Explanatory Memorandum
(Circulated by authority of the Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Honourable Jason Wood MP)Notes on Clauses
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Criminal Code Amendment (Firearms Trafficking) Act 2022.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in the table. The whole of the Act will commence the day after the Act receives the Royal Assent.
Clause 3 - Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule. Any other item in a Schedule to this Act has effect according to its terms.
Schedule 1 - Firearms trafficking
Criminal Code Act 1995
Item 1 - Subsections 360.2(1) and (2) of the Criminal Code
4. Item 1 repeals the offence previously in subsection 360.2(1) and the provision for absolute liability in subsection 360.2(2) and replaces them with a basic offence (new subsection 360.2(1) which is the same in substance as the repealed offence), and an aggravated offence (new subsection 360.2(2)).
5. Item 1 also inserts the heading 'Definitions' for current subsection 360.2(3). Current subsection 360.2(3) contains a number of defined terms that will also apply to amended subsections 360.2(1) and 360.2(2).
Basic offence
6. The basic offence in subsection 360.2(1) is the same in substance as the repealed offence in subsection 360.2(1). This offence was introduced in the Crime Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002.
7. Item 1 increases the penalty for this offence to 20 years' imprisonment or a fine of 5,000 penalty units, or both. The original penalty was a fine of 10 years' imprisonment or a fine of 2,500 penalty units.
8. The increased maximum penalty is necessary to ensure the serious offences of trafficking firearms within and into and out of Australia are matched by commensurate punishments. Consistent with the principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the increased maximum penalty will be adequate to deter and punish the offence. This ensures sentences imposed by courts can continue to take into account the particular circumstances of the offence and the offender.
9. The new maximum penalty reflects the seriousness of the conduct covered by the offences, and addresses the clear and serious social and systemic harms associated with the illegal firearms trade.
Aggravated offence
10. The aggravated offence in subsection 360.2(2) relies on the same underlying conduct as the basic offence, but with the added element that the conduct, on two or more occasions, results in the disposal or acquisition of 50 or more firearms or firearm parts, or a combination of firearms and firearms parts such that the sum of the firearms and firearm parts is 50 or more, during a six month period.
11. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
Fault elements, absolute liability and strict liability
12. Subsection 360.2(2A) provides that there are no fault elements in relation to the physical elements of the offence in paragraphs 360.2(1)(a) and (2)(a). This is appropriate, as the relevant fault elements are those that apply to the underlying offence against the relevant state or territory firearm law.
13. In the event that a person was punished for the underlying offence against the relevant state or territory firearm law, existing section 360.4(4) provides that they cannot also be punished for an offence under Division 360.
14. Subsection 360.2(2C) applies absolute liability to paragraphs 360.2(1)(b), 360.2(1)(c), 360.2(2)(b), 360.2(2)(c) and 360.2(2)(e) . 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 proven and the defence of mistake of fact under section 9.2 is not available in relation to the elements of the offence to which absolute liability applies.
15. In addition, subsection 360.2(2D) applies strict liability to paragraph 360.2(2)(d) relating to the conduct resulting in the acquisition or disposal of more than 50 firearms or firearm parts or combination of such during a six month period. Strict liability is set out in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of an offence means no fault element needs to be proven for that element of the offence and the defence of mistake of fact under section 9.2 is available in relation to that element.
16. Requiring the prosecution to prove that the defendant knew or was reckless as to the number of firearms or firearms parts with which they were dealing would undermine enforcement of the offence and deterrence against this conduct, as defendants could otherwise evade liability by remaining wilfully blind to the number of firearms or firearms parts.
Provisions to avoid doubt
17. Subsection 360.2(2B) sets out a range of circumstances in which the offences in subsections 360.2(1) and 360.2(2) will apply. These are intended to avoid doubt rather than define the offences.
18. Paragraph 360.2(2B)(a) sets out that any defences, or special liability provisions, that apply in relation to the offence against the relevant state or territory firearm law (the underlying offence) have effect.
19. Paragraph 360.2(2B)(b) sets out that even if a person has not been convicted of the offence against the relevant state or territory firearm law (the underlying offence), they can still be convicted of an offence against 360.2(1) and 360.2(2).
20. Paragraph 360.2(2B)(c) sets out that for the aggravated offence at 360.2(2) it does not matter whether:
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- the underlying offence on each occasion is the same;
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- the conduct constituting the underlying offence is the same on each occasion; or
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- the firearms or firearm parts to which the conduct relates are of the same kind.
Item 2 - Before subsection 360.3(1) of the Criminal Code
21. Item 2 inserts the heading 'Basic offence' for current subsection 360.3(1). This amendment is consequential to the amendment made by item 5 to insert an aggravated offence.
Item 3 - Paragraph 360.3(1)(a) of the Criminal Code
22. Item 3 repeals paragraph 360.3(1) and substitutes new paragraphs 360.3(1)(a) 360.3(1)(aa), 360.3(1)(ab). This amendment is to provide consistency with section 360.2 as amended by item 1.
Item 4 - Subsection 360.3(1) of the Criminal Code (penalty)
23. Item 4 increases the penalty for this offence to 20 years' imprisonment, or a fine of 5,000 penalty units, or both. This replaces the current penalty of 10 years' imprisonment, or a fine of 2,500 penalty units or both.
24. The increased maximum penalty is necessary to ensure the serious offences of trafficking firearms within Australia are matched by commensurate punishments. Consistent with the principles set out in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, the increased maximum penalty will be adequate to deter and punish the offence. This ensures that sentences imposed by courts can continue to take into account the particular circumstances of the offence and the offender.
25. The new maximum penalty reflects the seriousness of the conduct covered by the offences, and addresses the clear and serious social and systemic harms associated with the illegal firearms trade.
Item 5 - After subsection 360.3(1) of the Criminal Code
26. Item 5 introduces an aggravated offence (subsection 360.3(1A)) relating to the offence of taking or sending a firearm across state or territory borders.
27. The elements of the aggravated offence are the same as for the basic offence, with the additional elements in paragraphs 360.3(1A)(f) and 360.3(1A)(g). That is, that the conduct resulted in the sending or taking across state or territory internal borders of 50 or more firearms or firearm parts, or a combination of firearms and firearms parts such that the sum of the firearms and firearm parts is 50, during a six month period.
28. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
29. Item 5 also inserts the heading 'Definitions' for current subsection 360.3(2). Current subsection 360.3(2) contains a number of defined terms that will also apply to amended subsection 360.3(1) and new subsection 360.3(1A).
Strict and absolute liability
30. Paragraph 360.3(1B) applies absolute liability to the elements of the offence:
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- that the conduct was in the course of trade or commerce among the states and/or territories for the basic offence (paragraph (1)(ab))
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- that the conduct was in the course of trade or commerce among the states and/or territories for the aggravated offence (paragraph (1A)(c)), and
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- for the aggravated offence, that the conduct occurred during a six month period (paragraph (1A)(g)).
31. 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 proven for that element and the defence of mistake of fact under section 9.3 is not available in relation to that element.
32. Paragraph 360.3(1C) applies strict liability to whether the conduct in the aggravated offence included the taking or sending of more than 50 firearms or firearm parts, or combination of such, on any occasion or on 2 or more occasions. 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 is that no fault element needs to be proven for that element and the defence of mistake of fact is available in relation to that element.
33. Requiring the prosecution to prove that the defendant knew or was reckless as to the number of firearms or firearms parts with which they were dealing would undermine enforcement of the offence and deterrence against this conduct, as defendants could otherwise evade liability by remaining wilfully blind to the number of firearms or firearms parts.
34. Paragraph 360.3(1D) sets out that, for the aggravated offence, it is immaterial whether the firearms or firearm parts are of the same kind.
Item 6 - Subsection 360.3(2) of the Criminal Code (at the end of the definition of firearm )
35. Item 6 ensures that for the aggravated offence in subsection 360.3(1A), a firearm is defined in relation to the firearm law referred to in the aggravated offence (paragraph 360.3(1A)(e)).
Item 7 - Subsection 360.3(2) of the Criminal Code (at the end of the definition of firearm part )
36. Item 7 ensures that for the aggravated offence in subsection 360.3(1A), a firearm part is defined in relation to the firearm law referred to in the aggravated offence (paragraph 360.3(1A)(e)).
Item 8 - After section 360.3 of the Criminal Code
37. Item 8 inserts section 360.3A, which sets out mandatory minimum sentences for offences against Division 360, and also inserts section 360.3B, which sets out double jeopardy and alternative verdicts.
38. Subsection 360.3A(1) provides that, subject to subsections 360.3A(2) and 360.3A(3), the court must impose a sentence of imprisonment of at least 5 years for a person convicted of an offence against Division 360.
39. Subsection 360.3A(2) provides that the mandatory minimum sentence under subsection 360.3A(1) does not apply to a person who was aged under 18 years when the offence was committed. This ensures that mandatory minimum sentences will not be applied to minors.
40. Subsections 360.3A(3) and 360.3A(4) provide the court with discretion to reduce the mandatory minimum sentence of five years' imprisonment in particular circumstances.
41. A court can reduce this mandatory minimum sentence by up to 25% if the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading guilty. A court can also reduce the mandatory minimum sentence by up to 25% if the court is taking into account, under paragraph 16A(2)(h) of the Crimes Act 1914, that the person has cooperated with law enforcement agencies in the investigation of the offence.
42. A court may take into account either or both of these factors. If a court is taking into account both of these factors, the minimum sentence can be reduced by up to 50%, effectively reducing the minimum sentence to two and a half years' imprisonment.
43. Subsection 360.3B(1) sets out that a person may not be convicted of a basic offence if they have been convicted or acquitted of a related aggravated offence alleged to have been committed within the same period. However, an alternative verdict is still allowed (subsection 360.3B(2)).
44. Subsection 360.3B(3) sets out that a person who has been convicted or acquitted of a basic offence cannot be convicted of a related aggravated offence if the conduct that constitutes the basic offence is part of the conduct for the alleged related aggravated offence.
45. Subsection 360.3B(4) allows, in a trial for an aggravated offence, an alternative verdict of guilt in relation to a basic offence if the trier of fact is not satisfied a person is guilty of an aggravated offence, provided that the person has been accorded procedural fairness in relation to that finding of guilt.
46. Subsection 360.3B(5) defines 'aggravated offence' as an offence against 360.2(2) and 360.3(1A). It defines 'basic offence' to mean, in relation to 360.2(2), as an offence against 360.2(1), and in relation to 360.3(1A) as an offence against 360.3(1).
Item 9 - Sections 361.2 and 361.3 of the Criminal Code
47. Item 9 repeals sections 361.2 and 361.3 and substitutes them with new sections 361.2 and 361.3
48. Section 361.2 creates basic and aggravated offences for trafficking prohibited firearms or firearms parts into Australia.
49. Subsection 361.2(1) creates a basic offence for trafficking prohibited firearms or firearms parts into Australia. This basic offence mirrors existing section 361.2. New subsection 361.2(1) increases the penalty for the basic offence to imprisonment for 20 years, or a fine of 5,000 penalty units or both. This replaces the current penalty of 10 years' imprisonment, or a fine of 2,500 penalty units, or both.
50. Subsection 361.2(2) introduces an aggravated offence relating to the offence of trafficking prohibited firearms or firearms parts into Australia. The elements of the aggravated offence are the same as for the basic offence, with the additional elements in paragraphs 361.2(2)(f) and 361.2(2)(g). That is, that the conduct resulted in the sending or taking across borders of 50 or more firearms or firearm parts, or a combination of firearms and firearms parts such that the sum of the firearms and firearm parts is 50, during a six month period.
51. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
52. Subsection 361.2(3) applies absolute liability to the elements of the offence:
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- for the basic and aggravated offence, importing each firearm or part was prohibited absolutely under the Customs Act 1901 (paragraphs 361.2(1)(d) and 361.2(2)(d)); and
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- for the aggravated offence, that the conduct occurred during a six month period (paragraph 361.2(2)(g)).
53. Subsection 361.2(4) applies strict liability to the elements of the offence:
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- for the basic and aggravated offence, the person failed to meet requirements under the Customs Act 1901 to import each firearm or part (paragraphs 361.2(1)(e) and 361.2(2)(e)); and
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- for the aggravated offence, the conduct in the aggravated offence resulted in the taking or sending of more than 50 firearms or firearm parts, or combination of such, during a six month period (paragraph 361.2(2)(f)).
54. Subsection 361.2(5) provides that for the avoidance of doubt for paragraphs 361.2(2)(b) and 361.2(2)(f), it is immaterial whether the firearms or firearm parts are of the same kind.
55. Section 361.3 creates basic and aggravated offences for trafficking prohibited firearms or firearms parts out of Australia.
56. Subsection 361.3(1) creates a basic offence for trafficking prohibited firearms or firearms parts out of Australia. This basic offence mirrors existing section 361.3. New subsection 361.3(1) increases the penalty for the basic offence to imprisonment for 20 years, or a fine of 5,000 penalty units or both. This replaces the current penalty of 10 years' imprisonment, or a fine of 2,500 penalty units, or both.
57. Subsection 361.3(2) introduces an aggravated offence relating to the offence of trafficking prohibited firearms or firearms parts out of Australia. The elements of the aggravated offence are the same as for the basic offence, with the additional elements in paragraphs 361.3(2)(f) and 361.3(2)(g). That is, that the conduct resulted in the sending or taking across borders of 50 or more firearms or firearm parts, or a combination of firearms and firearms parts such that the sum of the firearms and firearm parts is 50, during a six month period.
58. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
59. Subsection 361.3(3) applies absolute liability to the elements of the offence:
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- for the basic and aggravated offence, importing each firearm or part was prohibited absolutely under the Customs Act 1901 (paragraphs 361.3(1)(d) and 361.3(2)(d)); and
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- for the aggravated offence, that the conduct occurred during a six month period (paragraph 361.3(2)(g)).
60. Subsection 361.3(4) applies strict liability to the elements of the offence:
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- for the basic and aggravated offence, the person failed to meet requirements under the Customs Act 1901 to import each firearm or part (paragraphs 361.3(1)(e) and 361.3(2)(e)); and
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- for the aggravated offence, the conduct in the aggravated offence resulted in the taking or sending of more than 50 firearms or firearm parts or combination of such during a six month period (paragraph 361.3(2)(f)).
61. Subsection 361.3(5) provides that for the avoidance of doubt for paragraphs 361.3(2)(b) and 361.3(2)(f), it is immaterial whether the firearms or firearm parts are of the same kind.
Item 10 - After section 361.4 of the Criminal Code
62. Item 10 adds section 361.5, which sets out mandatory minimum sentences for offences against Division 361.
63. Subsection 361.5(1) provides that, subject to subsections 361.5(2) and 361.5(3), the court must impose a sentence of imprisonment of at least 5 years for a person convicted of an offence against Division 361.
64. Subsection 361.5(2) provides that the mandatory minimum sentence under subsection 361.5(1) does not apply to a person who was aged under 18 years when the offence was committed. This ensures that mandatory minimum sentences will not be applied to minors.
65. Subsections 361.5(3) and 361.5(4) provide the court with discretion to reduce the mandatory minimum sentence of five years imprisonment in particular circumstances.
66. A court can reduce this mandatory minimum sentence by up to 25% if the court is taking into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading guilty. A court can also reduce the mandatory minimum sentence by up to 25% if the court is taking into account, under paragraph 16A(2)(h) of the Crimes Act 1914, that the person has cooperated with law enforcement agencies in the investigation of the offence.
67. A court may take into account either or both of these factors. If a court is taking into account both of these factors, the minimum sentence can be reduced by up to 50%, effectively reducing the minimum sentence to two and a half years' imprisonment.
Items 11 to 13 - Section 361.6 of the Criminal Code
68. Item 11 adds 'and alternative verdicts' to the heading of section 361.6. Item 12 inserts 'Double jeopardy' after the heading of section 361.6. Item 13 inserts '(1)' before 'A person' in section 361.6
69. These amendments are consequential to the amendments made by item 14.
Item 14 - At the end of section 361.6 of the Criminal Code
70. Item 14 adds additional provisions relating to double jeopardy and alternative verdicts for offences in Division 361.
71. Subsection 361.6(2) sets out that a person may not be convicted of a basic offence if they have been convicted or acquitted of an aggravated offence within the same period. However, an alternative verdict is still allowed (subsection 361.6(3)).
72. Subsection 361.6(4) sets out that a person who has been convicted or acquitted of a basic offence cannot be convicted of a related aggravated offence if the conduct that constitutes the basic offence is included in the conduct for the aggravated offence.
73. Subsection 361.6(5) allows, in a trial for an aggravated offence, an alternative verdict of guilt in relation to a basic offence if the trier of fact is not satisfied a person is guilty of an aggravated offence.
74. Subsection 361.6(6) defines 'aggravated offence' as an offence against 361.2(2) or 361.3(2). It defines 'basic offence' to mean, in relation to 361.2(2), as an offence against 361.2(1), and in relation to 361.3(2) as an offence against 361.3(1).
Item 15 - Application of amendment - minimum penalties
75. Item 15 provides that the mandatory minimum sentencing provisions at sections 360.3A and 361.5 of the Criminal Code, as inserted by this Schedule, apply in relation to conduct engaged in at or after the commencement of this Schedule.