House of Representatives

Explanatory Memorandum

(Circulated by authority of the Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Honourable Jason Wood MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code Amendment (Firearms Trafficking) Bill 2022

1. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

2. The Bill strengthens existing Commonwealth firearms trafficking offences under Part 9.4 of the Criminal Code Act 1995 (the Criminal Code) by:

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doubling the maximum penalty for existing firearms trafficking offences from 10 years imprisonment and/or a fine of 2,500 penalty units to 20 years imprisonment and/or a fine of 5,000 penalty units

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introducing new aggravated offences for trafficking 50 or more firearms or firearm parts (or a combination of firearms and firearm parts such that the sum total is 50) within a six month period, punishable by a maximum penalty of imprisonment for life and/or a fine of 7,500 penalty units, and

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introducing mandatory minimum penalties of at least 5 years' imprisonment for these offences for adult offenders, while giving courts the discretion to reduce this minimum penalty if the offender pleads guilty to the offence and/or co-operates with law enforcement agencies.

3. These penalties and new aggravated offences ensure that firearms traffickers can be held responsible for the consequences of supplying firearms into the illegal market in Australia from both domestic and international sources. The offences also support efforts to prevent the diversion of firearms into illegal markets overseas. Due to their enduring nature, a firearm can remain within the illegal market for many years and be accessed by serious and organised crime groups for use in the commission of violent crimes. The mandatory minimum sentences and increased maximum sentences reflect the serious nature and potential consequences of supplying firearms and firearm parts to the illicit market.

Human rights implications

4. The Bill engages the following rights:

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Right to freedom from arbitrary detention - Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

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The presumption of innocence - Article 14 of the ICCPR.

Freedom from arbitrary detention

6. The Bill engages the right to freedom from arbitrary detention under Article 9(1) of the ICCPR. Article 9(1) of the ICCPR states that:

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

7. In addition to requiring a lawful basis for detention, the prohibition on arbitrary detention under Article 9(1) of the ICCPR requires that in all circumstances, the detention of the particular individual must be justified as reasonable, necessary and proportionate to the end that is sought. The Bill doubles the maximum penalties available for existing firearms trafficking offences under Part 9.4 of the Criminal Code, introduces new aggravated firearms trafficking offences punishable by a maximum sentence of imprisonment for life, and introduces a mandatory minimum sentence of five years imprisonment for each of the firearms trafficking offences in Divisions 360 and 361 of Part 9.4 of the Criminal Code. These penalties are clearly established by law.

8. The mandatory minimum penalty of five years' imprisonment, the increased maximum sentences and proposed maximum penalty of life imprisonment are reasonable to achieve the legitimate objective of ensuring the courts are able to hand down sentences to convicted firearms trafficking offenders that reflect the seriousness of their offending. Importantly, the new penalties are reasonable given they will only be applied by a court if a person is convicted of an offence as a result of a fair trial in accordance with the procedures as established by law. Further, the new penalties will apply only to offences committed at or after the commencement of the Bill.

9. The mandatory minimum penalty of five years' imprisonment and the proposed increased maximum penalties, including life imprisonment for aggravated offences, are necessary to ensure the serious offences of firearms trafficking are matched by commensurate punishments. There are clear and serious social and systemic harms associated with firearms trafficking, and the introduction of a mandatory minimum penalty and increased maximum penalties for the offences reflect the gravity of supplying firearms and firearm parts to the illicit market. The entry of even a small number of firearms into Australia's illicit firearms market can have a significant impact on the community. Due to their imperishable nature, firearms can remain within that market for many years and be accessed by individuals and groups who would use them to commit serious and violent crimes, such as murder. For example, in 2019 firearms were identified as being the type of weapon used in 22.2% of homicides in Australia (Recorded Crime - Victims, Australia 2020, Australian Bureau of Statistics).

10. The amendments do not impose a minimum non-parole period for offenders. Indeed, the mandatory minimum is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence. Further, the amendments do not apply the mandatory minimum penalties to children (those under the age of 18) when the offence is committed. This preserves judicial discretion in sentencing to take into account minors' particular circumstances. In this way, any risk that the sentencing of lower culpability offenders could amount to arbitrary detention is removed.

11. For the aggravated offences punishable by a maximum sentence life imprisonment, it is appropriate to set the threshold at 50 or more firearms, 50 or more firearm parts, or a combination of both firearms and firearm parts (noting that at this time, it is significantly higher than existing state or territory offences) in order to target the most egregious forms of offending. In line with this, life sentences for aggravated offences is appropriate as the offence is of a similar seriousness to existing offences punishable by life imprisonment, as the consequences of committing these offences can lead to similar harms. Similar offences that impose a maximum penalty of life imprisonment include, large-scale drug trafficking and terrorism.

12. Increased maximum penalties for firearms trafficking offences and life sentences for the aggravated offences are proportionate as they support the courts' discretion when sentencing offenders. It is the Australian Government's responsibility to enshrine maximum penalties for Commonwealth offences in legislation, and the new penalties are sufficiently high to allow courts to impose appropriate punishments for the most serious firearms trafficking offences while continuing to exercise judicial discretion (subject to the mandatory minimum penalties) with reference to the particular facts and circumstances before them.

13. Ensuring that the increased penalties are reasonable, necessary and proportionate to the legitimate objective of reducing illegal firearms trafficking means that any detention arising from a conviction for firearms offences is not arbitrary.

Presumption of innocence

14. Article 14(2) of the ICCPR states that:

Everyone charged with criminal offence shall have the right to be presumed innocent until proved guilty according to law.

15. The presumption of innocence imposes on the prosecution the burden of proving the charge and guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt. Consistency with the presumption of innocence requires that the prosecution prove each element of a criminal offence beyond reasonable doubt.

16. The introduction of new aggravated offences for firearms trafficking applies absolute and strict liability to specific elements of these offences. The application of absolute or strict liability to an element of an offence may engage and limit the right to be presumed innocent as it allows for the imposition of criminal liability without the need for the prosecution to prove fault.

17. The imposition of absolute and strict liability to elements of the aggravated firearms trafficking offences, however, is not inconsistent with the presumption of innocence as it achieves the legitimate objective of ensuring that criminal networks cannot avoid criminal liability under the aggravated firearms trafficking offences by:

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remaining unaware of jurisdictional elements of the offence that do not go to the essence of the offending,

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structuring their dealings with firearms and firearms parts below the 50 firearms/firearms parts threshold for the aggravated offences, or

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being wilfully blind to the quantity of firearms or firearms parts they deal with.

18. Absolute liability is applied to the following jurisdictional elements of the aggravated offences:

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the person engages in conduct in the course of trade or commerce among the states, between a state and a territory, or between two territories,

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the primary element of the underlying offence involves the disposal or acquisition of a firearm or a firearm part by the person,

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importing a firearm or firearm part was prohibited under the Customs Act 1901 (the Customs Act).

19. Absolute liability is appropriate and required 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 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. This is consistent with Commonwealth criminal law practice, as described in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

20. 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, 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.

21. 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. 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.

22. Absolute liability also applies to the element that a person engaged in two or more occasions of exporting, importing, or trafficking firearms and/or firearm parts within a six month period and, taken together, these occasions involved dealing with more than 50 firearms and/or firearm parts (for example, see proposed paragraph 361.3(2)(g) of the Criminal Code).

23. This element is intended to prevent an individual from structuring their dealings with firearms and/or firearms parts below the 50 firearms/firearm parts threshold required in order to avoid the application of the aggravated offence. Applying absolute liability to this element ensures that an individual's awareness of the passage of time will not impact on their criminal liability under the aggravated offences.

24. Strict liability also applies to the circumstance that two or more occasions, taken together, involves export, entry for export, importation, acquisition or disposal of 50 or more firearms/firearms parts (for example, see proposed paragraph 361.3(2)(f) of the Criminal Code). This is designed to ensure that criminal networks cannot avoid criminal liability for the aggravated offence by simply remaining wilfully blind as to the number or firearms or firearms parts that they are dealing with.

25. A person will still be able to rely on a defence of reasonable mistake of fact as to the quantity of firearms or firearms parts they are dealing with. This strikes an appropriate balance by ensuring that:

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in circumstances where a person can show they turned their mind to the quantity of firearms or firearms parts that they were dealing with, had a reasonable belief that the quantity was fewer than 50, and held this belief throughout the relevant period, they may be able to able to avoid criminal liability for the aggravated offence (instead being liable for the base offence), but

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a person cannot avoid liability for the aggravated offence entirely by simply refusing to turn their mind to the quantity of firearms/firearms parts they are dealing with.

26. Strict liability also attaches to the physical element of the offence that a person has failed to meet a requirement to import or export firearms or firearm parts under the Customs Act (for example, proposed paragraphs 361.3(1)(e) and 361.3(2)(e) of the Criminal Code).

27. 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 would be expected to be aware of and comply with the requirements of the Customs Act. It would not be appropriate for the prosecution to have to demonstrate that a person knew that they had failed to meet those requirements. However, the general defence of mistake of fact would be available to the defendant, in addition to the existing offence-specific defence of reasonable belief under 361.4 of the Criminal Code. 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.

28. 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.

29. As noted above, there are existing safeguards in the Criminal Code that would ensure appropriate application of the strict and absolute liability elements of the proposed offences under Division 361. Existing section 361.4 of the Criminal Code provides that 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 the law of the Commonwealth or of a state or territory, had the conduct been so justified or excused, the conduct would not have constituted the offence.

30. 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, where 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 of the Criminal Code would be available. While this defence engages the presumption of innocence by placing an evidential burden of proof on the defendant, this is appropriate given the defendant would be best placed to adduce evidence (for example, approvals from a state or territory authority) pointing to the availability of the defence.

Conclusion

31. Mandatory minimum sentences for firearms trafficking offences, and increased maximum penalties, including life imprisonment for the aggravated offences, in the Criminal Code and the application of strict and absolute liability as set out in the Bill are compatible with human rights and freedoms. To the extent these measures may limit those rights and freedoms, such limitations are reasonable, necessary and proportionate to achieving reductions in firearms-related crime.