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2019-2020-2021-2022
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2022
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Honourable
Jason Wood MP)
CRIMINAL CODE AMENDMENT (FIREARMS TRAFFICKING) BILL 2022
GENERAL OUTLINE
1. This Bill amends the Criminal Code Act 1995 (Criminal Code) to:
• double the maximum penalty for existing firearms trafficking offences from 10 years
imprisonment and/or a fine of 2,500 penalty units to 20 years imprisonment and/or a
fine of 5,000 penalty units;
• introduce new aggravated offences for trafficking 50 or more firearms or firearm
parts, or a combination of firearms and firearm parts, within a six month period within
Australia (in Division 360 of the Criminal Code); and
• introduce new aggravated offences for trafficking 50 or more firearms or firearm
parts, or a combination of the firearms and firearm parts, within a six month period
into or out of Australia (in Division 361 of the Criminal Code).
2. A maximum penalty of life imprisonment, or a fine of 7,500 penalty units, or both, will
apply to aggravated offences in Division 360 and Division 361.
3. Mandatory minimum penalties of five years' imprisonment will also apply to both
existing firearms offences and the new aggravated offences under Division 360 and
Division 361. Courts will have the discretion to reduce this minimum sentence by up to
25% where a person pleads guilty to an offence and up to a further 25% where a person
has cooperated with law enforcement agencies in the investigation of the offence.
4. The aggravated offences and the increased maximum penalties aim to more adequately
reflect the serious nature and potential consequences of supplying firearms and firearm
parts to the illegal market. In particular, the new aggravated offences ensure that
offenders cannot avoid liability under the proposed aggravated offences by disposing or
acquiring fewer than 50 firearms or firearm parts on 2 or more occasions, but which have
a combined total of 50 or more (a practice known as structuring), or by remaining wilfully
blind as to the total number of firearms.
FINANCIAL IMPACT
5. The Bill has nil financial impact.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Criminal Code Amendment (Firearms Trafficking) Bill 2022
1. This Bill is 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.
Overview of the Bill
2. The Bill strengthens existing Commonwealth firearms trafficking offences under Part 9.4
of the Criminal Code Act 1995 (the Criminal Code) by:
• doubling the maximum penalty for existing firearms trafficking offences from
10 years imprisonment and/or a fine of 2,500 penalty units to 20 years imprisonment
and/or a fine of 5,000 penalty units
• introducing new aggravated offences for trafficking 50 or more firearms or firearm
parts (or a combination of firearms and firearm parts such that the sum total is 50)
within a six month period, punishable by a maximum penalty of imprisonment for life
and/or a fine of 7,500 penalty units, and
• introducing mandatory minimum penalties of at least 5 years' imprisonment for these
offences for adult offenders, while giving courts the discretion to reduce this
minimum penalty if the offender pleads guilty to the offence and/or co-operates with
law enforcement agencies.
3. These penalties and new aggravated offences ensure that firearms traffickers can be held
responsible for the consequences of supplying firearms into the illegal market in Australia
from both domestic and international sources. The offences also support efforts to prevent
the diversion of firearms into illegal markets overseas. Due to their enduring nature, a
firearm can remain within the illegal 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 and increased maximum sentences reflect the serious nature and
potential consequences of supplying firearms and firearm parts to the illicit market.
Human rights implications
4. The Bill engages the following rights:
• Right to freedom from arbitrary detention - Article 9 of the International Covenant
on Civil and Political Rights (ICCPR).
• The presumption of innocence - Article 14 of the ICCPR.
Freedom from arbitrary detention
6. The Bill engages the right to freedom from arbitrary detention under Article 9(1) of the
ICCPR. Article 9(1) of the ICCPR states that:
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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. In addition to requiring a lawful basis for detention, the prohibition on arbitrary detention
under Article 9(1) of the ICCPR 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. The Bill doubles the maximum penalties available for existing firearms
trafficking offences under Part 9.4 of the Criminal Code, introduces new aggravated
firearms trafficking offences punishable by a maximum sentence of imprisonment for life,
and introduces a 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.
These penalties are clearly established by law.
8. The mandatory minimum penalty of five years' imprisonment, the increased maximum
sentences and proposed maximum penalty of life imprisonment are reasonable to achieve
the legitimate objective of ensuring the courts are able to hand down sentences to
convicted 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 new penalties will apply only to offences
committed at or after the commencement of the Bill.
9. The mandatory minimum penalty of five years' imprisonment and the proposed increased
maximum penalties, including life imprisonment for aggravated offences, are 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 and increased
maximum penalties for the offences reflect 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 2019 firearms were identified as being the type
of weapon used in 22.2% of homicides in Australia (Recorded Crime - Victims, Australia
2020, Australian Bureau of Statistics).
10. 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) when the
offence is committed. 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.
11. For the aggravated offences punishable by a maximum sentence life imprisonment, it is
appropriate to set the threshold at 50 or more firearms, 50 or more firearm parts, or a
combination of both firearms and firearm parts (noting that at this time, it is significantly
higher than existing state or territory offences) in order to target the most egregious forms
of offending. In line with this, life sentences for aggravated offences is appropriate as the
offence is of a similar seriousness to existing offences punishable by life imprisonment,
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as the consequences of committing these offences can lead to similar harms. Similar
offences that impose a maximum penalty of life imprisonment include, large-scale drug
trafficking and terrorism.
12. Increased maximum penalties for firearms trafficking offences and life sentences for the
aggravated offences are proportionate as they support the courts' discretion when
sentencing offenders. It is the Australian Government's responsibility to enshrine
maximum penalties for Commonwealth offences in legislation, and the new penalties are
sufficiently high to allow courts to impose appropriate punishments for the most serious
firearms trafficking offences while continuing to exercise judicial discretion (subject to
the mandatory minimum penalties) with reference to the particular facts and
circumstances before them.
13. Ensuring that the increased penalties are reasonable, necessary and proportionate to the
legitimate objective of reducing illegal firearms trafficking means that any detention
arising from a conviction for firearms offences is not arbitrary.
Presumption of innocence
14. Article 14(2) of the ICCPR states that:
Everyone charged with criminal offence shall have the right to be presumed innocent
until proved guilty according to law.
15. The presumption of innocence imposes on the prosecution the burden of proving the
charge and guarantees that no guilt can be presumed until the charge has been proved
beyond reasonable doubt. Consistency with the presumption of innocence requires that
the prosecution prove each element of a criminal offence beyond reasonable doubt.
16. The introduction of new aggravated offences for firearms trafficking applies absolute and
strict liability to specific elements of these offences. The application of absolute or strict
liability to an element of an offence may engage and limit the right to be presumed
innocent as it allows for the imposition of criminal liability without the need for the
prosecution to prove fault.
17. The imposition of absolute and strict liability to elements of the aggravated firearms
trafficking offences, however, is not inconsistent with the presumption of innocence as it
achieves the legitimate objective of ensuring that criminal networks cannot avoid criminal
liability under the aggravated firearms trafficking offences by:
• remaining unaware of jurisdictional elements of the offence that do not go to the
essence of the offending,
• structuring their dealings with firearms and firearms parts below the 50
firearms/firearms parts threshold for the aggravated offences, or
• being wilfully blind to the quantity of firearms or firearms parts they deal with.
18. Absolute liability is applied to the following jurisdictional elements of the aggravated
offences:
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• the person engages in conduct in the course of trade or commerce among the
states, between a state and a territory, or between two territories,
• the primary element of the underlying offence involves the disposal or acquisition
of a firearm or a firearm part by the person,
• importing a firearm or firearm part was prohibited under the Customs Act 1901
(the Customs Act).
19. Absolute liability is appropriate and required for the element of the offence that the
conduct occurred in the course of trade or commerce among the States or between a state
and a territory or between two Territories because it is a jurisdictional element. A
jurisdictional element of an offence is an element that does not relate to the substance of
the offence, but marks a jurisdictional boundary between matters that fall within the
legislative power of the Commonwealth and those that do not. The issue of whether the
person was reckless as to the fact that the conduct occurred in the course of trade or
commerce among the states or between a state and a territory or between two territories is
not relevant to their culpability. This is consistent with Commonwealth criminal law
practice, as described in the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers.
20. Absolute liability is also appropriate for the element of the offence that the primary
element of the underlying offence involves either the disposal of a firearm or firearm part
or the acquisition of a firearm or firearm part by the person, as the prosecution will be
required to establish beyond reasonable doubt all of the elements constituting the relevant
underlying offence, including any fault elements applicable to that offence. It is not
appropriate for the prosecution to also have to prove that the person knew or was reckless
as to whether the primary element of the underlying offence involved the disposal or
acquisition of a firearm or firearm part. If this were the case, it would be reasonably easy
for a defendant to avoid criminal liability for the offence by claiming that they were
unaware of the content of the relevant state or territory law. For similar reasons, it is not
appropriate for the defence of reasonable mistake of fact to be available to the defendant.
21. Absolute liability is also appropriate and required for the element of the offence that the
importation or exportation of the firearm or firearm part was prohibited. It is not
appropriate for the prosecution to also have to prove that the person knew or was reckless
as to whether the article was prohibited or required approval. If this were the case, it
would be easy for a defendant to avoid criminal liability for the offence by claiming that
they were unaware of relevant legal requirements. If the person imports or exports
firearms or firearm parts, it is reasonable to expect that person to be familiar with the
requirements of the Customs Act and comply with those rules. For similar reasons, it is
not appropriate for the defence of reasonable mistake of fact to be available to the
defendant.
22. Absolute liability also applies to the element that a person engaged in two or more
occasions of exporting, importing, or trafficking firearms and/or firearm parts within a six
month period and, taken together, these occasions involved dealing with more than
50 firearms and/or firearm parts (for example, see proposed paragraph 361.3(2)(g) of the
Criminal Code).
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23. This element is intended to prevent an individual from structuring their dealings with
firearms and/or firearms parts below the 50 firearms/firearm parts threshold required in
order to avoid the application of the aggravated offence. Applying absolute liability to
this element ensures that an individual's awareness of the passage of time will not impact
on their criminal liability under the aggravated offences.
24. Strict liability also applies to the circumstance that two or more occasions, taken together,
involves export, entry for export, importation, acquisition or disposal of 50 or more
firearms/firearms parts (for example, see proposed paragraph 361.3(2)(f) of the Criminal
Code). This is designed to ensure that criminal networks cannot avoid criminal liability
for the aggravated offence by simply remaining wilfully blind as to the number or
firearms or firearms parts that they are dealing with.
25. A person will still be able to rely on a defence of reasonable mistake of fact as to the
quantity of firearms or firearms parts they are dealing with. This strikes an appropriate
balance by ensuring that:
• in circumstances where a person can show they turned their mind to the quantity of
firearms or firearms parts that they were dealing with, had a reasonable belief that the
quantity was fewer than 50, and held this belief throughout the relevant period, they
may be able to able to avoid criminal liability for the aggravated offence (instead
being liable for the base offence), but
• a person cannot avoid liability for the aggravated offence entirely by simply refusing
to turn their mind to the quantity of firearms/firearms parts they are dealing with.
26. Strict liability also attaches to the physical element of the offence that a person has failed
to meet a requirement to import or export firearms or firearm parts under the Customs Act
(for example, proposed paragraphs 361.3(1)(e) and 361.3(2)(e) of the Criminal Code).
27. Applying strict liability is appropriate in these circumstances, as a person disposing of,
acquiring, taking, sending, importing or exporting that quantity of firearms or firearms
parts would be expected to be aware of and comply with the requirements of the Customs
Act. It would not be appropriate for the prosecution to have to demonstrate that a person
knew that they had failed to meet those requirements. However, the general defence of
mistake of fact would be available to the defendant, in addition to the existing offence-
specific defence of reasonable belief under 361.4 of the Criminal Code. Therefore, if a
person mistakenly believed that he or she had obtained the required permit to import or
export a firearm or firearm part, the defence of mistake of fact would be available.
28. Under international human rights law, a reverse onus provision will not violate the
presumption of innocence if the law is reasonable in the circumstances and maintains the
rights of the accused. Such a provision may be justified if the nature of the offence makes
it very difficult for the prosecution to prove each element, or if it is clearly more practical
for the accused to prove a fact than for the prosecution to disprove it.
29. As noted above, there are existing safeguards in the Criminal Code that would ensure
appropriate application of the strict and absolute liability elements of the proposed
offences under Division 361. Existing section 361.4 of the Criminal Code provides that if,
at the time of the conduct constituting the offence, the person was under a mistaken but
reasonable belief that the conduct was justified or excused by or under the law of the
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Commonwealth or of a state or territory, had the conduct been so justified or excused, the
conduct would not have constituted the offence.
30. The purpose of this section is to ensure that administrative errors or misunderstandings
occurring in the course of legitimate business do not result in convictions for offences that
are intended only to target those involved in the illegal firearms trade. For example,
where a bona fide firearms dealer obtains permission from the relevant state or territory
authority for the importation of a firearm, however permission should have been obtained
from the relevant Commonwealth authority, the defence under section 361.4 of the
Criminal Code would be available. While this defence engages the presumption of
innocence by placing an evidential burden of proof on the defendant, this is appropriate
given the defendant would be best placed to adduce evidence (for example, approvals
from a state or territory authority) pointing to the availability of the defence.
Conclusion
31. Mandatory minimum sentences for firearms trafficking offences, and increased maximum
penalties, including life imprisonment for the aggravated offences, in the Criminal Code
and the application of strict and absolute liability as set out in the Bill are compatible with
human rights and freedoms. To the extent these measures may limit those rights and
freedoms, such limitations are reasonable, necessary and proportionate to achieving
reductions in firearms-related crime.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Criminal Code Amendment
(Firearms Trafficking) Act 2022.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in the
table. The whole of the Act will commence the day after the Act receives the Royal
Assent.
Clause 3 - Schedules
3. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Firearms trafficking
Criminal Code Act 1995
Item 1 - Subsections 360.2(1) and (2) of the Criminal Code
4. Item 1 repeals the offence previously in subsection 360.2(1) and the provision for
absolute liability in subsection 360.2(2) and replaces them with a basic offence (new
subsection 360.2(1) which is the same in substance as the repealed offence), and an
aggravated offence (new subsection 360.2(2)).
5. Item 1 also inserts the heading 'Definitions' for current subsection 360.2(3). Current
subsection 360.2(3) contains a number of defined terms that will also apply to amended
subsections 360.2(1) and 360.2(2).
Basic offence
6. The basic offence in subsection 360.2(1) is the same in substance as the repealed offence
in subsection 360.2(1). This offence was introduced in the Crime Legislation
Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002.
7. Item 1 increases the penalty for this offence to 20 years' imprisonment or a fine of 5,000
penalty units, or both. The original penalty was a fine of 10 years' imprisonment or a fine
of 2,500 penalty units.
8. The increased maximum penalty is necessary to ensure the serious offences of trafficking
firearms within and into and out of Australia are matched by commensurate punishments.
Consistent with the principles set out in the Guide to Framing Commonwealth Offences,
Infringement Notices and Enforcement Powers, the increased maximum penalty will be
9
adequate to deter and punish the offence. This ensures sentences imposed by courts can
continue to take into account the particular circumstances of the offence and the offender.
9. The new maximum penalty reflects the seriousness of the conduct covered by the
offences, and addresses the clear and serious social and systemic harms associated with
the illegal firearms trade.
Aggravated offence
10. The aggravated offence in subsection 360.2(2) relies on the same underlying conduct as
the basic offence, but with the added element that the conduct, on two or more occasions,
results in the disposal or acquisition of 50 or more firearms or firearm parts, or a
combination of firearms and firearms parts such that the sum of the firearms and firearm
parts is 50 or more, during a six month period.
11. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
Fault elements, absolute liability and strict liability
12. Subsection 360.2(2A) provides that there are no fault elements in relation to the physical
elements of the offence in paragraphs 360.2(1)(a) and (2)(a). This is appropriate, as the
relevant fault elements are those that apply to the underlying offence against the relevant
state or territory firearm law.
13. In the event that a person was punished for the underlying offence against the relevant
state or territory firearm law, existing section 360.4(4) provides that they cannot also be
punished for an offence under Division 360.
14. Subsection 360.2(2C) applies absolute liability to paragraphs 360.2(1)(b), 360.2(1)(c),
360.2(2)(b), 360.2(2)(c) and 360.2(2)(e) . Absolute liability is set out in section 6.2 of the
Criminal Code. The effect of applying absolute liability to an element of an offence is that
no fault element needs to be proven and the defence of mistake of fact under section 9.2 is
not available in relation to the elements of the offence to which absolute liability applies.
15. In addition, subsection 360.2(2D) applies strict liability to paragraph 360.2(2)(d) relating
to the conduct resulting in the acquisition or disposal of more than 50 firearms or firearm
parts or combination of such during a six month period. Strict liability is set out in
section 6.1 of the Criminal Code. The effect of applying strict liability to an element of
an offence means no fault element needs to be proven for that element of the offence and
the defence of mistake of fact under section 9.2 is available in relation to that element.
16. Requiring the prosecution to prove that the defendant knew or was reckless as to the
number of firearms or firearms parts with which they were dealing would undermine
enforcement of the offence and deterrence against this conduct, as defendants could
otherwise evade liability by remaining wilfully blind to the number of firearms or
firearms parts.
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Provisions to avoid doubt
17. Subsection 360.2(2B) sets out a range of circumstances in which the offences in
subsections 360.2(1) and 360.2(2) will apply. These are intended to avoid doubt rather
than define the offences.
18. Paragraph 360.2(2B)(a) sets out that any defences, or special liability provisions, that
apply in relation to the offence against the relevant state or territory firearm law (the
underlying offence) have effect.
19. Paragraph 360.2(2B)(b) sets out that even if a person has not been convicted of the
offence against the relevant state or territory firearm law (the underlying offence), they
can still be convicted of an offence against 360.2(1) and 360.2(2).
20. Paragraph 360.2(2B)(c) sets out that for the aggravated offence at 360.2(2) it does not
matter whether:
• the underlying offence on each occasion is the same;
• the conduct constituting the underlying offence is the same on each occasion; or
• the firearms or firearm parts to which the conduct relates are of the same kind.
Item 2 - Before subsection 360.3(1) of the Criminal Code
21. Item 2 inserts the heading 'Basic offence' for current subsection 360.3(1). This
amendment is consequential to the amendment made by item 5 to insert an aggravated
offence.
Item 3 - Paragraph 360.3(1)(a) of the Criminal Code
22. Item 3 repeals paragraph 360.3(1) and substitutes new paragraphs 360.3(1)(a)
360.3(1)(aa), 360.3(1)(ab). This amendment is to provide consistency with section 360.2
as amended by item 1.
Item 4 - Subsection 360.3(1) of the Criminal Code (penalty)
23. Item 4 increases the penalty for this offence to 20 years' imprisonment, or a fine of 5,000
penalty units, or both. This replaces the current penalty of 10 years' imprisonment, or a
fine of 2,500 penalty units or both.
24. The increased maximum penalty is necessary to ensure the serious offences of trafficking
firearms within Australia are matched by commensurate punishments. Consistent with
the principles set out in the Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement Powers, the increased maximum penalty will be adequate to
deter and punish the offence. This ensures that sentences imposed by courts can continue
to take into account the particular circumstances of the offence and the offender.
25. The new maximum penalty reflects the seriousness of the conduct covered by the
offences, and addresses the clear and serious social and systemic harms associated with
the illegal firearms trade.
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Item 5 - After subsection 360.3(1) of the Criminal Code
26. Item 5 introduces an aggravated offence (subsection 360.3(1A)) relating to the offence of
taking or sending a firearm across state or territory borders.
27. The elements of the aggravated offence are the same as for the basic offence, with the
additional elements in paragraphs 360.3(1A)(f) and 360.3(1A)(g). That is, that the
conduct resulted in the sending or taking across state or territory internal borders of 50 or
more firearms or firearm parts, or a combination of firearms and firearms parts such that
the sum of the firearms and firearm parts is 50, during a six month period.
28. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
29. Item 5 also inserts the heading 'Definitions' for current subsection 360.3(2). Current
subsection 360.3(2) contains a number of defined terms that will also apply to amended
subsection 360.3(1) and new subsection 360.3(1A).
Strict and absolute liability
30. Paragraph 360.3(1B) applies absolute liability to the elements of the offence:
• that the conduct was in the course of trade or commerce among the states and/or
territories for the basic offence (paragraph (1)(ab))
• that the conduct was in the course of trade or commerce among the states and/or
territories for the aggravated offence (paragraph (1A)(c)), and
• for the aggravated offence, that the conduct occurred during a six month period
(paragraph (1A)(g)).
31. Absolute liability is set out in section 6.2 of the Criminal Code. The effect of applying
absolute liability to an element of an offence is that no fault element needs to be proven
for that element and the defence of mistake of fact under section 9.3 is not available in
relation to that element.
32. Paragraph 360.3(1C) applies strict liability to whether the conduct in the aggravated
offence included the taking or sending of more than 50 firearms or firearm parts, or
combination of such, on any occasion or on 2 or more occasions. Strict liability is set out
in section 6.1 of the Criminal Code. The effect of applying strict liability to an element of
an offence is that no fault element needs to be proven for that element and the defence of
mistake of fact is available in relation to that element.
33. Requiring the prosecution to prove that the defendant knew or was reckless as to the
number of firearms or firearms parts with which they were dealing would undermine
enforcement of the offence and deterrence against this conduct, as defendants could
otherwise evade liability by remaining wilfully blind to the number of firearms or
firearms parts.
34. Paragraph 360.3(1D) sets out that, for the aggravated offence, it is immaterial whether the
firearms or firearm parts are of the same kind.
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Item 6 - Subsection 360.3(2) of the Criminal Code (at the end of the definition of
firearm)
35. Item 6 ensures that for the aggravated offence in subsection 360.3(1A), a firearm is
defined in relation to the firearm law referred to in the aggravated offence (paragraph
360.3(1A)(e)).
Item 7 - Subsection 360.3(2) of the Criminal Code (at the end of the definition of firearm
part)
36. Item 7 ensures that for the aggravated offence in subsection 360.3(1A), a firearm part is
defined in relation to the firearm law referred to in the aggravated offence (paragraph
360.3(1A)(e)).
Item 8 - After section 360.3 of the Criminal Code
37. Item 8 inserts section 360.3A, which sets out mandatory minimum sentences for offences
against Division 360, and also inserts section 360.3B, which sets out double jeopardy and
alternative verdicts.
38. Subsection 360.3A(1) provides that, subject to subsections 360.3A(2) and 360.3A(3), the
court must impose a sentence of imprisonment of at least 5 years for a person convicted
of an offence against Division 360.
39. Subsection 360.3A(2) provides that the mandatory minimum sentence under subsection
360.3A(1) does not apply to a person who was aged under 18 years when the offence was
committed. This ensures that mandatory minimum sentences will not be applied to
minors.
40. Subsections 360.3A(3) and 360.3A(4) provide the court with discretion to reduce the
mandatory minimum sentence of five years' imprisonment in particular circumstances.
41. A court can reduce this mandatory minimum sentence by up to 25% if the court is taking
into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading
guilty. A court can also reduce the mandatory minimum sentence by up to 25% if the
court is taking into account, under paragraph 16A(2)(h) of the Crimes Act 1914, that the
person has cooperated with law enforcement agencies in the investigation of the offence.
42. A court may take into account either or both of these factors. If a court is taking into
account both of these factors, the minimum sentence can be reduced by up to 50%,
effectively reducing the minimum sentence to two and a half years' imprisonment.
43. Subsection 360.3B(1) sets out that a person may not be convicted of a basic offence if
they have been convicted or acquitted of a related aggravated offence alleged to have
been committed within the same period. However, an alternative verdict is still allowed
(subsection 360.3B(2)).
44. Subsection 360.3B(3) sets out that a person who has been convicted or acquitted of a
basic offence cannot be convicted of a related aggravated offence if the conduct that
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constitutes the basic offence is part of the conduct for the alleged related aggravated
offence.
45. Subsection 360.3B(4) allows, in a trial for an aggravated offence, an alternative verdict of
guilt in relation to a basic offence if the trier of fact is not satisfied a person is guilty of an
aggravated offence, provided that the person has been accorded procedural fairness in
relation to that finding of guilt.
46. Subsection 360.3B(5) defines 'aggravated offence' as an offence against 360.2(2) and
360.3(1A). It defines 'basic offence' to mean, in relation to 360.2(2), as an offence
against 360.2(1), and in relation to 360.3(1A) as an offence against 360.3(1).
Item 9 - Sections 361.2 and 361.3 of the Criminal Code
47. Item 9 repeals sections 361.2 and 361.3 and substitutes them with new sections 361.2 and
361.3
48. Section 361.2 creates basic and aggravated offences for trafficking prohibited firearms or
firearms parts into Australia.
49. Subsection 361.2(1) creates a basic offence for trafficking prohibited firearms or firearms
parts into Australia. This basic offence mirrors existing section 361.2. New subsection
361.2(1) increases the penalty for the basic offence to imprisonment for 20 years, or a
fine of 5,000 penalty units or both. This replaces the current penalty of 10 years'
imprisonment, or a fine of 2,500 penalty units, or both.
50. Subsection 361.2(2) introduces an aggravated offence relating to the offence of
trafficking prohibited firearms or firearms parts into Australia. The elements of the
aggravated offence are the same as for the basic offence, with the additional elements in
paragraphs 361.2(2)(f) and 361.2(2)(g). That is, that the conduct resulted in the sending or
taking across borders of 50 or more firearms or firearm parts, or a combination of
firearms and firearms parts such that the sum of the firearms and firearm parts is 50,
during a six month period.
51. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
52. Subsection 361.2(3) applies absolute liability to the elements of the offence:
• for the basic and aggravated offence, importing each firearm or part was prohibited
absolutely under the Customs Act 1901 (paragraphs 361.2(1)(d) and 361.2(2)(d)); and
• for the aggravated offence, that the conduct occurred during a six month period
(paragraph 361.2(2)(g)).
53. Subsection 361.2(4) applies strict liability to the elements of the offence:
• for the basic and aggravated offence, the person failed to meet requirements under the
Customs Act 1901 to import each firearm or part (paragraphs 361.2(1)(e) and
361.2(2)(e)); and
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• for the aggravated offence, the conduct in the aggravated offence resulted in the
taking or sending of more than 50 firearms or firearm parts, or combination of such,
during a six month period (paragraph 361.2(2)(f)).
54. Subsection 361.2(5) provides that for the avoidance of doubt for paragraphs 361.2(2)(b)
and 361.2(2)(f), it is immaterial whether the firearms or firearm parts are of the same
kind.
55. Section 361.3 creates basic and aggravated offences for trafficking prohibited firearms or
firearms parts out of Australia.
56. Subsection 361.3(1) creates a basic offence for trafficking prohibited firearms or firearms
parts out of Australia. This basic offence mirrors existing section 361.3. New subsection
361.3(1) increases the penalty for the basic offence to imprisonment for 20 years, or a
fine of 5,000 penalty units or both. This replaces the current penalty of 10 years'
imprisonment, or a fine of 2,500 penalty units, or both.
57. Subsection 361.3(2) introduces an aggravated offence relating to the offence of
trafficking prohibited firearms or firearms parts out of Australia. The elements of the
aggravated offence are the same as for the basic offence, with the additional elements in
paragraphs 361.3(2)(f) and 361.3(2)(g). That is, that the conduct resulted in the sending or
taking across borders of 50 or more firearms or firearm parts, or a combination of
firearms and firearms parts such that the sum of the firearms and firearm parts is 50,
during a six month period.
58. The penalty for this offence is life imprisonment, or a fine of 7,500 penalty units, or both.
59. Subsection 361.3(3) applies absolute liability to the elements of the offence:
• for the basic and aggravated offence, importing each firearm or part was prohibited
absolutely under the Customs Act 1901 (paragraphs 361.3(1)(d) and 361.3(2)(d)); and
• for the aggravated offence, that the conduct occurred during a six month period
(paragraph 361.3(2)(g)).
60. Subsection 361.3(4) applies strict liability to the elements of the offence:
• for the basic and aggravated offence, the person failed to meet requirements under the
Customs Act 1901 to import each firearm or part (paragraphs 361.3(1)(e) and
361.3(2)(e)); and
• for the aggravated offence, the conduct in the aggravated offence resulted in the
taking or sending of more than 50 firearms or firearm parts or combination of such
during a six month period (paragraph 361.3(2)(f)).
61. Subsection 361.3(5) provides that for the avoidance of doubt for paragraphs 361.3(2)(b)
and 361.3(2)(f), it is immaterial whether the firearms or firearm parts are of the same
kind.
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Item 10 - After section 361.4 of the Criminal Code
62. Item 10 adds section 361.5, which sets out mandatory minimum sentences for offences
against Division 361.
63. Subsection 361.5(1) provides that, subject to subsections 361.5(2) and 361.5(3), the court
must impose a sentence of imprisonment of at least 5 years for a person convicted of an
offence against Division 361.
64. Subsection 361.5(2) provides that the mandatory minimum sentence under subsection
361.5(1) does not apply to a person who was aged under 18 years when the offence was
committed. This ensures that mandatory minimum sentences will not be applied to
minors.
65. Subsections 361.5(3) and 361.5(4) provide the court with discretion to reduce the
mandatory minimum sentence of five years imprisonment in particular circumstances.
66. A court can reduce this mandatory minimum sentence by up to 25% if the court is taking
into account, under paragraph 16A(2)(g) of the Crimes Act 1914, the person pleading
guilty. A court can also reduce the mandatory minimum sentence by up to 25% if the
court is taking into account, under paragraph 16A(2)(h) of the Crimes Act 1914, that the
person has cooperated with law enforcement agencies in the investigation of the offence.
67. A court may take into account either or both of these factors. If a court is taking into
account both of these factors, the minimum sentence can be reduced by up to 50%,
effectively reducing the minimum sentence to two and a half years' imprisonment.
Items 11 to 13 - Section 361.6 of the Criminal Code
68. Item 11 adds 'and alternative verdicts' to the heading of section 361.6. Item 12 inserts
'Double jeopardy' after the heading of section 361.6. Item 13 inserts '(1)' before 'A
person' in section 361.6
69. These amendments are consequential to the amendments made by item 14.
Item 14 - At the end of section 361.6 of the Criminal Code
70. Item 14 adds additional provisions relating to double jeopardy and alternative verdicts for
offences in Division 361.
71. Subsection 361.6(2) sets out that a person may not be convicted of a basic offence if they
have been convicted or acquitted of an aggravated offence within the same period.
However, an alternative verdict is still allowed (subsection 361.6(3)).
72. Subsection 361.6(4) sets out that a person who has been convicted or acquitted of a basic
offence cannot be convicted of a related aggravated offence if the conduct that constitutes
the basic offence is included in the conduct for the aggravated offence.
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73. Subsection 361.6(5) allows, in a trial for an aggravated offence, an alternative verdict of
guilt in relation to a basic offence if the trier of fact is not satisfied a person is guilty of an
aggravated offence.
74. Subsection 361.6(6) defines 'aggravated offence' as an offence against 361.2(2) or
361.3(2). It defines 'basic offence' to mean, in relation to 361.2(2), as an offence against
361.2(1), and in relation to 361.3(2) as an offence against 361.3(1).
Item 15 - Application of amendment - minimum penalties
75. Item 15 provides that the mandatory minimum sentencing provisions at sections 360.3A
and 361.5 of the Criminal Code, as inserted by this Schedule, apply in relation to conduct
engaged in at or after the commencement of this Schedule.
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