On February 16, 2022, the Criminal Code Amendment (Firearms Trafficking) Bill 2022 was introduced in the Australian Parliament. The bill, which amends the federal Criminal Code Act 1955 (Cth), was quickly passed by both the Senate and the House of Representatives on March 30, 2022, before receiving assent by the Governor-General on April 1, 2022.
Broadly, according to the bill’s explanatory memorandum, the bill amends the Criminal Code Act 1955 by:
- Introducing “new aggravated offences for trafficking,” under sections 361.2 and 361.3 of the code, for persons trafficking 50 or more firearms or firearm parts, or both, within a six-month period.
- Doubling the “maximum penalty for existing [basic] firearms trafficking offences from 10 years imprisonment … to 20 years imprisonment.”
- Allowing for a maximum penalty of life imprisonment for aggravated offenses, with a mandatory minimum of five years for both aggravated and basic offenses that may be reduced only if a person pleads guilty and cooperates with law enforcement agencies.
The bill targets trafficking of firearms and firearm parts within Australia, into Australia, or out of Australia.
Offenses Under the Bill
The bill covers two types of trafficking offenses — “basic” and “aggravated” — and covers trafficking of firearm and firearm parts within Australia, into Australia, and out of Australia.
With respect to the trafficking of firearms and firearm parts within Australia, the primary element of the “underlying” offense must first be established before establishing that a “basic” or “aggravated” offense has been committed.
Under the bill, a person commits an “underlying” offense if they engage in conduct that constitutes an offense against a firearm law and the primary element of that offense is either the disposal or acquisition of a firearm or firearm part. It must then be shown that the underlying offense was undertaken in the “course of trade or commerce,” either among states, between a state and territory, or between two territories, in order to find the person guilty. (Bill cl 1, inserting new s 360.2(1) & (2).)
Whether the offense is classified as “basic” or “aggravated” will depend upon the number of firearms disposed of or acquired within a six-month period. To be an aggravated offense, it must be shown that 50 or more firearms or firearm parts were disposed of or acquired within a six-month period.
With respect to the trafficking of firearms and firearm parts into or out of Australia, it must be shown that the person imported or exported a firearm or firearm part and that the person did so with the intention of “trafficking in the firearm or part.” For a person to be found guilty of this particular offense, it must be established that the importation or exportation was prohibited under the Customs Act 1901 (Cth). (Bill cl 2, inserting new ss 361.2 & 361.3.)
As with trafficking within Australia, if the person imported or exported “50 or more prohibited firearms or firearm parts,” or a combination of the two, in a six-month period, the offense will be classified as “aggravated” and invoke the associated penalty.
The bill removes the fault element for several physical elements of each offense, such that if an individual is charged, then, depending on the exact charge, absolute liability or strict liability will apply.
The rationale for the imposition of absolute liability and strict liability is considered in the Statement of Compatibility for Human Rights, which is included in the explanatory memorandum. According to the statement, the standard is “not inconsistent with the presumption of innocence” because the bill aims to prevent criminal networks from avoiding criminal liability by structuring deals to avoid liability, claiming a lack of awareness with respect to the elements of the offense, or being “wilfully blind” to firearms and firearm parts they deal with. While strict and absolute liability apply, individuals are still able to plead a defense of mistake of fact.
The statement also considers Australia’s obligation under article 9(1) of the International Covenant on Civil and Political Rights to not subject anyone to arbitrary detention. The statement notes that as individuals will have access to a fair trial, the mandatory minimum sentence of five years’ imprisonment and maximum penalty of life imprisonment are “reasonable to achieve the legitimate objective of ensuring” that courts can hand down sentences that reflect the seriousness of the offense.
Context of Firearm Trade and Trafficking
According to the explanatory memorandum, the amendments aim to address the “serious social and systemic harms associated with firearms trafficking” by imposing sentences that are “reasonable, necessary and proportionate to the legitimate objective of reducing illegal firearms trafficking.” These sentences reflect the fact that firearms remain in the market for years, are imperishable, and have been used “in 22.2% of homicides in Australia.”
As noted in a report by the Australian Institute of Criminology, Australia is a party to the U.N. Arms Trade Treaty, which seeks to ensure that privately owned arms are not used in illicit trade, and the U.N. Convention Against Transnational Organised Crime, an international instrument used in the fight against organized crime across national boundaries. The report states that trade in illegal firearms and weapons … threatens the rule of law, police operations and the safety of civilian populations.” According to the Australian Criminal Intelligence Commission, the demand for illicit firearms is facilitated through purchases using Bitcoin on the darknet, with firearms dispatched through Australia to countries such as Russia, Zambia, Belgium, and France.
Reactions to the Bill
Independent member of Parliament, Bob Katter; the Australian Shooters Union; and sporting shooters groups in the country attacked “both sides of the Parliament” for introducing the bill without first consulting with the country’s shooting organizations. Katter stated he opposed the bill on the grounds that merely purchasing replacement parts online “could mean jail time as sending items interstate may constitute ‘trafficking’.” In contrast, the then-Assistant Minister for Customs, Community Safety and Multicultural Affairs, Jason Wood, stated that the bill would “deter and disrupt organised crime groups who continue to traffic firearms in Australia.” The bill was passed with the support of the Labor Party, then the main opposition party in Parliament, despite its opposition to mandatory minimum sentences, owing to a caucus decision not to block bills that tackle serious crimes.Prepared by Nabila Buhary, Law Library intern, under the supervision of Kelly Buchanan, Chief, Foreign, Comparative, and International Law Division II