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Research Note - Firearms Amendment (Trafficking and Other Measures) Bill 2015

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Executive summary

This Research Note provides background information on the development of firearm legislation and regulations in Victoria, in addition to information on the main provisions in the Firearms Amendment (Trafficking and Other Measures) Bill 2015 ('the Bill'). The main purposes of the Bill are to:

§ lower the number of unregistered firearms that is a traffickable quantity from 10 firearms to 3 firearms;

§ provide higher penalties for the unlawful manufacturing of firearms;

§ clarify the circumstances under which certain persons are taken to be in possession of a firearm; and

§ create a new offence of theft of a firearm in the Crimes Act 1958.

Background to firearm legislation

Firearm legislation is constantly evolving in response to criminal offences, emerging technologies, enhanced manufacturing capabilities and accessibility of overseas weapons. In the wake of the Port Arthur shootings in Tasmania in 1996, Australia underwent significant firearm law reform, including a nation-wide 'buyback' of newly prohibited firearms (through the National Firearms Program Implementation Act 1996and National Firearms Program Implementation Act 1997). This buyback scheme compensated firearm owners and dealers and was funded through a one-off increase in the Medicare levy. As noted in a 1997 Australian National Audit Office report of the scheme, it resulted in the surrender of around 640,000 prohibited firearms nationwide.[footnote 1]

The importing and exporting of firearms, accessories and ammunition is controlled by the Commonwealth (such as through the Customs Act 1901 and Customs Regulation 2015).[footnote 2] Nonetheless, each state and territory has its own firearm legislation. Despite jurisdictional differences, there are three key national agreements that have encouraged consistent firearms legislation and regulations across the states and territories. These are the National Firearms Agreement (1996), National Firearm Trafficking Policy Agreement (2002), and National Handgun Control Agreement (2002), which were coordinated through the Australasian Police Ministers' Council (APMC) and later the Council of Australian Governments (COAG).[footnote 3]

In 2008, the Australian Institute of Criminology (AIC) reviewed the legislation across jurisdictions for the Attorney-General's Department 'to examine the extent of compliance' with the national firearm agreements and 'identify where legislative inconsistencies still exist that could potentially facilitate firearm diversion'.[footnote 4] The review, which resulted in an unpublished report, 'found general compliance across the states and territories but highlighted where differences in laws between the jurisdictions still existed'.[footnote 5]

The National Firearms Agreement included the following resolutions:

§ Ban of specific types of firearms;

§ establish a 'genuine reason' for owning, possessing or using a firearm, in addition to basic licence requirements (i.e. provide proof of identity, undertake adequate safety training, be aged 18 years or over, be 'a fit and proper person', etc);

§ establish a nationwide registration of all firearms;

§ require all first time licence applicants to complete an accredited safety training course;

§ implement uniform standards for the security and storage of firearms;

§ specify grounds for licence refusal or cancellation and seizure of firearms (i.e. conviction of an offence, 'not in the public interest', licence obtained by deception, licence holder subjected to a Domestic Violence order, etc);

§ ensure that permits are required for the acquisition of every firearm (and waiting period to enable appropriate checks);

§ require firearm sales to be conducted through licenced firearm dealers, all sales of firearms to be recorded and quantity of ammunition limited; and,

§ control mail order sales, including the movement of firearms, advertisements and commercial transportation.

In 2002, the National Firearm Trafficking Policy Agreement (APMC) resolved to introduce nationally consistent regulation of the legal manufacture of firearms and increase border protection to control illegal firearm trade in Australia.[footnote 6] The resolutions also established penalties for the illegal possession and supply of firearms, the defacing of serial numbers, tightened recording and reporting provisions for firearm dealer transactions.

The National Handgun Control Agreement (APMC, 2002) restricted the availability and use of handguns, especially those that are easily concealable. This agreement followed the Monash University handgun shooting in October 2002 in which two students died.[footnote 7] Like the Port Arthur shootings, this event signaled a national handgun buyback scheme (through the National Handgun Buyback Act 2003 (Cth)). In June 2015, media reports suggested that lever-action firearms could be reclassified, potentially signalling another buyback scheme, in response to the increasing accessibility of overseas firearms, such as the Turkish-made Alder A110.[footnote 8]

The Bill

Reforms to firearm legislation, contained in the Firearms Amendment (Trafficking and Other Measures) Bill 2015 ('the Bill'), were initially intended to be introduced in early 2016.[footnote 9] However, in response to the shooting of two police officers in Moonee Ponds and an increase in firearm offences in the north-west metro region, the legislation was brought forward.[footnote 10] The image below illustrates what the media have referred to as the "red zone", the north-west metro region, referred to above, which has seen an increase in firearm offences.

Source: T. Mills (2015) 'Gun found every two days in Melbourne's 'red zone'', The Age, 18 June.

Traffickable quantities of firearms

Clause 3 of the Bill amends section 7C of the Firearms Act 1996 to lower the number of unregistered firearms that is considered a traffickable offence from ten to three. Clause 6 of the Bill also amends section 101A of that Act to expand the timeframe under which trafficking can occur from seven days to 12 months.

In his second reading speech, the Minister for Police, the Hon. Wade Noonan, stated that these amendments are necessary and appropriate 'given that Victoria Police hold concerns about instances where unregistered firearms have been purchased and that the current trafficking offences are not considered to be adequate in order to deter traffickers and effect prosecutions'.[footnote 11] He also said:

The current limit of 10 unregistered firearms within a period of 7 days can be too readily exploited by persons seeking to avoid the higher penalty attached to the trafficking offence by consistently acquiring and disposing of limited quantities of, say, 10 unregistered firearms on a weekly basis. The amendments to trafficking provisions will bring Victoria into line with other jurisdictions, that currently provide for similar thresholds and specified time periods.[footnote 12]

On the need to lower the number of traffickable quantities of firearms, an article in The Age stated:

Crime Statistics Agency figures show that despite a doubling in firearms offences statewide in five years, only two people have been charged with selling or acquiring a traffickable quantity of guns since 2010, and only eight were charged with possessing a traffickable quantity.

Police privately say the legislation, which defines a traffickable quantity as 10 guns, is actually a hindrance to charging gun pushers.[footnote 13]

In addition to the abovementioned state-wide 'doubling' of firearm offences, the following graph published in The Age again uses the Crime Statistics Agency data to illustrate an increase in both firearm offences and prohibited weapons in the north west metro region.[footnote 14]

Source: Mills (2015) 'Gun found every two days in Melbourne's 'red zone'', op. cit.

Samantha Bricknell, the author of the AIC's 2012 Firearm Trafficking and Serious and Organised Crime Gangs report, noted:

All jurisdictions, except South Australia, have an offence of firearms trafficking or the illegal sale of firearms on three or more separate occasions. Differences exist between the jurisdictions in the quantity of firearms specified, the number of sales that need to occur and the time period over which sales are to take place for an offence to be committed.[footnote 15]

New South Wales extended their timeframe from three illegal firearm sales in 30 days to three illegal sales in 12 months with the Firearms and Crimes Legislation Amendment (Public Safety) Act 2003. Minister for Police, the Hon. John Watkins, stated in his second reading speech that 'this recognises that the modus operandi in regard to illegal firearm sales is very different from that in regard to prohibited drugs, on which the three sales in 30 days time frame was originally modelled'.[footnote 16]

Offence to manufacture firearms

The Bill inserts a new section 59A into the Act increasing penalties for the offence of manufacturing firearms, with penalties ranging from 600 penalty units or five years imprisonment to 1200 penalty units or ten years imprisonment depending on the type or category of firearm manufactured.[footnote 17] The Minister stated in the second reading speech that these amendments 'will bring Victoria in line with other jurisdictions, providing for similar penalties and a specific offence for unlawful manufacture'.[footnote 18]

For example, section 50A of the NSW Firearms Act 1996 states that a person who manufactures a firearm is liable to imprisonment for ten years (s 50A(1)) or 20 years where this is 'a pistol or prohibited firearm' (s 50A(2)). On their website, the Judicial Commission of New South Wales discusses the application of this legislation in the context of judgements of differing 'objective seriousness':

Given the definition of "manufacture" in s 50A(5) of "assemble a firearm from firearm parts" the criminality encompassed can extend from a very sophisticated operation at the one end of the spectrum to a relatively minor adjustment to a pre-existing firearm at the other: Truong v R [footnote 2013] NSWCCA 36 at [footnote 111]. A relevant factor in determining the objective seriousness of a particular offence is whether the firearm is in working order: Truong v R at [footnote 111].[footnote 19]

In 2014, a South Australian 'backyard gunsmith', Leon James Baird, was jailed for ten years (minimum non-parole period of five years and six months) after manufacturing and supplying firearms able to shoot up to 600 rounds a minute.[footnote 20] While Baird stated that he intended to supply firearms for 'recreational use', his firearms were found in the possession of clubrooms of the Finks Motorcycle Gang and the home of a Rebels bikie, with some of the firearms still unaccounted for.[footnote 21]

Firearms found on premises or vehicle

Clause 7 of the Bill substitutes the current section 145 of the Act with a new section. In his second reading speech, the Minister stated that the amendment 'will remove the current definition of 'evidence of possession' and introduce a new 'deemed possession' provision', thereby shifting 'the focus away from a person's relationship with a firearm to that of a relationship between the person and the premises or vehicle where the firearm is located'.[footnote 22]

The current section 145 of the Act, titled 'Evidence of possession' states:

In any proceedings under this Act, evidence that a person occupies any land or premises on or in which any firearm is found is evidence, and, in the absence of evidence to the contrary, is proof that that person possessed the firearm.

The new section 145 proposed in the Bill provides that a firearm is taken to be in the possession of a person if the firearm is found on premises or in a vehicle. Lawful exceptions, outlined in new section 145(2), include that:

(a) the firearm was in the possession of another person who was lawfullyauthorised under this Act to possess the firearm; or

(b) the person believed on reasonable grounds that the firearm was in the possession of another person who was lawfully authorised under this Act to possess the firearm; or

(c) the person did not know, and could not reasonably be expected to know, that the firearm was on the premises or in the vehicle.

In a media release on the Bill, the Minister for Police stated that the new laws:

… will also help Victoria Police deal with firearms held by serious and organised crime groups, such as bikies, where a weapon is found with gang members but they deny any knowledge of the weapon or claim that it is not theirs. The laws will place the onus on gang members to show the firearm is not in their possession.[footnote 23]

However, in his second reading speech, the Minister noted that the prosecution:

… will still retain the legal onus of proving all of the elements of the offence to the criminal standard of beyond reasonable doubt. The exceptions provided for in the new provision relate to matters that are solely within the knowledge of the defendant.[footnote 24]

Firearm theft

As noted above, the Bill makes changes to the Crimes Act 1958. Section 74(1) of that Act states:

A person guilty of theft is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The Bill inserts a new section 74AA into that Act after section 74 ('Theft') to add a specific offence for the theft of a firearm and the following penalty: 1800 penalty units or 15 years imprisonment. In the second reading speech, the Minister stated that the 'new offence will carry a higher penalty than the offence of theft under section 74 of the Crimes Act, in recognition that the theft of firearms can increase the illegitimate flow of firearms in the community and lead to very serious criminal activity'.[footnote 25]

According to the AIC's Firearm Theft in Australia 2008-09 report, over 1500 firearms were reported stolen in 2008-09, a number that has risen since 2004-05.[footnote 26] Relatively few (14 per cent) of these firearms are recovered.[footnote 27] The majority of all firearms reported stolen involved the theft of multiple firearms, ranging from two to 19.[footnote 28]

Recently, the media have reported an increase in firearm theft from rural properties, with 'many of these stolen weapons turning up in the 'red zone' of Melbourne North West metro region'.[footnote 29] Former Member for Frankston, Dr Alistair Harkness is currently conducting a study into farm thefts with Monash University.[footnote 30] Writing in The Conversation, Dr Harkness stated:

… with the supply of guns down and demand up, enterprising criminal elements have found a new and readily accessible source of firearms. Rookie gang members are sent on missions to visit farms and specifically target firearms. We know how important long-barrelled rifles and shotguns are for farmers as a tool. When these fall into the wrong hands and are sawn off, they can have deadly consequences… What often goes unrecognised is the direct link between the theft of a firearm from a farm and its use in armed robberies, home invasions and other crimes in the city.[footnote 31]

Section 126 of the Firearms Act requires that a person who is carrying or using a firearm 'must take reasonable precautions to ensure that the firearm is not lost or stolen'.[footnote 32] In section 140 of the Firearm Act, firearm licence holders must notify the Chief Commissioner of any loss, theft or destruction of a firearm in the holder's possession within 24 hours after becoming aware of that loss, theft or destruction. Licence holders are liable to a penalty of 30 penalty units for failing to notify the Chief Commissioner. In other jurisdictions the notification time is longer, such as in South Australia where a registered firearm owner must give notice in writing to the Registrar within 14 days after a firearm is lost, stolen or destroyed (see s 25(1)(c) of Firearms Act 1977(SA)).

 

Australian gun legislation and agreements

Commonwealth

§ Customs Act 1901

§ Customs Regulation 2015

Regarding international treaties and agreements on firearm trafficking, Australia is a signatory to, but has yet to ratify, the United Nations Protocol against the Illicit Manufacturing and Trafficking of Firearms, Their Parts and Components and Ammunition 2001.

National Agreements

§ National Firearms Agreement

§ National Firearm Trafficking Policy Agreement

§ National Handgun Control Agreement

Victoria

§ Firearms Act 1996

§ Firearms Regulations 2008

§ Control of Weapons Act 1990

§ Control of Weapons Regulations 2011

New South Wales

§ Firearms Act 1996

§ Weapons Prohibition Act 1998

§ Firearms Regulation 2006

§ Weapons Prohibition Regulation 2009

Queensland

§ Weapons Act 1990

§ Weapons Regulations 1996

§ Weapons Categories Regulations 1997

South Australia

§ Firearms Act 1977

§ Firearms Regulations 2008

Tasmania

§ Firearms Act 1996

§ Firearms Regulations 2006

Northern Territory

§ Firearms Act

§ Firearms Act Regulations

Australian Capital Territory

§ Firearms Act 1996

§ Firearms Regulation 2008

§ Prohibited Weapons Act 1996

§ Prohibited Weapons Regulation 1997

 

 

 

Research & Inquiries Service

Research Notes are produced by the Parliamentary Library's Research & Inquiries service. They provide analysis on selected components of new Bills and topical issues in response to, and in anticipation of, the needs of Members of the Victorian Parliament.

This research publication is current as at the time of printing. It should not be considered a complete guide to the particular subject or legislation covered. While it is intended that all information provided is accurate, it does not represent professional legal opinion. Any views expressed are those of the author(s).

Some hyperlinks may only be accessible on the Parliament of Victoria's intranet. All links are current and available as at the time of publication.

Author

Rachel Macreadie

Research & Inquiries Officer

Victorian Parliamentary Library & Information Service

Department of Parliamentary Services

Enquiries:
Jon Breukel

Coordinator, Research & Inquiries

Victorian Parliamentary Library & Information Service

Parliament House

Spring Street, Melbourne

Telephone (03) 9651 8633

Email: research@parliament.vic.gov.au

 


[footnote 1] Australian National Audit Office (1997) The Gun Buy-Back Scheme, Canberra, ANAO, p. 6.

[footnote 2] See also recent reports of federal legislation to impose a mandatory jail sentence on people found guilty of gun trafficking: ABC News (2015) 'Gun traffickers to face mandatory jail terms under legislation set to be introduced by Federal Government', ABC News, 15 March; K. Moor (2015) 'Australians shopping for illegal guns on dark web nabbed in global operation', Herald Sun, 13 May.

[footnote 3] Australasian Police Ministers' Council (APMC) (1996) National Firearms Agreement, May, Canberra; APMC (2002) National Firearm Trafficking Policy Agreement, July, Canberra; and APMC (2002) National Handgun Control Agreement, November, Sydney.

[footnote 4] S. Bricknell (2012) Firearm Trafficking and Serious and Organised Crime Gangs, no. 116, Canberra, AIC Research and Public Policy Series, Australian Government, p. 3.

[footnote 5] ibid, p. 11.

[footnote 6] APMC (2002) National Firearm Trafficking Policy Agreement, July, Canberra.

[footnote 7] J. Topsfield (2004) 'Monash gunman not guilty', The Age, 18 June; P. Hudson (2004) 'State's gun owners reap $21m', The Age, 1 February; P. Anderson (2014) 'Monash University gunman Huan Yun Xiang planned a massacre. But these heroes stood in his way', Herald Sun, 21 October.

[footnote 8] R. Harris & M. Hore (2015) 'High-powered shotgun could trigger gun law overhaul amid fears of outdated regulations', Herald Sun, 24 June. See also: J. Fynes-Clinton (2015) 'We need a new firearm buyback before there is another bloodbath', The Daily Telegraph, 25 June.

[footnote 9] T. Mills (2015) 'Police minister to push forward gun trafficking laws after shooting', The Age, 9 July.

[footnote 10] ibid; R. Spooner, J. Silvester & T. Mills (2015) 'Police shooting at Moonee Ponds linked to Williams crime clan', The Age, 8 July;

[footnote 11] W. Noonan, Minister for Police (2015) 'Second reading speech: Firearms Amendment (Trafficking and Other Measures) Bill 2015', Debates, Victoria, Legislative Assembly, 19 August, p. 2751.

[footnote 12] ibid.

[footnote 13] T. Mills & R. Spooner (2015) 'Police Minister outlines plan to tighten firearms legislation after increase in gun-crimes', The Age, 24 June. See also: AAP (2015) 'Close Vic gun law loophold: police', SkyNews, 8 July.

[footnote 14] Mills (2015) 'Gun found every two days in Melbourne's 'red zone', op. cit.

[footnote 15] See also the comparative table of firearm traffickable offences in Australian jurisdictions in Table 5 (p. 13). Bricknell (2012) Firearm Trafficking and Serious and Organised Crime Gangs, op. cit.

[footnote 16] J. Watkins, Minister for Police (2003) 'Second reading speech: Firearms and Crimes Legislation Amendment (Public Safety) Bill 2003', Debates, New South Wales, Legislative Assembly, 29 October.

[footnote 17] The manufacturing of firearms with the use of new technologies such as 3D printers has recently received extensive media coverage. On 9 April 2015, the Senate Legal and Constitutional Affairs Committee tabled their report titled Ability of Australian Law Enforcement Authorities to Eliminate Gun-related Violence in the Community. Among other things, this report recommended that Australian governments continue to monitor the risks posed by 3D manufacturing and consider further regulatory measures (Recommendation 8). At the time of the report's publication there was no Australian legislation that specifically addressed the 3D printing of firearms, although an attempt was made in Queensland with the Weapons (Digital 3D and Printed Firearms) Amendment Bill 2014 (see also Explanatory Memorandum). This Bill was introduced in May 2014, however it lapsed when the 54th Parliament was prorogued. See: Senate Legal and Constitutional Affairs Committee (2015) Ability of Australian Law Enforcement Authorities to Eliminate Gun-related Violence in the Community, Canberra, Department of the Senate, Parliament House; D. Welch (2014) 'Online gun sales, 3D printing of plastic weapons pushing firearms into hands of criminal underworld', ABC News, 23 April; J. Sturmer (2013) 'Printed weapon triggers gun control concern', ABC News, 8 May; A. Rule (2015) 'Guns in skilled hands should worry us all', Sunday Herald Sun, 22 March.

[footnote 18] Noonan (2015) 'Second reading speech', op. cit.

[footnote 19] Judicial Commission of New South Wales (2014) 'Firearms and prohibited weapons offences', Judicial Commission of New South Wales website.

[footnote 20] S. Rice (2014) 'Gunsmith Leon James Baird jailed for manufacturing, supplying firearms able to shoot up to 600 rounds a minute', The Advertiser, 24 October.

[footnote 21] S. Fewster (2014) 'SA gunsmith Leon James Baird admits supplying home-made 9mm submachine guns found in bikie clubrooms and homes', The Advertiser, 8 July.

[footnote 22] ibid.

[footnote 23] W. Noonan, Minister for Police (2015) New Laws to Help Police Take Illegal Guns off Our Streets, media release, 18 August. See also: B. Preiss (2015) 'News laws to crackdown on illegal guns in Victoria', The Age, 17 August;SBS news (2015) 'Stricter gun laws considered in Vic', SBS news, 18 August.

[footnote 24] Noonan (2015) 'Second reading speech', op. cit.

[footnote 25] ibid.

[footnote 26] S. Bricknell (2011) Firearm Theft in Australia 2008-09, no. 16, Canberra, AIC Monitoring Reports, Australian Government.

[footnote 27] ibid, p. 29.

[footnote 28] ibid.

[footnote 29] A. Miller(2015) 'Vicpol targets gun theft', Stock & Land, 24 June; K. Sweeney & D. Rose (2015) 'Two guns a day found in Melbourne's north', News.com.au, 19 June; ABC News (2015) 'Victoria Police officers finding guns 'every two days' in Melbourne's NW, prompts calls for crackdown', ABC News, 19 June; E. Pearson (2015) 'Surf Coast Shire is Victoria's stolen firearm capital, new data reviews', Geelong Advertiser, 2 February. A. Beale (2015) 'Gun thefts prompt security pleas', Stock & Land, 3 June.

[footnote 30] See: 'Farm Crime Research Project', Criminal Justice, School of Applied Media and Social Sciences, Monash University.

[footnote 31] A. Harkness (2014) 'Theft of guns from farms and urban crime inextricably links', The Conversation, 27 March. See also mention of the Victoria Police's Livestock and Farm Crime Specialist Advisory Group (referred to in the article) at Get Farming Australia (2013) 'VFF backs Livestock and Farm Crime Specialist Group', Get Farming Australia, 10 January.

[footnote 32] Storage and safekeeping requirements for firearms are divided into firearm licence categories and set out in Schedule 4 of the Firearms Act. Penalty units depend on the category of firearm, ranging from 60 penalty units or 12 months imprisonment for a category A or B longarm (s 126(1)(b)) to 240 penalty units or four years imprisonment for a category E longarm or category E handgun (s 126(3)(b)).