BILLS DIGEST NO. 74, 2015–16              1 February 2016

Criminal Code Amendment (Firearms Trafficking) Bill 2015

Cat Barker
Foreign Affairs, Defence and Security Section 

Date introduced: 2 December 2015

House:  House of Representatives

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 ComLaw website.

Purpose of the Bill

The purpose of the Criminal Code Amendment (Firearms Trafficking) Bill 2015 (the 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.[1]

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 10 years imprisonment and/or a fine of 2,500 penalty units.[2]

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.[3]

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.[4] The Bill was passed by the House of Representatives and supported by the then Opposition, but lapsed ahead of the 2013 federal election.[5]

Current Government

The Bill will be the third 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 included a commitment to introduce mandatory minimum penalties of five years imprisonment for firearm trafficking.[6] 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).[7] 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.[8]

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 2 February 2016. Details of the inquiry are at the inquiry homepage.[9]

The Committee also considered the 2014 Bill and the CLA Bill 2015.

The majority of the Committee recommended changes to the Explanatory Memorandum for the 2014 Bill, but not the Bill itself.[10] Those changes were reflected in the Explanatory Memorandum to the CLA Bill 2015 and that for the current Bill.[11]

The majority of the Committee made no recommendation in relation to the mandatory sentencing provisions in its report on the CLA Bill 2015.[12]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had not reported on the Bill as at the date of publication of this Digest.

The Committee considered mandatory minimum penalties for firearms trafficking in the context of the 2014 Bill and the CLA Bill 2015. On both occasions it noted the provisions ‘may be considered to trespass unduly on personal rights and liberties’, but left the question of their appropriateness to the Senate as a whole.[13]

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.[14] 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’.[15] That recommendation has not been taken up in the Bill.

Policy position of non-government parties/independents

The Australian Labor Party 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.[16] Labor continues to oppose mandatory minimum sentencing for firearms trafficking. In relation to the Bill, the Shadow Minister for Justice stated that Labor ‘note[d] these provisions have already been considered and rejected by Parliament twice and that the government has failed to justify the need for such provisions’.[17]

The Australian Greens voted for the Labor amendment to the 2014 Bill and moved the amendment to the CLA Bill 2015.[18] The Greens had not commented publicly on the Bill as at the date of publication of this Digest, but could be expected to again oppose the provisions relating to mandatory minimum sentences.

Family First Senator Bob Day, Motoring Enthusiast Senator Ricky Muir and Independent Senator Jacqui Lambie have previously voted in favour of mandatory minimum sentences for firearms offences.[19]

Liberal Democrat Senator David Leyonhjelm and Independent Senator Nick Xenophon have previously voted against mandatory minimum sentences for firearms offences.[20]

Senators Zhenya Wang and Glenn Lazarus, then both with the Palmer United Party, voted in favour of mandatory minimum sentences in February 2015 (2014 Bill).[21] In August 2015 (CLA Bill 2015), by which time Senator Lazarus was an Independent, both Senators voted against mandatory minimum sentences.[22]

Position of major interest groups

Increased maximum penalties

The proposed doubling of the maximum penalties for firearms trafficking is supported by the Law Council of Australia (LCA), but opposed by the Australian Human Rights Commission (AHRC) and the NSW Council for Civil Liberties (NSW CCL).[23] Their reasons are set out in the ‘Key issues and provisions’ section of this Digest.

Mandatory minimum sentences

Consistent with the reaction to the previous two Bills, legal, human rights and civil liberties organisations have expressed their opposition to the introduction of mandatory minimum sentences in their submissions to the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the Bill.[24] Their reasons are set out in the ‘Key issues and provisions’ section of this Digest.

Dr John Coyne (of the Australian Strategic Policy Institute) strongly supports the provisions and considers 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’.[25] This 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.[26]

Financial implications

The Bill will not impact Government revenue.[27]

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.[28]

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.[29]

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 Minister for Justice stated:

The combination of mandatory minimum penalties and increased maximum penalties will send the strongest possible message to the community that the illegal trafficking of firearms will not be tolerated and will act as a strong disincentive for people seeking to illegally import firearms and gun parts into Australia.[30]

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 worst case offence’ and ‘address the clear and serious social and systemic harms associated with [the illicit firearms] trade’.[31]

The LCA supports the proposed increase. It considers 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’.[32]

The AHRC and the NSW CCL oppose the measure, with both noting that the Government has not identified any instances where the sentences imposed for Commonwealth firearms offences have been insufficient.[33] The AHRC further points out that when questioned on the matter in 2014, the Attorney-General’s Department stated it was not aware of any such cases.[34] The AHRC also takes a different view to the LCA on consistency with penalties for state and territory firearms offences.[35] 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.[36]

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. 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. Item 4 would insert proposed section 361.5, which would apply the same way to the offences in Division 361 of the Act.

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[37], they have attracted criticism.[38]

As noted in the ‘Position of major interest groups’ section of this Digest, this measure is opposed by a range of legal, human rights and civil liberties organisations. Those organisations are opposed to this measure in particular, and mandatory sentencing in general, on the grounds that:

•       it contravenes the doctrine of the separation of powers, whereby it is for the judiciary to determine appropriate punishment [39]

•       there is little if any evidence that it works to reduce or deter crime[40]

•       it can lead to unjust or unduly harsh sentences[41]

•       it is inconsistent with Australia’s human rights obligations, particularly concerning arbitrary detention and ability to appeal sentences[42]

•       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[43]

•       it tends to impact disproportionately on members of vulnerable groups within society.[44]

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 points 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.[45]

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.[46]

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Criminal Code Act 1995 (Criminal Code), accessed 14 December 2015.

[2].              Ibid., sections 360.2 and 360.3. Section 4D of the Crimes Act 1914 (accessed 21 January 2016) 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.

[3].              Ibid., sections 361.2 and 361.3.

[4].              Parliament of Australia, ‘Crimes Legislation Amendment (Organised Crime and Other Measures) Bill 2012 homepage’, Australian Parliament website, accessed 14 January 2016.

[5].              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, accessed 14 January 2016.

[6].              Liberal Party of Australia and the Nationals, The Coalition’s policy to tackle crime, Coalition policy document, Election 2013, accessed 14 January 2016.

[7].              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; both accessed 14 January 2016.

[8].              Australia, Senate, Journals, 75, 2014–15, p. 2060; Australia, Senate, Journals, 109, 2015–16, pp. 3000–01; both accessed 20 January 2016.

[9].              Senate Legal and Constitutional Affairs Legislation Committee, ‘Criminal Code Amendment (Firearms Trafficking) Bill 2015’, Australian Parliament website, accessed 14 December 2015.

[10].              Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 [Provisions], The Senate, Canberra, September 2014, pp. 22–24, 26 (Recommendation 2), accessed 20 January 2016. The report also includes additional comments from Australian Labor Party Senators and a dissenting report by the Australian Greens, both opposing the introduction of mandatory minimum sentencing.

[11].              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; both accessed 20 January 2016.

[12].              Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions], The Senate, Canberra, June 2015, pp. 23–25, accessed 20 January 2016. The report also includes dissenting reports by Australian Labor Party Senators and the Australian Greens, both opposing the introduction of mandatory minimum sentencing.

[13].              Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee), Alert digest, 10, 2014, The Senate, Canberra, 27 August 2014, pp. 10–11; Scrutiny of Bills Committee, Alert digest, 4, 2015, The Senate, Canberra, 25 March 2015, pp. 11–12; both accessed 14 December 2014.

[14].              Parliamentary Joint Committee on Human Rights (PJCHR), Fifteenth report of the 44th Parliament, The Senate, Canberra, 14 November 2014, pp. 30–32; PJCHR, Twenty-second report of the 44th Parliament, The Senate, Canberra, 13 May 2015, pp. 36–39; both accessed 14 January 2016.

[15].              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.

[16].              Senate, Journals, 75, op. cit.; Senate, Journals, 109, op. cit.

[17].              D Feeney, Turnbull Government won’t learn from Abbott’s failed policies, media release, 3 December 2015, accessed 20 January 2016.

[18].              Senate, Journals, 75, op. cit.; Senate, Journals, 109, op. cit.

[19].              Ibid.

[20].              Ibid.

[21].              Senate, Journals, 75, op. cit.

[22].              Senate, Journals, 109, op. cit.

[23].              Law Council of Australia (LCA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 6 January 2016, pp. 1–2; Australian Human Rights Commission (AHRC), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 6 January 2016, pp. 14–16; NSW Council for Civil Liberties (NSW CCL), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 6 January 2016, p. 2; all accessed 21 January 2016.

[24].              AHRC, op. cit., pp. 3–14; LCA, op. cit., pp. 2–5; NSW CCL, op. cit., pp. 1–2; Civil Liberties Australia (CLA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, 31 December 2015; Law Society of New South Wales (LS NSW), Submission to Senate Legal and Constitutional Affairs Legislation 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 Legal and Constitutional Affairs Legislation 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; all accessed 21 January 2016.

[25].              J Coyne, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Criminal Code (Firearms Trafficking) Bill 2015, n.d., p. 2, accessed 21 January 2016.

[26].              J Coyne, ‘Gun trafficking and mandatory jail terms’, The Strategist, blog, 18 March 2015, accessed 21 January 2016.

[27].              Explanatory Memorandum, p. 2.

[28].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[29].              AHRC, op. cit., pp. 7–12; CLA, op. cit.; LS NSW, op. cit.; NSW CCL, op. cit., pp. 1–2.

[30].              M Keenan, ‘Second reading speech: Criminal Code Amendment (Firearms Trafficking) Bill 2015’, House of Representatives, Debates, 2 December 2015, pp. 14438–39, accessed 21 January 2016.

[31].              Explanatory Memorandum, pp. 6, 8.

[32].              LCA, 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, Australian and NSW Governments, January 2015 (accessed 21 January 2016).

[33].              AHRC, op. cit., p. 15; NSW CCL, op. cit., p. 2.

[34].              AHRC, op. cit., p. 15. See Attorney-General’s Department (AGD), ‘Answers to questions on notice taken on 22 August 2014’, AGD, 27 August 2014, p. 1, accessed 21 January 2016.

[35].              Ibid., pp. 15–17.

[36].              Ibid. See for example Firearms Act (NT), section 63A; Firearms Act 1996 (ACT), section 220; Weapons Act 1990 (Qld), section 65; all accessed 21 January 2016.

[37].              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 (both accessed 21 January 2016).

[38].              See for example the views of submitters summarised in Senate Standing Committee on Legal and Constitutional Affairs, 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; both accessed 21 January 2016.

[39].              CLA, op. cit.; LCA, op. cit., p. 2; LS NSW, op. cit., pp. 1–2.

[40].              CLA, op. cit.; LCA, op. cit., p. 3; NSW CCL, op. cit., p. 2; LS NSW, op. cit., p. 2; AHRC, op. cit., pp. 12–14; NSW SLL, op. cit., p. 2.

[41].              CLA, op. cit.; LCA, op. cit., pp. 2–4; LS NSW, op. cit., p. 2; AHRC, op. cit., pp. 5–7, 9–12; NSW SLL, op. cit., p. 1.

[42].              AHRC, op. cit., pp. 7–12; CLA, op. cit.; LS NSW, op. cit., pp. 2–3; NSW CCL, op. cit., pp. 1–2. See also the ‘Committee consideration’ section of this Digest for the views of the PJCHR.

[43].              CLA, op. cit.; NSW CCL, op. cit., p. 2; LCA, op. cit., pp. 2–4.

[44].              LCA, op. cit., p. 2.

[45].              AHRC, op. cit., p. 6.

[46].              AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, Canberra, updated September 2011, pp. 37–39, accessed 21 January 2016.