
Executive Officer (however described) of an enforcement agency must comply with any
requests from the Commissioner of the AFP for information that the Commissioner considers
28
is necessary to prepare the report to the PJC-LE under proposed subsection 179U(3). This
subsection will ensure that the Commissioner of the AFP has access to relevant information
on investigations and litigation conducted by other agencies for the purpose of providing a
consolidated report to the PJC-LE. It is envisaged that the agency providing this information
will remain responsible for the quality of that information and for answering any further
questions that arise as a result of that information.
This item implements part of Recommendation 13 of the PJC-LE's final report.
Items 23 and 24 - After paragraph 227(1)(h) and after paragraph 228(1)(d)
Items 23 and 24 insert new paragraphs into subsections 227(1) and 228(1) respectively.
These items will enable the seizure of things that are relevant to unexplained wealth
proceedings during the execution of a warrant granted under section 225.
Under section 225 of the POC Act, a magistrate may issue a warrant to search a premises if
satisfied by information on oath that there are reasonable grounds for suspecting that there is
at the premises (or will be within 72 hours) `tainted property' or `evidential material'.
Tainted property is defined as proceeds of certain indictable offences or an instrument of an
indictable offence. Evidential material means evidence relating to:
· property in respect of which action under the POC Act has or could be taken
· benefits derived from the commission of certain offences, or
· literary proceeds.
While the current search warrant provisions allow for the collection of some evidence in
relation to property relevant to unexplained wealth proceedings, it is currently not possible to
seize all evidence that would be relevant to an unexplained wealth investigation or
proceeding. For example, the current search warrant provisions would not necessarily allow
the seizure of material relevant to ascertaining the total wealth of a person (such as evidence
of a person's income or legitimately acquired property) or evidence of unlawful activities
from which a person has derived wealth. Furthermore, officers are not able to collect
evidence relating to summary offences and foreign offences, even though restraint action in
unexplained wealth matters can be based on the commission of summary or indictable
Commonwealth offences, or foreign indictable offences.
Item 23 will insert paragraph 227(1)(ha), which will require a search warrant to state the
additional things that may be seized under these amendments. Item 24 will insert
paragraph 228(1)(da), which authorises the authorised officer or a person assisting to seize
things that they reasonably believe to be things relevant to unexplained wealth proceedings.
A definition of `things relevant to unexplained wealth proceedings' will be inserted into
section 338 by item 28.
These amendments will ensure that material relevant to unexplained wealth proceedings can
be seized when searching premises under a warrant and will enhance the investigation of
unexplained wealth matters.
This item implements Recommendation 5 of the PJC-LE's final report.
29
Item 25 - Subparagraph 256(1)(b)(ii)
Item 25 amends subparagraph 256(1)(b)(ii) by omitting `and' and substituting `or'. This
amendment is consequential to item 26, which inserts a new subparagraph after 256(1)(b)(ii).
Item 26 - At the end of paragraph 256(1)(b)
Item 26 inserts a new subparagraph into paragraph 256(1)(b) relating to the return of things
relevant to unexplained wealth proceedings that have been seized under warrant. This
amendment provides that the authorised officer responsible for executing the warrant must
take reasonable steps to return these things where the reason that the thing was seized no
longer exists or if it is decided that the thing is not to be used in evidence.
Item 27 - Subsection 304(2)
Item 27 amends subsection 304(2) by omitting '42 to 45, 142 and 169' and substituting '42 to
45A, 142, 169 and 179SA'. This item will expand the sections that do not apply in relation to
an `interstate restraining order' registered in the Supreme Court of a Territory under
Division 1 of Part 4-5 of the POC Act, to also include sections 45A and 179SA.
Subsection 304(1) of the POC Act provides that once an interstate restraining order is
registered in the Supreme Court of a Territory it may be enforced as if it were a restraining
order made under sections 17, 18, 19, 20 or 20A. Division 1 of Part 4-5 also contains a
number of provisions that govern the duration of registration of an interstate restraining order,
cancellation of registration and creating charges over property that is subject to a registered
interstate restraining order. These provisions have been specifically drafted to take into
account differences between how interstate restraining orders are registered and enforced and
how restraining orders under sections 17, 18, 19, 20 or 20A of the POCA are obtained and
enforced.
Amending subsection 304(2) to provide that sections 45A and 179SA do not apply to a
registered interstate restraining order will make it clear that the provisions in Division 1 of
Part 4-5 governing interstate restraining orders are intended to operate to the exclusion of
section 45A and 179SA (which provide for the cessation of unexplained wealth restraining
orders and the creation of charges over restrained property to secure the payment of
unexplained wealth amounts). This will assist in avoiding confusion as to when the
registration of an interstate restraining order ceases and when a charge is created over
property covered by an interstate restraining order.
Item 28 - Section 338
Item 28 inserts a new definition of `thing relevant to unexplained wealth proceedings' into
section 338. This definition complements the amendments made by items 23 and 24, which
allow for the seizure of things relevant to unexplained wealth proceedings under a warrant
granted under section 225.
A thing relevant to unexplained wealth proceedings means things that are reasonably
suspected may be relevant for the purposes of initiating or conducting proceedings for an
unexplained wealth restraining order under section 20A or under part 2-6 (which relates to
the granting of preliminary unexplained wealth orders and unexplained wealth orders
amongst other things). This includes things in electronic form.
30
Things that might be relevant to an unexplained wealth proceeding may include things that
show:
· whether a person's total wealth exceeds the value of the person's wealth that was
lawfully acquired
· the amount by which a person's total wealth exceeds the value of the person's
wealth that was lawfully acquired
· whether a person has committed has an offence against a law of the
Commonwealth, a foreign indictable offence or a State offence that has a federal
aspect
· whether the whole or any part of a person's wealth was derived from an offence
against a law of the Commonwealth, a foreign indictable offence or a State
offence that has a federal aspect, or
· whether particular property was lawfully acquired by a person, owned by a person
or under the effective control of a person.
For example, this may include things that show that a person has legitimately derived part of
his or her wealth (such as payslips, business documents, details of inheritances, details of
debts or evidence of gifts), as well as things that show that the person's wealth has not been
lawfully derived (things that indicate that a person may have engaged in certain offences or
things that indicate that a person is living an extravagant lifestyle that is not supported by
their income). It may also include things that go to quantifying the person's wealth, such as
property documents, information about investments or bank records.
31
Part 2 - Application of amendments
Item 29 - Application of amendments
Item 29 sets out how the amendments made in Part 1 of Schedule 1 apply.
Section 20A, 45 and 45A
Sub-item 29(1) provides that the amendments to section 20A of the POC Act apply to
restraining orders applied for on or after the commencement of item 29, regardless of whether
the application for the restraining order relates to property or wealth acquired before on or
after commencement or to an offence suspected of being committed before on or after
commencement.
Similarly, under Sub-item 29(2) of this item the amendments to sections 45 and 45A of the
POC Act apply in relation to a restraining order made on or after commencement, regardless
of whether the restraining order relates to property or wealth acquired before on or after
commencement or to an offence suspected of being committed before on or after
commencement.
While these amendments to section 20A will only apply to restraining orders applied for on
or after commencement and the amendments to section 45 and 45A will only apply to
restraining orders made on or after commencement, the operation of these amendments is
partially retrospective. However, the amendments do not create retrospective criminal
liability.
Applying these provisions retrospectively is necessary to ensure their effective operation.
Under paragraph 20A(2)(a), unexplained wealth restraining orders may apply to all of the
property of the suspect. This property may have been accumulated over decades and it will
often be difficult, if not impossible, to ascertain specifically when property or wealth was
acquired. As such, it is necessary for these amendments to apply to a person's property or
wealth regardless of when it was acquired to ensure that orders are not frustrated by requiring
the precise point in time at which certain property or wealth was acquired to be established.
It is also necessary for this amendment to apply to offences regardless of when they are
suspected to have been committed. The criminal conduct from which a person may have
profited or gained property may continue over several years (including over the time of
commencement), may not be discovered immediately, or may not be able to be attributed to a
specific date. This is especially relevant for unexplained wealth proceedings which aim to
target the heads of organised crime organisations who may have committed and/or profited
from multiple offences over many years.
Sections 179B and 179E
Sub-item 29(3) provides that the amendments to sections 179B and 179E apply in relation to
an unexplained wealth order applied for on or after the commencement of this item,
regardless of whether that application relates to wealth that was acquired before on or after
commencement.
While the amendments to sections 179B and 179E only apply to unexplained wealth orders
that are applied for on or after commencement, the operation of these amendments is partially
retrospective. However, the amendments do not create retrospective criminal liability.
32
Applying these provisions retrospectively is necessary to ensure their effective operation.
Under section 179G of the POC Act, the amount of wealth a person has is calculated having
regard to property owned, effectively controlled, disposed of or consumed by a person at any
time, including before the time the Commonwealth's unexplained wealth laws commenced.
This property may have been accumulated over decades and it will often be difficult, if not
impossible, to ascertain specifically when property or wealth was acquired. As such, it is
necessary for these amendments to apply to a person's wealth regardless of when it was
acquired to ensure that orders are not frustrated by requiring the precise point in time at
which certain wealth or property was acquired to be established.
Section 179N
Sub-item 29(4) provides that the amendments to 179N apply in relation to a preliminary
unexplained wealth order obtained on or after commencement, regardless of when the
application for the unexplained wealth order on which the preliminary unexplained wealth
order is based was made or whether that application relates to wealth acquired before, on or
after commencement.
While the amendments to section 179N only apply to preliminary unexplained wealth orders
that are made on or after commencement, the operation of these amendments is partially
retrospective. However, the amendments do not create retrospective criminal liability.
Applying these amendments will ensure the effective operation of section 179N. Under
section 179G of the POC Act, the amount of wealth a person has is calculated having regard
to property owned, effectively controlled, disposed of or consumed by a person at any time,
including before the time the Commonwealth's unexplained wealth laws commenced. This
property may have been accumulated over decades and it will often be difficult, if not
impossible, to ascertain specifically when property or wealth was acquired. As such, it is
necessary for these amendments to apply to a person's property or wealth regardless of when
it was acquired to ensure that a court has the discretion to make an order extending the period
for serving notice under subsection 179N(2) without requiring the precise point in time at
which certain wealth or property was acquired to be established.
Similarly, these amendments will apply regardless of whether the application for the
unexplained wealth order on which the preliminary unexplained wealth order is based was
made before, on or after commencement. This will ensure that a court still has the power to
extend the period for serving notice, where it considers it appropriate to do so (for example,
where a suspect is attempting to avoid service or it temporarily absent from the jurisdiction).
Section 179S
Sub-item 29(5) provides that amendments to section 179S apply in relation to an unexplained
wealth order made on or after the commencement of this item, regardless of whether that
unexplained wealth order relates to wealth that was acquired before on or after
commencement, and whether the property subject to the order under subsection 179S(1)
came under the effective control of the person against whom the unexplained wealth order
has been made before, on or after commencement.
While the amendments to section 179S only apply to unexplained wealth orders that are made
on or after commencement, the operation of these amendments is partially retrospective.
However, the amendments do not create retrospective criminal liability.
33
Applying these provisions retrospectively is necessary to ensure their effective operation.
Under section 179G of the POC Act, the amount of wealth a person has is calculated having
regard to property owned, effectively controlled, disposed of or consumed by a person at any
time, including before the time the Commonwealth's unexplained wealth laws commenced.
This property may have been accumulated over decades and it will often be difficult, if not
impossible, to ascertain specifically when property or wealth was acquired. As such, it is
necessary for these amendments to apply to a person's wealth regardless of when it was
acquired to ensure that orders are not frustrated by requiring the precise point in time at
which certain wealth or property was acquired to be established.
Similarly, it will often not be possible to ascertain when certain property became under the
effective control of the person who is subject to an unexplained wealth restraining order. For
example, the person who has effective control over property may not be the legal owner of
that property or may maintain effective control using a complex system of companies and/or
trusts. As such, applying these provisions retrospectively will ensure that a person is not able
to escape the operation of section 179S by arguing about the date that the property came
under the effective control of the person subject to the unexplained wealth restraining order.
Repeal of section 179SA
Sub-item 29(6) preserves the operation of 179SA of the POC Act, which is being repealed
under section 20, in relation to unexplained wealth orders made before the commencement of
this item. This will ensure that where an unexplained wealth order has been made prior to
commencement, a court can still make an order for a person's reasonable legal expenses to be
met out of property covered by an order under subsection 179S(1).
Section 179SA and 179SB
Sub-item 29(7) provides that sections 179SA and 179SB (as inserted by Schedule 1) apply in
relation to an unexplained wealth order made on or after the commencement of this item,
regardless of whether that unexplained wealth order relates to wealth that was acquired
before on or after commencement or whether the restraining order under
subsection 179SA(1) is made before, on or after commencement.
While sections 179SA and 179SB will only apply to unexplained wealth orders that are made
on or after commencement, the operation of these amendments is partially retrospective.
However, these provisions do not create retrospective criminal liability.
Applying these provisions retrospectively is necessary to ensure their effective operation.
Under section 179G of the POC Act, the amount of wealth a person has is calculated having
regard to property owned, effectively controlled, disposed of or consumed by a person at any
time, including before the time the Commonwealth's unexplained wealth laws commenced.
This property may have been accumulated over decades and it will often be difficult, if not
impossible, to ascertain specifically when property or wealth was acquired. As such, it is
necessary for these amendments to apply to a person's wealth regardless of when it was
acquired to ensure that these provisions are not frustrated by requiring the precise point in
time at which certain wealth or property was acquired to be established. Charges created
under section 179SA will also occur automatically once the requirements of legislation have
been met. As such, if these provisions are not applied retrospectively, it could cause
considerable confusion about whether a charge had or hadn't been created.
34
Applying these new provisions to restraining orders regardless of when they were made will
also ensure that unexplained wealth amounts can be more effectively recovered. As the
unexplained wealth provisions were developed to target the heads of organise crime
organisations who may have committed or profited from multiple offences over many years,
it is possible that multiple actions may be taken under the POC Act against a person.
Applying this provision retrospectively will ensure that if an unexplained wealth order is
obtained against a person, a charge can be created against other property that might be subject
to a restraining order under the POC Act (regardless of when that order was obtained).
Subsections 179U(3) to (5)
Sub-item 29(8) provides that subsections 179U(3) to (5) apply only to financial years starting
from 1 June 2014. This provision has been included to give the Commissioner of the AFP
and the CEOs of other enforcement agencies sufficient time to put in place structures to
enable them to comply with their reporting obligations.
Sections 227, 228 and 256
Sub-item 29(9) provides that amendments to sections 227, 228 and 256 apply in relation to a
search warrant that is applied for under this Act on or after commencement, regardless of
whether the thing relates to property or wealth acquired, or an offence suspected of having
been committed before, on or after commencement.
While the amendments to sections 227, 228 and 258 will only apply to unexplained wealth
orders that are made on or after commencement, the operation of these amendments is
partially retrospective. However, these provisions do not create retrospective criminal
liability.
Applying these provisions retrospectively is necessary to ensure their effective operation. In
deciding whether to initiate proceedings for an unexplained wealth restraining order and
unexplained wealth order, it is often necessary to have regard to the total property owned by a
suspect (including property that is under the person's effective control, or that has been
consumed or disposed of). This property may have been accumulated over decades and it
will often be difficult, if not impossible, to ascertain specifically when property or wealth was
acquired. As such, it is necessary for these amendments to apply to a person's wealth
regardless of when it was acquired to ensure that search warrants are not frustrated by
requiring the precise point in time at which certain wealth or property was acquired to be
established.
It is also necessary for this amendment to apply to offences regardless of when they are
suspected to have been committed. The criminal conduct from which a person may have
profited or gained property may continue over several years (including over the time of
commencement), may not be discovered immediately, or may not be able to be attributed to a
specific date. This is especially relevant for unexplained wealth proceedings which aim to
target the heads of organised crime organisations who may have committed and/or profited
from multiple offences over many years.
35
Schedule 2 - Firearms trafficking amendments
GENERAL OUTLINE
The purpose of this Schedule is to expand existing cross-border firearms trafficking offences
in the Criminal Code and to introduce new aggravated offences for dealing in 50 or more
firearms and firearm parts.
The amendments are aimed at expanding existing cross-border firearms trafficking offences
in Part 9.4 of the Criminal Code to deal with firearms parts. This is necessary to ensure that
criminals cannot evade existing offences by breaking down firearms prior to trafficking them
across national borders.
The amendments also introduce an aggravated offence targeting the trafficking of 50 or more
firearms or firearms parts over a period of six months. The aim of the aggravated offences is
to hold traffickers responsible for the consequences of providing firearms and firearm parts
from both domestic and international sources into the illicit market.
In addition to expanding existing offences relating to the trafficking of firearms and firearm
parts within Australia, this Schedule will also insert new international firearms trafficking
offences into the Criminal Code. The new offences will cover the importation and
exportation of firearms and firearms parts and will also include an aggravated offence where
50 or more firearms are trafficked within a six month period.
As well as seeking to prevent firearms or firearm parts being illegally diverted for use by
criminals or sale on the black market, these offences are intended to support efforts to prevent
the flow of firearms to overseas illegal markets and work towards compliance with
international obligations regarding the illicit trade of firearms.
Cross-border trafficking offences
Part 9.4 of the Criminal Code contains offences criminalising the disposal or acquisition of a
firearm where that activity occurs in the context of interstate trade or commerce.
The offences rely on existing State and Territory offences regarding the disposal and
acquisition of a firearm.
The current offences only cover dealings in whole firearms, not firearm parts. The
amendments will ensure that firearms which are broken down into component parts, or parts
that are trafficked to supply the illicit market, are covered by the cross-border trafficking
offences.
The amendments in this Schedule will also introduce new aggravated cross-border trafficking
offences. The aggravated offences are directed at circumstances where 50 or more firearms
or firearm parts are trafficked during a six month period. These circumstances attract a
higher penalty of life imprisonment, reflecting the seriousness of contributing large numbers
of firearms to the illicit firearms market.
International trafficking offences
Importing or exporting prohibited firearms is covered by existing offences under
section 233BAB of the Customs Act 1901. The amendments to the Criminal Code to include
36
international trafficking offences will strengthen the integrity of the import and export regime
by introducing harsher penalties for the illegal importation or exportation of larger numbers
of firearms.
It is an offence under the Customs Act to intentionally import or export firearms (which are
classified as Tier 2 goods) without obtaining appropriate approval, with maximum penalties
of 2,500 penalty units or 10 years imprisonment, or both. The penalties for the new basic
international trafficking offences are consistent with those in the Customs Act.
The amendments in this Schedule will also introduce new aggravated offences for
international firearms trafficking. The aggravated offences are directed at circumstances
where 50 or more firearms or firearm parts are imported or exported during a six month
period. These circumstances attract a higher penalty of life imprisonment, reflecting the
seriousness of contributing large numbers of firearms to the illicit firearms market within a
short period of time.
37
Schedule 2 - Firearms trafficking amendments
Criminal Code Act 1995
Item 1
Section 360.1 currently defines disposal and acquisition of a firearm for the purposes of
Division 360. The amendments in Schedule 2 will broaden the scope of Division 360 to
include firearm parts in addition to firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 1 will add `or firearm part' to the end of the section 360.1 heading `Disposal and
acquisition of a firearm'.
Item 2
Subsection 360.1(1) currently defines disposal of a firearm for the purposes of Division 360.
The amendments in Schedule 2 will broaden the scope of Division 360 to include firearm
parts in addition to firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 2 will insert `or a firearm part' after the first occurrence of `firearm' in
subsection 360.1(1).
Item 3
Paragraphs 360.1(1)(a), (b) and (c) currently define what constitutes the disposal of a firearm
for the purposes of Division 360. The amendments in Schedule 2 will broaden the scope of
Division 360 to include firearm parts in addition to firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 3 will insert `or part' after each occurrence of `firearm' in paragraphs 360.1(1)(a), (b)
and (c).
Item 4
Subsection 360.1(2) currently defines acquisition of a firearm for the purposes of
Division 360. The amendments in Schedule 2 will broaden the scope of Division 360 to
include firearm parts in addition to firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 4 will insert `or a firearm part' after the first occurrence of `firearm' in
subsection 360.1(2).
38
Item 5
Paragraphs 360.1(2)(a), (b) and (c) currently define what constitutes the acquisition of a
firearm for the purposes of Division 360. The amendments in Schedule 2 will broaden the
scope of Division 360 to include firearm parts in addition to firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 5 will insert `or part' after each occurrence of `firearm' in paragraphs 360.1(2)(a), (b)
and (c).
Item 6
The heading to section 360.2 currently refers to the `Cross-border offence of disposal or
acquisition of a firearm'. The amendments in Schedule 2 will broaden the scope of
section 360.2 to cover cross-border trafficking of firearms parts, as well as whole firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 6 amends the heading of section 360.2 to add `or firearm part' at the end of the heading.
Item 7
This item repeals the existing cross-border firearms trafficking offences in
subsections 360.2(1) and (2) and substitutes new, expanded offences.
Subsection 360.2(1) - Basic offence
New subsection 360.2(1) creates a new basic offence of cross-border trafficking of firearms
or firearms parts.
To establish that the offence under subsection 360.2(1) has been committed, the prosecution
will need to prove that:
· the person has engaged in conduct that constitutes an offence against a firearm law
(the underlying offence) as defined in subsection 360.2(3)
· the person does so in the course of trade and commerce among the States, between a
State and a Territory or between two Territories, and
· the primary element of the underlying offence involves the disposal or acquisition of
a firearm or firearm part by the person.
Proposed paragraph 360.2(1)(a) relies on the existing State and Territory offences governing
the disposal and acquisition of a firearm. The proposed new offence imports elements of
those State and Territory offences to ensure that the Commonwealth does not create offences
with different or conflicting requirements. Firearm law is defined for the purposes of
paragraph 360.2 to be a law of a State or Territory which is prescribed by the regulations for
the purposes of Division 360.
39
Proposed new subsection 360.2(2A) provides that there is no fault element for the physical
element in paragraph 360.2(1)(a) other than the fault elements for the underlying offence.
The underlying offences themselves have specific physical and fault elements that must be
proved by the prosecution. The prosecution will be required to establish beyond reasonable
doubt all of the physical elements constituting the relevant underlying offence, including any
fault elements applicable to that offence.
Paragraph 360.2(1)(b) requires the prosecution to prove that the person engaged in the
relevant conduct in the course of trade or commerce among the States, between a State and
Territory or between two Territories. The prosecution may establish this element by proving,
for example, that the firearms were taken from Queensland to South Australia and that a sum
of money changed hands when they were delivered. If the same conduct took place but the
firearms were taken from Melbourne to Mildura, the offence in subsection 360.2(1) would
not apply as the firearms did not cross a State or Territory border. In that case, it would be
open for the person to be prosecuted for an offence under Victorian law.
In accordance with paragraph 360.2(1)(c), the primary element of the underlying offence
must involve the disposal or acquisition of a firearm or firearm part, as defined in
subsection 360.1. An unrelated offence under a firearm law will not fall within this
requirement. For example, an offence against a State or Territory firearm law where a bona
fide seller fails to safely convey a firearm across a State or Territory border should not attract
the same penalties that a purchaser in illicit cross-border trafficking should incur. The
application of absolute liability is discussed in detail below.
The basic offence will be punishable by a maximum penalty of 10 years imprisonment or a
fine of 2,500 penalty units, or both. This is consistent with the penalty for the existing
offence under subsection 360.2(1).
Paragraph 360.2(2B)(a) provides that, for the avoidance of doubt, a person does not commit
the underlying offence for the purposes of paragraph 360.2(1)(a) if the person has a defence
to the underlying offence. This subsection will make it clear that a defendant is able to rely
on any defences or special liability provisions that apply to the underlying offence.
Paragraph 360.2(2B)(b) provides that a person may be convicted of an offence against
subsection 360.2(1) even if the person has not been convicted of the underlying offence. The
person must have engaged in the conduct that constitutes the underlying offence, but it is not
necessary for them to have been convicted of that offence.
Subsection 360.2(2C) applies absolute liability to the physical elements of the offence in
paragraphs 360.2(1)(b) and (c) that:
· the conduct occurs in the course of trade or commerce among the States or between a
State and a Territory or between two Territories, and
· the primary element of the underlying offence involves either the disposal of a firearm
or firearm part or the acquisition of a firearm or firearm part, by the person.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence is that no fault element needs to be proved and
the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
40
Absolute liability is appropriate for the element of the offence that the conduct occurred in
the course of trade or commerce among the States or between a State and a Territory or
between two Territories because this element is a jurisdictional element of the offence. A
jurisdictional element of the offence is an element that does not relate to the substance of the
offence, but marks a jurisdictional boundary between matters that fall within the legislative
power of the Commonwealth and those that do not. The issue of whether the person was
reckless as to the fact that the conduct occurred in the course of trade or commerce among the
States or between a State and a Territory or between two Territories is not relevant to their
culpability.
The application of absolute liability is also appropriate for the element of the offence that the
primary element of the underlying offence involves either the disposal of a firearm or firearm
part or the acquisition of a firearm or firearm part, by the person. It is not appropriate for the
prosecution to have to prove that the person knew or was reckless as to whether the primary
element of the underlying offence involved the disposal or acquisition of a firearm or firearm
part as, if this were the case, it would be reasonably easy for a defendant to avoid criminal
liability for the offence by claiming that they were unaware of the content of the relevant
State or Territory law. Whether or not a defendant has knowledge of the content of the
underlying offence is not relevant to their culpability. For similar reasons, it is not
appropriate for the defence of reasonable mistake of fact to be available to the defendant. As
set out in subsection 360.2(2A), the prosecution will be required to establish beyond
reasonable doubt all of the elements constituting the relevant underlying offence, including
any fault elements applicable to that offence.
This is consistent with Commonwealth criminal law practice, as described in the Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.
The general defences available under Part 2.3 of the Criminal Code will be available to a
person accused of an offence under subsection 360.2(1).
Subsection 360.2(2) - Aggravated offence
New subsection 360.2(2) will introduce an aggravated offence of disposing of or acquiring
50 or more firearms or firearm parts in a six month period, in a domestic cross-border
context.
To establish this offence, the prosecution must prove that:
· a person engaged in conduct on one or more occasions that constituted an offence (the
underlying offence) against a firearm law as defined in subsection 360.2(3)
· the conduct occurred in the course of trade or commerce among the States, between a
State and Territory or between two Territories, and
· the conduct on any occasion, or on two or more occasions taken together, results in
the disposal or acquisition, by the person of:
- 50 or more firearms
- 50 or more firearm parts that might be used to constitute one or more firearms,
or
41
- a combination of firearms and firearms parts such that the sum of the actual
firearms and the firearms that might be constituted by the parts is 50 or more,
and
· the relevant occasions of conduct, if more than one, happened within a six month
period.
As with the basic offence in subsection 360.2(1), proposed paragraph 360.2(1)(a) relies on
importing elements of underlying State and Territory offences to ensure that the
Commonwealth does not create offences with different or conflicting requirements. Firearm
law is defined for the purposes of paragraph 360.2 to be a law of a State or Territory which is
prescribed by the regulations for the purposes of Division 360.
Subsection 360.2(2A) provides that there is no fault element for any of the physical elements
described in paragraph 360.2(2)(a) (that the person engages in conduct on one or more
occasions that constitutes an offence against a firearm law) other than the fault elements for
the underlying offence. The underlying offences themselves have specific physical and
fault elements that must be proved by the prosecution. The prosecution will be required to
establish beyond reasonable doubt all of the elements constituting the relevant underlying
offence, including any fault elements applicable to that offence.
Paragraph 360.2(2)(b) requires the prosecution to prove that the person engaged in the
relevant conduct in the course of trade or commerce among the States, between a State and
Territory or between two Territories. For example, to establish this element the prosecution
may prove that firearms were taken from Queensland to South Australia and that a sum of
money changed hands when they were delivered. If the same conduct took place but the
firearms were taken from Melbourne to Mildura, the offence in subsection 360.2 would not
apply as the firearms did not cross a State or Territory border. In accordance with
subsection 360.2(2C), absolute liability will apply to this physical element. The application
of absolute liability is discussed in detail below.
In accordance with paragraph 360.2(2)(c), the primary element of the underlying offence
must involve the disposal or acquisition of a firearm or firearm part, as defined in
subsection 360.1. An unrelated or minor offence under a firearm law will not fall within this
requirement. For example, an offence against a State or Territory firearm law where a bona
fide seller fails to safely convey a firearm across a State or Territory border should not attract
the same penalties that a purchaser in illicit cross-border trafficking should incur. In
accordance with subsection 360.2(2C), absolute liability will apply to this physical element.
The application of absolute liability is discussed in detail below.
Paragraph 360.2(2)(d) requires the prosecution to prove that the conduct resulted in the
disposal or acquisition of 50 or more firearms or firearm parts or a combination. The
disposal or acquisition could occur all on one occasion (for example by 55 firearms being
disposed of on a particular day) or on two or more occasions (eg 20 firearms being disposed
of on three separate occasions within a six month period). For example, a person in Victoria
sells 28 handguns to a person in South Australia, and then subsequently acquires from the
buyer 36 upper receivers on the delivery of the firearms. In accordance with subsection
360.2(2D), strict liability will apply to this physical element. This application of strict
liability is discussed in detail below.
42
Subparagraph 360.2(2)(d)(ii) provides that the offence covers conducts that results in the
disposal, or acquisition, by the person of 50 or more firearm parts that might be used to
constitute one or more firearms. Relevant examples include:
· A person in New South Wales sells 50 firearm barrels to a person in Queensland.
These 50 barrels, together with other firearm parts and components, can be used to
constitute 50 firearms.
· A person in South Australia obtains from an associate in New South Wales: a barrel,
trigger mechanism, bolt and breech block for one firearm and 46 other firearm barrels.
The first barrel, trigger mechanism, bolt and breech block could, together with other
firearm parts and components, be used to constitute one firearm. The remaining 46
barrels could be used with other firearm parts and components to constitute 46 other
firearms.
The threshold quantity of 50 or more firearms or firearm parts was chosen with reference to
`trafficable' quantities in State and Territory legislation. For example, in Victoria, a
trafficable quantity is referred to in the context that a person must not possess or acquire or
dispose more than 10 firearms that are unregistered (section 7C and 101A Firearms Act
1996).
The threshold quantity of 50 or more firearms or firearm parts represents a significantly
higher threshold than those in existing State or Territory offences, reflecting the severity of
the penalties proposed.
The quantity also reflects the serious nature of supplying firearms and firearm parts to the
illicit market. Further, the imperishable nature of firearms means that illicit firearms can
remain a serious threat to the Australian community for many years.
Paragraph 360.2(2)(e) requires the prosecution to prove that all of the relevant occasions of
conduct on which the firearms or parts were disposed of or acquired happened within a
six month period. In accordance with subsection 360.2(2C), absolute liability will apply to
this physical element. This application of absolute liability is discussed in detail below.
For example, in a six month period starting in July, a person in New South Wales engages in
the following conduct:
· on 21 July, the person sells 40 firearms to a person in the ACT, who does not hold a
relevant licence to possess or use a firearm.
· on 1 August, the person purchases two firearms from a person in Victoria
· on 30 October, the person purchases five firearm barrels (firearm part) from a person
in Victoria, and
· on 15 December, the person sells three firearm upper receivers (firearm part) to a
person in Queensland.
The time period of six months takes into account the time required for transport and also to
take into account the different methods used by traffickers to avoid detection by law
43
enforcement agencies. This involves breaking up shipments or breaking downs firearms into
their major component parts and transporting articles separately.
The aggravated offence will be punishable by a maximum penalty of life imprisonment, or a
fine of 7,500 penalty units, or both. This penalty reflects the higher level of culpability
associated with an offence where the conduct involves the disposal or acquisition of large
numbers of firearms or firearm parts in breach of State or Territory law. This penalty is also
reflective of the agreement and support between Australian Government, State and Territory
Police Ministers for significant penalties for illegal importation and trafficking of firearms
under the National Firearm Trafficking Policy Agreement 2002.
Paragraph 360.2(2B)(a) provides that, for the avoidance of doubt, a person does not commit
the underlying offence for the purposes of paragraph 360.2(2)(a) if the person has a defence
to the underlying offence. This subsection will make it clear that a defendant is able to rely
on any defences or special liability provisions that apply to the underlying offence.
Paragraph 360.2(2B)(b) provides that a person may be convicted of an offence against
subsection 360.2(2) even if the person has not been convicted of the underlying offence.
Paragraph 360.2(2B)(c) provides that it is immaterial whether the underlying offence, or the
conduct constituting the underlying offence, is the same on each occasion; or whether the
firearms or firearm parts to which the conduct relates are of the same kind. This provision
will make it clear that an offence against subsection 360.2(2) may be committed even though
the type of underlying offence, conduct constituting the underlying offence, or firearms or
firearm parts to which the conduct relates may vary.
Subsection 360.2(2C) applies absolute liability to the physical elements of the offence in
paragraphs 360.2(2)(b), (c) and (e) that:
· the conduct occurs in the course of trade or commerce among the states or between a
state and a territory or between two territories
· the primary element of the underlying offence involves either the disposal of a firearm
or firearm part or the acquisition of a firearm or firearm part, and
· the occasions of conduct happened within a six month period.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Absolute liability is appropriate and required for paragraph 360.2(2)(b) of the offence (that
the conduct occurred in the course of trade or commerce among the States or between a State
and a Territory or between two Territories) because this element is a jurisdictional element of
the offence. A jurisdictional element of the offence is an element that does not relate to the
substance of the offence, but marks a jurisdictional boundary between matters that fall within
the legislative power of the Commonwealth and those that do not. The issue of whether the
person was reckless as to the fact that the conduct occurred in the course of trade or
commerce among the states or between a state and a territory or between two territories is not
relevant to their culpability. This is consistent with Commonwealth criminal law practice, as
44
described in the Guide to Framing Commonwealth Offences, Infringement Notices and
Enforcement Powers.
Absolute liability is appropriate for paragraph 360.2(2)(c) of the offence (that the primary
element of the underlying offence involves either the disposal or acquisition of a firearm or
firearm part). As set out in subsection 360.2(2A), the prosecution will be required to
establish beyond reasonable doubt all of the elements constituting the relevant underlying
offence, including any fault elements applicable to that offence. It is not appropriate for the
prosecution to also have to prove that the person knew or was reckless as to whether the
primary element of the underlying offence involved the disposal or acquisition of a firearm or
firearm part. If this were the case, it would be reasonably easy for a defendant to avoid
criminal liability for the offence by claiming that they were unaware of the content of the
relevant State or Territory law. Whether or not a defendant has knowledge of the content of
the underlying offence is not relevant to their culpability. For similar reasons, it is not
appropriate for the defence of reasonable mistake of fact to be available to the defendant. As
set out in subsection 360.2(2A), the prosecution will be required to establish beyond
reasonable doubt all of the elements constituting the relevant underlying offence, including
any fault elements applicable to that offence.
Absolute liability is appropriate for paragraph 360.2(2)(e) of the offence (that the occasions
of conduct happened within a six month period). The six month period has been included to
ensure that the offence only captures serious offending which indicates that the person was
involved in trafficking high numbers of firearms within a short period. It is not appropriate
for the prosecution to be required to prove that the defendant knew or was reckless as to
whether the relevant conduct was all engaged in during the specified six month period. If this
were the case, it would be reasonably easy for a defendant to avoid criminal liability for the
offence by claiming that they thought the dealings in the firearms occurred over a longer
period of time. Whether or not a defendant has knowledge of the specific period of time over
which they were trafficking firearms is not relevant to their culpability. For similar reasons,
it is not appropriate for the defence of reasonable mistake of fact to be available to the
defendant. The application of absolute liability is therefore appropriate.
Subsection 360.2(2D) applies strict liability to the physical element of the offence in
paragraph 360.2(2)(d), that the conduct on any occasion, or on two or more occasions taken
together, results in the disposal or acquisition, by the person of:
· 50 or more firearms, or
· 50 or more firearm parts that might be used to constitute one or more firearms, or
· a combination of firearms and firearms parts such that the sum of the actual firearms
and the firearms that might be constituted by the parts is 50 or more.
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 that no fault element needs to be proved and the
defence of mistake of fact is available.
The application of strict liability is appropriate for the element that the defendant disposed of
or acquired 50 or more firearms or firearm parts as it is reasonable to expect a defendant to
take steps to ensure they are aware of the quantity of firearms or firearm parts they are
45
disposing of or acquiring. However, the defendant will still have the general defence of
mistake of fact under section 9.2 of the Criminal Code available to them.
The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence
provides that a person is not criminally responsible for an offence that includes a physical
element to which strict liability applies if:
· at or before the time of the conduct constituting the physical element, the person
considered whether or not facts existed, and is under a mistaken but reasonable
belief about those facts, and
· had those facts existed, the conduct would not have constituted an offence.
For example, a defendant could adduce evidence to indicate that he or she had considered the
number of firearms being disposed of and was under a reasonable belief that it was only 48
firearms. If the prosecution is not able to disprove this, the person will not be subject to the
aggravated offence.
The general defences under Part 2.3 of the Criminal Code will also be available to a person
accused of an offence under subsection 360.2(2).
Finally, item 7 will insert the heading `Definitions' before subsection 360.2(3).
Item 8
This item will amend subsection 360.2(3) to insert a definition of firearm part for the
purposes of section 360.2. A firearm part means either of the following within the meaning
of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
For example, a firearm part may include, but is not limited to, a frame for a firearm, a trigger
mechanism, pistol slide, a barrel or a breech.
Item 9
The heading to section 360.3 currently refers to `Taking or sending a firearm across borders'.
The amendments in Schedule 2 will broaden the scope of section 360.2 to cover cross-border
trafficking of firearms parts, as well as whole firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 9 amends the heading of section 360.3 to add `or firearm part' at the end of the heading.
Item 10
This item inserts the heading `Basic offence' before subsection 360.3(1). This is necessary to
distinguish the basic offence from the aggravated offence to be added into section 360.3 by
item 15.
46
Item 11
Subsection 360.3(1) begins with the words `A person is guilty of an offence if'. Item 11
omits the words `is guilty of an offence' and substitutes `commits an offence against this
subsection'. This amendment reflects the preferred style of drafting offences in the
Criminal Code.
Item 12
This item repeals paragraph 360.3(1)(a) and re-inserts the same items, separated into
three separate paragraphs. The proposed amendments made by this item bring the offence in
subsection 360.3(1) into line with preferred drafting practice and ensure the physical and fault
elements are consistent with the other offences (as amended by this Schedule) in Part 9.4.
To establish that an offence has been committed, under the new formulation the prosecution
must establish beyond a reasonable doubt that:
· the person intentionally takes or sends a thing from one State or Territory to another
State or Territory
· the person is reckless as to whether the thing is a firearm or a firearm part, and
· the person does so in the course of trade or commerce among the States, between a
State or Territory or between two Territories.
Proposed subsection 360.3(1B) provides that absolute liability applies to the physical element
in paragraph 360.3(1)(ab) that the person did so in the course of trade and commerce among
the States, between a State or Territory or between two Territories.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Absolute liability is appropriate and required for paragraph 360.3(1)(ab) of the offence (that
the conduct occurred in the course of trade or commerce among the States or between a State
and a Territory or between two Territories) because this element is a jurisdictional element of
the offence. A jurisdictional element of the offence is an element that does not relate to the
substance of the offence, but marks a jurisdictional boundary between matters that fall within
the legislative power of the Commonwealth and those that do not. The issue of whether the
person was reckless as to the fact that the conduct occurred in the course of trade or
commerce among the States or between a State and a Territory or between two Territories is
not relevant to their culpability. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers.
Item 13
Paragraph 360.3(1)(b) currently refers to a firearm being disposed of in a State or Territory.
The amendments in Schedule 2 will broaden the existing definitions to include firearm parts
in addition to firearms.
47
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 13 will amend paragraph 360.3(1)(b) to include firearm parts by inserting `or part' after
`firearm'.
Item 14
Subparagraphs 360.3(1)(c)(i) and (ii) currently refer to a firearm being acquired or disposed
of. The amendments in Schedule 2 will broaden the existing definitions to include firearm
parts in addition to firearms.
Item 8 will insert a new definition of firearm part to mean either of the following within the
meaning of the firearm law concerned: a firearm part; a part of, or for, a firearm or weapon.
Item 14 will amend subparagraphs 360.3(1)(c)(i) and (ii) to include firearm parts by inserting
`or part' after `firearm'.
Item 15
New subsection 360.3(1A) will introduce an aggravated offence of taking or sending 50 or
more firearms or firearm parts in a six month period, in a domestic cross-border context.
This provision targets couriers who are agents in the illegal trafficking of firearms and
firearm parts and who may not be directly captured by various disposal or acquisition
offences under State or Territory law, yet are paid a premium to convey the illegal firearms
across State and Territory borders and are aware they are illegal.
To establish this offence, the prosecution must prove beyond a reasonable doubt that:
· the person intentionally takes or sends (on one or more occasions) one or more things
from one State or Territory to another State or Territory
· the person is reckless as to whether each thing is a firearm or firearm part
· the person does so in the course of trade or commerce among the States, between a
State and a Territory or between two Territories
· the person intends that any of the firearms of firearm parts will be disposed of in the
other State or Territory (whether by the person or another)
· the person knows that, or is reckless as to whether, the disposal of any of the firearms
or firearm parts, or any acquisition of any of the firearms or firearm parts, would
happen in circumstances that would constitute an offence against the firearm law of
that other State or Territory, and
· the conduct on any occasion, or on two or more occasions taken together, results in
the taking, or sending, by the person of:
- 50 or more firearms
48
- 50 or more firearm parts that might be used to constitute one or more firearms,
or
- a combination of firearms and firearms parts such that the sum of the actual
firearms and the firearms that might be constituted by the parts is 50 or more,
and
· all of the relevant occasions of conduct occurred during a six month period.
`Firearm law' is defined in subsection 360.2(3) to mean a law of a State or Territory which is
prescribed by the regulations for the purposes of Division 360.
An example of such an offence is where a person sends 12 firearms from Canberra to
Queanbeyan where they are stored for a period of two months. After that period has passed,
the person collects the firearms from Queanbeyan and sells them to a person residing in
Batemans Bay. The person knows that the firearms are being sold outside of the framework
established for the transfer of ownership by the laws of New South Wales.
Paragraph 360.3(1A)(c) requires the prosecution to prove that the person engaged in the
relevant conduct in the course of trade or commerce among the States, between a State and
Territory or between two Territories. For example, to establish this element the prosecution
may prove that firearms were taken from Queensland to South Australia and that a sum of
money changed hands when they were delivered. If the same conduct took place but the
firearms were taken from Melbourne to Mildura, the offence in subsection 360.3(1A) would
not apply as the firearms did not cross a State or Territory border. In accordance with
subsection 360.3(1B), absolute liability will apply to this physical element. The application
of absolute liability is discussed in detail below.
Paragraph 360.3(1A)(e) requires that an offender must either know or be reckless as to
whether the disposal of any of the firearms or firearm parts, or any acquisition of any of the
firearms or firearm parts subsequent to the disposal will contravene the relevant State or
Territory law in the receiving State or Territory. State and Territory laws impose a high
standard of regulation on bona fide sellers or disposers of firearms or firearm parts. These
requirements include a seller or disposer requiring evidence from any purchaser or acquirer
that that purchaser or acquirer is bona fide.
Paragraph 360.3(1A)(f) requires the prosecution to prove that the conduct resulted in the
taking or sending of 50 or more firearms or firearm parts. The taking or sending could occur
all on one occasion (for example by 55 firearms being taken interstate on a particular day) or
on two or more occasions (eg 20 firearms being sent interstate on three separate occasions
within a six month period). For example, a person in Victoria takes 28 handguns to a person
in South Australia, and the following day takes 36 upper receivers from South Australia back
to New South Wales. In accordance with subsection 360.3(1C), strict liability will apply to
this physical element. This application of strict liability is discussed in detail below.
Subparagraph 360.3(1A)(f)(ii) provides that the offence covers conduct that results in the
taking, or sending, by the person of 50 or more firearm parts that might be used to constitute
one or more firearms. Relevant examples include:
49
· A person in New South Wales sends 50 firearm barrels to a person in Queensland.
These 50 barrels, together with other firearm parts and components, can be used to
constitute 50 firearms.
· A person in South Australia takes to New South Wales: a barrel, trigger mechanism,
bolt and breech block for one firearm and 46 other firearm barrels. The first barrel,
trigger mechanism, bolt and breech block could, together with other firearm parts and
components, be used to constitute one firearm. The remaining 46 barrels could be
used with other firearm parts and components to constitute 46 other firearms.
The threshold quantity of 50 or more firearms or firearm parts was chosen with reference to
`trafficable' quantities in State and Territory legislation. For example, in Victoria, a
trafficable quantity is referred to in the context that a person must not possess or acquire or
dispose more than 10 firearms that are unregistered (section 7C and 101A Firearms Act
1996).
The threshold quantity of 50 or more firearms or firearm parts represents a significantly
higher threshold than those in existing State or Territory offences, reflecting the severity of
the penalties proposed.
The quantity also reflects the serious nature of supplying firearms and firearm parts to the
illicit market. Further, illicit firearms can remain a serious threat to the Australian
community for many years.
Paragraph 360.3(1A)(g) requires the prosecution to prove that all of the relevant occasions of
conduct on which the firearms or parts were disposed of or acquired happened within a
six month period. In accordance with subsection 360.3(1B), absolute liability will apply to
this physical element. This application of absolute liability is discussed in detail below.
For example, in a six month period starting in July, a person in New South Wales engages in
the following conduct:
· on 21 July, the person sends 40 firearms to a person in the ACT, who does not hold a
relevant licence to possess or use a firearm
· on 1 August, the person takes two firearms to Victoria
· on 30 October, the person sends five firearm barrels to Victoria, and
· on 15 December, the person sends three firearm upper receivers (firearm part) to
Queensland.
The time period of six months takes into account the time required for transport and also to
take into account the different methods used by traffickers to avoid detection by law
enforcement agencies. This involves breaking up shipments or breaking downs firearms into
their major component parts and transporting articles separately.
The aggravated offence will be punishable by a maximum penalty of life imprisonment, or a
fine of 7,500 penalty units, or both. This penalty reflects the higher level of culpability
associated with an offence where the conduct involves the taking or sending of large numbers
50
of firearms or firearm parts while knowing or being reckless to the fact that the disposal or
acquisition of any of the firearms or firearm parts would happen in circumstances that would
be in breach of a State or Territory firearm law.
Subsection 360.3(1B) applies absolute liability to the elements of the offence that:
· the conduct occurs in the course of trade or commerce among the States or between a
state and a Territory or between two Territories, and
· the occasions of conduct happened within a six month period.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Absolute liability is appropriate and required for paragraph 360.3(1A)(c) of the offence (that
the conduct occurred in the course of trade or commerce among the States or between a State
and a Territory or between two Territories) because this element is a jurisdictional element of
the offence.
A jurisdictional element of the offence is an element that does not relate to the substance of
the offence, but marks a jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do not. The issue of whether the
person was reckless as to the fact that the conduct occurred in the course of trade or
commerce among the States or between a State and a Territory or between two Territories is
not relevant to their culpability. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers.
Absolute liability is appropriate and required for paragraph 360.3(1A)(g) (that the occasions
of conduct happened within a six month period. The six month period has been included to
ensure that the offence only captures serious offending which indicates that the person
involved in trafficking high numbers of firearms within a short period. It is not appropriate
for the prosecution to be required to prove that the defendant knew or was reckless as to
whether the relevant conduct was all engaged in during the specified six month period. If this
were the case, it would be reasonably easy for a defendant to avoid criminal liability for the
offence by claiming that they thought the dealings in the firearms occurred over a longer
period of time. Whether or not a defendant has knowledge of the specific period of time over
which they were trafficking firearms is not relevant to their culpability. For similar reasons,
it is not appropriate for the defence of reasonable mistake of fact to be available to the
defendant. The application of absolute liability is therefore appropriate.
Subsection 360.3(1C) applies strict liability to paragraph 360.3(1A)(f), that the conduct
resulted in the taking or sending by the person of 50 or more firearms, firearm parts that
might be used to constitute one or more firearms, or 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.
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 that no fault element needs to be proved and the
defence of mistake of fact is available. Accordingly, in relation to paragraph 360.3(1A)(f),
51
the prosecution will not need to prove that the defendant was reckless as to the fact that 50 or
more firearms or firearm parts were taken or sent on any occasion or on two or more
occasions taken together.
The application of strict liability is appropriate for the element that the defendant took or sent
50 or more firearms or firearm parts on any occasions or on two or more occasions taken
together, as it is reasonable to expect a defendant to take steps to ensure they are aware of the
quantity of firearms or firearm parts they are taking or sending. However, the defendant will
still have the general defence of mistake of fact under section 9.2 of the Criminal Code
available to them.
For example, a defendant could adduce evidence to indicate they had considered the number
of firearms and were under a reasonable belief that they were only sending 48. If the
prosecution is not able to disprove this, the person will not be subject to the aggravated
offence.
The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence
provides that a person is not criminally responsible for an offence that includes a physical
element to which strict liability applies if:
· at or before the time of the conduct constituting the physical element, the person
considered whether or not facts existed, and is under a mistaken but reasonable
belief about those facts, and
· had those facts existed, the conduct would not have constituted an offence.
The general defences under Part 2.3 of the Criminal Code will also be available to a person
accused of an offence under subsection 360.2(2).
To avoid doubt, subsection 360.3(1D) will provide that it is immaterial for the purposes of
paragraphs 360.3(1A)(b) and (f) whether the firearms or firearm parts are of the same kind.
This provision will make it clear that an offence against subsection 360.3(1A) may be
committed even though the type of firearms or firearm parts may vary.
Finally, item 15 will insert the heading `Definitions' before subsection 360.3(2).
Item 16
This item will amend the definition under subsection 360.3(2) of firearm, for the purposes of
section 360.3. The amendment will add `or (1A)(e) (as the case requires)' to the end of the
definition that firearm means a firearm within the meaning of the firearm law mentioned in
paragraph (1)(c).
This amendment reflects the addition of the aggravated offence in subsection 360.3(1A) by
item 15 of this Schedule.
Item 17
This item will amend subsection 360.3(2) to insert a definition of firearm part for the
purposes of section 360.3.
52
A firearm part means either of the following within the meaning of the firearm law
mentioned in paragraph (1)(c) or (1A)(e) (as the case requires): a firearm part; a part of, or
for, a firearm or weapon.
For example, a firearm part may include, but is not limited to, a frame for a firearm, a trigger
mechanism, pistol slide, a barrel or a breech. Reference to the relevant State or Territory
definitions is necessary for this Division.
Item 18
New section 360.3A addresses double jeopardy and alternative verdicts.
Subsection 360.3A(1) will prevent a person who has been convicted or acquitted of an
aggravated offence from being convicted of a basic offence relating to that aggravated
offence that is alleged to have been committed in the period during which the person was
alleged to have committed the aggravated offence. This provision will ensure that a person
cannot be convicted for both an aggravated and basic trafficking offence based on the same
or substantially similar evidence.
Subsection 360.3A(2) will make it clear that subsection 360.3A(1) does not prevent an
alternative verdict under subsection 360.3A(4). Subsection 360.3A(4) allows for an
alternative verdict if the trier of fact is not satisfied that the defendant is guilty of an
aggravated offence, but is satisfied beyond a reasonable doubt that the defendant is guilty of a
basic offence.
Subsection 360.3A(3) will prevent a person who has been convicted or acquitted of a basic
offence relating to an aggravated offence from being 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.
Subsection 360.3A(4) allows for an alternative verdict if, on a trial for an aggravated offence,
the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is
satisfied beyond reasonable doubt that the defendant is guilty of the basic offence relating to
the aggravated offence. This is on the condition that the defendant has been accorded
procedural fairness in relation to the finding of guilt.
The purpose of this subsection is to ensure that offenders do not escape conviction on these
lesser charges where an aggravated offence cannot be proven beyond reasonable doubt, but a
lesser charge can.
Subsection 360.3A(5) defines `aggravated offence' and `basic offence' for the purposes of
section 360.3A. Aggravated offence is defined as an offence against subsection 360.2(2) or
subsection 360.3(1A). Basic offence relating to an aggravated offence is defined as:
· if the aggravated offence is an offence against subsection 360.2(2), the basic offence
is an offence under 360.2(1), and
· if the aggravated offence is an offence against subsection 360.3(1A), the basic offence
is an offence against subsection 360.3(1).
53
Item 19
This item inserts the number (1) before the existing text under section 360.4. This reflects the
fact that item 20 inserts new subsections 360.4(2) and (3).
Item 20
This item will insert additional subsections into section 360.4.
New subsection 360.4(2) will provide that, without limiting subsection 360.4(1),
Division 360 is not intended to exclude or limit the concurrent operation of a law of a State or
Territory that makes an act or omission that is an offence against a provision of Division 360,
or a similar act or omission, an offence against the law of the State or Territory.
New subsection 360.4(3) will provide that subsection 360.4(2) will apply even if the law of
the State or Territory does any one or more of the following:
· provides for a penalty for the offence that differs from the penalty provided for in
Division 360
· provides for a fault element in relation to the offence that differs from the fault
elements applicable to the offence under Division 360
· provides for a defence in relation to the offence that differs from the defences
applicable to the offence under Division 360.
The purpose of these subsections is to ensure that State and Territory laws that create
overlapping offences or that regulate activities in relation to the trafficking of firearms or
firearm parts will continue to operate alongside Division 360.
This approach of allowing overlapping Commonwealth, State and Territory offences to
operate concurrently is consistent with Parliament's approach to other serious crimes,
including terrorism, serious harm, fraud, money laundering and sexual servitude offences.
Item 21
Division 361 - International firearms trafficking
This item inserts new Division 361 `International firearms trafficking' into the Criminal
Code. The new Division will contain basic and aggravated offences for the importation and
exportation of firearms and firearm parts. They also mirror offences in the
Customs Act 1901, which prohibit absolutely the importation of firearms and firearm parts,
without relevant permissions.
The basic and international firearms trafficking offences have been inserted into the Criminal
Code to link and ensure consistency with the existing cross-border offences in the Criminal
Code that apply to trafficking across State and Territory borders.
Section 361.1 - Definitions
This subsection inserts necessary new definitions for the purposes of new Division 361.
54
Export of a firearm or firearm parts means export the firearm or part from Australia.
The definition of firearm has the same meaning as in the Customs (Prohibited Imports)
Regulations 1956. These Regulations currently define a firearm to be a device designed or
adapted to discharge shot, bullets or other projectiles by means of an explosive charge or a
compressed gas, whether that device is fitted with a magazine or other feeding device
designed to be used with it or not. The definition specifically includes a deactivated firearm.
The definition of firearm part has the same meaning as in the Customs (Prohibited Imports)
Regulations 1956. These Regulations currently define a firearm part to be any of the
following items, whether or not complete, damaged, temporarily or permanently inoperable,
or unfinished:
· a gas piston, friction assembly, action bar, breech bolt or breech block
· a firearm barrel
· an assembled trigger mechanism
· a receiver
· something, other than a complete firearm, that includes one or more of these items.
Import a firearm or firearm part means import the firearm or part into Australia, and includes
deal with the firearm or part in connection with its importation.
The definitions of import and export pick up the ordinary legal meaning of those terms. The
definitions clarify that the import or export is into or out of Australia, and to extend the
ordinary meaning of import to cover dealings in connection with importation. This is
modelled on the definition in section 300.2 of the Criminal Code that applies for the purposes
of the serious drugs offences in Part 9.1 of the Criminal Code.
Section 361.2 - Importing prohibited firearms and firearm parts
Basic offence
Section 361.2(1) will introduce the basic offence of importing prohibited firearms or firearms
parts. A person commits an offence under this section if they import a firearm or firearm part
and the importation is prohibited under the Customs Act 1901 absolutely or the person has not
obtained the requisite approval to import.
To establish the basic offence, the prosecution will need to prove beyond reasonable doubt
that:
· a person intentionally imports a thing
· the person is reckless as to whether the thing is a firearm or firearm part, and
· the importation of the firearm or firearm part was:
- prohibited under the Customs Act 1901 absolutely, or
55
- was prohibited under the Customs Act unless the approval of a particular person
had been obtained and, at the time of importation, that approval had not been
obtained.
The basic offence will be punishable by a maximum penalty of 10 years imprisonment or a
fine of 2,500 penalty units, or both. This is consistent with the penalty for the cross-border
trafficking offences under Division 360 of the Criminal Code.
An example of this offence is where a person imports a fully automatic rifle, of which the
importation is prohibited under the Customs Act without the appropriate approval, and is
aware that it is highly likely that such an item would be prohibited but decides to nonetheless
proceed with the importation.
Subsection 361.2(3) provides that absolute liability applies to paragraph 361.2(1)(c), that the
importation of the firearm or firearm part was prohibited under the Customs Act 1901
absolutely or was prohibited under the Act unless the approval of a particular person had
been obtained and, at the time of the importation, will be absolute liability. The application
of absolute liability is, however, subject to subsection 361.2(4) as discussed in further detail
below.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the defendant knew or was
reckless to the fact that the importation of the firearm or firearm part was prohibited under the
Customs Act 1901 absolutely or was prohibited under that Act unless the requisite approval
had been obtained.
Absolute liability is appropriate and required for the element of the offence that the
importation of the firearm or firearm part was prohibited. It is not appropriate for the
prosecution to also have to prove that the person knew or was reckless as to whether the
importation of the article was prohibited or required approval. If this were the case, it would
be reasonably easy for a defendant to avoid criminal liability for the offence by claiming that
they were unaware of the requirements of the Customs Act. Whether or not a defendant has
knowledge of the content of the Customs Act is not relevant to their culpability. If the person
imports firearms or firearm parts, it is reasonable to expect that they should be aware of the
requirements of the Customs Act. For similar reasons, it is not appropriate for the defence of
reasonable mistake of fact to be available to the defendant. The application of absolute
liability is therefore appropriate.
Subsection 361.2(4) will apply strict liability to the physical element of circumstance of the
offence that an approval had not been obtained at the time of the importation.
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 will mean that no fault element needs to be proved and
the defence of mistake of fact is available. The prosecution will still be required to prove the
physical element that a permit was required and that the person did not hold a permit.
The application of strict, rather than absolute, liability to this element of the offence will
make available the general defence of mistake of fact. Therefore, if a person mistakenly
believed that he or she had obtained the required permit to import a firearm or firearm part,
the defence of mistake of fact would be available.
56
The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence
provides that a person is not criminally responsible for an offence that includes a physical
element to which strict liability applies if:
· at or before the time of the conduct constituting the physical element, the person
considered whether or not a fact existed, and is under a mistaken but reasonable belief
about those facts, and
· had those facts existed, the conduct would not have constituted an offence.
The general defences under Part 2.3 of the Criminal Code will also be available to a person
accused of an offence under subsection 361.2(2).
Aggravated offence
New subsection 361.2(2) will introduce an aggravated offence that will apply if a person
imports 50 or more prohibited firearms or firearm parts in a six month period.
To establish this offence under subsection 361.2(2), the prosecution will need to prove
beyond reasonable doubt that:
· the person intentionally imports a thing
· the person is reckless as to whether the thing is a firearm or firearm part
· the importation of the firearm or firearm part:
- was prohibited under the Customs Act 1901 absolutely, or
- was prohibited under the Customs Act unless the approval of a particular person
had been obtained and, at the time of importation, that approval had not been
obtained
· any occasion of importation, or two or more occasions taken together, results in the
importation by the person of:
- 50 or more firearms, or
- 50 or more firearm parts that might be used to constitute one or more firearms,
or
- a combination of firearms and firearms parts such that the sum of the actual
firearms and the firearms that might be constituted by the parts is 50 or more,
and
· the relevant occasions of importation occurred during a six month period.
An example of this offence is where a person imports 45 handguns knowing that it is highly
likely that such items would require approval. The person does not seek approval to bring the
item into Australia. The following month, the person arranges a further shipment of seven
firearm receivers, with the intention of manufacturing seven firearms from these parts.
57
The aggravated offence will be punishable by a maximum penalty of life imprisonment, or a
fine of 7,500 penalty units, or both. This penalty reflects the higher level of culpability
associated with an offence where the conduct involves importation of large numbers of
firearms or firearm parts in breach of Commonwealth law. This penalty is also reflective of
the agreement and support between the Australian Government and State and Territory Police
Ministers for significant penalties for illegal importation and trafficking of firearms under the
National Firearm Trafficking Policy Agreement 2002.
The threshold quantity of 50 or more firearms or firearm parts was chosen with reference to
`trafficable' quantities in State and Territory legislation. For example, in Victoria, a
trafficable quantity is referred to in the context that a person must not possess or acquire or
dispose more than 10 firearms that are unregistered (section 7C and 101A Firearms Act
1996).
The threshold quantity of 50 or more firearms or firearm parts represents a significantly
higher threshold than those in existing State or Territory offences, reflecting the severity of
the penalties proposed.
The quantity also reflects the serious nature of supplying firearms and firearm parts to the
illicit market. Further, the imperishable nature of firearms means that illicit firearms can
remain a serious threat to the Australian community for many years.
The six month period has been included to ensure that the offence only captures serious
offending which indicates that the person involved in trafficking high numbers of firearms
within a short period. The time period of six months takes into account the time required for
international transport and also to take into account the different methods used by traffickers
to avoid detection by law enforcement agencies and Australian Customs Border Protection
Service. This involves breaking up shipments or breaking downs firearms into their major
component parts and transporting articles separately.
Paragraph 361.2(2)(d) and (e) requires the prosecution to prove that all of the relevant
occasions of conduct on which the firearms or parts were imported happened within a
six month period. For example, in a six month period starting in January, a person in
Australia engages in the following conduct:
· in January, they order 40 firearm barrels (firearm part) from the USA
· in March, they purchase two handguns from Germany
· in April, they purchase seven trigger mechanisms (firearm part) from New Zealand
· in July, they purchase three firearms from Papua New Guinea.
Subparagraph 361.2(2)(d)(ii) provides that the offence covers conduct that results in the
importation by the person of 50 or more firearm parts that might be used to constitute one or
more firearms. Relevant examples include:
· A person in Australia imports 50 firearm barrels from New Zealand. These 50
barrels, together with other firearm parts and components, can be used to constitute 50
firearms.
58
· A person in Australia imports: a barrel, trigger mechanism, bolt and breech block for
one firearm and 46 other firearm barrels. The first barrel, trigger mechanism, bolt and
breech block could, together with other firearm parts and components, be used to
constitute one firearm. The remaining 46 barrels could be used with other firearm
parts and components to constitute 46 other firearms.
Subsection 361.2(3) provides that absolute liability applies to the physical elements in
paragraph 361.2(2)(c) that the importation of the firearm or firearm part was prohibited under
the Customs Act 1901 absolutely or was prohibited under that Act unless the approval of a
particular person had been obtained and, at the time of the importation, it had not been
obtained. The application of absolute liability is, however, subject to subsection 361.2(4) as
discussed in further detail below.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence is that no fault element needs to be proved and
the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the defendant was reckless to
the fact that the import of the firearm or firearm part was prohibited under the Customs Act
1901 absolutely or was prohibited under that Act unless the requisite approval had been
obtained.
It is not appropriate for the prosecution to have to prove that the person knew or was reckless
as to whether the import of the article was prohibited or required approval. If this were the
case, it would be reasonably easy for a defendant to avoid criminal liability for the offence by
claiming that they were unaware of the requirements of the Customs Act. Whether or not a
defendant has knowledge of the content of the Customs Act is not relevant to their
culpability. If the person imports firearms or firearm parts, it is reasonable to expect that they
should be aware of the requirements of the Customs Act. For similar reasons, it is not
appropriate for the defence of reasonable mistake of fact to be available to the defendant.
The application of absolute liability is therefore appropriate.
Subsection 361.2(4) will apply strict liability to the physical element of circumstance of the
offence that an approval had not been obtained at the time of the importation.
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 will mean that no fault element needs to be proved and
the defence of mistake of fact is available. The prosecution will still be required to prove the
physical element that a permit was required and that the person did not hold a permit.
The application of strict, rather than absolute, liability to this element of the offence will
make available the general defence of mistake of fact. Therefore, if a person mistakenly
believed that he or she had obtained the required permit to import a firearm or firearm part,
the defence of mistake of fact would be available.
The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence
provides that a person is not criminally responsible for an offence that includes a physical
element to which strict liability applies if:
59
· at or before the time of the conduct constituting the physical element, the person
considered whether or not a fact existed, and is under a mistaken but reasonable belief
about those facts, and
· had those facts existed, the conduct would not have constituted an offence.
The general defences under Part 2.3 of the Criminal Code will also be available to a person
accused of an offence under subsection 361.2(2).
Subsection 361.2(5) will also apply strict liability to paragraph 361.2(2)(d), which provides
that any occasion of importation, or two or more occasions taken together, results in the
importation by the person of:
· 50 more firearms
· 50 or more firearm parts that might be used to constitute one or more firearms, or
· 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.
Accordingly, the prosecution will not be required to prove that the defendant was reckless as
to the fact that 50 or more firearms or firearm parts were imported.
The application of strict liability is appropriate for the element that the defendant imported
50 or more firearms or firearm parts as it is reasonable to expect a person to take steps to
ascertain the quantity of firearms or firearm parts they are importing. However, the
defendant will still have the general defence of mistake of fact under section 9.2 of the
Criminal Code available to them.
Subsection 361.2(6) will provide that in order to avoid doubt, it is immaterial for the conduct
of importing 50 or more firearms or firearm parts, whether the firearms or firearm parts are of
the same kind. This provision will make it clear that an offence against subsection 361.2(2)
may be committed even though the type of firearm of firearm part may vary.
Section 361.3 - Exporting prohibited firearms and firearm parts
Basic offence
Section 361.3(1) introduces the basic offence of exporting prohibited firearms or firearms
parts. A person commits an offence under this section if they export a firearm or firearm part
and the exportation is prohibited under the Customs Act 1901 absolutely or the person has not
obtained the requisite approval to export.
To establish the basic offence, the prosecution will need to prove beyond reasonable doubt
that:
· a person intentionally exports a thing
· the person is reckless as to whether the thing is a firearm or firearm part, and
· the exportation of the firearm or firearm part was:
60
- prohibited under the Customs Act 1901 absolutely, or
- was prohibited under the Act unless the approval of a particular person had been
obtained and, at the time of exportation, that approval had not been obtained.
The basic offence will be punishable by a maximum penalty of 10 years imprisonment or a
fine of 2,500 penalty units, or both. This is consistent with the penalty for the cross-border
trafficking offences under Division 360 of the Criminal Code.
An example of this offence is where a person exports a handgun, of which the exportation is
prohibited under the Customs Act without the appropriate approval, and is aware that it is
highly likely that such an item would be prohibited but decides to nonetheless proceed with
the exportation.
Subsection 361.3(3) provides that, subject to subsection 361.3(4), absolute liability applies to
paragraphs 361.3(1)(c) that the exportation of the firearm or firearm part was prohibited
under the Customs Act 1901 absolutely or was prohibited under that Act unless the approval
of a particular person had been obtained.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the defendant knew or was
reckless to the fact that the exportation of the firearm or firearm part was prohibited under the
Customs Act 1901 absolutely or was prohibited under that Act unless the requisite approval
had been obtained.
It is not appropriate for the prosecution to have to prove that the person knew or was reckless
as to whether the export of the article was prohibited or required approval. If this were the
case, it would be reasonably easy for a defendant to avoid criminal liability for the offence by
claiming that they were unaware of the requirements of the Customs Act. Whether or not a
defendant has knowledge of the content of the Customs Act is not relevant to their
culpability. If the person exports firearms or firearm parts, it is reasonable to expect that they
should be aware of the requirements of the Customs Act. For similar reasons, it is not
appropriate for the defence of reasonable mistake of fact to be available to the defendant.
The application of absolute liability is therefore appropriate.
Subsection 361.3(4) will apply strict liability to the physical element of circumstance of the
offence that an approval had not been obtained at the time of the exportation.
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 will mean that no fault element needs to be proved and
the defence of mistake of fact is available. The prosecution will still be required to prove the
physical element that a permit was required and that the person did not hold a permit.
Applying strict liability to this element of the offence is appropriate given it would very
unlikely that the accused was not aware that they had not obtained export permission.
However, the application of strict, rather than absolute, liability to this element of the offence
will make available the general defence of mistake of fact. Therefore, if a person mistakenly
61
believed that he or she had obtained the required permit to import a firearm or firearm part,
the defence of mistake of fact would be available.
The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence
provides that a person is not criminally responsible for an offence that includes a physical
element to which strict liability applies if:
· at or before the time of the conduct constituting the physical element, the person
considered whether or not a fact existed, and is under a mistaken but reasonable belief
about those facts, and
· had those facts existed, the conduct would not have constituted an offence.
The general defences under Part 2.3 of the Criminal Code will also be available to a person
accused of an offence under subsection 361.2(2).
Aggravated offence
New subsection 361.3(2) will introduce an aggravated offence that will apply if a person
exports 50 or more prohibited firearms or firearm parts in a six month period.
To establish this offence under subsection 361.3(2), the prosecution will need to prove
beyond reasonable doubt that:
· the person intentionally exports a thing
· the person is reckless as to whether the thing is a firearm or firearm part
· the exportation of the firearm or firearm part:
- was prohibited under the Customs Act 1901 absolutely, or
- was prohibited under the Act unless the approval of a particular person had
been obtained and, at the time of exportation, that approval had not been
obtained
· any occasion of exportation, or two or more occasions taken together, results in the
exportation by the person of:
- 50 or more firearms, or
- 50 or more firearm parts that might be used to constitute one or more firearms,
or
- a combination of firearms and firearms parts such that the sum of the actual
firearms and the firearms that might be constituted by the parts is 50 or more,
and
· the occasions of exportation occurred during a six month period
62
The aggravated offence will be punishable by a maximum penalty of life imprisonment, or a
fine of 7,500 penalty units, or both. This penalty reflects the higher level of culpability
associated with an offence where the conduct involves exportation of large numbers of
firearms or firearm parts in breach of Commonwealth law.
The threshold quantity of 50 or more firearms or firearm parts was chosen with reference to
`trafficable' quantities in State and Territory legislation. For example, in Victoria, a
trafficable quantity is referred to in the context that a person must not possess or acquire or
dispose more than 10 firearms that are unregistered (section 7C and 101A Firearms Act
1996).
The threshold quantity of 50 or more firearms or firearm parts represents a significantly
higher threshold than those in existing State or Territory offences, reflecting the severity of
the penalties proposed.
The quantity also reflects the serious nature of supplying firearms and firearm parts to the
illicit market. Further, the imperishable nature of firearms means that illicit firearms can
remain a serious threat to the Australian community for many years.
The six month period has been included to ensure that the offence only captures serious
offending which indicates that the person involved in trafficking high numbers of firearms
within a short period. The time period of six months takes into account the time required for
international transport and also to take into account the different methods used by traffickers
to avoid detection by law enforcement agencies and Australian Customs Border Protection
Service. This involves breaking up shipments or breaking downs firearms into their major
component parts and transporting articles separately.
Paragraph 361.3(2)(d) and (e) requires the prosecution to prove that all of the relevant
occasions of conduct on which the firearms or parts were exported happened within a
six month period. For example, in a six month period starting in January, a person in
Australia engages in the following conduct:
· in January, they export 40 firearm barrels (firearm part) to the USA
· in March, they export two handguns to Germany
· in April, they export seven trigger mechanisms (firearm part) to New Zealand
· in July, they export three firearms to Papua New Guinea.
Subparagraph 361.3(2)(d)(ii) provides that the conduct results in the exportation by the
person of 50 or more firearm parts that might be used to constitute one or more firearms.
Relevant examples include:
· A person in Australia exports 50 firearm barrels to New Zealand. These 50 barrels,
together with other firearm parts and components, can be used to constitute 50
firearms.
· A person in Australia exports: a barrel, trigger mechanism, bolt and breech block for
one firearm and 46 other firearm barrels. The first barrel, trigger mechanism, bolt and
breech block could, together with other firearm parts and components, be used to
63
constitute one firearm. The remaining 46 barrels could be used with other firearm
parts and components to constitute 46 other firearms.
Subsection 361.3(3) provides that, subject to subsection 361.3(4), absolute liability applies to
the physical elements described in paragraph 361.3(2)(c) that the exportation of the firearm or
firearm part was prohibited under the Customs Act 1901 absolutely or was prohibited under
the Act unless the approval of a particular person had been obtained; and
paragraph 361.3(2)(e) that the occasions of exportation occurred during a six month period.
Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence means that no fault element needs to be proved
and the defence of mistake of fact under section 9.2 of the Criminal Code is not available.
Accordingly, the prosecution will not be required to prove that the defendant was reckless to
the fact that the exportation of the firearm or firearm part was prohibited or was prohibited
under the Customs Act 1901 unless the requisite approval had been obtained.
It is not appropriate for the prosecution to also have to prove that the person knew or was
reckless as to whether the article was prohibited or required approval. If this were the case, it
would be reasonably easy for a defendant to avoid criminal liability for the offence by
claiming that they were unaware that approval was required. If the person has a legitimate
business involving the import of firearms or firearm parts, they would be very familiar with
the requirements of the Customs Act and would be actively engaged in complying with those
rules. For similar reasons, it is not appropriate for the defence of reasonable mistake of fact to
be available to the defendant. The application of absolute liability is therefore appropriate.
Subsection 361.3(4) will apply strict liability to the physical element of circumstance of the
offence that an approval had not been obtained at the time of the exportation.
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 will mean that no fault element needs to be proved and
the defence of mistake of fact is available. The prosecution will still be required to prove the
physical element that a permit was required and that the person did not hold a permit.
Applying strict liability to this element of the offence is appropriate given it would very
unlikely that the accused was not aware that they had not obtained export permission.
However, the application of strict, rather than absolute, liability to this element of the offence
will make available the general defence of mistake of fact. Therefore, if a person mistakenly
believed that he or she had obtained the required permit to import a firearm or firearm part,
the defence of mistake of fact would be available.
The defence of mistake of fact is set out in section 9.2 of the Criminal Code. The defence
provides that a person is not criminally responsible for an offence that includes a physical
element to which strict liability applies if:
· at or before the time of the conduct constituting the physical element, the person
considered whether or not a fact existed, and is under a mistaken but reasonable belief
about those facts, and
· had those facts existed, the conduct would not have constituted an offence.
The general defences under Part 2.3 of the Criminal Code will also be available to a person
accused of an offence under subsection 361.2(2).
64
Subsection 361.3(5) will also apply strict liability to subsection 361.3(2)(d), which provides
that any occasion of exportation, or two or more occasions taken together, results in the
exportation by the person of:
· 50 more firearms, or
· 50 or more firearm parts that might be used to constitute one or more firearms, or
· 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.
Accordingly, the prosecution will not be required to prove that the defendant was reckless as
to the fact that 50 or more firearms or firearm parts were exported during the six month
period.
The application of strict liability is appropriate for the element that the defendant exported 50
or more firearms or firearm parts as it is reasonable to expect a person to take steps to
ascertain the quantity of firearms or firearm parts they are exporting. However, the defendant
will still have the general defence of mistake of fact under section 9.2 of the Criminal Code
available to them.
Subsection 361.3(6) will also provide that in order to avoid doubt, it is immaterial for the
conduct of exporting 50 or more firearms or firearm parts, whether the firearms or firearm
parts are of the same kind. This provision will make it clear that an offence against
subsection 361.3(2) may be committed even though the type of firearm of firearm part may
vary.
Section 361.4 - Defence - reasonable belief that conduct is justified or excused by or under
law
Section 361.4 sets out a defence to an offence against Division 361 if 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 had the conduct been so justified or excused, the conduct would not have
constituted the offence.
The defences are modelled on the defences applying to comparable serious drug importation
and exportation offences in Part 9.1 of the Criminal Code and are aimed at ensuring
administrative errors or misunderstandings occurring in the course of bona fide legitimate
business do not result in convictions for offences that are intended only to target those
involved in the illicit firearms trade.
In this type of situation, a person would not be covered by the lawful authority defence in
section 10.5 of the Criminal Code, because there would be no actual justification or excuse
under law if that lawful authority was defective, even if it the defendant believed it was
effective.
Under section 13.3(3) of the Criminal Code, the defendant bears an evidential burden for this
defence. This means that the defendant has the burden of adducing or pointing to evidence
that suggests a reasonable possibility that they were under a mistaken but reasonable belief
that the conduct was justified or excused under a law of the Commonwealth, State or
65
Territory. If the defendant meets this burden, and the prosecution bears a legal burden of
disproving the matter in accordance with subsection 13.2(2) of the Criminal Code. If the
prosecution is not able to disprove the defence beyond a reasonable doubt, the defendant is
not criminally responsible for an offence against Division 361.
It will generally be much easier for a defendant, rather than the prosecution, to produce
evidence showing that the circumstances to which the defence applies do in fact exist because
such evidence will be peculiarly within the knowledge of the defendant. The defendant will
more easily be able to lead evidence of the belief that he or she held that the conduct was
justified or excused by a law and point to evidence of why it was reasonable for him or her to
hold that belief.
This defence is designed to protect those who reasonably believe that their conduct of
importing or exporting prohibited firearms is permitted but do not in fact have the requisite
permission due administrative or technical problems (for example, if a relevant authority
informs them that they are authorised to import or export but in fact they are not authorised as
the permission was not provided by the appropriate authority). This defence will ensure that
legitimate industry will not be inadvertently caught by the new offences.
Section 361.5 - Double jeopardy and alternative verdicts
New section 361.5 addresses double jeopardy and alternative verdicts.
Subsection 361.5(1) will prevent a person who has been convicted or acquitted of an
aggravated offence from being convicted of a basic offence relating to that aggravated
offence that is alleged to have been committed in the period during which the person was
alleged to have committed the aggravated offence. This provision will ensure that a person
cannot be convicted for both an aggravated and basic offence based on the same or
substantially similar evidence.
Subsection 361.5(2) will make it clear that subsection 361.5(1) does not prevent an
alternative verdict under subsection 361.5(4). Subsection 361.5(4) allows for an alternative
verdict if the trier of fact is not satisfied that the defendant is guilty of an aggravated offence,
but is satisfied beyond a reasonable doubt that the defendant is guilty of a basic offence
Subsection 361.5(3) will prevent a person who has been convicted or acquitted of a basic
offence relating to an aggravated offence from being 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.
Subsection 361.5(4) allows for an alternative verdict if, on a trial for an aggravated offence,
the trier of fact is not satisfied that the defendant is guilty of the aggravated offence, but is
satisfied beyond reasonable doubt that the defendant is guilty of the basic offence relating to
the aggravated offence. This is on the condition that the defendant has been accorded
procedural fairness in relation to the finding of guilt.
The purpose of this subsection is to ensure that offenders do not escape conviction on these
lesser charges where an aggravated offence cannot be proven beyond reasonable doubt, but a
lesser charge can.
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Subsection 361.5(5) defines `aggravated offence' and `basic offence' for the purposes of
section 361.5. Aggravated offence is defined as an offence against subsection 361.2(2) or
361.3(2). Basic offence relating to an aggravated offence means:
· if the aggravated offence is an offence against subsection 361.2(2), the basic offence
is an offence under 360.2(1), and
· if the aggravated offence is an offence against subsection 361.3(2), the basic offence
is an offence against subsection 361.3(1).
as it is reasonable to expect a person to take steps to ascertain the quantity of firearms or
firearm parts they are importing.
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