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This is a Bill, not an Act. For current law, see the Acts databases.
CRIMES LEGISLATION AMENDMENT (ORGANISED CRIME AND OTHER MEASURES) BILL 2012
2010-2011-2012
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Crimes Legislation Amendment
(Organised Crime and Other Measures)
Bill 2012
No. , 2012
(Justice)
A Bill for an Act to amend legislation relating to the
criminal law, and for related purposes
i Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No.
, 2012
Contents
1 Short
title
...........................................................................................
1
2 Commencement
.................................................................................
1
3 Schedule(s)
........................................................................................
2
Schedule 1--Unexplained wealth amendments
3
Part 1--Amendments
3
Proceeds of Crime Act 2002
3
Part 2--Application of amendments
12
Schedule 2--Firearms trafficking amendments
14
Criminal Code Act 1995
14
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 1
A Bill for an Act to amend legislation relating to the
1
criminal law, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Crimes Legislation Amendment
5
(Organised Crime and Other Measures) Act 2012.
6
2 Commencement
7
This Act commences on the day after this Act receives the Royal
8
Assent.
9
2 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
3 Schedule(s)
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
Unexplained wealth amendments Schedule 1
Amendments Part 1
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 3
Schedule 1--Unexplained wealth amendments
1
Part 1--Amendments
2
Proceeds of Crime Act 2002
3
1 Subsection 20A(1)
4
Omit "may order", substitute "must order".
5
2 Subsections 20A(3A) to (3C)
6
Repeal the subsections.
7
3 Subsection 20A(4)
8
Omit all the words from and including "if" to and including "the order"
9
substitute:
10
if the court is satisfied that:
11
(a) there are not reasonable grounds to suspect that the person's
12
*
total wealth exceeds by $100,000 or more the value of the
13
person's
*
wealth that was
*
lawfully acquired; or
14
(b) it is not in the public interest to make the order.
15
4 Subsection 20A(4A)
16
Omit "subsection (1)", substitute "this section".
17
5 Subsection 20A(5)
18
Omit "may", substitute "must".
19
6 After subsection 45(6)
20
Insert:
21
Restraining orders and charges relating to unexplained wealth
22
orders
23
(6A)
If:
24
(a)
a
*
restraining order referred to in paragraph 179SA(1)(b)
25
would otherwise cease to be in force under this section at a
26
particular time; but
27
Schedule 1 Unexplained wealth amendments
Part 1 Amendments
4 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
(b) a charge on the property against which the restraining order
1
was made is created by subsection 179SA(1) before that
2
time;
3
then despite anything in subsection (1), (2), (3) or (6) of this
4
section, the restraining order does not cease to be in force until the
5
charge ceases to have effect in respect of the property in
6
accordance with subsection 179SA(2).
7
Section does not apply to unexplained wealth restraining orders
8
7 Subsection 45A(1)
9
Repeal the subsection, substitute:
10
Restraining orders made before application for unexplained wealth
11
order
12
(1)
A
*
restraining order made under section 20A ceases to be in force
13
if:
14
(a) no application for an
*
unexplained wealth order had been
15
made in relation to the
*
suspect to whom the restraining order
16
relates before the restraining order was made; and
17
(b) no such application has been made in relation to the suspect
18
within 28 days after the restraining order was made.
19
8 Paragraph 45A(2)(c)
20
Repeal the paragraph, substitute:
21
(c) the court refuses to make either:
22
(i)
a
*
preliminary unexplained wealth order in connection
23
with the application for the unexplained wealth order; or
24
(ii) the unexplained wealth order itself; and
25
9 After subsection 45A(3)
26
Insert:
27
Restraining orders made after application for unexplained wealth
28
order
29
(3A)
A
*
restraining order made under section 20A ceases to be in force
30
if:
31
Unexplained wealth amendments Schedule 1
Amendments Part 1
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 5
(a) the restraining order was made at the same time as or after an
1
application for an
*
unexplained wealth order is made in
2
relation to the
*
suspect to whom the restraining order relates;
3
and
4
(b) the court refuses to make either:
5
(i)
a
*
preliminary unexplained wealth order in connection
6
with the application for the unexplained wealth order; or
7
(ii) the unexplained wealth order itself; and
8
(c) one of the following applies:
9
(i) the time for an appeal against the refusal has expired
10
without an appeal being lodged;
11
(ii) an appeal against the refusal has lapsed;
12
(iii) an appeal against the refusal has been dismissed and
13
finally disposed of.
14
(3B)
A
*
restraining order made under section 20A ceases to be in force
15
if:
16
(a) the restraining order was made at the same time as or after an
17
application for an
*
unexplained wealth order is made in
18
relation to the
*
suspect to whom the restraining order relates;
19
and
20
(b) the court makes the unexplained wealth order (whether
21
before or after the restraining order was made or applied for);
22
and
23
(c)
either:
24
(i) the unexplained wealth order is complied with; or
25
(ii) an appeal against the unexplained wealth order has been
26
upheld and finally disposed of.
27
10 Before subsection 45A(4)
28
Insert:
29
Court may make costs order if restraining order ceases
30
11 Subsection 45A(4)
31
Omit "or (2)", substitute ", (2) or (3A)".
32
12 Section 179B (heading)
33
Repeal the heading, substitute:
34
Schedule 1 Unexplained wealth amendments
Part 1 Amendments
6 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
179B Making a preliminary unexplained wealth order requiring a
1
person to appear
2
13 Subsection 179B(1)
3
Omit "may make an order", substitute "must make an order".
4
14 Before subsection 179B(3)
5
Insert:
6
Considering application without notice
7
15 At the end of section 179B
8
Add:
9
Refusal to make preliminary unexplained wealth order
10
(4) Despite subsection (1), the court may refuse to make the
11
*
preliminary unexplained wealth order if the court is satisfied that
12
there are not reasonable grounds to suspect that the person's
*
total
13
wealth exceeds by $100,000 or more the value of the person's
14
*
wealth that was
*
lawfully acquired.
15
16 Subsection 179E(1)
16
Omit "may make an order", substitute "must make an order".
17
17 Subsection 179E(6)
18
Omit all the words after "may refuse to make an order under that
19
subsection", substitute:
20
if the court is satisfied that:
21
(a)
the
person's
*
unexplained wealth amount is less than
22
$100,000; or
23
(b) it is not in the public interest to make the order.
24
18 After subsection 179N(2)
25
Insert:
26
(2A) The court may make an order extending the period during which
27
the things referred to in subsection (2) must be done, by a period
28
not exceeding 28 days, if:
29
Unexplained wealth amendments Schedule 1
Amendments Part 1
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 7
(a)
the
*
responsible authority applies for the order before the end
1
of the period (including that period as previously extended);
2
and
3
(b) the court is satisfied that it is appropriate to do so.
4
(2B) The period referred to in subsection (2) may be extended more than
5
once.
6
19 Subsection 179S(3)
7
Repeal the subsection, substitute:
8
(3) The court may, on application by the
*
responsible authority, make
9
a
*
restraining order under section 20A in respect of the property as
10
if:
11
(a) the property were the
*
person's property; and
12
(b) the requirements in paragraphs 20A(1)(c) to (g) were
13
satisfied.
14
20 Section 179SA
15
Repeal the section, substitute:
16
179SA Charge on property subject to restraining order
17
(1)
If:
18
(a)
an
*
unexplained wealth order is made against a person; and
19
(b) the person is the
*
suspect in relation to a
*
restraining order
20
that is or has been made against:
21
(i)
the
*
person's property; or
22
(ii) another person's property in relation to which an order
23
under subsection 179S(1) is, or has been, made;
24
then, upon the making of the later of the orders, there is created, by
25
force of this section, a charge on the property to secure the
26
payment to the Commonwealth of the person's
*
unexplained
27
wealth amount.
28
(2) The charge ceases to have effect in respect of the property:
29
(a) upon the discharge of the
*
unexplained wealth order or the
30
*
restraining order by a court hearing an appeal against the
31
making of the order; or
32
Schedule 1 Unexplained wealth amendments
Part 1 Amendments
8 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
(b) upon payment to the Commonwealth of the
*
unexplained
1
wealth amount in satisfaction of the unexplained wealth
2
order; or
3
(c) upon the sale or other disposition of the property:
4
(i) under an order under Division 4 of Part 4-1; or
5
(ii) by the owner of the property with the consent of the
6
court that made the unexplained wealth order; or
7
(iii) if the restraining order directed the
*
Official Trustee to
8
take custody and control of the property--by the owner
9
of the property with the consent of the Official Trustee;
10
or
11
(d) upon the sale of the property to a purchaser in good faith for
12
value who, at the time of purchase, has no notice of the
13
charge; or
14
(e)
upon
the
*
responsible authority for the unexplained wealth
15
order or restraining order determining, by writing, that the
16
charge should cease to have effect in respect of the property;
17
whichever first occurs.
18
(3)
The
charge:
19
(a) is subject to every
*
encumbrance on the property (other than
20
an encumbrance in which the person referred to
21
paragraph (1)(a) has an
*
interest) that came into existence
22
before the charge and that would, apart from this subsection,
23
have priority over the charge; and
24
(b) has priority over all other encumbrances; and
25
(c) subject to subsection (2), is not affected by any change of
26
ownership of the property.
27
(4) Subsection 73(2) of the Personal Property Securities Act 2009
28
applies to the charge (to the extent, if any, to which that Act
29
applies in relation to the property charged).
30
Note:
The effect of this subsection is that the priority between the charge
31
and a security interest in the property to which the Personal Property
32
Securities Act 2009 applies is to be determined in accordance with this
33
Act rather than the Personal Property Securities Act 2009.
34
(5) A determination made under paragraph (2)(e) is not a legislative
35
instrument.
36
Unexplained wealth amendments Schedule 1
Amendments Part 1
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 9
179SB Charges may be registered
1
(1)
If:
2
(a) a charge is created by section 179SA on property of a
3
particular kind; and
4
(b) the provisions of any law of the Commonwealth or of a State
5
or Territory provide for the registration of title to, or charges
6
over, property of that kind;
7
the
*
Official Trustee or the
*
responsible authority for the
8
*
unexplained wealth order or
*
restraining order referred to in that
9
section may cause the charge so created to be registered under the
10
provisions of that law.
11
(2) A person who purchases or otherwise acquires an
*
interest in the
12
property after the registration of the charge is taken, for the
13
purposes of paragraph 179SA(2)(d), to have notice of the charge at
14
the time of the purchase or acquisition.
15
(3) In this section:
16
registration of a charge on a particular kind of personal property
17
within the meaning of the Personal Property Securities Act 2009
18
includes the registration of data in relation to that kind of property
19
for the purposes of paragraph 148(c) of that Act.
20
Note: The
Personal Property Securities Act 2009 provides for the
21
registration of such data only if regulations are made for the purposes
22
of paragraph 148(c) of that Act.
23
21 Before subsection 179U(2)
24
Insert:
25
Appearing before the Committee
26
22 At the end of section 179U
27
Add:
28
Report about unexplained wealth investigations and proceedings
29
(3) The Commissioner of the Australian Federal Police must give the
30
Committee a report in respect of each financial year that contains
31
the following information:
32
Schedule 1 Unexplained wealth amendments
Part 1 Amendments
10 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
(a) the number of matters investigated in the year, by each
1
*
enforcement agency, in respect of which a likely outcome
2
may, or will, be the initiation of proceedings under this Part,
3
and the basis for determining that number;
4
(b) the number and results of applications in the year for:
5
(i)
*
restraining orders under section 20A; and
6
(ii)
*
unexplained wealth orders.
7
(4) The report must be given as soon as practicable after the report
8
under section 67 of the Australian Federal Police Act 1979 in
9
respect of the financial year is laid before a House of the
10
Parliament in accordance with that section.
11
(5) If the Commissioner of the Australian Federal Police requests the
12
*
DPP or the Chief Executive Officer (however described) of an
13
*
enforcement agency to give the Commissioner information that
14
the Commissioner considers necessary to prepare the report, the
15
DPP or Chief Executive Officer must comply with the request.
16
23 After paragraph 227(1)(h)
17
Insert:
18
(ha) that the warrant authorises the seizure of other things found
19
at the premises in the course of the search that the executing
20
officer or a person assisting believes on reasonable grounds
21
to be
*
things relevant to unexplained wealth proceedings; and
22
24 After paragraph 228(1)(d)
23
Insert:
24
(da) to seize other things found at the premises in the course of
25
the search that the executing officer or a person assisting
26
believes on reasonable grounds to be
*
things relevant to
27
unexplained wealth proceedings; and
28
25 Subparagraph 256(1)(b)(ii)
29
Omit "and", substitute "or".
30
26 At the end of paragraph 256(1)(b)
31
Add:
32
(iii)
a
*
thing relevant to unexplained wealth proceedings;
33
and
34
Unexplained wealth amendments Schedule 1
Amendments Part 1
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 11
27 Subsection 304(2)
1
Omit "42 to 45, 142 and 169", substitute "42 to 45A, 142, 169 and
2
179SA".
3
28 Section 338
4
Insert:
5
thing relevant to unexplained wealth proceedings means a thing
6
(including a thing in electronic form) as to which there are
7
reasonable grounds for suspecting that it may be relevant for the
8
purposes of initiating or conducting proceedings under section 20A
9
or Part 2-6.
10
11
Schedule 1 Unexplained wealth amendments
Part 2 Application of amendments
12 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
Part 2--Application of amendments
1
29 Application of amendments
2
(1)
Section 20A of the Proceeds of Crime Act 2002, as amended by this
3
Schedule, applies in relation to a restraining order applied for under that
4
section on or after the commencement of this item, whether the
5
application relates to:
6
(a) property or wealth acquired before, on or after that
7
commencement; or
8
(b) an offence suspected of having been committed before, on or
9
after that commencement.
10
(2)
Sections 45 and 45A of the Proceeds of Crime Act 2002, as amended by
11
this Schedule, apply in relation to a restraining order made on or after
12
the commencement of this item, whether the order relates to:
13
(a) property or wealth acquired before, on or after that
14
commencement; or
15
(b) an offence suspected of having been committed before, on or
16
after that commencement.
17
(3)
Sections 179B and 179E of the Proceeds of Crime Act 2002, as
18
amended by this Schedule, apply in relation to an unexplained wealth
19
order applied for on or after the commencement of this item, whether
20
the application relates to wealth acquired before, on or after that
21
commencement.
22
(4)
Section 179N of the Proceeds of Crime Act 2002, as amended by this
23
Schedule, applies in relation to a preliminary unexplained wealth order
24
made on or after the commencement of this item, whether the relevant
25
application for an unexplained wealth order:
26
(a) was made before, on or after that commencement; or
27
(b) relates to wealth acquired before, on or after that
28
commencement.
29
(5)
Section 179S of the Proceeds of Crime Act 2002, as amended by this
30
Schedule, applies in relation to an unexplained wealth order made on or
31
after the commencement of this item:
32
(a) whether the unexplained wealth order relates to wealth
33
acquired before, on or after that commencement; and
34
Unexplained wealth amendments Schedule 1
Application of amendments Part 2
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 13
(b) whether the property to which the order under subsection
1
179S(1) relates becomes subject to the effective control of
2
the person subject to the unexplained wealth order before, on
3
or after that commencement.
4
(6)
Despite the repeal of section 179SA of the Proceeds of Crime Act 2002
5
made by this Schedule, that section, as in force immediately before that
6
repeal, continues to apply in relation to an unexplained wealth order
7
made before the commencement of this item.
8
(7)
Sections 179SA and 179SB of the Proceeds of Crime Act 2002, as
9
substituted by this Schedule, apply in relation to an unexplained wealth
10
order made on or after the commencement of this item:
11
(a) whether the unexplained wealth order relates to wealth
12
acquired before, on or after that commencement; and
13
(b) whether the restraining order referred to in subsection
14
179SA(1) is made before, on or after that commencement.
15
(8)
Subsections 179U(3) to (5) of the Proceeds of Crime Act 2002, as added
16
by this Schedule, apply in relation to financial years starting on 1 July
17
2014, and future financial years.
18
(9)
Sections 227, 228 and 256 of the Proceeds of Crime Act 2002, as
19
amended by this Schedule, apply in relation to a search warrant that is
20
applied for under that Act on or after the commencement of this item,
21
whether the thing relevant to unexplained wealth proceedings relates to:
22
(a) property or wealth acquired before, on or after that
23
commencement; or
24
(b) an offence suspected of having been committed before, on or
25
after that commencement.
26
27
Schedule 2 Firearms trafficking amendments
14 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
Schedule 2--Firearms trafficking amendments
1
2
Criminal Code Act 1995
3
1 Section 360.1 of the Criminal Code (heading)
4
At the end of the heading, add "or firearm part".
5
2 Subsection 360.1(1) of the Criminal Code
6
After "firearm" (first occurring), insert "or a firearm part".
7
3 Paragraphs 360.1(1)(a), (b) and (c) of the Criminal Code
8
After "firearm" (wherever occurring), insert "or part".
9
4 Subsection 360.1(2) of the Criminal Code
10
After "firearm" (first occurring), insert "or a firearm part".
11
5 Paragraphs 360.1(2)(a), (b) and (c) of the Criminal Code
12
After "firearm" (wherever occurring), insert "or part".
13
6 Section 360.2 of the Criminal Code (heading)
14
At the end of the heading, add "or firearm part".
15
7 Subsections 360.2(1) and (2) of the Criminal Code
16
Repeal the subsections, substitute:
17
Basic offence
18
(1) A person commits an offence against this subsection if:
19
(a) the person engages in conduct that constitutes an offence (the
20
underlying offence) against a firearm law; and
21
(b) the person does so in the course of trade or commerce:
22
(i) among the States; or
23
(ii) between a State and a Territory, or between 2
24
Territories; and
25
(c) the primary element of the underlying offence involves:
26
(i) the disposal of a firearm or a firearm part by the person;
27
or
28
Firearms trafficking amendments Schedule 2
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 15
(ii) the acquisition of a firearm or a firearm part by the
1
person.
2
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty
3
units, or both.
4
Aggravated offence--disposing or acquiring 50 or more firearms
5
or firearm parts in 6 month period
6
(2) A person commits an offence against this subsection if:
7
(a) the person engages in conduct on one or more occasions that
8
constitutes an offence (the underlying offence) against a
9
firearm law; and
10
(b) the person does so in the course of trade or commerce:
11
(i) among the States; or
12
(ii) between a State and a Territory, or between 2
13
Territories; and
14
(c) the primary element of the underlying offence involves:
15
(i) the disposal of a firearm or a firearm part by the person;
16
or
17
(ii) the acquisition of a firearm or a firearm part by the
18
person; and
19
(d) the conduct on any occasion, or on 2 or more occasions taken
20
together, results in the disposal, or acquisition, by the person
21
of:
22
(i) 50 or more firearms; or
23
(ii) 50 or more firearm parts that might be used to constitute
24
one or more firearms; or
25
(iii) a combination of firearms and firearm parts such that
26
the sum of the actual firearms and the firearms that
27
might be constituted by the parts is 50 or more; and
28
(e) if the disposal or acquisition of the firearms or parts
29
mentioned in paragraph (d) resulted from conduct on 2 or
30
more occasions taken together--the occasions of conduct
31
occurred during a 6 month period.
32
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or
33
both.
34
Schedule 2 Firearms trafficking amendments
16 Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012
No. , 2012
Provisions relating to basic offence and aggravated offence
1
(2A) There is no fault element for any of the physical elements
2
described in paragraphs (1)(a) and (2)(a), other than the fault
3
elements (however described), if any, for the underlying offence.
4
(2B) To avoid doubt:
5
(a) in determining whether the conduct referred to in
6
paragraph (1)(a) or (2)(a) constitutes the underlying offence,
7
any defences or special liability provisions (however
8
described) that apply in relation to the underlying offence
9
have effect; and
10
(b) a person may be convicted of an offence against
11
subsection (1) or (2) even if the person has not been
12
convicted of the underlying offence; and
13
(c) for the purposes of subsection (2)--it is immaterial whether:
14
(i) the underlying offence is the same on each occasion; or
15
(ii) the conduct constituting the underlying offence is the
16
same on each occasion; or
17
(iii) the firearms or firearm parts to which the conduct
18
relates are of the same kind.
19
(2C) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(b),
20
(c) and (e).
21
Note:
For absolute liability, see section 6.2.
22
(2D) Strict liability applies to paragraph (2)(d).
23
Note:
For strict liability, see section 6.1.
24
Definitions
25
8 Subsection 360.2(3) of the Criminal Code
26
Insert:
27
firearm part means either of the following within the meaning of
28
the firearm law concerned:
29
(a) a firearm part;
30
(b) a part of, or for, a firearm or weapon.
31
9 Section 360.3 of the Criminal Code (heading)
32
After "firearm", insert "or firearm part".
33
Firearms trafficking amendments Schedule 2
Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 No. ,
2012 17
10 Before subsection 360.3(1) of the Criminal Code
1
Insert:
2
Basic offence
3
11 Subsection 360.3(1) of the Criminal Code
4
Omit "is guilty of an offence", substitute "commits an offence against
5
this subsection".
6
12 Paragraph 360.3(1)(a) of the Criminal Code
7
Repeal the paragraph, substitute:
8
(a) the person takes or sends a thing from one State or Territory
9
to another State or Territory; and
10
(aa) the thing is a firearm or firearm part; and
11
(ab) the person does so in the course of trade or commerce:
12
(i) among the States; or
13
(ii) between a State and a Territory, or between 2
14
Territories; and
15
13 Paragraph 360.3(1)(b) of the Criminal Code
16
After "firearm", insert "or part".
17
14 Subparagraphs 360.3(1)(c)(i) and (ii) of the Criminal Code
18
After "firearm", insert "or part".
19
15 After subsection 360.3(1) of the Criminal Code
20
Insert:
21
Aggravated offence--taking or sending 50 or more firearms or
22
firearm parts in 6 month period
23
(1A) A person commits an offence against this subsection if:
24
(a) the person takes or sends (on one or more occasions) one or
25
more things from one State or Territory to another State or
26
Territory; and
27
(b) each thing is a firearm or firearm part; and
28
(c) the person does so in the course of trade or commerce:
29
(i) among the States; or
30
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(ii) between a State and a Territory, or between 2
1
Territories; and
2
(d) the person does so intending that any of the firearms or parts
3
will be disposed of in the other State or Territory (whether by
4
the person or another); and
5
(e) the person knows that, or is reckless as to whether:
6
(i) the disposal of any of the firearms or parts; or
7
(ii) any acquisition of any of the firearms or parts that
8
results from the disposal;
9
would happen in circumstances that would constitute an
10
offence against the firearm law of that other State or
11
Territory; and
12
(f) the conduct on any occasion, or on 2 or more occasions taken
13
together, results in the taking, or sending, by the person of:
14
(i) 50 or more firearms; or
15
(ii) 50 or more firearm parts that might be used to constitute
16
one or more firearms; or
17
(iii) a combination of firearms and firearm parts such that
18
the sum of the actual firearms and the firearms that
19
might be constituted by the parts is 50 or more; and
20
(g) if the taking or sending of the firearms or parts mentioned in
21
paragraph (f) resulted from conduct on 2 or more occasions
22
taken together--the occasions of conduct occurred during a 6
23
month 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
(1B) Absolute liability applies to paragraphs (1)(ab) and (1A)(c) and (g).
28
Note:
For absolute liability, see section 6.2.
29
(1C) Strict liability applies to paragraph (1A)(f).
30
Note:
For strict liability, see section 6.1.
31
(1D) To avoid doubt, it is immaterial for the purposes of
32
paragraphs (1A)(b) and (f) whether the firearms or firearm parts
33
are of the same kind.
34
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Definitions
1
16 Subsection 360.3(2) of the Criminal Code (at the end of the
2
definition of firearm)
3
Add "or (1A)(e) (as the case requires)".
4
17 Subsection 360.3(2) of the Criminal Code
5
Insert:
6
firearm part means either of the following within the meaning of
7
the firearm law mentioned in paragraph (1)(c) or (1A)(e) (as the
8
case requires):
9
(a) a firearm part;
10
(b) a part of, or for, a firearm or weapon.
11
18 After section 360.3 of the Criminal Code
12
Insert:
13
360.3A Double jeopardy and alternative verdicts
14
Double jeopardy
15
(1) A person who has been convicted or acquitted of an aggravated
16
offence may not be convicted of a basic offence relating to the
17
aggravated offence that is alleged to have been committed in the
18
period during which the person was alleged to have committed the
19
aggravated offence.
20
(2) However, subsection (1) does not prevent an alternative verdict
21
under subsection (4).
22
(3) A person who has been convicted or acquitted of a basic offence
23
relating to an aggravated offence may not be convicted of the
24
aggravated offence if any of the occasions relied on as evidence of
25
the commission of the aggravated offence includes the conduct that
26
constituted the basic offence.
27
Alternative verdict--aggravated offence not proven
28
(4) If, on a trial for an aggravated offence, the trier of fact:
29
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(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 subsection
13
360.2(2)--an offence against subsection 360.2(1); and
14
(b) if the aggravated offence is an offence against subsection
15
360.3(1A)--an offence against subsection 360.3(1).
16
19 Section 360.4 of the Criminal Code
17
Before "This", insert "(1)".
18
20 At the end of section 360.4 of the Criminal Code
19
Add:
20
(2) Without limiting subsection (1), this Division is not intended to
21
exclude or limit the concurrent operation of a law of a State or
22
Territory that makes:
23
(a) an act or omission that is an offence against a provision of
24
this Division; or
25
(b) a similar act or omission;
26
an offence against the law of the State or Territory.
27
(3) Subsection (2) applies even if the law of the State or Territory does
28
any one or more of the following:
29
(a) provides for a penalty for the offence that differs from the
30
penalty provided for in this Division;
31
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(b) provides for a fault element in relation to the offence that
1
differs from the fault elements applicable to the offence
2
under this Division;
3
(c) provides for a defence in relation to the offence that differs
4
from the defences applicable to the offence under this
5
Division.
6
21 At the end of Part 9.4 of the Criminal Code
7
Add:
8
Division 361--International firearms trafficking
9
361.1 Definitions
10
In this Division:
11
export a firearm or firearm part means export the firearm or part
12
from Australia.
13
firearm has the same meaning as in the Customs (Prohibited
14
Imports) Regulations 1956.
15
firearm part has the same meaning as in the Customs (Prohibited
16
Imports) Regulations 1956.
17
import a firearm or firearm part, means import the firearm or part
18
into Australia, and includes deal with the firearm or part in
19
connection with its importation.
20
361.2 Importing prohibited firearms or firearm parts
21
Basic offence
22
(1) A person commits an offence if:
23
(a) the person imports a thing; and
24
(b) the thing is a firearm or firearm part; and
25
(c) the importation of the firearm or part:
26
(i) was prohibited under the Customs Act 1901 absolutely;
27
or
28
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(ii) was prohibited under that Act unless the approval of a
1
particular person had been obtained and, at the time of
2
the importation, that approval had not been obtained.
3
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty
4
units, or both.
5
Aggravated offence--importing 50 or more prohibited firearms or
6
firearm parts in 6 month period
7
(2) A person commits an offence if:
8
(a) the person imports (on one or more occasions) one or more
9
things; and
10
(b) each thing is a firearm or firearm part; and
11
(c) the importation of the firearm or part:
12
(i) was prohibited under the Customs Act 1901 absolutely;
13
or
14
(ii) was prohibited under that Act unless the approval of a
15
particular person had been obtained and, at the time of
16
the importation, that approval had not been obtained;
17
and
18
(d) any occasion of importation, or 2 or more occasions taken
19
together, results in the importation by the person of:
20
(i) 50 or more firearms; or
21
(ii) 50 or more firearm parts that might be used to constitute
22
one or more firearms; or
23
(iii) a combination of firearms and firearm parts such that
24
the sum of the actual firearms and the firearms that
25
might be constituted by the parts is 50 or more; and
26
(e) if the importation of the firearms or parts mentioned in
27
paragraph (d) resulted from 2 or more occasions of
28
importation taken together--the occasions of importation
29
occurred during a 6 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
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c) and (e).
34
Note:
For absolute liability, see section 6.2.
35
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(4) Despite subsection (3), for the purposes of an offence against
1
subsection (1) or (2), strict liability applies to the physical element
2
of circumstance of the offence, that an approval had not been
3
obtained at the time of the importation.
4
Note:
For strict liability, see section 6.1.
5
(5) Strict liability applies to paragraph (2)(d).
6
Note:
For strict liability, see section 6.1.
7
(6) To avoid doubt, it is immaterial for the purposes of
8
paragraphs (2)(b) and (d) whether the firearms or firearm parts are
9
of the same kind.
10
361.3 Exporting prohibited firearms or firearm parts
11
Basic offence
12
(1) A person commits an offence if:
13
(a) the person exports a thing; and
14
(b) the thing is a firearm or firearm part; and
15
(c) the exportation of the firearm or part:
16
(i) was prohibited under the Customs Act 1901 absolutely;
17
or
18
(ii) was prohibited under that Act unless the approval of a
19
particular person had been obtained and, at the time of
20
the exportation, that approval had not been obtained.
21
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty
22
units, or both.
23
Aggravated offence--exporting 50 or more prohibited firearms or
24
firearm parts in 6 month period
25
(2) A person commits an offence if:
26
(a) the person exports (on one or more occasions) one or more
27
things; and
28
(b) each thing is a firearm or firearm part; and
29
(c) the exportation of the firearm or part:
30
(i) was prohibited under the Customs Act 1901 absolutely;
31
or
32
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(ii) was prohibited under that Act unless the approval of a
1
particular person had been obtained and, at the time of
2
the exportation, that approval had not been obtained;
3
and
4
(d) any occasion of exportation, or 2 or more occasions taken
5
together, results in the exportation by the person of:
6
(i) 50 or more firearms; or
7
(ii) 50 or more firearm parts that might be used to constitute
8
one or more firearms; or
9
(iii) a combination of firearms and firearm parts such that
10
the sum of the actual firearms and the firearms that
11
might be constituted by the parts is 50 or more; and
12
(e) if the exportation of the firearms or parts mentioned in
13
paragraph (d) resulted from 2 or more occasions of
14
exportation taken together--the occasions of exportation
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
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c) and (e).
20
Note:
For absolute liability, see section 6.2.
21
(4) Despite subsection (3), for the purposes of an offence against
22
subsection (1) or (2), strict liability applies to the physical element
23
of circumstance of the offence, that an approval had not been
24
obtained at the time of the exportation.
25
Note:
For strict liability, see section 6.1.
26
(5) Strict liability applies to paragraph (2)(d).
27
Note:
For strict liability, see section 6.1.
28
(6) To avoid doubt, it is immaterial for the purposes of
29
paragraphs (2)(b) and (d) whether the firearms or firearm parts are
30
of the same kind.
31
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361.4 Defence--reasonable belief that conduct is justified or excused
1
by or under a law
2
A person is not criminally responsible for an offence against this
3
Division if:
4
(a) at the time of the conduct constituting the offence, the person
5
was under a mistaken but reasonable belief that the conduct
6
was justified or excused by or under a law of the
7
Commonwealth or of a State or Territory; and
8
(b) had the conduct been so justified or excused--the conduct
9
would not have constituted the offence.
10
Note:
A defendant bears an evidential burden in relation to the matter in
11
paragraph (a) (see subsection 13.3(3)).
12
361.5 Double jeopardy and alternative verdicts
13
Double jeopardy
14
(1) A person who has been convicted or acquitted of an aggravated
15
offence may not be convicted of a basic offence relating to the
16
aggravated offence that is alleged to have been committed in the
17
period during which the person was alleged to have committed the
18
aggravated offence.
19
(2) However, subsection (1) does not prevent an alternative verdict
20
under subsection (4).
21
(3) A person who has been convicted or acquitted of a basic offence
22
relating to an aggravated offence may not be convicted of the
23
aggravated offence if any of the occasions relied on as evidence of
24
the commission of the aggravated offence includes the conduct that
25
constituted the basic offence.
26
Alternative verdict--aggravated offence not proven
27
(4) If, on a trial for an aggravated offence, the trier of fact:
28
(a) is not satisfied that the defendant is guilty of the aggravated
29
offence; but
30
(b) is satisfied beyond reasonable doubt that he or she is guilty of
31
the basic offence relating to the aggravated offence;
32
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it may find the defendant not guilty of the aggravated offence but
1
guilty of the basic offence, so long as the defendant has been
2
accorded procedural fairness in relation to that finding of guilt.
3
Definitions
4
(5) In this section:
5
aggravated offence means an offence against subsection 361.2(2)
6
or 361.3(2).
7
basic offence relating to an aggravated offence means:
8
(a) if the aggravated offence is an offence against subsection
9
361.2(2)--an offence against subsection 361.2(1); and
10
(b) if the aggravated offence is an offence against subsection
11
361.3(2)--an offence against subsection 361.3(1).
12