Criminal Code Amendment (Firearms Trafficking) Legislation Passes Senate

Wednesday 15 February 2017 @ 12.17 p.m. | Crime | Legal Research

On Monday (13 February 2017) the Criminal Code Amendment (Firearms Trafficking) Bill 2016 (Cth) (the Bill) passed the Senate after several amendments from the opposition and the Xenophon team were accepted. One of the amendments being the watering down of the "mandatory minimum sentences" proposed by the Bill.

The Bill was reintroduced to the Senate last September (15 September 2016) after it lapsed as a result of the Federal election. In passing the Senate, the Bill was referred to a Committee on 13 October  2016 and that Committee reported back to the Senate on 7 November 2016.

Background to the Bill 

The Federal government initially introduced the  Bill into the Parliament in the final session of 2015 to amend the Criminal Code 1995 (Cth) not only to ensure those found guilty of trafficking illegal firearms received a five-year minimum mandatory sentence, but to provide also that an offender could go to jail for up to 20 years.

Key objections at the time of the Bills introduction were that the minimum sentence did not include specified non-parole periods and that the amendments did not impose a minimum non-parole period for offenders. The Bill also did not intend for the minimum sentence to be a guide to the non-parole period and further, the amendment was not to apply to minors under the age of 18, preserving judicial discretion in weighing mitigating factors for non-parole periods in sentencing.

For more detail see our previous articles on the Bill (see Criminal Code Amendment (Firearms Trafficking) Bill 2015 and New Criminal Code Amendment (Firearms Trafficking) Bill 2016 [CTH] Reintroduced). 

The Ministers Take on the Bill's Passage

In his Media Release  (12 February 2016) preceding the Senate's debate and the subsequent passage of the Bill, Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter Terrorism (the Minister) stated that:

"The Coalition Government promised greater protection for Australians from gun-related crime and we are delivering on it."

Of mandatory sentences and increased penalties the Minister said;

"Mandatory minimum sentences and increased maximum penalties will ensure the punishment matches the crime; acting as the strongest possible deterrent to gun-related crime and violence. . . . Now, more than ever, we must do everything in our power to ensure the ongoing safety and security of all Australians. . . . Just one illegal firearm is deadly. In the wrong hands illegal guns are a threat to every Australian.

To support claims with respect to the need for mandatory sentences and increased penalties the Minister's Media Release states:

"Recent intelligence suggests there are more than a quarter of a million illicit firearms in Australia. They are increasingly held by criminals or organised crime groups, like outlaw motorcycle gangs. . . Criminals in every Australian jurisdiction are using illicit firearms to protect their criminal interests, strike fear and  intimidation and to commit acts of violence and crime."

Reaction to and Comment on the Bill

The opposition twice previously blocked attempts to introduce the mandatory minimum sentences and in the end the legislation when it passed contained five opposition amendments  which effectively watered down "mandatory minimum sentences".

On the cross benches resistance to passage of the legislation remained and in the final vote One Nation’s senate trio, along with the openly pro-firearms Liberal Democrat Senator Leyonhjelm, voted against the Bill. This was even, after a measure strongly opposed by this cross bench group, namely "mandatory sentences" was removed from the Bill by amendment.

In Senator Leyonhjelm's view as expressed in the Senate debate, neither, the government or the opposition had pointed to a single case in which the current maximum penalties had been applied, proceeding to label the Bill as "law-for-law’s-sake".

In a recent article Lawyers Weekly reports Law Council (LC) president Fiona McLeod SC  as saying that while the legal body supports increasing maximum penalties for firearms trafficking, “. . . minimum penalties are never appropriate”.

The LC president's rationale for this view being that minimum penalties are ". . . blunt an instrument[s]" which have been shown not to "produce the desired effect, . . .”. The point is also made by the LC president that a mandatory five year penalty is unlikely to ". . . deter hardened criminals" as such criminals in most cases have already either been in jail or have factored in the prospect of considerable jail time as part of the risk they take.

There is certainly a case for stronger legislation to deal with arms trafficking and what is reported to be around 600,000 weapons on the illicit market in Australia - an amount larger than it has ever been before. As for registered firearms, there are more guns in Australia today than there were when the Port Arthur massacre occurred. It will be interesting to see if this Bill meets that objectives of deterrence held out for it.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.

Sources:

Criminal Code Amendment (Firearms Trafficking) Bill 2015 and supporting materials as reported in the TimeBase LawOne Service.

Illegal firearms trafficking: Labor must put the safety of Australians first (Ministers Media Release 12 Feb 2016)

LCA issues caution over ‘unjust’ firearm trafficking bill (Lawyers Weekly)

One Nation and Leyonhjelm oppose tougher punishment for firearm smugglers (News.com)

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