Introduction and background
Referral
1.1
On 13 October 2016, the Senate referred the Criminal Code Amendment
(Firearms Trafficking) Bill 2016 to the Senate Legal and Constitutional Affairs
Legislation Committee for inquiry and report by 7 November 2016.[1]
The Senate Selection of Bills Committee recommended that the bill be referred
as it proposes changes to the criminal law which have 'a significant impact on
the rights and obligations of the Australian people, including potentially the
ability to see them deprived of their liberty'.[2]
1.2
The bill is identical to a bill introduced in the 44th Parliament that
was the subject of an inquiry by this committee. Following the prorogation of
the 44th Parliament, the previous bill lapsed.
Conduct of inquiry
1.3
In accordance with usual practice, the committee advertised the inquiry
on its website and also wrote to organisations inviting written submissions by 26
October 2016. The committee received 4 submissions, listed at Appendix 1. The
committee did not hold a public hearing due to the short timeframe and the fact
that the committee has previously considered the bill.
History of the bill
1.4
On 3 December 2015, the Criminal Code Amendment (Firearms Trafficking)
Bill 2015 was referred to the Senate Legal and Constitutional Affairs
Legislation Committee (the committee). Nine submissions were received. The
committee reported on the previous bill in February 2016.
1.5
In the 44th Parliament, the committee recommended that the bill
be passed, subject to amending the Explanatory Memorandum (EM) to clarify who
bears the onus of proof in relation to the age of defendants, as well as the
operation of mandatory minimum sentencing in relation to people with
significant cognitive impairment.[3]
Both of these amendments have since been made.
1.6
The committee notes that this is the fourth time that the parliament has
considered similar provisions related to mandatory minimum sentences to those
proposed in this bill. Similar provisions were included in the Crimes
Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014,
introduced on 17 July 2014, and the Crimes Legislation Amendment (Powers,
Offences and Other Measures) Bill 2015, introduced on 19 March 2015. While both
bills were passed, in each case this only occurred following amendments in the Senate
that removed the mandatory minimum sentence provisions.
1.7
The Crimes Legislation Amendment (Psychoactive Substances and Other
Measures) Bill 2014, the Crimes Legislation Amendment (Powers, Offences and
Other Measures) Bill 2015, and the earlier version of this bill have been the
subject of inquiry by this committee.[4]
The current bill inquiry is therefore the fourth time since 2014 that the
committee has examined these measures. Collectively, the inquiries that have
been conducted by this committee, including receiving evidence from key
stakeholders, have been significant and substantial.
Purpose of the bill
1.8
The bill amends the Criminal Code Act 1995 (Cth) (Criminal Code)
to set new mandatory minimum penalties and maximum penalties for the offences
of:
-
trafficking firearms and firearms parts within Australia (in Division
360 of the Criminal Code); and
-
trafficking firearms and firearms parts into and out of Australia
(in Division 361 of the Criminal Code).
1.9
For each of the offences in these Divisions, the following penalties
will apply:
-
a mandatory minimum sentence of imprisonment for five years; and
-
maximum penalties of imprisonment for 20 years or a fine of 5,000
penalty units, or both.
1.10
The bill implements the Government’s Keeping illegal guns off
our streets and our communities safe election policy.[5]
The EM provides a number of reasons why the amendment is necessary. These
include:
-
the mandatory minimum sentence and increased maximum penalties
aim to more adequately reflect the serious nature and potential consequences of
supplying firearms and firearm parts to the illicit market;[6]
-
firearms cause serious harms and the amendments are reasonable to
achieve the objective of ensuring that sentences 'reflect the seriousness of
their offending; and[7]
-
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.[8]
1.11
Further detail on the bill can be found in the committee's report of
February 2016.[9]
Treatment of minors and individuals with significant cognitive impairment
1.12
The bill provides that the mandatory minimum penalty does not apply if
it can be established, 'on the balance of probabilities, that the person was aged
under 18 years when the offence was committed', which allows for judicial
discretion in sentencing minors.[10]
Further, the EM also states in relation to the age of the defendant:
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).[11]
1.13
The mandatory minimum penalty will also not apply for individuals with a
significant cognitive impairment. The EM makes two points in relation to this
issue. First, it notes that 'mandatory minimum sentences in the bill do not
impose a minimum non-parole period for offenders' and that this will allow
judicial discretion in relation to matters such as significant cognitive
impairment. Second, it states that the mental impairment defence in the Criminal
Code will also apply.[12]
Issues raised by
submitters
1.14
The Sporting Shooters Association of Australia (SSAA) believes that the bill
appropriately recognises that law enforcement should focus on the illicit
firearms market. However, more broadly, SSAA holds the view that:
Current legislation affecting legal firearms and private
firearms ownership continues to be onerous on the licensed owner, with some
legislation based on emotive political and social ideology, rather than
credible and scientifically proven evidence.[13]
1.15
Civil Liberties Australia (CLA) opposes mandatory minimum sentences because,
in their view, they contravene the separation of powers by limiting the role of
the judiciary to apply 'laws to individual cases and determine what penalty
should apply for contravening them'.[14]
Further, they consider that mandatory minimum sentences are 'ineffective in
reducing crime' and result in 'harsh and unjust punishments' as a result of
forcing courts to apply an inflexible standard without considering the specific
facts and broader circumstances associated with a particular case.[15]
1.16
The Law Council of Australia (LCA) has adopted a similar position to
CLA. Whilst the LCA supports increasing the maximum penalties for firearms
trafficking, it does not support a mandatory minimum penalty of 5 years
imprisonment:
The imposition of a mandatory minimum imprisonment sentence
is a partial fettering of judicial discretion that impedes the sentencing
judge’s ability to fashion a sentence that is of an appropriate severity in all
the circumstances...[16]
1.17
The submission of the Attorney-General's Department (the Department)
states that the amendments recognise the fact that firearms trafficking
offences are serious crimes that pose a significant threat to community safety,
but also that 'current efforts to prevent the diversion of firearms into
overseas illicit markets [demonstrate] Australia’s commitment to its
international obligations regarding the illegal firearms trade'.[17]
1.18
According to the Department, the introduction of mandatory minimum
sentences 'reflects the belief that those caught trafficking firearms should
receive penalties that are commensurate with the seriousness of their offending'.[18]
The Department also highlights the fact that the Commonwealth is not the first
jurisdiction to introduce mandatory minimum sentences for this type of offence,
noting that it has already been adopted in Queensland and the United Kingdom.[19]
1.19
The Department responds to potential human rights objections to the
provisions of the bill in their submission. The Parliamentary Joint Committee
on Human Rights (PJCHR) deferred consideration of the bill in its most recent
report.[20]
In the 44th Parliament, the bill was also considered by the PJCHR, which recommended
that:
...the provision be amended to clarify that the mandatory
minimum sentence is not intended to be used as a 'sentencing guidepost' and
that there may be a significant difference between the non-parole period and
the head sentence.[21]
1.20
The Department highlights the fact that the EM states: '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'.[22]
The Department expands on this point in their submission:
The Government believes that mandatory minimum sentences for
firearms trafficking offences are reasonable and necessary both to deter
would-be firearms traffickers, and to appropriately penalise those who commit
these offences. There are appropriate limitations and safeguards in place to
ensure that detention is proportionate in each individual case. As the
provisions do not impose a mandatory non-parole period, the actual time a
person will be incarcerated will remain at the discretion of the sentencing
judge.[23]
1.21
The Department emphasises that a relevant provision of the Crimes Act
1914 (Cth), requiring courts to take into account the character,
antecedents, age, means and physical or mental conditions of the person.[24]
Finally, it is the Department's view that 'based on the High Court’s reasoning
in Magaming v The Queen[25]
in relation to mandatory minimum penalties for aggravated people smuggling
offences, the proposed provisions are considered lawful and not arbitrary'.[26]
Committee view and recommendations
1.22
The committee agrees that there are serious harms associated with
firearms trafficking, due to the role of firearms in violent crime and the
associated threat to community safety. For this reason, the committee believes
that strengthening penalties in this area is necessary. The committee is
pleased that the recommended amendments have been made to the EM since the bill
was previously considered by the committee. These changes appropriately clarify
the impact of the bill on minors and individuals with significant cognitive
impairment.
1.23
The committee is satisfied that the bill includes sufficient flexibility
to allow courts to take account of individual circumstances where this is
appropriate, and addresses recommendations the committee made following its
previous inquiry into the bill in the 44th Parliament.
1.24
The committee also notes that this is the fourth time that mandatory
minimum sentencing provisions have been considered by the parliament, and by
this committee. The committee is pleased to note the high level of consultation
and inquiry that has taken place in relation to these proposed provisions, and
that amendments to the EM recommended by this committee have been made by
government.
Recommendation 1
The committee recommends that the Senate pass the bill.
Senator the Hon
Ian Macdonald
Chair
Navigation: Previous Page | Contents | Next Page