Bills Digest no. 29,
2016–17
PDF version [624KB]
Cat Barker
Foreign Affairs, Defence and Security Section
4
November 2016
This Bills Digest updates an earlier
version dated 1 February 2016.
Contents
History of the Bill
Purpose of the Bill
Background
Existing offences and penalties
Previous recent attempts to
strengthen penalties for firearms trafficking
Former Labor Government
Coalition Government
The 2016 Bill
Committee consideration
Senate Legal and Constitutional
Affairs Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Parliamentary Joint Committee on
Human Rights
Policy position of non-government
parties/independents
Mandatory minimum sentences
Increased maximum penalties
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Increased maximum penalties
Mandatory minimum sentences
Application to young people
Application to people with cognitive
impairments
Date introduced: 15
September 2016
House: Senate
Portfolio: Justice
Commencement: Sections 1–3
will commence on Royal Assent. Schedule 1 will commence the day after
Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2016.
History of
the Bill
An earlier version of this Bill (the 2015 Bill) was
introduced into the 44th Parliament on 2 December 2015.[1]
That version of the Bill had passed the House of Representatives and was before
the Senate when Parliament was dissolved on 9 May 2016.
Purpose of
the Bill
The purpose of the Criminal Code Amendment (Firearms
Trafficking) Bill 2016 (the 2016 Bill) is to amend the Criminal Code
Act 1995 (the Act) to increase the maximum penalties, and introduce
mandatory minimum penalties, for firearms trafficking offences.[2]
Background
Existing offences and penalties
Part 9.4 of the Act contains two sets of
offences for firearms trafficking.
Division 360 sets out offences of cross-border
firearms trafficking that apply to trafficking between one Australian state
or territory and another (trafficking within state borders is covered by state
law). The offences of cross-border disposal or acquisition of a firearm or
firearm part, and taking or sending a firearm part across (domestic) borders,
both carry maximum penalties of ten years imprisonment and/or a fine of
2,500 penalty units.[3]
Division 361 sets out offences of international
firearms trafficking that apply to trafficking prohibited firearms or
firearm parts into or out of Australia. The same maximum penalties apply as for
cross-border trafficking.[4]
Previous recent attempts to strengthen penalties for
firearms trafficking
Former Labor Government
The Crimes Legislation Amendment (Organised Crime and
Other Measures) Bill 2012 would have left penalties for the existing offences
unchanged, but introduced aggravated offences for dealing in 50 or more
firearms or firearm parts (or a combination thereof) on a single occasion or
two or more occasions during a six month period, with a maximum penalty of life
imprisonment.[5]
The Bill was passed by the House of Representatives and supported by the then
Opposition, but lapsed ahead of the 2013 federal election.[6]
Coalition Government
The 2016 Bill will be the fourth time the Government
has sought to legislate mandatory minimum sentences of five years imprisonment
for firearms trafficking offences.
The Coalition’s policy to tackle crime (2013) included
a commitment to introduce mandatory minimum penalties of five years
imprisonment for firearm trafficking.[7]
Provisions to that effect were included in the Crimes Legislation Amendment
(Psychoactive Substances and Other Measures) Bill 2014 (2014 Bill, introduced
17 July 2014) and the Crimes Legislation Amendment (Powers, Offences
and Other Measures) Bill 2015 (CLA Bill 2015, introduced
19 March 2015).[8]
Neither of those Bills included any amendment to the maximum penalties.
While both Bills were passed and became Acts, in each case
this only occurred following amendments in the Senate that removed the
provisions that would have introduced mandatory minimum sentences.[9]
The 2015 Bill would have introduced mandatory minimum
penalties and also increased the maximum penalties for firearms trafficking
offences in the same way as the 2016 Bill.[10]
As noted above, the 2015 Bill had passed the House of Representatives and
was before the Senate when Parliament was dissolved on 9 May 2016.
The
2016 Bill
The Coalition’s Policy to Keep
Illegal Guns off our Streets and our Communities Safe (2016) committed
to ‘re‑introducing legislation within our first 100 days to increase
maximum penalties and introduce mandatory minimum sentences of five years
imprisonment for firearms trafficking’.[11]
The introduction of the 2016 Bill implements that commitment.
Committee
consideration
Senate Legal and Constitutional Affairs Legislation
Committee
The Bill has been referred to the Senate Legal and
Constitutional Affairs Legislation Committee for inquiry and report by 7 November 2016.
Details of the inquiry are at the inquiry
homepage.[12]
The Committee also considered the 2014 Bill, the CLA
Bill 2015 and the 2015 Bill. Recommendations in the majority reports of
this committee, which is chaired by the Government, are set out below. Australian
Labor Party (ALP) and Australian Greens members of the Committee have made
dissenting reports as outlined in the ‘Policy position of non-government
parties/independents’ section of this Digest.
The majority of the Committee recommended changes to the
Explanatory Memorandum for the 2014 Bill, but not the Bill itself.[13]
Those changes are reflected in the Explanatory Memorandum to the 2016 Bill,
as they were for the two 2015 Bills.[14]
The majority of the Committee made no recommendation in
relation to the mandatory sentencing provisions in its report on the CLA
Bill 2015.[15]
In its report on the 2015 Bill, the majority of the
Committee recommended that the Government:
- amend the Explanatory Memorandum to clarify who bears the onus of
proof in relation to the age of defendants;
- clarify in the Explanatory Memorandum the operation of mandatory
minimum sentencing in relation to people with significant cognitive impairment
specifically relating to discretion in setting parole periods; and
-
in the absence of a satisfactory explanation, consider including
provisions regarding significant cognitive impairment similar to those found in
the Crimes Act 1900 (NSW) s25A(5)(b).[16]
The Explanatory Memorandum to the 2016 Bill includes
those explanations.[17]
However, there is a degree of mismatch between the explanation provided on the
first point and the wording of the provisions, as set out in the ‘Key issues
and provisions’ section of this Digest.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills sought
further justification from the Minister for Justice on both the increased
maximum penalties and the mandatory minimum sentences in the 2015 Bill.
Having considered that information, the Committee requested that the additional
information be included in the Explanatory Memorandum and left the question of
whether those provisions are appropriate to the Senate as a whole.[18]
That additional information has not been included in the
Explanatory Memorandum to the 2016 Bill. In its commentary on the
2016 Bill, the Committee expressed disappointment that the additional
information had not been set out in the Explanatory Memorandum and drew the
provisions to the attention of Senators, but left the questions of the
appropriateness of both amendments to the Senate as a whole.[19]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (PJCHR)
had not reported on the Bill as at the date of publication of this Digest.
The PJCHR considered mandatory minimum penalties for
firearms trafficking in the context of the 2014 Bill and the CLA Bill 2015.
On both occasions it recommended an amendment to make it clear on the face of
the legislation that the mandatory minimum sentence was not intended as a
‘sentencing guidepost’, and that there could be significant differences between
the total sentence and the non-parole period imposed.[20]
The recommendation was made on the basis of ‘minimising the potential for
disproportionate sentences that may be incompatible with the right not to be
arbitrarily detained and the right to a fair trial’.[21]
The PJCHR did not make further comment on the 2015 Bill, instead referring
to its comments on the CLA Bill 2015.[22]
The PJCHR’s recommendation has not been taken up in the 2016 Bill,
nor was it in the 2015 Bill. However, the Explanatory Memorandum contains
those points.[23]
Policy
position of non-government parties/independents
Pauline Hanson’s One Nation does not appear to have
commented specifically on the Bill. However, its policy on firearms and gun
control states: ‘Tougher sentencing on gun related crimes is required’.[24]
Mandatory
minimum sentences
The ALP and the Greens have consistently opposed the
introduction of mandatory minimum sentencing for firearms trafficking offences,
and continue to do so. The ALP moved the amendment that removed the mandatory
minimum sentencing provisions from the 2014 Bill, and voted for the Greens
amendment that removed them from the CLA Bill 2015.[25]
The Greens voted for the ALP amendment to the 2014 Bill and moved the
amendment to the CLA Bill 2015.[26]
Both parties made dissenting reports when the Senate Legal and Constitutional
Affairs Legislation Committee considered the 2015 Bill, in which each of
them recommended removal of the mandatory sentencing provisions from that Bill.[27]
Responding to the Government’s announcement in
September 2016 that it would reintroduce these amendments, Greens
spokesperson Lee Rhiannon stated that the party did not support mandatory
minimum sentences ‘under any circumstances’ and that there was ‘no evidence
that mandatory minimum sentences act as deterrents for firearms trafficking’.[28]
On 19 October 2016 the Leader of the Opposition
replied to a letter from the Prime Minister of the same day to advise him that
the ALP continued to oppose mandatory minimum sentencing.[29]
Independent Senator Jacqui Lambie has previously voted in
favour of, and Liberal Democrat Senator David Leyonhjelm and then Independent
Senator Nick Xenophon have previously voted against, mandatory minimum
sentences for firearms offences.[30]
Increased
maximum penalties
The ALP supported the proposed increased maximum penalties
in the 2015 Bill, stating:
Increasing maximum penalties for firearms trafficking
reflects community concern about the consequences of serious firearms offences,
and mirrors the regime of penalties proposed by Labor when it was in
Government. It would send a strong message to serious criminals about the
consequences of firearms trafficking.[31]
The Leader of the Opposition reiterated the ALP’s support
for this measure in October 2016.[32]
The Greens also supported that measure, stating that the
party acknowledged the seriousness of firearms trafficking and the need for
commensurate sentences.[33]
Position of
major interest groups
In a September 2016 media release, the Law Council of
Australia (LCA) reiterated the position it took in relation to the
2015 Bill, which was to support increased maximum penalties but oppose
mandatory minimum sentences.[34]
In submissions to the inquiry into the 2015 Bill, the
Australian Human Rights Commission (AHRC) and the NSW Council for Civil Liberties
(NSW CCL) opposed both increased maximum penalties and mandatory minimum
sentences.[35]
In their submissions to the inquiry into the
2015 Bill, other legal and civil liberties organisations expressed their
opposition to the introduction of mandatory minimum sentences, as they had in
relation to the earlier Bills.[36]
Dr John Coyne (of the Australian Strategic Policy
Institute) strongly supported the provisions and considered that while
mandatory minimum sentences ‘do not always have a deterrent effect, they are
taken into consideration by some in the planning of criminal activities’.[37]
That is somewhat different to the view he expressed in the context of the CLA
Bill 2015, when he stated the same measure ‘won’t reduce or
deter the importation of illicit firearms.[38]
Further detail is set out in the ‘Key
issues and provisions’ section of this Digest.
Financial
implications
The Bill will not impact Government revenue.[39]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[40]
As noted above, the PJCHR has questioned the compatibility
of mandatory minimum penalties with the right not to be arbitrarily detained
and the right to a fair trial. Several stakeholders, including the AHRC,
expressed the same concerns in submissions to the inquiry into the
2015 Bill.[41]
Key issues
and provisions
The Bill would make two changes to
the penalties for the offences of cross-border firearms trafficking and international
firearms trafficking (in Divisions 360 and 361 of the Act respectively).
It would double the maximum penalty that may be imposed, and introduce
mandatory minimum sentences. The Attorney-General stated:
Mandatory minimums send a strong and clear message that
gun-related crime and violence will not be tolerated.
...
The increased maximum penalty will ensure that the most
serious instances of trafficking firearms within, into or out of Australia are
matched by appropriate punishments.
This combination of penalties will be a strong deterrent
against people seeking to illegally import firearms and their parts into
Australia. The amended penalties will more adequately reflect the serious
nature and potential consequences of supplying firearms and firearm parts to
the illicit market.[42]
Increased maximum penalties
Items 1 and 3 would double the
maximum penalties for the offences in Divisions 360 and 361 of the Act
respectively to 20 years imprisonment and/or a fine of 5,000 penalty
units.
The Explanatory Memorandum states that the increase is
required to ensure the maximum penalty is ‘adequate to deter and punish the
offence’ and ‘address the clear and serious social and systemic harms
associated with [the illicit firearms] trade’.[43]
The LCA supports the proposed increase. In its submission
on the 2015 Bill, the LCA stated that it is appropriate when considered in
light of the penalties that apply to state and territory firearms-related
offences and community concerns about firearms trafficking. The LCA also noted
that the review of the 2014 Martin Place Siege ‘highlighted the potentially
serious consequences of illegal firearms dealing’.[44]
The AHRC and the NSW CCL opposed the measure in their
submissions on the 2015 Bill, with both noting that the Government had not
identified any instances where the sentences imposed for Commonwealth firearms
offences have been insufficient.[45]
The AHRC further pointed out that when questioned on the matter in 2014, the
Attorney-General’s Department stated it was not aware of any such cases.[46]
The AHRC also took a different view to the LCA on consistency with penalties
for state and territory firearms offences.[47]
However, its analysis of penalties was restricted to offences relating to
unauthorised sale or purchase of firearms and did not take account of specific
offences in place for firearms trafficking or the higher penalties that apply
to aggravated offences.[48]
Mandatory minimum sentences
Item 2 would insert proposed
section 360.3A to introduce mandatory minimum penalties of five years
imprisonment for the offences in Division 360 of the Act. Item 4
would insert proposed section 361.5, which would apply the same way
to the offences in Division 361 of the Act. The mandatory minimum
would not apply where it can be established on the balance of probabilities
that the person was under the age of 18 when the offence was committed (see
further ‘Application to young people’ section of this Digest below).
The amendments would not introduce mandatory minimum
non-parole periods.
Mandatory minimum penalties have rarely been applied to
Commonwealth offences and when they have been used,[49]
they have attracted criticism.[50]
As noted in the ‘Position of major interest groups’
section of this Digest, this measure has been opposed by a range of legal,
human rights and civil liberties organisations. Those organisations have opposed
this measure in particular, and mandatory sentencing in general, on the
grounds:
- it
contravenes the doctrine of the separation of powers, whereby it is for the
judiciary to determine appropriate punishment [51]
- there
is little if any evidence that it works to reduce or deter crime[52]
- it
can lead to unjust or unduly harsh sentences[53]
- it
is inconsistent with Australia’s human rights obligations, particularly
concerning arbitrary detention and ability to appeal sentences[54]
- it
can have counter-productive impacts, such as reducing the incentive for
offenders to plead guilty (thereby using additional resources in the justice
system); dissuading juries from convicting people where they consider the
minimum punishment too harsh; potentially increasing recidivism by
inappropriately placing people in prison, which can serve as a learning
environment for crime; and undermining community confidence in the justice
system and[55]
- it
tends to impact disproportionately on members of vulnerable groups within
society.[56]
Noting that some of these concerns are mitigated by the
fact that the proposed provisions would not introduce mandatory minimum
non-parole periods, the AHRC pointed out that nonetheless:
The imposition of an inappropriately high head sentence is
not without consequences. To take only one example, if a person is sentenced to
a term of imprisonment of 12 months or more but is given a substantially
shorter non‑parole period the person will still be taken to have a
‘substantial criminal record’ and will not pass the ‘character test’ under s
501 of the Migration Act 1958 (Cth). This may result in the person’s
visa being cancelled or an application for a visa being refused.[57]
Some of the arguments stakeholders have made against this
proposed measure are also reflected in the Government’s own Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement Powers, which
advises against fixed and minimum penalties for several reasons, including that
they interfere with judicial discretion to impose a penalty appropriate to all
the circumstances of a particular case, can ‘create an incentive for defendants
to fight charges, even where there is little merit in doing so’ and may
encourage the judiciary to look for technical grounds to avoid the restriction
on sentencing discretion, leading to anomalous decisions.[58]
Application
to young people
Proposed subsections 360.3A(2) and 361.5(2)
provide that the mandatory minimum sentence would not apply if it is
established on the balance of probabilities that the person was under the age
of 18 when the offence was committed. In response to the Senate Legal and
Constitutional Affairs Legislation Committee’s recommendation, the operation of
this exception is set out in the Explanatory Memorandum to the 2016 Bill:
As this provision is framed as an exception to the law on
mandatory minimums, the provisions in the Criminal Code regarding
defences will apply. As a result, the defendant bears an evidential burden
regarding their age, meaning they need to adduce or point to evidence that
suggests a reasonable possibility that they are under 18 (see section 13.3 of
the Criminal Code). If the defendant discharges that evidential burden, the
prosecution must prove beyond reasonable doubt that the defendant is aged over
18 (see section 13.3 of the Criminal Code). (Emphasis added.)[59]
This explanation accurately describes how defences and
exceptions normally operate due to Part 2.6 of the Criminal Code.
However, the specific wording of the provisions, which refer to the matter
being established ‘on the balance of probabilities’, creates ambiguity about
how the exception would operate. Under the Criminal Code, the defence is
required to discharge a legal burden on the balance of probabilities,
whereas an evidential burden is discharged by the defence ‘adducing or
pointing to evidence that suggests a reasonable possibility that the matter
exists or does not exist’, as described in the Explanatory Memorandum.[60]
If the exception is intended to operate as set out in the Explanatory Memorandum,
it would be clearer for the exception simply to state that the mandatory
minimum ‘does not apply if the person was aged under 18 years when the
offence was committed’.
Application
to people with cognitive impairments
In response to the Senate Legal and Constitutional Affairs
Legislation Committee’s recommendation, the Explanatory Memorandum to the
2016 Bill also outlines how the proposed amendments will apply to a person
with a cognitive impairment. It points to the general defence of mental
impairment available under section 7.3 of the Criminal Code, and
the fact that the court will retain discretion to set a non-parole period that
takes account of ‘the particular circumstances of the offender, including any
mitigating factors such as cognitive impairment’.[61]
[1]. Parliament
of Australia, ‘Criminal
Code Amendment (Firearms Trafficking) Bill 2015 homepage’ (2015 Bill),
Australian Parliament website.
[2]. Criminal Code Act 1995
(Criminal Code).
[3]. Ibid.,
sections 360.2 and 360.3. Section 4D of the Crimes Act 1914
provides that a penalty specified for a Commonwealth offence is to be taken as
the maximum penalty unless the contrary intention appears. Under section 4AA of
the Crimes Act, a penalty unit is equal to $180 as the date of
publication of this Digest.
[4]. Ibid.,
sections 361.2 and 361.3.
[5]. Parliament
of Australia, ‘Crimes
Legislation Amendment (Organised Crime and Other Measures) Bill 2012 homepage’,
Australian Parliament website. See further C Barker, Crimes
Legislation Amendment (Organised Crime and Other Measures) Bill 2012,
Bills digest, 64, 2012–13, Parliamentary Library, Canberra, 2013.
[6]. Ibid.;
M Keenan, ‘Second
reading speech: Crimes Legislation Amendment (Organised Crime and Other
Measures) Bill 2012’, House of Representatives, Debates,
5 February 2013, pp. 54–58.
[7]. Liberal
Party of Australia and the Nationals, The
Coalition’s policy to tackle crime, Coalition policy document, Election
2013.
[8]. Parliament
of Australia, ‘Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014
homepage’, Australian Parliament website; Parliament of Australia, ‘Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 homepage’,
Australian Parliament website.
[9]. Australia,
Senate, Journals,
75, 2014–15, p. 2060; Australia, Senate, Journals,
109, 2015–16, pp. 3000–01.
[10]. Parliament
of Australia, 2015 Bill, op. cit.
[11]. Liberal
Party of Australia and the Nationals, The
Coalition’s policy to keep illegal guns off our streets and our communities
safe, Coalition policy document, Election 2016.
[12]. Senate
Legal and Constitutional Affairs Legislation Committee (Senate L&C
Committee), ‘Criminal Code Amendment
(Firearms Trafficking) Bill 2016’, Inquiry homepage.
[13]. Senate
L&C Committee, Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014
[Provisions], The Senate, Canberra, September 2014,
pp. 22–24, 26 (Recommendation 2).
[14]. Explanatory
Memorandum, Criminal Code Amendment (Firearms Trafficking) Bill 2016,
pp. 4,7; Explanatory
Memorandum, Crimes Legislation Amendment (Powers, Offences and Other
Measures) Bill 2015, pp. 26, 65; Explanatory
Memorandum, Criminal Code Amendment (Firearms Trafficking) Bill 2015,
pp. 4,7.
[15]. Senate
L&C Committee, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015
[Provisions], The Senate, Canberra, June 2015, pp. 23–25.
[16]. Senate
L&C Committee, Criminal
Code Amendment (Firearms Trafficking) Bill 2015 [Provisions], The
Senate, Canberra, February 2016, pp. 11–13.
[17]. Explanatory
Memorandum, 2016 Bill, op. cit., pp. 4–5.
[18]. Senate
Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Report,
2, 2016, The Senate, 24 February 2016, pp. 82–88. The Committee
also commented on the earlier Bills. See: Scrutiny of Bills Committee, Alert
digest, 10, 2014, The Senate, 27 August 2014, pp. 10–11;
Scrutiny of Bills Committee, Alert
digest, 4, 2015, The Senate, 25 March 2015, pp. 11–12.
[19]. Scrutiny
of Bills Committee, Alert
digest, 7, 2016, The Senate, 12 October 2016, pp. 46–53.
[20]. Parliamentary
Joint Committee on Human Rights (PJCHR), Fifteenth
report of the 44th Parliament, 14 November 2014,
pp. 30–32; PJCHR, Twenty-second
report of the 44th Parliament, 13 May 2015,
pp. 36–39.
[21]. PJCHR,
Twenty-second report of the 44th Parliament, op. cit.,
p. 39. See also PJCHR, Fifteenth report of the 44th Parliament,
op. cit., p. 32.
[22]. PJCHR,
Thirty-third
report of the 44th Parliament, 2 February 2016, p. 3.
[23]. Explanatory
Memorandum, 2016 Bill, op. cit., pp. 4, 7.
[24]. Pauline
Hanson’s One Nation, Firearms
and gun control, Pauline Hanson’s One Nation policy document, Election
2016.
[25]. Senate,
Journals, 75, op. cit.; Senate, Journals, 109, op. cit.
[26]. Ibid.
[27]. Australian
Labor Party, Dissenting
report, Senate L&C Committee, Criminal Code Amendment (Firearms
Trafficking) Bill 2015 [Provisions], The Senate, Canberra, 2016,
pp. 15–16; and Australian Greens, Dissenting
report, Senate L&C Committee, Criminal Code Amendment (Firearms
Trafficking) Bill 2015 [Provisions], The Senate, Canberra, 2016, pp.
16–17. The reports of the same Committee on the earlier Bills also contain
dissenting reports from these parties (in the case of Labor, in the form of
additional comments for the 2014 Bill): Australian Labor Party and
Australian Greens, Dissenting
reports, Senate L&C Committee, Crimes Legislation Amendment
(Psychoactive Substances and Other Measures) Bill 2014 [Provisions], The
Senate, Canberra, 2014, pp. 27–39; Australian Labor Party and Australian
Greens, Dissenting
reports, Senate L&C Committee, Crimes Legislation Amendment (Powers,
Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra,
2015, pp. 33–40.
[28]. L
Rhiannon (Greens spokesperson for gun control), Greens
support gun amnesty in principle, but not mandatory minimums, media
release, 14 September 2016.
[29]. D
Crowe, ‘Gun
laws: Malcolm Turnbull wants Labor to back tighter trafficking move’, The
Australian (online, limited access), 19 October 2016. The article
includes scanned copies of each of the letters. See also M Dreyfus, ‘Consideration
in detail: Appropriation Bill (No. 1) 2016–2017’, House of Representatives,
Debates, (proof), 19 October 2016, pp. 171–172.
[30]. Senate,
Journals, 75, op. cit.; Senate, Journals, 109, op. cit.
[31]. Senate
L&C Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015
[Provisions], op. cit., p. 15.
[32]. Crowe,
‘Gun laws’, op. cit.
[33]. Ibid.,
p. 17.
[34]. Law
Council of Australia (LCA), Flawed
mandatory sentencing element undermining important firearm measures,
media release, 14 September 2016; LCA, Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, 6 January 2016, pp. 1–2.
[35]. Australian
Human Rights Commission (AHRC), Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, 6 January 2016, pp. 3–4; NSW Council
for Civil Liberties (NSW CCL), Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, 6 January 2016, p. 1.
[36]. Civil
Liberties Australia (CLA), Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, 31 December 2015; Law Society of New
South Wales (LS NSW), Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, 4 January 2016; New South Wales Society
of Labor Lawyers (NSW SLL), Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, 7 January 2016; C Barker, Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014,
Bills digest, 29, 2014–15, Parliamentary Library, Canberra, 2014, p. 11;
C Barker and J Mills, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015,
Bills digest, 1, 2015–16, Parliamentary Library, Canberra, 2015, pp. 7–8.
[37]. J Coyne
(listed as Australian Strategic Policy Institute), Submission
to Senate L&C Committee, Inquiry into the Criminal Code (Firearms
Trafficking) Bill 2015, n.d., p. 2.
[38]. J Coyne,
‘Gun trafficking and mandatory jail terms’,
The Strategist, blog, 18 March 2015.
[39]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 2.
[40]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the 2016 Bill.
[41]. AHRC,
Submission to Senate L&C Committee, op. cit., pp. 7–12; CLA, Submission
to Senate L&C Committee, op. cit.; LS NSW, Submission to Senate
L&C Committee, op. cit.; NSW CCL, Submission to Senate L&C
Committee, op. cit., pp. 1–2.
[42]. G
Brandis, ‘Second
reading speech: Criminal Code Amendment (Firearms Trafficking) Bill 2016’,
Senate, Debates, 15 September 2016, p. 1033.
[43]. Explanatory
Memorandum, 2016 Bill, op. cit., pp. 6–8.
[44]. LCA,
Submission to Senate L&C Committee, op. cit., pp. 1–2. The review
the LCA is referring to is Department of Prime Minister and Cabinet and NSW
Department of Premier and Cabinet, Martin
Place siege: joint Commonwealth–New South Wales review, Department of
Prime Minister and Cabinet and NSW Department of Premier and Cabinet, Canberra,
January 2015.
[45]. AHRC,
Submission to Senate L&C Committee, op. cit., p. 15;
NSW CCL, Submission to Senate L&C Committee, op. cit., p. 2.
[46]. AHRC,
Submission to Senate L&C Committee, op. cit., p. 15. See Attorney-General’s
Department (AGD), Senate L&C Committee, Answers
to Questions on Notice, Inquiry into Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014
[Provisions], 27 August 2014,
p. 1.
[47]. Ibid.,
pp. 15–17.
[48]. See
for example Firearms
Act (NT), section 63A; Firearms Act
1996 (ACT), section 220; Weapons
Act 1990 (Qld), section 65.
[49]. Certain
people smuggling offences in the Migration Act 1958
are a notable exception (see section 236B); subsection 120(2) of the Excise Act 1901
imposes a minimum penalty, but in the form of a fine, not imprisonment.
[50]. See
for example the views of submitters summarised in Senate L&C Committee, Anti-People
Smuggling and Other Measures Bill 2010 [Provisions], The Senate,
Canberra, May 2010, pp. 18–21; W Martin, ‘Sentencing
issues in people smuggling cases’, paper presented to the Federal Crime and
Sentencing Conference, Canberra, 11 February 2012.
[51]. CLA,
Submission to Senate L&C Committee, op. cit.; LCA, Submission to
Senate L&C Committee, op. cit., p. 2; LS NSW, Submission to
Senate L&C Committee, op. cit., pp. 1–2.
[52]. CLA,
Submission to Senate L&C Committee, op. cit.; LCA, Submission to
Senate L&C Committee, op. cit., p. 3; NSW CCL, Submission to
Senate L&C Committee, op. cit., p. 2; LS NSW, Submission to
Senate L&C Committee, op. cit., p. 2; AHRC, Submission to Senate
L&C Committee, op. cit., pp. 12–14; NSW SLL, Submission to Senate
L&C Committee, op. cit., p. 2.
[53]. CLA,
Submission to Senate L&C Committee, op. cit.; LCA, Submission to
Senate L&C Committee, op. cit., pp. 2–4; LS NSW, Submission to
Senate L&C Committee, op. cit., p. 2; AHRC, Submission to Senate
L&C Committee, op. cit., pp. 5–7, 9–12; NSW SLL, Submission to
Senate L&C Committee, op. cit., p. 1.
[54]. AHRC,
Submission to Senate L&C Committee, op. cit., pp. 7–12; CLA, Submission
to Senate L&C Committee, op. cit.; LS NSW, Submission to Senate
L&C Committee, op. cit., pp. 2–3; NSW CCL, Submission to
Senate L&C Committee, op. cit., pp. 1–2. See also the ‘Committee
consideration’ section of this Digest for the views of the PJCHR.
[55]. CLA,
Submission to Senate L&C Committee, op. cit.; NSW CCL, Submission
to Senate L&C Committee, op. cit., p. 2; LCA, Submission to
Senate L&C Committee, op. cit., pp. 2–4.
[56]. LCA,
Submission to Senate L&C Committee, op. cit., p. 2.
[57]. AHRC,
Submission to Senate L&C Committee, op. cit., p. 6.
[58]. AGD,
A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, AGD, Canberra, updated September 2011, pp. 37–39.
[59]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 5.
[60]. Criminal Code,
sections 13.3, 13.4 and 13.5.
[61]. Explanatory
Memorandum, 2016 Bill, op. cit., p. 5.
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