Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments to be Moved on Behalf of the Government
(Circulated by authority of the
Minister for Justice, the Hon Michael Keenan MP)
AMENDMENTS TO THE CRIMINAL CODE AMENDMENT (FIREARMS
TRAFFICKING) BILL 2017
(Government)
GENERAL OUTLINE
1. These amendments to the Criminal Code Amendment (Firearms Trafficking) Bill
2017 ('the Bill') and the Explanatory Memorandum to the Bill introduce mandatory
minimum sentences of five years' imprisonment for firearms trafficking. The mandatory
minimum sentences will apply to:
trafficking firearms and firearms parts within Australia (in Division 360 of the
Criminal Code), and
trafficking firearms and firearms parts into and out of Australia (in Division 361 of
the Criminal Code).
2. The amendments also allow a court to discount the mandatory minimum sentence if
the offender pleads guilty to the offence and/or co-operates with law enforcement agencies.
3. The mandatory minimum sentences reflect the serious nature and potential
consequences of supplying firearms and firearm parts to the illicit market. In addition, the
introduction of mandatory minimum sentences of five years' imprisonment for these firearms
trafficking offences implements the Government's Keeping illegal guns off our streets and
our communities safe election policy, released 26 June 2016.
FINANCIAL IMPACT
4. The amendments to the Bill will have no financial impact on Government revenue.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Criminal Code Amendment (Firearms Trafficking) Bill 2017
1. The amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011. To the extent that the amendments may limit
those rights and freedoms, such limitations are reasonable, necessary and proportionate in
achieving the intended outcomes of the amendments.
Overview of the Bill
2. The amendments to the Bill provide a mandatory minimum sentence of five years'
imprisonment for the offences of:
trafficking firearms and firearms parts within Australia (in Division 360 of the
Criminal Code), and
trafficking firearms and firearms parts into and out of Australia (in Division 361 of
the Criminal Code).
3. The mandatory minimum sentences will not apply to people aged under 18 at the time
the offence was committed.
4. The amendments also allow a court to discount the mandatory minimum sentence if
the offender pleads guilty to the offence and/or co-operates with law enforcement agencies.
5. These offences ensure firearms traffickers can be held responsible for the
consequences of supplying firearms into the illicit market from both domestic and
international sources. The offences also support efforts to prevent the diversion of firearms
into illicit markets overseas. Due to its enduring nature, a firearm can remain within the
illicit market for many years and be accessed by serious and organised crime groups for use
in the commission of violent crimes. The mandatory minimum sentences reflect the serious
nature and potential consequences of supplying firearms and firearm parts to the illicit
market. In addition, the introduction of mandatory minimum sentences of five years'
imprisonment for these firearms trafficking offences implements the Government's election
commitment made in the Government's Keeping illegal guns off our streets and our
communities safe election policy, released 26 June 2016.
Human rights implications
6. The amendments engage the right to freedom from arbitrary detention under Article
9(1) of the ICCPR. Article 9(1) of the ICCPR states:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.
7. This right is engaged by the new mandatory minimum sentence of five years
imprisonment for each of the firearms trafficking offences in Divisions 360 and 361 of Part
9.4 of the Criminal Code.
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8. In addition to having a lawful basis for detention, the prohibition on arbitrary
detention under Article 9(1) requires that in all circumstances, the detention of the particular
individual must be justified as reasonable, necessary and proportionate to the end that is
sought.
9. The mandatory minimum penalty of five years' imprisonment is reasonable to achieve
the legitimate objective of ensuring the courts are able to hand down sentences to firearms
trafficking offenders that reflect the seriousness of their offending. Importantly, the new
penalties are reasonable given they will only be applied by a court if a person is convicted of
an offence as a result of a fair trial in accordance with the procedures as established by law.
Further, the mandatory minimum sentences will apply only to offences committed at or after
the commencement of the Bill.
10. The mandatory minimum penalty of five years' imprisonment is necessary to ensure
the serious offences of firearms trafficking are matched by commensurate punishments.
There are clear and serious social and systemic harms associated with firearms trafficking,
and the introduction of a mandatory minimum penalty for the offences reflects the gravity of
supplying firearms and firearm parts to the illicit market. The entry of even a small number
of firearms into Australia's illicit firearms market can have a significant impact on the
community. Due to their imperishable nature, firearms can remain within that market for
many years and be accessed by individuals and groups who would use them to commit
serious and violent crimes, such as murder. For example, in 2015 firearms were identified as
being the type of weapon used in 11% of homicides in Australia and 17% of homicides
where a weapon was used (Recorded Crime - Victims, Australia, 2015, Australian Bureau of
Statistics).
11. The amendments do not impose a minimum non-parole period for offenders. Indeed,
the mandatory minimum is not intended as a guide to the non-parole period, which in some
cases may differ significantly from the head sentence. Further, the amendments do not apply
the mandatory minimum penalties to children (those under the age of 18). This preserves
judicial discretion in sentencing to take into account minors' particular circumstances. In this
way, any risk that the sentencing of lower culpability offenders could amount to arbitrary
detention is removed.
Treatment of minors
12. Subsections 360.3A(2) and 361.5(2) to be inserted into the Criminal Code by the
Government amendments provide that the mandatory minimum penalty otherwise in force
for the trafficking of firearms does not apply if the person was aged under 18 years when the
offence was committed. This preserves judicial discretion when sentencing to take into
account the particular circumstances of minors.
Treatment of individuals with significant cognitive impairment
13. The mandatory minimum sentences in the Government amendments do not impose a
minimum non-parole period for offenders. Indeed, the mandatory minimum is not intended
as a guide to the non-parole period, which in some cases may differ significantly from the
head sentence.
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14. This will preserve a court's discretion in sentencing, and will help ensure custodial
sentences imposed by courts are able to take into account the particular circumstances of the
offender, including any mitigating factors such as cognitive impairment.
15. In addition, section 7.3 of the Criminal Code provides that a person is not criminally
responsible for an offence if at the time of carrying out the conduct the person was suffering
from a mental impairment that affected their ability to know the nature and quality of the
conduct, know that the conduct was wrong or was unable to control the conduct. The onus is
on the defendant to bring forward evidence supporting their cognitive ability.
16. Taken together, the discretion in setting the non-parole period and the mental
impairment defence in the Criminal Code ensure that mandatory minimum sentences will not
result in the unjust treatment of individuals with a significant cognitive impairment.
Discounts for guilty pleas and cooperation with law enforcement agencies
17. The amendments also allow a court to discount the mandatory minimum sentence
where an offender pleads guilty and/or cooperates with law enforcement agencies. These
amendments are designed to encourage guilty pleas and cooperation by offenders.
Conclusion
18. The new mandatory minimum penalty for firearms trafficking offences in the
Criminal Code as set out in the Government amendments are compatible with the human
rights and freedoms recognised or declared in the international instruments listed in the
definition of human rights in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011. To the extent these measures may limit those rights and freedoms, such limitations
are reasonable, necessary and proportionate to achieving reductions in gun-related crime.
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NOTES ON AMENDMENTS
Amendment 1: Item 2
Item 2
1. Item 2 inserts new subsection 360.3A(1) to apply a mandatory minimum sentence of
five years' imprisonment if a person is convicted of an offence against Division 360.
2. The amendment does not prescribe a minimum non-parole period. This will preserve
a court's discretion in sentencing, and will help ensure custodial sentences imposed by courts
are able to take into account the particular circumstances of the offence and the offender.
3. Item 2 also inserts new subsection 360.3A(2) which states the mandatory minimum
sentences will not apply if the person was aged under 18 years when the offence was
committed. This preserves judicial discretion when sentencing to take into account the
particular circumstances of minors. This is consistent with Division 309 of the Criminal
Code, which reduces the culpability of children who commit drug trafficking offences.
4. The amendments to the Bill also recognise the value of a guilty plea and cooperation
with law enforcement. Guilty pleas are crucial to provide for a more efficient and effective
criminal justice system and to reduce impacts on witnesses and victims.
5. The new subsection 360.3A(3) permits the court to impose a sentence of
imprisonment of less than five years' imprisonment if the court considers it appropriate to do
so because:
(a) the court is taking into account, under paragraph 16A(2)(g) of the
Crimes Act 1914, the person pleading guilty, and/or
(b) the court is taking into account, under paragraph 16A(2)(h) of the
Crimes Act 1914, the person having cooperated with law enforcement agencies in the
investigation of the offence.
6. Subsection 360.3A(4) sets out the restrictions on any reductions. These are:
paragraph 360.3A(4)(a), which allows for a reduction of up to 25% of five years
should the court reduce the minimum penalty pursuant to subsection 360.3A(3)
for pleading guilty
paragraph 360.3A(4)(b), which allows for a reduction of up to 25% of five years
should the court reduce the minimum penalty pursuant to subsection 360.3A(3)
for cooperating with law enforcement agencies
paragraph 360.3A(4)(c), which allows for a reduction of up to 50% taking into
account both pleading guilty (paragraph (a)) and cooperating with law
enforcement agencies (paragraph (b)).
7. The mandatory minimum sentence is not intended as a guide to the non-parole period,
which in some cases may differ significantly from the head sentence.
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8. The Commonwealth has adopted a range of measures in response to the threat posed
by illicit firearms, one of which is sentencing people convicted of firearms trafficking
offences to mandatory minimum prison terms. The Government believes mandatory
minimum sentences, when applied to individuals convicted of serious offences, are an
effective way to deter potential offenders from firearms trafficking. The severe mandatory
penalties associated with the firearms trafficking sentencing regime accord with the
criminality of firearms smuggling, but must be carefully directed towards those whose
individual culpability also justifies mandatory terms of imprisonment.
Amendment 2: Items 4 and 5
Item 4
9. Item 4 inserts new subsection 361.5(1) to apply a mandatory minimum sentence of
five years' imprisonment if a person is convicted of an offence against Division 361.
10. Item 4 also inserts new subsection 361.5(2) which states the mandatory minimum
sentences will not apply if the person was aged under 18 years when the offence was
committed. This preserves judicial discretion when sentencing to take into account the
particular circumstances of minors. This is consistent with Division 309 of the Criminal
Code, which reduces the culpability of children who commit drug trafficking offences.
11. The amendment does not prescribe a minimum non-parole period. This will preserve
a court's discretion in sentencing, and will help ensure custodial sentences imposed by courts
are able to take into account the particular circumstances of the offence and the offender.
12. The new subsection 361.5(3) permits the court to impose a sentence of imprisonment
of less than five years imprisonment if the court considers it appropriate to do so because:
(a) the court is taking into account, under paragraph 16A(2)(g) of the
Crimes Act 1914, the person pleading guilty, and/or
(b) the court is taking into account, under paragraph 16A(2)(h) of the
Crimes Act 1914, the person having cooperated with law enforcement agencies in the
investigation of the offence.
13. Subsection 361.5(4) sets out the restrictions on any reductions. These are:
paragraph 361.5(4)(a), which allows for a reduction of up to 25% of five years
should the court reduce the minimum penalty pursuant to subsection 361.5(3) for
pleading guilty
paragraph 361.5(4)(b), which allows for a reduction of up to 25% of five years
should the court reduce the minimum penalty pursuant to subsection 361.5(3) for
cooperating with law enforcement agencies
paragraph 361.5(4)(c), which allows for a reduction of up to 50% taking into
account both pleading guilty (paragraph (a)) and cooperating with law
enforcement agencies (paragraph (b)).
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14. The mandatory minimum sentence is not intended as a guide to the non-parole period,
which in some cases may differ significantly from the head sentence.
15. The Commonwealth has adopted a range of measures in response to the threat posed
by illicit firearms, one of which is sentencing people convicted of firearms trafficking
offences to mandatory minimum prison terms. Mandatory minimum sentences, when applied
to individuals convicted of serious offences, are an effective way to deter potential offenders
from firearms trafficking. The severe mandatory penalties associated with the firearms
trafficking sentencing regime accord with the criminality of firearms smuggling, but must be
carefully directed towards those whose individual culpability also justifies mandatory terms
of imprisonment.
Item 5
16. Item 5 applies the new mandatory minimum sentences only to conduct engaged in at
or after the commencement of the Schedule.
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