Senate

Revised Explanatory Memorandum

(Circulated by authority of the Minister for Justice, the Hon Michael Keenan MP)

Schedule 2 - Firearms trafficking offences

GENERAL OUTLINE

Schedule 2 makes amendments to the Criminal Code Act 1995 (the Code) and the Customs Act 1901 (the Customs Act).

Schedule 2 introduces a mandatory minimum sentence of five years' imprisonment for illegal firearms trafficking. The implementation of a mandatory minimum of five years' jail for trafficking of firearms and firearm parts in the Code is part of a policy to pursue a strong and nationally consistent approach to gun crime.

Schedule 2 also creates a new offence for trafficking firearm parts, by extending existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia to include firearm parts. This is necessary to ensure that criminals cannot evade trafficking offences and penalties by breaking firearms down and trafficking their constituent parts.

In addition to expanding existing offences relating to trafficking of firearms to firearm parts, the amendments also insert new international firearm trafficking offences into the Code. The current cross-border firearms trafficking offences in the Code cover firearms trafficking between States and Territories, but do not encompass trafficking of firearms into and out of Australia. In order to comprehensively criminalise firearms trafficking, it is appropriate to criminalise trafficking firearms (and firearm parts) into or out of Australia, as well as across State and Territory borders.

Schedule 2 will give effect to this by:

•

creating new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia (new Division 361 of the Code)

•

extending the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in Division 360 of the Code to include firearm parts as well as firearms, and

•

introducing a mandatory minimum five year term of imprisonment for the new offences in Division 361 and existing offences in Division 360 of the Code.

Criminal Code Act 1995

Item 1 - Section 360.1

Item 1 repeals the heading of Section 360.1 'Disposal and acquisition of a firearm' and substitutes 'Disposal and acquisition of a firearm or firearm part'.

Section 360.1 currently defines the conduct that constitutes the disposal and acquisition of a firearm for the purposes of the offence in Section 360.2. The amendment to the title of the section reflects the extension of Division 360 to firearm parts as well as firearms.

Item 2 - Subsection 360.1(1)

Item 2 amends subsection 360.1(1) by inserting 'or a firearm part' after the first occurrence of 'firearm'.

This makes it clear that the conduct that constitutes the disposal element of the trafficking offence in subparagraph 360.2(1)(b)(i) includes disposal of firearm parts in addition to firearms.

Item 3 - Paragraphs 360.1(1)(a), (b) and (c)

Item 3 amends paragraphs 360.1(1)(a), (b) and (c) by inserting 'or part' after every occurrence of 'firearm'.

This broadens the conduct that constitutes the disposal element of the trafficking offence in subparagraph 360.2(1)(b)(i) to include disposal of firearm parts in addition to firearms.

Item 4 - Subsection 360.1(2)

Item 4 amends subsection 360.1(2) by inserting 'or a firearm part' after the first occurrence of 'firearm'.

This makes it clear that the conduct that constitutes the acquisition element of the trafficking offence in subparagraph 360.2(1)(b)(ii) includes acquisition of firearm parts in addition to firearms.

Item 5 - Paragraphs 360.1(2)(a), (b) and (c)

Item 5 amends paragraphs 360.1(2)(a), (b) and (c) by inserting 'or part' after every occurrence of 'firearm'.

This broadens the conduct that constitutes the acquisition element of the trafficking offence in subparagraph 360.2(1)(b)(ii) to include acquisition of firearm parts in addition to firearms.

Item 6 - Section 360.2

Item 6 repeals the heading of section 360.2 'Cross-border offence of disposal or acquisition of a firearm' and substitutes 'Cross-border offence of disposal or acquisition of a firearm or firearm part'.

Section 360.2 is the cross-border offence of disposal or acquisition of a firearm for the purposes of Division 360. The amendment to the title of the section reflects the extension of Division 360 to firearm parts as well as firearms.

Item 7 - Subparagraphs 360.2(1)(b)(i) and (ii)

Item 7 amends subparagraphs 360.2(1)(b)(i) and (ii) by inserting 'or a firearm part' after 'a firearm'.

This amendment broadens the conduct that constitutes the primary element of the offence to include disposal or acquisition of firearm parts in addition to firearms.

Item 8 - Subsection 360.2(3)

Item 8 inserts into subsection 360.2(3) a definition for firearm part, to mean either of the following within the meaning of the firearm law concerned: (a) a firearm part; (b) a part of, or for, a firearm or weapon.

This amendment defines firearm part for the purposes of Division 360, and provides that the meaning is the same as within the various definitions of 'firearm part' in State and Territory firearm laws. For conduct to constitute an offence under Division 360, it must be an offence against State and Territory firearm laws. It is necessary therefore to define firearm part with reference to State and Territory laws to ensure that conduct in relation to a firearm part within the meaning of State and Territory laws is also captured by Division 360.

Item 9 - Section 360.3

Item 9 repeals the heading of section 360.3 'Taking or sending a firearm across borders' and substitutes 'Taking or sending a firearm or firearm parts across borders'.

Section 360.3 currently defines the conduct that constitutes taking or sending a firearm across borders for the purposes of the offence in Section 360.3. The amendment to the title of the section reflects the extension of Division 360 to firearm parts as well as firearms.

Items 10, 11 and 12 - Paragraphs 360.3(1)(a) and (b) and subparagraph 360.3(1)(c)(i) and (ii)

Items 10, 11 and 12 amend paragraphs 360.3(1)(a) and (b) and subparagraphs 360.3(1)(c)(i) and (ii) by inserting 'or a firearm part' after 'firearm' on each occurrence.

These amendments broaden the conduct that constitutes part of the offence of taking or sending firearms across borders to include firearm parts in addition to firearms.

Item 13 - Subsection 360.3(2)

Item 13 inserts into subsection 360.3(2) a definition for firearm part, to mean either of the following within the meaning of the firearm law concerned: (a) a firearm part; (b) a part of, or for, a firearm or weapon.

This amendment defines firearm part for the purposes of Division 360, and provides that the meaning is the same as within the various definitions of 'firearm part' in State and Territory firearm laws. For conduct to constitute an offence under Division 360, it must be an offence against State and Territory firearm laws. It is necessary therefore to define firearm part with reference to State and Territory laws to ensure that conduct in relation to a firearm part within the meaning of State and Territory laws is also captured by Division 360.

Item 14 - After section 360.3

Item 14 inserts a new subsection (360.3A(1)) after section 360.3 to introduce mandatory minimum penalties for offences under Division 360. This will for the first time introduce a minimum sentence for firearms trafficking offences under the Code.

The inclusion of a mandatory minimum penalty of five years imprisonment for trafficking offences is aimed at the legitimate objective of ensuring offenders receive sentences proportionate to the seriousness of their offending. They are also intended to target firearms trafficking to address the clear and serious social and systemic harms associated with this trade.

A mandatory minimum penalty will not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed (subsection 360.3A(2)). This preserves judicial discretion when sentencing to take into account the particular circumstances of minors. This is consistent with Division 309 of the Code, which reduces the culpability of children who commit drug trafficking offences.

The amendment does not prescribe a minimum non-parole period. This will preserve a court's discretion in sentencing, and will help ensure that custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender. The mandatory minimum sentence is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence.

Item 15 - Section 360.4

Item 15 inserts '(1)' prior to the existing text 'This Division is not intended to exclude or limit the concurrent operation of any law of a State or Territory'.

This amendment will ensure that the existing text is appropriately numbered, given that item 16 inserts subsequent subsections (being 360.4(2), (3) and (4)).

Item 16 - At the end of section 360.4

Item 16 amends section 360.4 to ensure concurrent operation of Division 360 with State and Territory laws and to address double jeopardy.

New subsection 360.4(2) provides 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:

a)

an act or omission that is an offence against a provision of Division 360, or

b)

a similar act or omission

an offence against the law of the State or Territory.

New subsection 360.4(3) provides that subsection 360.4(2) will apply even if the law of the State or Territory does any one or more of the following:

a)

provides for a penalty for the offence that differs from the penalty provided for in Division 360

b)

provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under Division 360

c)

provides for a defence in relation to the offence that differs from the defences applicable to the offence under Division 360.

New subsection 360.4(4) provides that a person punished for an offence against a law of a State or Territory referred to in subsection (2) in respect of particular conduct cannot be punished for an offence against this Division in respect of that conduct. The provision is based on section 4C(2) of the Crimes Act 1914.

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.

In addition, subsection 360.4(4) will prevent a person convicted or acquitted of a trafficking offence under State or Territory laws being convicted of an offence in Division 360 based on the same or substantially similar conduct.

This approach of allowing Commonwealth, State and Territory offences to operate concurrently is consistent with Parliament's approach to other serious crimes, including fraud, serious harm, money laundering and sexual servitude offences.

Item 17 - Application of amendments

Item 17 sets out the application of the amendments listed in items 1 to 16. It states that 'The amendments made by items 1-16 apply in relation to conduct engaged in on or after the commencement of those items'.

This means a person cannot be charged with any new offence under the Code if the conduct constituting that offence occurred prior to the Bill receiving Royal Assent.

Item 18 - At the end of Part 9.4

Item 18 inserts a new division at the end of Part 9.4 of the Code, being 'Division 361 - International firearms trafficking'. The Division contains offences for the trafficking of firearms and firearm parts into and out of Australia.

Section 361.1

New section 361.1 defines the following terms for the purposes of Division 361: export, firearm, firearm part, import and traffic.

The definitions of import and export pick up the ordinary legal meaning of those terms, and clarify that the import or export of the thing is into or out of Australia. The definition of import additionally extends the ordinary meaning of import to cover dealings in connection with importation.

The definitions of firearm and firearm part are the same as in the Customs (Prohibited Imports) Regulations 1956. It is appropriate that the definitions in the Code are the same as those in the Customs (Prohibited Imports) Regulations 1956 as the Regulations control the importation of firearms and firearm-related articles into Australia.

The definition of traffic is modelled on Section 72.36 of the Code, which applies to the trafficking of explosives and lethal devices. The definition encompasses the range of criminal conduct associated with illegal firearm trafficking, including transferring, selling, making offers to sell, and inviting the making of offers to buy the thing. The inclusion of acts such as transferring ensures that the definition encompasses the full range of actions that can constitute trafficking rather than those associated with traditional sale alone.

Sections 361.2 and 361.3

New section 361.2 introduces an offence for trafficking prohibited firearms or firearm parts. A person commits an offence under this section if they import a thing that is a firearm or firearm part with the intent to traffic and either the importation of the article was prohibited absolutely under the Customs Act 1901, or was prohibited under that Act unless certain requirements had been met and the person failed to meet any of those requirements.

New section 361.3 introduces offences for exporting and entering for export prohibited firearms or firearm parts. A person commits an offence under this section if they export or enter for export a thing that is a firearm or firearm part with the intent to traffic and either the exportation or entering for exportation of the article was prohibited absolutely under the Customs Act 1901, or was prohibited under that Act unless certain requirements had been met and the person failed to meet any of those requirements.

The inclusion of the intent to traffic ensures that the conduct covered by these offences is more serious and goes beyond the general importation and exportation offences contained in section 233BAB of the Act.

Example: Importation trafficking offence

John has a business importing engine parts into Australia. In one consignment of engine parts, the Australian Customs and Border Protection Service finds several concealed firearm barrels. Further investigations reveal that John had made arrangements to sell these firearm barrels to members of an outlaw motorcycle gang to which he has links.

Example: General importation without permission offence

Brett is an avid firearms collector and has imported firearms legally on a number of occasions. On one occasion, he was told by the Attorney-General's Department that he would not be able to receive permission to import a deactivated World War II rifle for his collection. In spite of this, Brett imported the firearm, which was marked correctly, in the hope that once the firearm was in Australia he would be able to receive the necessary permissions under Schedule 6 of the Customs (Prohibited Imports) Regulations 1958.

Example: Exportation trafficking offence

James is a small business owner who travels frequently between Australia and South-East Asia. His company sources and supplies machine parts for various industries such as farming, building and mining. As a favour for one of James's biggest clients, James agreed to disguise a dismantled handgun and silencer amongst his sample machinery parts on his next trip out of Australia. James did not obtain an export permit for the handgun and silencer in accordance with Regulation 13E of the Customs (Prohibited Exports) Regulations 1956 prior to his departure.

Example: Entering for export trafficking offence

Susie works for an Australian company that specialises in the manufacture of customised parts and accessories for firearms and other weaponry. She has put together a box of sample firearm parts and accessories as well as a catalogue of their most recent inventory of stock that she wishes to have distributed to interested attendees at an upcoming international trade show. Susie enters the goods for export by making an export declaration as per section 113AA of the Customs Act 1901. However, prior to export, the Australian Customs and Border Protection Service discovers that the firearm parts and accessories that were entered for export do not have the requisite export permit required by Regulation 13E of the Customs (Prohibited Exports) Regulations 1958. As a result, Susie's company is able to be charged for the appropriate international trafficking offence in Division 361 of the Criminal Code Act 1995.

The trafficking offences 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 Code. A mandatory minimum of five years imprisonment will also apply (see section 361.5 below).

Subsections 361.2(2) and 361.2(4) provide that absolute liability applies to paragraphs 361.2(1)(d) and 361.2(3)(d), being that the importation of the firearm or firearm part was prohibited under the Customs Act 1901 absolutely, or was prohibited under the Act unless certain requirements had been met.

Subsections 361.3(2) and 361.3(5) provide that absolute liability applies to paragraphs 361.3(1)(d), 361.3(3)(d) and 361.3(4)(d), being that the exportation or entering for exportation of the firearm or firearm part was prohibited under the Customs Act 1901 absolutely, or was prohibited under the Act unless certain requirements had been met.

Absolute liability is set out in section 6.2 of the Code. The effect of applying absolute liability to an element of an offence means that no fault element needs to be proved and that the defence of mistake of fact under section 9.2 of the 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 or exportation of the firearm or firearm part was prohibited unless the requirements for import or export had not been met.

Absolute liability is appropriate and required for the element of the offence that the importation or exportation of the firearm or firearm part was prohibited or prohibited unless the requirements for import or export had been met. This is a precondition to the act of import or export, and the state of mind of the defendant with respect to that condition is not relevant.

If absolute liability were not imposed, a defendant could attempt to avoid criminal liability for the offence by claiming they were unaware that there were import and export requirements which had to be met. In such cases, the prosecution would then have to prove beyond reasonable doubt that a person knew or was reckless as to whether importing or exporting the article was prohibited or needed to meet certain requirements in order to be lawful. Applying absolute liability to these elements places a reasonable burden on the importer to make inquiries relating to the importation and exportation of firearms and firearm parts. It is reasonable to expect that legitimate importers would make these inquiries as a matter of course.

Subsection 361.2(5) provides that strict liability applies to paragraph 361.2(3)(e), being that the person failed to meet any of the requirements.

Subsection 361.3(6) provides that strict liability applies to paragraphs 361.3(3)(e) and 361.3(4)(e), being that the person failed to meet any of the requirements.

Strict liability is set out in section 6.1 of the 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. There will still be a requirement to prove the physical element that import or export requirements had not been met at the time of import or export.

Example: Application of strict liability

Ian has been charged with trafficking ten trigger mechanisms into Australia, the importation of which is prohibited under the Customs Act 1901 unless certain requirements are met. As strict liability applies to the element that the requirements had not been met, it is not necessary to prove Ian's mental state regarding whether the requirements had been met.

The application of strict, rather than absolute, liability to this element of the offence will make available the general defence of mistake of fact.

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:

a)

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

b)

had those facts existed, the conduct would not have constituted an offence.

Therefore, if a person mistakenly believed that he or she had met the requirements for import or export of a firearm or firearm part, the defence of mistake of fact would be available.

Example: Defence of mistake of fact

Stan has attempted to import two semi-automatic centrefire rifles into the country. Prior to importation Stan applied for and was issued with a permit to acquire the firearms by his state firearms registry, which had told him that this was the only requirement he needed to meet to import the rifles. Upon importation, the rifles were seized by the Australia Customs and Border Protection Service, as Stan did not have a permit issued by the Attorney-General (or their delegate), which is a requirement under the Customs Act 1901. Because of Stan's links to outlaw motorcycle gangs, he is charged with the international trafficking offence under Division 361 of the Criminal Code Act 1995. The mistake of fact defence is open to Stan, as he legitimately believed he had met all the requirements he needed to meet to legally import the articles based on the advice given to him by his firearms registry.

Subsection 361.4

New 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.

This defence is modelled on the defences applying to comparable serious drug importation and exportation offences in Part 9.1 of the Code. They are aimed at ensuring that 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 illicit firearms (and firearm parts) trafficking.

Under section 13.3(3) of the 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 Territory. If the defendant meets this burden, the prosecution bears a legal burden of disproving the matter in accordance with subsection 13.2(2) of the 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 or firearm parts is permitted but have not met relevant import or export requirements due to administrative or technical problems. An example of this is where a person is told by a relevant authority that they do not require export permission for a non-military rifle, whereas in fact export permission is required to be provided under the Customs Act 1901. The purpose of this defence 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.

Subsection 361.5

New subsection 361.5 applies a mandatory minimum sentence of five years imprisonment if a person is convicted of an offence against Division 361.This will for the first time introduce a minimum sentence for firearms trafficking offences under the Code.

The inclusion of a mandatory minimum penalty of five years imprisonment for trafficking offences is aimed at the legitimate objective of ensuring offenders receive sentences proportionate to the seriousness of their offending. They are also intended to target firearms trafficking to address the clear and serious social and systemic harms associated with this trade.

The penalty will not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. This preserves judicial discretion when sentencing to take into account the particular circumstances of minors. This is consistent with Division 309 of the Code, which reduces the culpability of children who commit drug trafficking offences.

The amendment does not prescribe a minimum non-parole period. This will preserve a court's discretion in sentencing, and will help ensure that custodial sentences imposed by courts are able to take into account the particular circumstances of the offence and the offender.

Section 361.6

New section 361.6 provides that a person punished for an offence against Division 361 in respect of particular conduct cannot be punished for an offence against section 233BAB of the Act in respect of that conduct. The provision is based on section 4C(2) of the Crimes Act 1914.

The purpose of this section is to ensure that Commonwealth laws - in this case the Code and the Act - that create overlapping offences or that regulate activities in relation to the trafficking of firearms or firearm parts continue to operate alongside one another.

Customs Act 1901

Items 19, 20, 21 and 22

Items 19 - 22 amend sections 183UA and 210 of the Act to grant officers under Division 1 in Part XII of the Act powers to respond to offences against Division 361 of the Code (that is, the new international trafficking offences).

Section 183UA defines terms for the purposes of Division 1 in Part XII of the Act - Powers of Officers. Item 19 amends subsection 183UA(1) (paragraph (c) of the definition of offence) by inserting 'or 361' after 'Division 307'. This broadens the definition of 'offence' in Division 1 of Part XII of the Act to include offences against Division 361 of the Code.

Item 20 amends subsection 183UA(2A) by inserting 'or 361' after 'Division 307'. This amendment means that an offence against section 6 of the Crimes Act 1914 that relates to an offence against Division 361 of the Code will be taken to be an offence against that Division. Section 6 of the Crimes Act 1914 states that any person who receives or assists another person, who is, to his or her knowledge, guilty of any offence against a law of the Commonwealth, in order to enable him or her to escape punishment or to dispose of the proceeds of the offence shall be guilty of an offence.

Item 21 amends paragraph 183UA(3)(b) by inserting 'or 361' after 'Division 307'. This amendment means that an offence against section 141.1, 142.1, 142.2 or 149.1 of the Code that relates to Division 361 of the Code will be taken to be an offence against that Division. These sections of the Code detail offences relating to public officials, specifically those involving bribery, corruption, obstruction and abuse of public office.

Subsection 210(1)(a) grants powers to officers of Customs and police (State, Territory and Commonwealth - see subsection 4(2) of the Act) to arrest a person without a warrant if the officer believes on reasonable grounds that that person has committed or is committing a particular offence. Item 22 amends subparagraph 210(1)(a)(iv) by inserting 'or 361' after 'Division 307'. This amendment extends the powers of officers of Customs and police to arrest a person without a warrant if they believe on reasonable grounds that that person has committed or is committing an offence against Division 361 of the Code.

These amendments are consistent with existing arrangements for similar import and export offences. The Australian Federal Police (AFP) and the Australian Customs and Border Protection Service (ACBPS) already share responsibility for enforcing existing firearms import and export offences under the Act, and the amendments made in items 19 - 22 will allow a similar shared approach to be taken in relation to enforcing the new offences under the Code.

The amendments will assist both agencies in managing the tiered firearms trafficking offences regime created by the Bill, which will result in a similar approach to that which is taken for other import and export offences in the Code such as serious drug (Division 307) and unmarked plastic explosives (section 72.13) trafficking.

Item 23 - Subsection 233BAB(7)

Currently, subsection 233BAB(7) of the Act states that a person convicted or acquitted of an offence against subsection (5) or (6) in respect of a particular conduct is not liable, in respect of that conduct, to proceedings under section 233 of the Act. Section 233 applies to the smuggling and unlawful importation and exportation of goods and prohibited imports and exports.

Item 23 repeals subsection 233BAB(7) and substitutes a replacement that states that a person punished for an offence against subsection (5) or (6) in respect of particular conduct cannot be punished, in respect of that conduct, for an offence against section 233 of the Act or Division 361 of the Code.

The purpose of this subsection is to ensure that Commonwealth laws - in this case the Code and the Act - that create overlapping offences or that regulate activities in relation to the import and export of firearms or firearm parts will continue to operate alongside one another.