BILLS DIGEST NO. 29, 2016–17              4 November 2016

Criminal Code Amendment (Firearms Trafficking) Bill 2016

Cat Barker
Foreign Affairs, Defence and Security Section 

This Bills Digest updates an earlier version dated 1 February 2016.

Date introduced:  15 September 2016
House:  Senate
Portfolio:  Justice
Commencement: Sections 1–3 will commence on Royal Assent. Schedule 1 will commence the day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2016.

History of the Bill

An earlier version of this Bill (the 2015 Bill) was introduced into the 44th Parliament on 2 December 2015.[1] That version of the Bill had passed the House of Representatives and was before the Senate when Parliament was dissolved on 9 May 2016.

Purpose of the Bill

The purpose of the Criminal Code Amendment (Firearms Trafficking) Bill 2016 (the 2016 Bill) is to amend the Criminal Code Act 1995 (the Act) to increase the maximum penalties, and introduce mandatory minimum penalties, for firearms trafficking offences.[2]

Background

Existing offences and penalties

Part 9.4 of the Act contains two sets of offences for firearms trafficking.

Division 360 sets out offences of cross-border firearms trafficking that apply to trafficking between one Australian state or territory and another (trafficking within state borders is covered by state law). The offences of cross-border disposal or acquisition of a firearm or firearm part, and taking or sending a firearm part across (domestic) borders, both carry maximum penalties of ten years imprisonment and/or a fine of 2,500 penalty units.[3]

Division 361 sets out offences of international firearms trafficking that apply to trafficking prohibited firearms or firearm parts into or out of Australia. The same maximum penalties apply as for cross-border trafficking.[4]

Previous recent attempts to strengthen penalties for firearms trafficking

Former Labor Government

The Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 would have left penalties for the existing offences unchanged, but introduced aggravated offences for dealing in 50 or more firearms or firearm parts (or a combination thereof) on a single occasion or two or more occasions during a six month period, with a maximum penalty of life imprisonment.[5] The Bill was passed by the House of Representatives and supported by the then Opposition, but lapsed ahead of the 2013 federal election.[6]

Coalition Government

The 2016 Bill will be the fourth time the Government has sought to legislate mandatory minimum sentences of five years imprisonment for firearms trafficking offences.

The Coalition’s policy to tackle crime (2013) included a commitment to introduce mandatory minimum penalties of five years imprisonment for firearm trafficking.[7] Provisions to that effect were included in the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 (2014 Bill, introduced 17 July 2014) and the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (CLA Bill 2015, introduced 19 March 2015).[8] Neither of those Bills included any amendment to the maximum penalties.

While both Bills were passed and became Acts, in each case this only occurred following amendments in the Senate that removed the provisions that would have introduced mandatory minimum sentences.[9]

The 2015 Bill would have introduced mandatory minimum penalties and also increased the maximum penalties for firearms trafficking offences in the same way as the 2016 Bill.[10] As noted above, the 2015 Bill had passed the House of Representatives and was before the Senate when Parliament was dissolved on 9 May 2016.

The 2016 Bill

The Coalition’s Policy to Keep Illegal Guns off our Streets and our Communities Safe (2016) committed to ‘re-introducing legislation within our first 100 days to increase maximum penalties and introduce mandatory minimum sentences of five years imprisonment for firearms trafficking’.[11] The introduction of the 2016 Bill implements that commitment.

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 7 November 2016. Details of the inquiry are at the inquiry homepage.[12]

The Committee also considered the 2014 Bill, the CLA Bill 2015 and the 2015 Bill. Recommendations in the majority reports of this committee, which is chaired by the Government, are set out below. Australian Labor Party (ALP) and Australian Greens members of the Committee have made dissenting reports as outlined in the ‘Policy position of non-government parties/independents’ section of this Digest.

The majority of the Committee recommended changes to the Explanatory Memorandum for the 2014 Bill, but not the Bill itself.[13] Those changes are reflected in the Explanatory Memorandum to the 2016 Bill, as they were for the two 2015 Bills.[14]

The majority of the Committee made no recommendation in relation to the mandatory sentencing provisions in its report on the CLA Bill 2015.[15]

In its report on the 2015 Bill, the majority of the Committee recommended that the Government:

·          amend the Explanatory Memorandum to clarify who bears the onus of proof in relation to the age of defendants;

·          clarify in the Explanatory Memorandum the operation of mandatory minimum sentencing in relation to people with significant cognitive impairment specifically relating to discretion in setting parole periods; and

·          in the absence of a satisfactory explanation, consider including provisions regarding significant cognitive impairment similar to those found in the Crimes Act 1900 (NSW) s25A(5)(b).[16]

The Explanatory Memorandum to the 2016 Bill includes those explanations.[17] However, there is a degree of mismatch between the explanation provided on the first point and the wording of the provisions, as set out in the ‘Key issues and provisions’ section of this Digest.

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills sought further justification from the Minister for Justice on both the increased maximum penalties and the mandatory minimum sentences in the 2015 Bill. Having considered that information, the Committee requested that the additional information be included in the Explanatory Memorandum and left the question of whether those provisions are appropriate to the Senate as a whole.[18]

That additional information has not been included in the Explanatory Memorandum to the 2016 Bill. In its commentary on the 2016 Bill, the Committee expressed disappointment that the additional information had not been set out in the Explanatory Memorandum and drew the provisions to the attention of Senators, but left the questions of the appropriateness of both amendments to the Senate as a whole.[19]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (PJCHR) had not reported on the Bill as at the date of publication of this Digest.

The PJCHR considered mandatory minimum penalties for firearms trafficking in the context of the 2014 Bill and the CLA Bill 2015. On both occasions it recommended an amendment to make it clear on the face of the legislation that the mandatory minimum sentence was not intended as a ‘sentencing guidepost’, and that there could be significant differences between the total sentence and the non-parole period imposed.[20] The recommendation was made on the basis of ‘minimising the potential for disproportionate sentences that may be incompatible with the right not to be arbitrarily detained and the right to a fair trial’.[21] The PJCHR did not make further comment on the 2015 Bill, instead referring to its comments on the CLA Bill 2015.[22]

The PJCHR’s recommendation has not been taken up in the 2016 Bill, nor was it in the 2015 Bill. However, the Explanatory Memorandum contains those points.[23]

Policy position of non-government parties/independents

Pauline Hanson’s One Nation does not appear to have commented specifically on the Bill. However, its policy on firearms and gun control states: ‘Tougher sentencing on gun related crimes is required’.[24]

Mandatory minimum sentences

The ALP and the Greens have consistently opposed the introduction of mandatory minimum sentencing for firearms trafficking offences, and continue to do so. The ALP moved the amendment that removed the mandatory minimum sentencing provisions from the 2014 Bill, and voted for the Greens amendment that removed them from the CLA Bill 2015.[25] The Greens voted for the ALP amendment to the 2014 Bill and moved the amendment to the CLA Bill 2015.[26] Both parties made dissenting reports when the Senate Legal and Constitutional Affairs Legislation Committee considered the 2015 Bill, in which each of them recommended removal of the mandatory sentencing provisions from that Bill.[27]

Responding to the Government’s announcement in September 2016 that it would reintroduce these amendments, Greens spokesperson Lee Rhiannon stated that the party did not support mandatory minimum sentences ‘under any circumstances’ and that there was ‘no evidence that mandatory minimum sentences act as deterrents for firearms trafficking’.[28]

On 19 October 2016 the Leader of the Opposition replied to a letter from the Prime Minister of the same day to advise him that the ALP continued to oppose mandatory minimum sentencing.[29]

Independent Senator Jacqui Lambie has previously voted in favour of, and Liberal Democrat Senator David Leyonhjelm and then Independent Senator Nick Xenophon have previously voted against, mandatory minimum sentences for firearms offences.[30]

Increased maximum penalties

The ALP supported the proposed increased maximum penalties in the 2015 Bill, stating:

Increasing maximum penalties for firearms trafficking reflects community concern about the consequences of serious firearms offences, and mirrors the regime of penalties proposed by Labor when it was in Government. It would send a strong message to serious criminals about the consequences of firearms trafficking.[31]

The Leader of the Opposition reiterated the ALP’s support for this measure in October 2016.[32]

The Greens also supported that measure, stating that the party acknowledged the seriousness of firearms trafficking and the need for commensurate sentences.[33]

Position of major interest groups

In a September 2016 media release, the Law Council of Australia (LCA) reiterated the position it took in relation to the 2015 Bill, which was to support increased maximum penalties but oppose mandatory minimum sentences.[34]

In submissions to the inquiry into the 2015 Bill, the Australian Human Rights Commission (AHRC) and the NSW Council for Civil Liberties (NSW CCL) opposed both increased maximum penalties and mandatory minimum sentences.[35]

In their submissions to the inquiry into the 2015 Bill, other legal and civil liberties organisations expressed their opposition to the introduction of mandatory minimum sentences, as they had in relation to the earlier Bills.[36]

Dr John Coyne (of the Australian Strategic Policy Institute) strongly supported the provisions and considered that while mandatory minimum sentences ‘do not always have a deterrent effect, they are taken into consideration by some in the planning of criminal activities’.[37] That is somewhat different to the view he expressed in the context of the CLA Bill 2015, when he stated the same measure ‘won’t reduce or deter the importation of illicit firearms.[38]

Further detail is set out in the ‘Key issues and provisions’ section of this Digest.

Financial implications

The Bill will not impact Government revenue.[39]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[40]

As noted above, the PJCHR has questioned the compatibility of mandatory minimum penalties with the right not to be arbitrarily detained and the right to a fair trial. Several stakeholders, including the AHRC, expressed the same concerns in submissions to the inquiry into the 2015 Bill.[41]

Key issues and provisions

The Bill would make two changes to the penalties for the offences of cross-border firearms trafficking and international firearms trafficking (in Divisions 360 and 361 of the Act respectively). It would double the maximum penalty that may be imposed, and introduce mandatory minimum sentences. The Attorney-General stated:

Mandatory minimums send a strong and clear message that gun-related crime and violence will not be tolerated.

…

The increased maximum penalty will ensure that the most serious instances of trafficking firearms within, into or out of Australia are matched by appropriate punishments.

This combination of penalties will be a strong deterrent against people seeking to illegally import firearms and their parts into Australia. The amended penalties will more adequately reflect the serious nature and potential consequences of supplying firearms and firearm parts to the illicit market.[42]

Increased maximum penalties

Items 1 and 3 would double the maximum penalties for the offences in Divisions 360 and 361 of the Act respectively to 20 years imprisonment and/or a fine of 5,000 penalty units.

The Explanatory Memorandum states that the increase is required to ensure the maximum penalty is ‘adequate to deter and punish the offence’ and ‘address the clear and serious social and systemic harms associated with [the illicit firearms] trade’.[43]

The LCA supports the proposed increase. In its submission on the 2015 Bill, the LCA stated that it is appropriate when considered in light of the penalties that apply to state and territory firearms-related offences and community concerns about firearms trafficking. The LCA also noted that the review of the 2014 Martin Place Siege ‘highlighted the potentially serious consequences of illegal firearms dealing’.[44]

The AHRC and the NSW CCL opposed the measure in their submissions on the 2015 Bill, with both noting that the Government had not identified any instances where the sentences imposed for Commonwealth firearms offences have been insufficient.[45] The AHRC further pointed out that when questioned on the matter in 2014, the Attorney-General’s Department stated it was not aware of any such cases.[46] The AHRC also took a different view to the LCA on consistency with penalties for state and territory firearms offences.[47] However, its analysis of penalties was restricted to offences relating to unauthorised sale or purchase of firearms and did not take account of specific offences in place for firearms trafficking or the higher penalties that apply to aggravated offences.[48]

Mandatory minimum sentences

Item 2 would insert proposed section 360.3A to introduce mandatory minimum penalties of five years imprisonment for the offences in Division 360 of the Act. Item 4 would insert proposed section 361.5, which would apply the same way to the offences in Division 361 of the Act. The mandatory minimum would not apply where it can be established on the balance of probabilities that the person was under the age of 18 when the offence was committed (see further ‘Application to young people’ section of this Digest below).

The amendments would not introduce mandatory minimum non-parole periods.

Mandatory minimum penalties have rarely been applied to Commonwealth offences and when they have been used,[49] they have attracted criticism.[50]

As noted in the ‘Position of major interest groups’ section of this Digest, this measure has been opposed by a range of legal, human rights and civil liberties organisations. Those organisations have opposed this measure in particular, and mandatory sentencing in general, on the grounds:

•       it contravenes the doctrine of the separation of powers, whereby it is for the judiciary to determine appropriate punishment [51]

•       there is little if any evidence that it works to reduce or deter crime[52]

•       it can lead to unjust or unduly harsh sentences[53]

•       it is inconsistent with Australia’s human rights obligations, particularly concerning arbitrary detention and ability to appeal sentences[54]

•       it can have counter-productive impacts, such as reducing the incentive for offenders to plead guilty (thereby using additional resources in the justice system); dissuading juries from convicting people where they consider the minimum punishment too harsh; potentially increasing recidivism by inappropriately placing people in prison, which can serve as a learning environment for crime; and undermining community confidence in the justice system and[55]

•       it tends to impact disproportionately on members of vulnerable groups within society.[56]

Noting that some of these concerns are mitigated by the fact that the proposed provisions would not introduce mandatory minimum non-parole periods, the AHRC pointed out that nonetheless:

The imposition of an inappropriately high head sentence is not without consequences. To take only one example, if a person is sentenced to a term of imprisonment of 12 months or more but is given a substantially shorter non-parole period the person will still be taken to have a ‘substantial criminal record’ and will not pass the ‘character test’ under s 501 of the Migration Act 1958 (Cth). This may result in the person’s visa being cancelled or an application for a visa being refused.[57]

Some of the arguments stakeholders have made against this proposed measure are also reflected in the Government’s own Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, which advises against fixed and minimum penalties for several reasons, including that they interfere with judicial discretion to impose a penalty appropriate to all the circumstances of a particular case, can ‘create an incentive for defendants to fight charges, even where there is little merit in doing so’ and may encourage the judiciary to look for technical grounds to avoid the restriction on sentencing discretion, leading to anomalous decisions.[58]

Application to young people

Proposed subsections 360.3A(2) and 361.5(2) provide that the mandatory minimum sentence would not apply if it is established on the balance of probabilities that the person was under the age of 18 when the offence was committed. In response to the Senate Legal and Constitutional Affairs Legislation Committee’s recommendation, the operation of this exception is set out in the Explanatory Memorandum to the 2016 Bill:

As this provision is framed as an exception to the law on mandatory minimums, the provisions in the Criminal Code regarding defences will apply. As a result, the defendant bears an evidential burden regarding their age, meaning they need to adduce or point to evidence that suggests a reasonable possibility that they are under 18 (see section 13.3 of the Criminal Code). If the defendant discharges that evidential burden, the prosecution must prove beyond reasonable doubt that the defendant is aged over 18 (see section 13.3 of the Criminal Code). (Emphasis added.)[59]

This explanation accurately describes how defences and exceptions normally operate due to Part 2.6 of the Criminal Code. However, the specific wording of the provisions, which refer to the matter being established ‘on the balance of probabilities’, creates ambiguity about how the exception would operate. Under the Criminal Code, the defence is required to discharge a legal burden on the balance of probabilities, whereas an evidential burden is discharged by the defence ‘adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist’, as described in the Explanatory Memorandum.[60] If the exception is intended to operate as set out in the Explanatory Memorandum, it would be clearer for the exception simply to state that the mandatory minimum ‘does not apply if the person was aged under 18 years when the offence was committed’.

Application to people with cognitive impairments

In response to the Senate Legal and Constitutional Affairs Legislation Committee’s recommendation, the Explanatory Memorandum to the 2016 Bill also outlines how the proposed amendments will apply to a person with a cognitive impairment. It points to the general defence of mental impairment available under section 7.3 of the Criminal Code, and the fact that the court will retain discretion to set a non-parole period that takes account of ‘the particular circumstances of the offender, including any mitigating factors such as cognitive impairment’.[61]

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[1].              Parliament of Australia, ‘Criminal Code Amendment (Firearms Trafficking) Bill 2015 homepage’ (2015 Bill), Australian Parliament website.

[2].              Criminal Code Act 1995 (Criminal Code).

[3].              Ibid., sections 360.2 and 360.3. Section 4D of the Crimes Act 1914 provides that a penalty specified for a Commonwealth offence is to be taken as the maximum penalty unless the contrary intention appears. Under section 4AA of the Crimes Act, a penalty unit is equal to $180 as the date of publication of this Digest.

[4].              Ibid., sections 361.2 and 361.3.

[5].              Parliament of Australia, ‘Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 homepage’, Australian Parliament website. See further C Barker, Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012, Bills digest, 64, 2012–13, Parliamentary Library, Canberra, 2013.

[6].              Ibid.; M Keenan, ‘Second reading speech: Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012’, House of Representatives, Debates, 5 February 2013, pp. 54–58.

[7].              Liberal Party of Australia and the Nationals, The Coalition’s policy to tackle crime, Coalition policy document, Election 2013.

[8].              Parliament of Australia, ‘Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 homepage’, Australian Parliament website; Parliament of Australia, ‘Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 homepage’, Australian Parliament website.

[9].              Australia, Senate, Journals, 75, 2014–15, p. 2060; Australia, Senate, Journals, 109, 2015–16, pp. 3000–01.

[10].              Parliament of Australia, 2015 Bill, op. cit.

[11].              Liberal Party of Australia and the Nationals, The Coalition’s policy to keep illegal guns off our streets and our communities safe, Coalition policy document, Election 2016.

[12].              Senate Legal and Constitutional Affairs Legislation Committee (Senate L&C Committee), ‘Criminal Code Amendment (Firearms Trafficking) Bill 2016’, Inquiry homepage.

[13].              Senate L&C Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 [Provisions], The Senate, Canberra, September 2014, pp. 22–24, 26 (Recommendation 2).

[14].              Explanatory Memorandum, Criminal Code Amendment (Firearms Trafficking) Bill 2016, pp. 4,7; Explanatory Memorandum, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, pp. 26, 65; Explanatory Memorandum, Criminal Code Amendment (Firearms Trafficking) Bill 2015, pp. 4,7.

[15].              Senate L&C Committee, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra, June 2015, pp. 23–25.

[16].              Senate L&C Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions], The Senate, Canberra, February 2016, pp. 11–13.

[17].              Explanatory Memorandum, 2016 Bill, op. cit., pp. 4–5.

[18].              Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Report, 2, 2016, The Senate, 24 February 2016, pp. 82–88. The Committee also commented on the earlier Bills. See: Scrutiny of Bills Committee, Alert digest, 10, 2014, The Senate, 27 August 2014, pp. 10–11; Scrutiny of Bills Committee, Alert digest, 4, 2015, The Senate, 25 March 2015, pp. 11–12.

[19].              Scrutiny of Bills Committee, Alert digest, 7, 2016, The Senate, 12 October 2016, pp. 46–53.

[20].              Parliamentary Joint Committee on Human Rights (PJCHR), Fifteenth report of the 44th Parliament, 14 November 2014, pp. 30–32; PJCHR, Twenty-second report of the 44th Parliament, 13 May 2015, pp. 36–39.

[21].              PJCHR, Twenty-second report of the 44th Parliament, op. cit., p. 39. See also PJCHR, Fifteenth report of the 44th Parliament, op. cit., p. 32.

[22].              PJCHR, Thirty-third report of the 44th Parliament, 2 February 2016, p. 3.

[23].              Explanatory Memorandum, 2016 Bill, op. cit., pp. 4, 7.

[24].              Pauline Hanson’s One Nation, Firearms and gun control, Pauline Hanson’s One Nation policy document, Election 2016.

[25].              Senate, Journals, 75, op. cit.; Senate, Journals, 109, op. cit.

[26].              Ibid.

[27].              Australian Labor Party, Dissenting report, Senate L&C Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions], The Senate, Canberra, 2016, pp. 15–16; and Australian Greens, Dissenting report, Senate L&C Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions], The Senate, Canberra, 2016, pp. 16–17. The reports of the same Committee on the earlier Bills also contain dissenting reports from these parties (in the case of Labor, in the form of additional comments for the 2014 Bill): Australian Labor Party and Australian Greens, Dissenting reports, Senate L&C Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 [Provisions], The Senate, Canberra, 2014, pp. 27–39; Australian Labor Party and Australian Greens, Dissenting reports, Senate L&C Committee, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra, 2015, pp. 33–40.

[28].              L Rhiannon (Greens spokesperson for gun control), Greens support gun amnesty in principle, but not mandatory minimums, media release, 14 September 2016.

[29].              D Crowe, ‘Gun laws: Malcolm Turnbull wants Labor to back tighter trafficking move’, The Australian (online, limited access), 19 October 2016. The article includes scanned copies of each of the letters. See also M Dreyfus, ‘Consideration in detail: Appropriation Bill (No. 1) 2016–2017’, House of Representatives, Debates, (proof), 19 October 2016, pp. 171–172.

[30].              Senate, Journals, 75, op. cit.; Senate, Journals, 109, op. cit.

[31].              Senate L&C Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions], op. cit., p. 15.

[32].              Crowe, ‘Gun laws’, op. cit.

[33].              Ibid., p. 17.

[34].              Law Council of Australia (LCA), Flawed mandatory sentencing element undermining important firearm measures, media release, 14 September 2016; LCA, Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 6 January 2016, pp. 1–2.

[35].              Australian Human Rights Commission (AHRC), Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 6 January 2016, pp. 3–4; NSW Council for Civil Liberties (NSW CCL), Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 6 January 2016, p. 1.

[36].              Civil Liberties Australia (CLA), Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 31 December 2015; Law Society of New South Wales (LS NSW), Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 4 January 2016; New South Wales Society of Labor Lawyers (NSW SLL), Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 7 January 2016; C Barker, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, Bills digest, 29, 2014–15, Parliamentary Library, Canberra, 2014, p. 11; C Barker and J Mills, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, Bills digest, 1, 2015–16, Parliamentary Library, Canberra, 2015, pp. 7–8.

[37].              J Coyne (listed as Australian Strategic Policy Institute), Submission to Senate L&C Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, n.d., p. 2.

[38].              J Coyne, ‘Gun trafficking and mandatory jail terms’, The Strategist, blog, 18 March 2015.

[39].              Explanatory Memorandum, 2016 Bill, op. cit., p. 2.

[40].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the 2016 Bill.

[41].              AHRC, Submission to Senate L&C Committee, op. cit., pp. 7–12; CLA, Submission to Senate L&C Committee, op. cit.; LS NSW, Submission to Senate L&C Committee, op. cit.; NSW CCL, Submission to Senate L&C Committee, op. cit., pp. 1–2.

[42].              G Brandis, ‘Second reading speech: Criminal Code Amendment (Firearms Trafficking) Bill 2016’, Senate, Debates, 15 September 2016, p. 1033.

[43].              Explanatory Memorandum, 2016 Bill, op. cit., pp. 6–8.

[44].              LCA, Submission to Senate L&C Committee, op. cit., pp. 1–2. The review the LCA is referring to is Department of Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Martin Place siege: joint Commonwealth–New South Wales review, Department of Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Canberra, January 2015.

[45].              AHRC, Submission to Senate L&C Committee, op. cit., p. 15; NSW CCL, Submission to Senate L&C Committee, op. cit., p. 2.

[46].              AHRC, Submission to Senate L&C Committee, op. cit., p. 15. See Attorney-General’s Department (AGD), Senate L&C Committee, Answers to Questions on Notice, Inquiry into Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 [Provisions], 27 August 2014, p. 1.

[47].              Ibid., pp. 15–17.

[48].              See for example Firearms Act (NT), section 63A; Firearms Act 1996 (ACT), section 220; Weapons Act 1990 (Qld), section 65.

[49].              Certain people smuggling offences in the Migration Act 1958 are a notable exception (see section 236B); subsection 120(2) of the Excise Act 1901 imposes a minimum penalty, but in the form of a fine, not imprisonment.

[50].              See for example the views of submitters summarised in Senate L&C Committee, Anti-People Smuggling and Other Measures Bill 2010 [Provisions], The Senate, Canberra, May 2010, pp. 18–21; W Martin, ‘Sentencing issues in people smuggling cases’, paper presented to the Federal Crime and Sentencing Conference, Canberra, 11 February 2012.

[51].              CLA, Submission to Senate L&C Committee, op. cit.; LCA, Submission to Senate L&C Committee, op. cit., p. 2; LS NSW, Submission to Senate L&C Committee, op. cit., pp. 1–2.

[52].              CLA, Submission to Senate L&C Committee, op. cit.; LCA, Submission to Senate L&C Committee, op. cit., p. 3; NSW CCL, Submission to Senate L&C Committee, op. cit., p. 2; LS NSW, Submission to Senate L&C Committee, op. cit., p. 2; AHRC, Submission to Senate L&C Committee, op. cit., pp. 12–14; NSW SLL, Submission to Senate L&C Committee, op. cit., p. 2.

[53].              CLA, Submission to Senate L&C Committee, op. cit.; LCA, Submission to Senate L&C Committee, op. cit., pp. 2–4; LS NSW, Submission to Senate L&C Committee, op. cit., p. 2; AHRC, Submission to Senate L&C Committee, op. cit., pp. 5–7, 9–12; NSW SLL, Submission to Senate L&C Committee, op. cit., p. 1.

[54].              AHRC, Submission to Senate L&C Committee, op. cit., pp. 7–12; CLA, Submission to Senate L&C Committee, op. cit.; LS NSW, Submission to Senate L&C Committee, op. cit., pp. 2–3; NSW CCL, Submission to Senate L&C Committee, op. cit., pp. 1–2. See also the ‘Committee consideration’ section of this Digest for the views of the PJCHR.

[55].              CLA, Submission to Senate L&C Committee, op. cit.; NSW CCL, Submission to Senate L&C Committee, op. cit., p. 2; LCA, Submission to Senate L&C Committee, op. cit., pp. 2–4.

[56].              LCA, Submission to Senate L&C Committee, op. cit., p. 2.

[57].              AHRC, Submission to Senate L&C Committee, op. cit., p. 6.

[58].              AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, Canberra, updated September 2011, pp. 37–39.

[59].              Explanatory Memorandum, 2016 Bill, op. cit., p. 5.

[60].              Criminal Code, sections 13.3, 13.4 and 13.5.

[61].              Explanatory Memorandum, 2016 Bill, op. cit., p. 5.