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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021-2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Criminal Code Amendment (Firearms
Trafficking) Bill 2022
No. , 2022
(Home Affairs)
A Bill for an Act to amend the Criminal Code Act
1995, and for related purposes
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Firearms trafficking
3
Criminal Code Act 1995
3
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
1
A Bill for an Act to amend the Criminal Code Act
1
1995, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Criminal Code Amendment (Firearms Trafficking)
5
Act 2022
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
3
Schedule 1--Firearms trafficking
1
2
Criminal Code Act 1995
3
1 Subsections 360.2(1) and (2) of the Criminal Code
4
Repeal the subsections, substitute:
5
Basic offence
6
(1) A person commits an offence if:
7
(a) the person engages in conduct that constitutes an offence (the
8
underlying offence
) against a firearm law; and
9
(b) the person does so in the course of trade or commerce:
10
(i) among the States; or
11
(ii) between a State and a Territory, or between 2
12
Territories; and
13
(c) the primary element of the underlying offence involves:
14
(i) the disposal of a firearm or a firearm part by the person;
15
or
16
(ii) the acquisition of a firearm or a firearm part by the
17
person.
18
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty
19
units, or both.
20
Aggravated offence--disposing or acquiring 50 or more firearms
21
or firearm parts in 6 month period
22
(2) A person commits an offence if:
23
(a) the person engages in conduct on one or more occasions that
24
constitutes an offence (the
underlying offence
) against a
25
firearm law; and
26
(b) the person does so in the course of trade or commerce:
27
(i) among the States; or
28
(ii) between a State and a Territory, or between 2
29
Territories; and
30
(c) the primary element of the underlying offence involves:
31
Schedule 1
Firearms trafficking
4
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
(i) the disposal of a firearm or a firearm part by the person;
1
or
2
(ii) the acquisition of a firearm or a firearm part by the
3
person; and
4
(d) the conduct on any occasion, or on 2 or more occasions taken
5
together, results in the disposal, or acquisition, by the person
6
of:
7
(i) 50 or more firearms; or
8
(ii) 50 or more firearm parts; or
9
(iii) a combination of firearms and firearm parts such that
10
the sum of the firearms and the firearm parts is 50 or
11
more; and
12
(e) if the disposal or acquisition of the firearms or parts
13
mentioned in paragraph (d) resulted from conduct on 2 or
14
more occasions taken together--the occasions of conduct
15
occurred during a 6 month period.
16
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or
17
both.
18
Provisions relating to basic offence and aggravated offence
19
(2A) There is no fault element for any of the physical elements
20
described in paragraphs (1)(a) and (2)(a), other than the fault
21
elements (however described), if any, for the underlying offence.
22
(2B) To avoid doubt:
23
(a) in determining whether the conduct referred to in
24
paragraph (1)(a) or (2)(a) constitutes the underlying offence,
25
any defences or special liability provisions (however
26
described) that apply in relation to the underlying offence
27
have effect; and
28
(b) a person may be convicted of an offence against
29
subsection (1) or (2) even if the person has not been
30
convicted of the underlying offence; and
31
(c) for the purposes of subsection (2)--it is immaterial whether:
32
(i) the underlying offence is the same on each occasion; or
33
(ii) the conduct constituting the underlying offence is the
34
same on each occasion; or
35
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
5
(iii) the firearms or firearm parts to which the conduct
1
relates are of the same kind.
2
(2C) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(b),
3
(c) and (e).
4
Note:
For absolute liability, see section 6.2.
5
(2D) Strict liability applies to paragraph (2)(d).
6
Note:
For strict liability, see section 6.1.
7
Definitions
8
2 Before subsection 360.3(1) of the Criminal Code
9
Insert:
10
Basic offence
11
3 Paragraph 360.3(1)(a) of the Criminal Code
12
Repeal the paragraph, substitute:
13
(a) the person takes or sends a thing from one State or Territory
14
to another State or Territory; and
15
(aa) the thing is a firearm or firearm part; and
16
(ab) the person does so in the course of trade or commerce:
17
(i) among the States; or
18
(ii) between a State and a Territory, or between 2
19
Territories; and
20
4 Subsection 360.3(1) of the Criminal Code (penalty)
21
Repeal the penalty, substitute:
22
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty
23
units, or both.
24
5 After subsection 360.3(1) of the Criminal Code
25
Insert:
26
Aggravated offence--taking or sending 50 or more firearms or
27
firearm parts in 6 month period
28
(1A) A person commits an offence if:
29
Schedule 1
Firearms trafficking
6
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
(a) the person takes or sends (on one or more occasions) one or
1
more things from one State or Territory to another State or
2
Territory; and
3
(b) the thing is, or the things include, a firearm or firearm part;
4
and
5
(c) the person does so in the course of trade or commerce:
6
(i) among the States; or
7
(ii) between a State and a Territory, or between 2
8
Territories; and
9
(d) the person does so intending that any of the firearms or parts
10
will be disposed of in the other State or Territory (whether by
11
the person or another); and
12
(e) the person knows that, or is reckless as to whether:
13
(i) the disposal of any of the firearms or parts; or
14
(ii) any acquisition of any of the firearms or parts that
15
results from the disposal;
16
would happen in circumstances that would constitute an
17
offence against the firearm law of that other State or
18
Territory; and
19
(f) the conduct on any occasion, or on 2 or more occasions taken
20
together, results in the taking, or sending, by the person of:
21
(i) 50 or more firearms; or
22
(ii) 50 or more firearm parts; or
23
(iii) a combination of firearms and firearm parts such that
24
the sum of the firearms and the firearm parts is 50 or
25
more; and
26
(g) if the taking or sending of the firearms or parts mentioned in
27
paragraph (f) resulted from conduct on 2 or more occasions
28
taken together--the occasions of conduct occurred during a 6
29
month period.
30
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or
31
both.
32
Provisions relating to basic offence and aggravated offence
33
(1B) Absolute liability applies to paragraphs (1)(ab) and (1A)(c) and (g).
34
Note:
For absolute liability, see section 6.2.
35
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
7
(1C) Strict liability applies to paragraph (1A)(f).
1
Note:
For strict liability, see section 6.1.
2
(1D) To avoid doubt, it is immaterial for the purposes of
3
paragraphs (1A)(b) and (f) whether the firearms or firearm parts
4
are of the same kind.
5
Definitions
6
6 Subsection 360.3(2) of the Criminal Code (at the end of the
7
definition of firearm)
8
Add "or (1A)(e) (as the case requires)".
9
7 Subsection 360.3(2) of the Criminal Code (definition of
10
firearm part)
11
Omit "(1)(c)", substitute "(1)(c) or (1A)(e) (as the case requires)".
12
8 After section 360.3 of the Criminal Code
13
Insert:
14
360.3A Minimum penalties
15
(1) Subject to subsections (2) and (3), the court must impose a
16
sentence of imprisonment of at least 5 years for a person convicted
17
of an offence against this Division.
18
People aged under 18
19
(2) Subsection (1) does not apply to a person who was aged under 18
20
years when the offence was committed.
21
Reduction of minimum penalty
22
(3) A court may impose a sentence of imprisonment of less than the
23
period specified in subsection (1) only if the court considers it
24
appropriate to reduce the sentence because of either or both of the
25
following:
26
(a) the court is taking into account, under paragraph 16A(2)(g)
27
of the
Crimes Act 1914
, the person pleading guilty;
28
Schedule 1
Firearms trafficking
8
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
(b) the court is taking into account, under paragraph 16A(2)(h)
1
of that Act, the person having cooperated with law
2
enforcement agencies in the investigation of the offence.
3
(4) If a court may reduce a sentence, the court may reduce the sentence
4
as follows:
5
(a) if the court is taking into account, under paragraph 16A(2)(g)
6
of the
Crimes Act 1914
, the person pleading guilty--by an
7
amount that is up to 25% of the period specified in
8
subsection (1);
9
(b) if the court is taking into account, under paragraph 16A(2)(h)
10
of that Act, the person having cooperated with law
11
enforcement agencies in the investigation of the offence--by
12
an amount that is up to 25% of the period specified in
13
subsection (1);
14
(c) if the court is taking into account both of the matters in
15
paragraphs (a) and (b)--by an amount that is up to 50% of
16
the period specified in subsection (1).
17
360.3B Double jeopardy and alternative verdicts
18
Double jeopardy
19
(1) A person who has been convicted or acquitted of an aggravated
20
offence may not be convicted of a basic offence relating to the
21
aggravated offence that is alleged to have been committed in the
22
period during which the person was alleged to have committed the
23
aggravated offence.
24
(2) However, subsection (1) does not prevent an alternative verdict
25
under subsection (4).
26
(3) A person who has been convicted or acquitted of a basic offence
27
relating to an aggravated offence may not be convicted of the
28
aggravated offence if any of the occasions relied on as evidence of
29
the commission of the aggravated offence includes the conduct that
30
constituted the basic offence.
31
Alternative verdict--aggravated offence not proven
32
(4) If, on a trial for an aggravated offence, the trier of fact:
33
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
9
(a) is not satisfied that the defendant is guilty of the aggravated
1
offence; but
2
(b) is satisfied beyond reasonable doubt that he or she is guilty of
3
the basic offence relating to the aggravated offence;
4
it may find the defendant not guilty of the aggravated offence but
5
guilty of the basic offence, so long as the defendant has been
6
accorded procedural fairness in relation to that finding of guilt.
7
Definitions
8
(5) In this section:
9
aggravated offence
means an offence against subsection 360.2(2)
10
or 360.3(1A).
11
basic offence
relating to an aggravated offence means:
12
(a) if the aggravated offence is an offence against
13
subsection 360.2(2)--an offence against subsection 360.2(1);
14
or
15
(b) if the aggravated offence is an offence against
16
subsection 360.3(1A)--an offence against
17
subsection 360.3(1).
18
9 Sections 361.2 and 361.3 of the Criminal Code
19
Repeal the sections, substitute:
20
361.2 Trafficking prohibited firearms or firearm parts into
21
Australia
22
Basic offence
23
(1) A person commits an offence if:
24
(a) the person imports a thing; and
25
(b) the thing is a firearm or firearm part; and
26
(c) the person imports the firearm or part with the intention of
27
trafficking in the firearm or part; and
28
(d) importing the firearm or part was prohibited under the
29
Customs Act 1901
:
30
(i) absolutely; or
31
(ii) unless certain requirements were met; and
32
Schedule 1
Firearms trafficking
10
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
(e) if subparagraph (d)(ii) applies--the person fails to meet any
1
of those requirements.
2
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty
3
units, or both.
4
Aggravated offence--importing 50 or more prohibited firearms or
5
firearm parts in 6 month period
6
(2) A person commits an offence if:
7
(a) the person imports (on one or more occasions) one or more
8
things; and
9
(b) the thing is, or the things include, a firearm or firearm part;
10
and
11
(c) the person imports each firearm or part with the intention of
12
trafficking in the firearm or part; and
13
(d) importing each firearm or part was prohibited under the
14
Customs Act 1901
:
15
(i) absolutely; or
16
(ii) unless certain requirements were met; and
17
(e) if subparagraph (d)(ii) applies in relation to an occasion of
18
importation--the person fails to meet any of those
19
requirements; and
20
(f) any occasion of importation, or 2 or more occasions taken
21
together, results in the importation by the person of:
22
(i) 50 or more firearms; or
23
(ii) 50 or more firearm parts; or
24
(iii) a combination of firearms and firearm parts such that
25
the sum of the firearms and the firearm parts is 50 or
26
more; and
27
(g) if the importation of the firearms or parts mentioned in
28
paragraph (f) resulted from 2 or more occasions of
29
importation taken together--the occasions of importation
30
occurred during a 6 month period.
31
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or
32
both.
33
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
11
Provisions relating to basic offence and aggravated offence
1
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d) and (g).
2
Note:
For absolute liability, see section 6.2.
3
(4) Strict liability applies to paragraphs (1)(e) and (2)(e) and (f).
4
Note:
For strict liability, see section 6.1.
5
(5) To avoid doubt, it is immaterial for the purposes of
6
paragraphs (2)(b) and (f) whether the firearms or firearm parts are
7
of the same kind.
8
361.3 Trafficking prohibited firearms or firearm parts out of
9
Australia
10
Basic offence
11
(1) A person commits an offence if:
12
(a) the person exports a thing, or enters a thing for export from
13
Australia; and
14
(b) the thing is a firearm or firearm part; and
15
(c) the person exports, or enters for export, the firearm or part
16
with the intention of trafficking in the firearm or part; and
17
(d) exporting, or entering for export, the firearm or part was
18
prohibited under the
Customs Act 1901
:
19
(i) absolutely; or
20
(ii) unless certain requirements were met; and
21
(e) if subparagraph (d)(ii) applies--the person fails to meet any
22
of those requirements.
23
Penalty: Imprisonment for 20 years or a fine of 5,000 penalty
24
units, or both.
25
Aggravated offence--exporting or entering for export 50 or more
26
prohibited firearms or firearm parts in 6 month period
27
(2) A person commits an offence if:
28
(a) the person (on one or more occasions) exports, or enters for
29
export from Australia, one or more things; and
30
Schedule 1
Firearms trafficking
12
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
(b) the thing is, or the things include, a firearm or firearm part;
1
and
2
(c) the person exports, or enters for export, each firearm or part
3
with the intention of trafficking in the firearm or part; and
4
(d) exporting, or entering for export, each firearm or part was
5
prohibited under the
Customs Act 1901
:
6
(i) absolutely; or
7
(ii) unless certain requirements were met; and
8
(e) if subparagraph (d)(ii) applies in relation to an occasion of
9
exportation or entry for export--the person fails to meet any
10
of those requirements; and
11
(f) any occasion of exportation or entry for export, or 2 or more
12
occasions taken together, results in the exportation or entry
13
for export by the person of:
14
(i) 50 or more firearms; or
15
(ii) 50 or more firearm parts; or
16
(iii) a combination of firearms and firearm parts such that
17
the sum of the firearms and the firearm parts is 50 or
18
more; and
19
(g) if the exportation or entry for export of the firearms or parts
20
mentioned in paragraph (f) resulted from 2 or more occasions
21
of exportation or entry for export taken together--the
22
occasions of exportation or entry occurred during a 6 month
23
period.
24
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or
25
both.
26
Provisions relating to basic offence and aggravated offence
27
(3) Absolute liability applies to paragraphs (1)(d) and (2)(d) and (g).
28
Note:
For absolute liability, see section 6.2.
29
(4) Strict liability applies to paragraphs (1)(e) and (2)(e) and (f).
30
Note:
For strict liability, see section 6.1.
31
(5) To avoid doubt, it is immaterial for the purposes of
32
paragraphs (2)(b) and (f) whether the firearms or firearm parts are
33
of the same kind.
34
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
13
10 After section 361.4 of the Criminal Code
1
Insert:
2
361.5 Minimum penalties
3
(1) Subject to subsections (2) and (3), the court must impose a
4
sentence of imprisonment of at least 5 years for a person convicted
5
of an offence against this Division.
6
People aged under 18
7
(2) Subsection (1) does not apply to a person who was aged under 18
8
years when the offence was committed.
9
Reduction of minimum penalty
10
(3) A court may impose a sentence of imprisonment of less than the
11
period specified in subsection (1) only if the court considers it
12
appropriate to reduce the sentence because of either or both of the
13
following:
14
(a) the court is taking into account, under paragraph 16A(2)(g)
15
of the
Crimes Act 1914
, the person pleading guilty;
16
(b) the court is taking into account, under paragraph 16A(2)(h)
17
of that Act, the person having cooperated with law
18
enforcement agencies in the investigation of the offence.
19
(4) If a court may reduce a sentence, the court may reduce the sentence
20
as follows:
21
(a) if the court is taking into account, under paragraph 16A(2)(g)
22
of the
Crimes Act 1914
, the person pleading guilty--by an
23
amount that is up to 25% of the period specified in
24
subsection (1);
25
(b) if the court is taking into account, under paragraph 16A(2)(h)
26
of that Act, the person having cooperated with law
27
enforcement agencies in the investigation of the offence--by
28
an amount that is up to 25% of the period specified in
29
subsection (1);
30
(c) if the court is taking into account both of the matters in
31
paragraphs (a) and (b)--by an amount that is up to 50% of
32
the period specified in subsection (1).
33
Schedule 1
Firearms trafficking
14
Criminal Code Amendment (Firearms Trafficking) Bill 2022
No. , 2022
11 Section 361.6 of the Criminal Code (at the end of the
1
heading)
2
Add "
and alternative verdicts
".
3
12 Section 361.6 of the Criminal Code (after the heading)
4
Insert:
5
Double jeopardy
6
13 Section 361.6 of the Criminal Code
7
Before "A person", insert "(1)".
8
14 At the end of section 361.6 of the Criminal Code
9
Add:
10
(2) A person who has been convicted or acquitted of an aggravated
11
offence may not be convicted of a basic offence relating to the
12
aggravated offence that is alleged to have been committed in the
13
period during which the person was alleged to have committed the
14
aggravated offence.
15
(3) However, subsection (2) does not prevent an alternative verdict
16
under subsection (5).
17
(4) A person who has been convicted or acquitted of a basic offence
18
relating to an aggravated offence may not be convicted of the
19
aggravated offence if any of the occasions relied on as evidence of
20
the commission of the aggravated offence includes the conduct that
21
constituted the basic offence.
22
Alternative verdict--aggravated offence not proven
23
(5) If, on a trial for an aggravated offence, the trier of fact:
24
(a) is not satisfied that the defendant is guilty of the aggravated
25
offence; but
26
(b) is satisfied beyond reasonable doubt that he or she is guilty of
27
the basic offence relating to the aggravated offence;
28
it may find the defendant not guilty of the aggravated offence but
29
guilty of the basic offence, so long as the defendant has been
30
accorded procedural fairness in relation to that finding of guilt.
31
Firearms trafficking
Schedule 1
No. , 2022
Criminal Code Amendment (Firearms Trafficking) Bill 2022
15
Definitions
1
(6) In this section:
2
aggravated offence
means an offence against subsection 361.2(2)
3
or 361.3(2).
4
basic offence
relating to an aggravated offence means:
5
(a) if the aggravated offence is an offence against
6
subsection 361.2(2)--an offence against subsection 361.2(1);
7
or
8
(b) if the aggravated offence is an offence against
9
subsection 361.3(2)--an offence against subsection 361.3(1).
10
15 Application of amendments
--minimum penalties
11
Sections 360.3A and 361.5 of the
Criminal Code
, as inserted by this
12
Schedule, apply in relation to conduct engaged in at or after the
13
commencement of this Schedule.
14