Purpose of the Bill

The purpose of the Criminal Code Amendment (Firearms Trafficking) Bill 2022 (the Bill) is to amend the Criminal Code Act 1995 (the Criminal Code) to:

• double existing maximum penalties for firearms trafficking offences
• introduce new aggravated offences for trafficking of 50 or more firearms or firearms parts
• introduce a mandatory minimum sentence of five years imprisonment for the firearms trafficking offences.

Structure of the Bill

The Bill consists of one Schedule to amend the Criminal Code provisions relating to firearms trafficking offences, as well as introducing new offences and provisions relating to minimum penalties.

The Bill contains two sets of substantially similar provisions to amend the firearms trafficking offences in Division 360, which contains offences of cross-border firearms trafficking between one Australian state or territory and another, and in Division 361 which contains offences of international firearms trafficking into and out of Australia.

Background

Recent history of amendments to the firearms trafficking offences

The Bill contains various amendments to strengthen the firearms offences which are similar or identical to amendments that have been unsuccessfully introduced in previous Bills.

Most recently, similar amendments to those in the current Bill relating to mandatory minimum penalties were included in the Criminal Code Amendment (Firearms Trafficking) Bill 2016 (the 2016 Bill) as introduced in the Senate.[1] However, over the course of its debate in the Senate, non-government amendments to that 2016 Bill removed the provisions relating to mandatory minimum sentences of five years from the then Criminal Code Amendment (Firearms Trafficking) Bill 2017 (the 2017 Bill) and introduced other provisions containing amendments to existing firearms offences and new aggravated firearms offences. Those new provisions introduced into the 2017 Bill are reintroduced in the current Bill. The 2017 Bill was then further amended by the Government in the House of Representatives and the mandatory minimum sentences provisions were reintroduced. The Bill lapsed at the end of the 45th Parliament in 2019.[2]

An earlier version of the 2016 Bill (the 2015 Bill) was introduced into the 44th Parliament in December 2015. That version of the Bill had passed the House of Representatives and was before the Senate when Parliament was dissolved on 9 May 2016.[3]

As explained in the background to the Bills Digest for the 2016 Bill,[4] the initial attempts to introduce aggravated offences began with the then Labor Government in 2012:

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]

Following the change of Government in 2013, the Coalition Government introduced Bills containing amendments to create mandatory minimum penalties of five years imprisonment for firearm trafficking in 2014 and 2015.[7] The provisions relating to mandatory minimum penalties were removed from each of those Bills following amendment in the Senate, before the Bills went on to be passed.[8] The amendments to the firearms offences were then reintroduced in the 2016 Bill, discussed above.[9]

General considerations on the purpose of the Bill

The Bill’s policy objective would seem to be based on a number of implicit assumptions: there is a high level of firearms related violence in the community involving firearms that are being illegally trafficked (either as a complete firearm or as parts); existing offence provisions in the Criminal Code are not effective in preventing this trafficking; and the new offence provisions will act as a more effective deterrent.

No information is provided in the Explanatory Memorandum in support of these assumptions. In particular, it might be useful to understand:

• whether rates of firearms related offences in the states and territories are increasing or decreasing.
• whether the firearms used in these crimes are:
• licensed firearms held by properly registered owners
• firearms stolen from legitimate owners or
• illegally imported (ie. there is no record of their legal importation)
• the number of prosecutions for illegal firearms trafficking under the existing provisions. It is a truism of criminology that the likelihood of getting caught is a relatively greater factor in deterrence than the penalty
• the number of investigations that did not proceed to prosecution due to problems or limitations in the existing provisions 
• information on the price of firearms on the black market. As with other illicit commodities, price can serve as a proxy indicator of relative availability: falling prices may suggest growing numbers of successful illegal importations.

As such, it is not clear the extent of the problem nor the likelihood that the proposed offences will be effective in their stated objective.

It should also be noted that the majority of firearms offences (such as unauthorised possession or use) or offences involving firearms (murder, armed robbery etc.) are prosecuted by state and territory police under legislation in their respective jurisdictions. The Bill’s focus reflects the Commonwealth’s constitutional responsibility for import controls and cross state/territory trade.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had not considered the Bill at the time of writing.[10]

Policy position of non-government parties/independents

Australian Labor Party (ALP)

The ALP supports the Bill. The Bill progressed from its introduction on 16 February 2022 to passing in the House of Representatives with Opposition support the next day. [11] The Opposition attempted to speak on the Bill during debate, with the Shadow Minister for Defence Brendan O’Connor noting the speed at which the Bill was being progressed, saying:

Clearly, there's a pressing need to increase penalties for firearm trafficking. What is interesting, though, is that, although the government introduced this bill into the parliament last night, there are no members of the government, it would appear, willing to speak to this bill, and, indeed, there's been no process engaging with stakeholders, there's been no referral to any parliamentary committee—[12]

 As noted above, the ALP had initially introduced a Bill containing the aggravated offences for dealing in 50 or more firearms or firearm parts in 2012,[13] but had not supported the subsequent attempts to introduce mandatory minimum sentences for the firearms trafficking offences.[14] The ALP is opposed to mandatory minimum sentencing in general, stating in their 2021 National Platform:

Labor opposes mandatory sentencing. In substituting the decisions of politicians for those of judges, mandatory sentencing undermines the independence of the judiciary. It leads to unjust outcomes and is often discriminatory in practice. Mandatory sentencing does not reduce crime, and leads to perverse consequences that undermine community safety, such as by making it more difficult to successfully prosecute criminals.[15]

Explaining the Opposition’s support for the Bill despite the inclusion of mandatory minimum sentences, the Guardian quoted Shadow Home Affairs Minister, Senator Kristina Keneally:

Keneally said she and the leadership group had considered the bill on Thursday. Labor decided to support the bill because it was “fairly straightforward” and consistent with the caucus position that when in opposition: “While we don’t support mandatory minimums we’re not going to let that stand in the way of achieving important outcomes to tackle serious crimes.”

…

Labor will not seek to amend the firearms bill in the Senate, Keneally said. “We can’t govern from opposition - Mr Morrison seemed quite clear in his intent to politicise national security in the context of an election, trying to manufacture a difference with the opposition when, in reality, one does not exist.”[16]

The Australian Greens (Greens)

In response to the Bill, the Greens released a statement opposing mandatory sentencing and presumptive minimum sentences, saying:

It’s Parliament’s job to provide a maximum penalty based on the relative severity of the offence but courts are the best placed to assess and determine the appropriate sentence in each individual case.

Mandatory sentences and presumptive minimum sentences are arbitrary, they don’t work, they contradict the principle of imprisonment as a last resort and they undermine the fundamentals of our legal system.[17]

Katter’s Australia Party

Bob Katter released a statement opposing both the Bill[18] and its manner of passage through the House of Representatives,[19] saying:

If the Criminal Code Amendment (Firearms Trafficking) Bill passes through the Senate, it will mean that a simple act of purchasing a replacement part, such as a swivel or screw online, could mean jail time as sending items interstate may constitute "trafficking".

Mr Katter said the bill was introduced and passed within 15 minutes, and Members of Parliament were given no chance to debate as the Leader of the House shut down debate and allowed the Bill to pass unopposed. Many MPs, including Mr Katter, were not even present as they were attending to other Parliamentary business at the time.

“We were given no notice that the bill was coming on. It was super sneaky,” Mr Katter said.

“If I had been allowed to speak, I would have argued that the Bill sets a dangerous precedent of mandatory sentences and that the bill had been introduced with zero consultation.[20]

Position of major interest groups

The President of the Shooters Union of Australia, Graham Park, was quoted by Bob Katter in his February 2022 media release opposing the Bill:

Shooters Union Australia president Graham Park wholeheartedly backed Mr Katter's comments on the situation.

"We literally had not heard a peep about this legislation before it was passed. We're one of the country's largest shooting organisations and the fact the government thinks it's OK to introduce and pass legislation that directly affects every gun owner in the country without any industry consultation is completely unacceptable," he said.[21]

While the progress of the current Bill has not provided time for significant other commentary, various stakeholders had previously expressed opinions in response to the 2015, 2016 and 2017 Bills. In particular, the issue of mandatory minimum sentences has proven contentious and has attracted criticism on earlier occasions.

As summarised in the 2016 Bills Digest,[22] proposals for mandatory minimum sentencing and increased penalties attracted criticism when introduced in earlier Bills.

The Law Council of Australia (LCA) at that time supported increased maximum penalties but opposed mandatory minimum sentences.[23]

The Australian Human Rights Commission (AHRC) and the NSW Council for Civil Liberties (NSW CCL) opposed both increased maximum penalties and mandatory minimum sentences, both noting that the Government had not identified any instances where the sentences imposed for Commonwealth firearms offences have been insufficient.[24]

In response to earlier Bills, a range of other legal and civil liberties organisations expressed their opposition to the introduction of mandatory minimum sentences.[25]

Mandatory sentencing has previously been opposed for the following reasons, as summarised in the 2016 Bills Digest:[26]

• it contravenes the doctrine of the separation of powers, arguing that it is for the judiciary to determine appropriate punishment [27]
• there is little if any evidence that it works to reduce or deter crime[28]
• it can lead to unjust or unduly harsh sentences[29]
• it is inconsistent with Australia’s human rights obligations, particularly concerning arbitrary detention and ability to appeal sentences[30]
• 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 as being 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[31]
• it tends to impact disproportionately on members of vulnerable groups within society such as ‘indigenous peoples, young adults, juveniles, persons with a mental illness or cognitive impairment and the impoverished.’[32]

In contrast, in a submission in response to the 2015 Bill 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. Regardless, the Bill sends a powerful message to criminals and the general public that reinforces two decades of strong gun control in Australia.[33]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[34]

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 engages the rights to freedom from arbitrary detention and the presumption of innocence,[35] but that the measures are ‘reasonable, necessary and proportionate to achieving reductions in firearms-related crime’, and that the Bill is therefore compatible.[36]

Parliamentary Joint Committee on Human Rights

The Committee had not reported on the Bill at the time of writing.

Key issues and provisions

Items 1 to 8 of Schedule 1 amend Division 360 of the Criminal Code, dealing with cross-border firearms trafficking offences, meaning offences involving trafficking among the States, between Territories or between a Territory and a State, while items 9 to 14 similarly amend Division 361, dealing with international firearms trafficking offences. The amendments would double the penalties for the existing basic offences, introduce mandatory minimum sentences and introduce aggravated offences and associated double jeopardy provisions.

Cross-border offences

Increased penalties and aggravated offences

Item 1 repeals the existing subsections 360.2(1) and (2) of the Criminal Code and replaces them with proposed subsections 360.2(1) and (2) containing increased penalties and aggravated offences. It would double the maximum penalties in subsection 360.2(1), relating to cross-border disposal or acquisition of a firearm, from 10 years imprisonment or a fine of 2,500 penalty units, or both, to 20 years or 5,000 penalty units, or both.

Item 3 repeals paragraph 360.3(1)(a) and inserts proposed paragraphs 360.3(1)(a), (aa) and (ab) to reframe the existing basic offence for taking or sending a firearm or firearm part across borders in terms that are consistent with those of the amended basic offences in proposed subsections 360.2(1) and (2).

Item 4 similarly amends subsection 360.3(1) to double the penalties for taking or sending a firearm or firearm part across borders to 20 years or 5,000 penalty units

Item 1 also inserts proposed subsection 360.2(2) to introduce aggravated offences of cross-border disposal or acquisition of a firearm where the disposal or acquisition involves 50 or more firearms, firearm parts or a combination of firearms and firearm parts. The disposal or acquisition of the 50 items could result from conduct on two or more occasions if they occurred within a six month period. The maximum penalty for the aggravated offences is imprisonment for life or a fine of 7,500 penalty units, or both.

Item 5 inserts proposed subsection 360.3(1A) to similarly add an aggravated offence to the basic offence of taking or sending a firearm or firearm part across borders. That aggravated offence applies where the taking or sending involves 50 or more firearms, firearm parts or a combination of firearms and firearm parts. As with proposed subsection 360.2(2) the total number of items could result from conduct on two or more occasions if they occurred within a six month period, and the maximum penalty for the aggravated offences is imprisonment for life or a fine of 7,500 penalty units, or both.

Mandatory minimum penalties

Item 8 inserts proposed section 360.3A to define mandatory minimum penalties for the offences in Division 360. Proposed subsection 360.3A(1) provides that a court must impose a sentence of at least five years imprisonment for a person convicted of an offence against the Division, while proposed subsection 360.3A(2) provides that the minimum does not apply to a person aged under 18 at the time of the offence.

Proposed subsection 360.3A(3) permits the court to impose a lesser penalty only if the court considers it appropriate after taking into account (under sentencing principles set out in paragraphs 16A(2)(g) and (h) of the Crimes Act 1914) the person pleading guilty or cooperating during the investigation, or both. Proposed subsection 360.3A(4) provides that the sentence may be reduced by up to 25% if the person plead guilty or assisted the investigation, or by up to 50% if both apply.

Item 8 also inserts proposed section 360.3B to provide for double jeopardy protection and alternative verdicts in relation to the aggravated offences in proposed subsections 360.2(2) and 360.3(1A) and the respective basic offences in subsections 360.2(1) and 360.3(1). The intent is to prevent a person from being tried twice for the same offence, while permitting a court to find a defendant guilty of an alternate offence.

Proposed subsection 360.3B(1) provides that a person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to that aggravated offence during the same period. Proposed subsection 360.3B(3) provides that a person who has been convicted or acquitted of a basic offence may not be convicted of an aggravated offence if any of the aggravated offending includes the conduct constituting the basic offence.

Proposed subsection 360.3B(4) permits a court, on a trial for an aggravated offence, to find a person guilty of a basic offence instead if the court is not satisfied that the person is guilty of a relevant aggravated offence but is satisfied beyond reasonable doubt that that they are guilty of the basic offence related to that aggravated offence.

Item 15 provides that the mandatory minimum penalties introduced in proposed sections 360.3A and 361.5 (discussed below) will only apply to conduct engaged in at or after the commencement date, being the day after Royal Assent.

International offences

Item 9 repeals and replaces sections 361.2 and 361.3, setting out the offences for trafficking prohibited firearms or firearm parts into or out of Australia. The proposed sections 361.2 and 361.3 contain increased maximum penalties and aggravated offences as discussed above in relation to the cross-border offences.

Item 10 inserts proposed section 361.5 to introduce a mandatory minimum sentence of at least five years for the international firearms trafficking offences in Division 361, in terms discussed above in relation to the cross-border offences.

Item 14 inserts proposed subsections 361.6(2) to (6) to provide for double jeopardy protection and alternative verdicts for relevant offences in Division 361, as discussed above for Division 360 regarding proposed section 360.3B.

Concluding comments

The amendments contained in the Bill have been introduced, unsuccessfully, on previous occasions. The most contentious aspect of the Bill is its introduction of mandatory minimum sentences for the firearms trafficking offences. The increased penalties and aggravated offences have also attracted some criticism over the course of the previous related Bills, particularly in submissions to the inquiries held by the Senate Legal and Constitutional Committee for those earlier Bills. The present Bill has further been criticised for the speed with which it was progressed through the House of Representatives, the lack of a referral to a Committee, and the perceived lack of consultation or opportunity for submissions to be made. Nevertheless, the fact that the Bill now enjoys bipartisan support from the Government and Opposition suggests that it will be passed should it be introduced in the Senate during the current Parliament.rral.