A Bill for an Act to amend legislation relating to the criminal law, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Crimes Legislation Amendment (Organised Crime and Other Measures) Act 2012.
2 Commencement
This Act commences on the day after this Act receives the Royal Assent.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Unexplained wealth amendments
Part 1—Amendments
Proceeds of Crime Act 2002
1 Subsection 20A(1)
Omit “may order”, substitute “must order”.
2 Subsections 20A(3A) to (3C)
Repeal the subsections.
3 Subsection 20A(4)
Omit all the words from and including “if” to and including “the order” substitute:
if the court is satisfied that:
(a) there are not reasonable grounds to suspect that the person’s *total wealth exceeds by $100,000 or more the value of the person’s *wealth that was *lawfully acquired; or
(b) it is not in the public interest to make the order.
4 Subsection 20A(4A)
Omit “subsection (1)”, substitute “this section”.
5 Subsection 20A(5)
Omit “may”, substitute “must”.
6 After subsection 45(6)
Insert:
Restraining orders and charges relating to unexplained wealth orders
(6A) If:
(a) a *restraining order referred to in paragraph 179SA(1)(b) would otherwise cease to be in force under this section at a particular time; but
(b) a charge on the property against which the restraining order was made is created by subsection 179SA(1) before that time;
then despite anything in subsection (1), (2), (3) or (6) of this section, the restraining order does not cease to be in force until the charge ceases to have effect in respect of the property in accordance with subsection 179SA(2).
Section does not apply to unexplained wealth restraining orders
7 Subsection 45A(1)
Repeal the subsection, substitute:
Restraining orders made before application for unexplained wealth order
(1) A *restraining order made under section 20A ceases to be in force if:
(a) no application for an *unexplained wealth order had been made in relation to the *suspect to whom the restraining order relates before the restraining order was made; and
(b) no such application has been made in relation to the suspect within 28 days after the restraining order was made.
8 Paragraph 45A(2)(c)
Repeal the paragraph, substitute:
(c) the court refuses to make either:
(i) a *preliminary unexplained wealth order in connection with the application for the unexplained wealth order; or
(ii) the unexplained wealth order itself; and
9 After subsection 45A(3)
Insert:
Restraining orders made after application for unexplained wealth order
(3A) A *restraining order made under section 20A ceases to be in force if:
(a) the restraining order was made at the same time as or after an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the court refuses to make either:
(i) a *preliminary unexplained wealth order in connection with the application for the unexplained wealth order; or
(ii) the unexplained wealth order itself; and
(c) one of the following applies:
(i) the time for an appeal against the refusal has expired without an appeal being lodged;
(ii) an appeal against the refusal has lapsed;
(iii) an appeal against the refusal has been dismissed and finally disposed of.
(3B) A *restraining order made under section 20A ceases to be in force if:
(a) the restraining order was made at the same time as or after an application for an *unexplained wealth order is made in relation to the *suspect to whom the restraining order relates; and
(b) the court makes the unexplained wealth order (whether before or after the restraining order was made or applied for); and
(c) either:
(i) the unexplained wealth order is complied with; or
(ii) an appeal against the unexplained wealth order has been upheld and finally disposed of.
10 Before subsection 45A(4)
Insert:
Court may make costs order if restraining order ceases
11 Subsection 45A(4)
Omit “or (2)”, substitute “, (2) or (3A)”.
12 Section 179B (heading)
Repeal the heading, substitute:
179B Making a preliminary unexplained wealth order requiring a person to appear
13 Subsection 179B(1)
Omit “may make an order”, substitute “must make an order”.
14 Before subsection 179B(3)
Insert:
Considering application without notice
15 At the end of section 179B
Add:
Refusal to make preliminary unexplained wealth order
(4) Despite subsection (1), the court may refuse to make the *preliminary unexplained wealth order if the court is satisfied that there are not reasonable grounds to suspect that the person’s *total wealth exceeds by $100,000 or more the value of the person’s *wealth that was *lawfully acquired.
16 Subsection 179E(1)
Omit “may make an order”, substitute “must make an order”.
17 Subsection 179E(6)
Omit all the words after “may refuse to make an order under that subsection”, substitute:
if the court is satisfied that:
(a) the person’s *unexplained wealth amount is less than $100,000; or
(b) it is not in the public interest to make the order.
18 After subsection 179N(2)
Insert:
(2A) The court may make an order extending the period during which the things referred to in subsection (2) must be done, by a period not exceeding 28 days, if:
(a) the *responsible authority applies for the order before the end of the period (including that period as previously extended); and
(b) the court is satisfied that it is appropriate to do so.
(2B) The period referred to in subsection (2) may be extended more than once.
19 Subsection 179S(3)
Repeal the subsection, substitute:
(3) The court may, on application by the *responsible authority, make a *restraining order under section 20A in respect of the property as if:
(a) the property were the *person’s property; and
(b) the requirements in paragraphs 20A(1)(c) to (g) were satisfied.
20 Section 179SA
Repeal the section, substitute:
179SA Charge on property subject to restraining order
(1) If:
(a) an *unexplained wealth order is made against a person; and
(b) the person is the *suspect in relation to a *restraining order that is or has been made against:
(i) the *person’s property; or
(ii) another person’s property in relation to which an order under subsection 179S(1) is, or has been, made;
then, upon the making of the later of the orders, there is created, by force of this section, a charge on the property to secure the payment to the Commonwealth of the person’s *unexplained wealth amount.
(2) The charge ceases to have effect in respect of the property:
(a) upon the discharge of the *unexplained wealth order or the *restraining order by a court hearing an appeal against the making of the order; or
(b) upon payment to the Commonwealth of the *unexplained wealth amount in satisfaction of the unexplained wealth order; or
(c) upon the sale or other disposition of the property:
(i) under an order under Division 4 of Part 4‑1; or
(ii) by the owner of the property with the consent of the court that made the unexplained wealth order; or
(iii) if the restraining order directed the *Official Trustee to take custody and control of the property—by the owner of the property with the consent of the Official Trustee; or
(d) upon the sale of the property to a purchaser in good faith for value who, at the time of purchase, has no notice of the charge; or
(e) upon the *responsible authority for the unexplained wealth order or restraining order determining, by writing, that the charge should cease to have effect in respect of the property;
whichever first occurs.
(3) The charge:
(a) is subject to every *encumbrance on the property (other than an encumbrance in which the person referred to paragraph (1)(a) has an *interest) that came into existence before the charge and that would, apart from this subsection, have priority over the charge; and
(b) has priority over all other encumbrances; and
(c) subject to subsection (2), is not affected by any change of ownership of the property.
(4) Subsection 73(2) of the Personal Property Securities Act 2009 applies to the charge (to the extent, if any, to which that Act applies in relation to the property charged).
Note: The effect of this subsection is that the priority between the charge and a security interest in the property to which the Personal Property Securities Act 2009 applies is to be determined in accordance with this Act rather than the Personal Property Securities Act 2009.
(5) A determination made under paragraph (2)(e) is not a legislative instrument.
179SB Charges may be registered
(1) If:
(a) a charge is created by section 179SA on property of a particular kind; and
(b) the provisions of any law of the Commonwealth or of a State or Territory provide for the registration of title to, or charges over, property of that kind;
the *Official Trustee or the *responsible authority for the *unexplained wealth order or *restraining order referred to in that section may cause the charge so created to be registered under the provisions of that law.
(2) A person who purchases or otherwise acquires an *interest in the property after the registration of the charge is taken, for the purposes of paragraph 179SA(2)(d), to have notice of the charge at the time of the purchase or acquisition.
(3) In this section:
registration of a charge on a particular kind of personal property within the meaning of the Personal Property Securities Act 2009 includes the registration of data in relation to that kind of property for the purposes of paragraph 148(c) of that Act.
Note: The Personal Property Securities Act 2009 provides for the registration of such data only if regulations are made for the purposes of paragraph 148(c) of that Act.
21 Before subsection 179U(2)
Insert:
Appearing before the Committee
22 At the end of section 179U
Add:
Report about unexplained wealth investigations and proceedings
(3) The Commissioner of the Australian Federal Police must give the Committee a report in respect of each financial year that contains the following information:
(a) the number of matters investigated in the year, by each *enforcement agency, in respect of which a likely outcome may, or will, be the initiation of proceedings under this Part, and the basis for determining that number;
(b) the number and results of applications in the year for:
(i) *restraining orders under section 20A; and
(ii) *unexplained wealth orders.
(4) The report must be given as soon as practicable after the report under section 67 of the Australian Federal Police Act 1979 in respect of the financial year is laid before a House of the Parliament in accordance with that section.
(5) If the Commissioner of the Australian Federal Police requests the *DPP or the Chief Executive Officer (however described) of an *enforcement agency to give the Commissioner information that the Commissioner considers necessary to prepare the report, the DPP or Chief Executive Officer must comply with the request.
23 After paragraph 227(1)(h)
Insert:
(ha) that the warrant authorises the seizure of other things found at the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be *things relevant to unexplained wealth proceedings; and
24 After paragraph 228(1)(d)
Insert:
(da) to seize other things found at the premises in the course of the search that the executing officer or a person assisting believes on reasonable grounds to be *things relevant to unexplained wealth proceedings; and
25 Subparagraph 256(1)(b)(ii)
Omit “and”, substitute “or”.
26 At the end of paragraph 256(1)(b)
Add:
(iii) a *thing relevant to unexplained wealth proceedings; and
27 Subsection 304(2)
Omit “42 to 45, 142 and 169”, substitute “42 to 45A, 142, 169 and 179SA”.
28 Section 338
Insert:
thing relevant to unexplained wealth proceedings means a thing (including a thing in electronic form) as to which there are reasonable grounds for suspecting that it may be relevant for the purposes of initiating or conducting proceedings under section 20A or Part 2‑6.
Part 2—Application of amendments
29 Application of amendments
(1) Section 20A of the Proceeds of Crime Act 2002, as amended by this Schedule, applies in relation to a restraining order applied for under that section on or after the commencement of this item, whether the application relates to:
(a) property or wealth acquired before, on or after that commencement; or
(b) an offence suspected of having been committed before, on or after that commencement.
(2) Sections 45 and 45A of the Proceeds of Crime Act 2002, as amended by this Schedule, apply in relation to a restraining order made on or after the commencement of this item, whether the order relates to:
(a) property or wealth acquired before, on or after that commencement; or
(b) an offence suspected of having been committed before, on or after that commencement.
(3) Sections 179B and 179E of the Proceeds of Crime Act 2002, as amended by this Schedule, apply in relation to an unexplained wealth order applied for on or after the commencement of this item, whether the application relates to wealth acquired before, on or after that commencement.
(4) Section 179N of the Proceeds of Crime Act 2002, as amended by this Schedule, applies in relation to a preliminary unexplained wealth order made on or after the commencement of this item, whether the relevant application for an unexplained wealth order:
(a) was made before, on or after that commencement; or
(b) relates to wealth acquired before, on or after that commencement.
(5) Section 179S of the Proceeds of Crime Act 2002, as amended by this Schedule, applies in relation to an unexplained wealth order made on or after the commencement of this item:
(a) whether the unexplained wealth order relates to wealth acquired before, on or after that commencement; and
(b) whether the property to which the order under subsection 179S(1) relates becomes subject to the effective control of the person subject to the unexplained wealth order before, on or after that commencement.
(6) Despite the repeal of section 179SA of the Proceeds of Crime Act 2002 made by this Schedule, that section, as in force immediately before that repeal, continues to apply in relation to an unexplained wealth order made before the commencement of this item.
(7) Sections 179SA and 179SB of the Proceeds of Crime Act 2002, as substituted by this Schedule, apply in relation to an unexplained wealth order made on or after the commencement of this item:
(a) whether the unexplained wealth order relates to wealth acquired before, on or after that commencement; and
(b) whether the restraining order referred to in subsection 179SA(1) is made before, on or after that commencement.
(8) Subsections 179U(3) to (5) of the Proceeds of Crime Act 2002, as added by this Schedule, apply in relation to financial years starting on 1 July 2014, and future financial years.
(9) Sections 227, 228 and 256 of the Proceeds of Crime Act 2002, as amended by this Schedule, apply in relation to a search warrant that is applied for under that Act on or after the commencement of this item, whether the thing relevant to unexplained wealth proceedings relates to:
(a) property or wealth acquired before, on or after that commencement; or
(b) an offence suspected of having been committed before, on or after that commencement.
Schedule 2—Firearms trafficking amendments
Criminal Code Act 1995
1 Section 360.1 of the Criminal Code (heading)
At the end of the heading, add “or firearm part”.
2 Subsection 360.1(1) of the Criminal Code
After “firearm” (first occurring), insert “or a firearm part”.
3 Paragraphs 360.1(1)(a), (b) and (c) of the Criminal Code
After “firearm” (wherever occurring), insert “or part”.
4 Subsection 360.1(2) of the Criminal Code
After “firearm” (first occurring), insert “or a firearm part”.
5 Paragraphs 360.1(2)(a), (b) and (c) of the Criminal Code
After “firearm” (wherever occurring), insert “or part”.
6 Section 360.2 of the Criminal Code (heading)
At the end of the heading, add “or firearm part”.
7 Subsections 360.2(1) and (2) of the Criminal Code
Repeal the subsections, substitute:
Basic offence
(1) A person commits an offence against this subsection if:
(a) the person engages in conduct that constitutes an offence (the underlying offence) against a firearm law; and
(b) the person does so in the course of trade or commerce:
(i) among the States; or
(ii) between a State and a Territory, or between 2 Territories; and
(c) the primary element of the underlying offence involves:
(i) the disposal of a firearm or a firearm part by the person; or
(ii) the acquisition of a firearm or a firearm part by the person.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
Aggravated offence—disposing or acquiring 50 or more firearms or firearm parts in 6 month period
(2) A person commits an offence against this subsection if:
(a) the person engages in conduct on one or more occasions that constitutes an offence (the underlying offence) against a firearm law; and
(b) the person does so in the course of trade or commerce:
(i) among the States; or
(ii) between a State and a Territory, or between 2 Territories; and
(c) the primary element of the underlying offence involves:
(i) the disposal of a firearm or a firearm part by the person; or
(ii) the acquisition of a firearm or a firearm part by the person; and
(d) the conduct on any occasion, or on 2 or more occasions taken together, results in the disposal, or acquisition, by the person of:
(i) 50 or more firearms; or
(ii) 50 or more firearm parts that might be used to constitute one or more firearms; or
(iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and
(e) if the disposal or acquisition of the firearms or parts mentioned in paragraph (d) resulted from conduct on 2 or more occasions taken together—the occasions of conduct occurred during a 6 month period.
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.
Provisions relating to basic offence and aggravated offence
(2A) There is no fault element for any of the physical elements described in paragraphs (1)(a) and (2)(a), other than the fault elements (however described), if any, for the underlying offence.
(2B) To avoid doubt:
(a) in determining whether the conduct referred to in paragraph (1)(a) or (2)(a) constitutes the underlying offence, any defences or special liability provisions (however described) that apply in relation to the underlying offence have effect; and
(b) a person may be convicted of an offence against subsection (1) or (2) even if the person has not been convicted of the underlying offence; and
(c) for the purposes of subsection (2)—it is immaterial whether:
(i) the underlying offence is the same on each occasion; or
(ii) the conduct constituting the underlying offence is the same on each occasion; or
(iii) the firearms or firearm parts to which the conduct relates are of the same kind.
(2C) Absolute liability applies to paragraphs (1)(b) and (c) and (2)(b), (c) and (e).
Note: For absolute liability, see section 6.2.
(2D) Strict liability applies to paragraph (2)(d).
Note: For strict liability, see section 6.1.
Definitions
8 Subsection 360.2(3) of the Criminal Code
Insert:
firearm part means either of the following within the meaning of the firearm law concerned:
(a) a firearm part;
(b) a part of, or for, a firearm or weapon.
9 Section 360.3 of the Criminal Code (heading)
After “firearm”, insert “or firearm part”.
10 Before subsection 360.3(1) of the Criminal Code
Insert:
Basic offence
11 Subsection 360.3(1) of the Criminal Code
Omit “is guilty of an offence”, substitute “commits an offence against this subsection”.
12 Paragraph 360.3(1)(a) of the Criminal Code
Repeal the paragraph, substitute:
(a) the person takes or sends a thing from one State or Territory to another State or Territory; and
(aa) the thing is a firearm or firearm part; and
(ab) the person does so in the course of trade or commerce:
(i) among the States; or
(ii) between a State and a Territory, or between 2 Territories; and
13 Paragraph 360.3(1)(b) of the Criminal Code
After “firearm”, insert “or part”.
14 Subparagraphs 360.3(1)(c)(i) and (ii) of the Criminal Code
After “firearm”, insert “or part”.
15 After subsection 360.3(1) of the Criminal Code
Insert:
Aggravated offence—taking or sending 50 or more firearms or firearm parts in 6 month period
(1A) A person commits an offence against this subsection if:
(a) the person takes or sends (on one or more occasions) one or more things from one State or Territory to another State or Territory; and
(b) each thing is a firearm or firearm part; and
(c) the person does so in the course of trade or commerce:
(i) among the States; or
(ii) between a State and a Territory, or between 2 Territories; and
(d) the person does so intending that any of the firearms or parts will be disposed of in the other State or Territory (whether by the person or another); and
(e) the person knows that, or is reckless as to whether:
(i) the disposal of any of the firearms or parts; or
(ii) any acquisition of any of the firearms or parts that results from the disposal;
would happen in circumstances that would constitute an offence against the firearm law of that other State or Territory; and
(f) the conduct on any occasion, or on 2 or more occasions taken together, results in the taking, or sending, by the person of:
(i) 50 or more firearms; or
(ii) 50 or more firearm parts that might be used to constitute one or more firearms; or
(iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and
(g) if the taking or sending of the firearms or parts mentioned in paragraph (f) resulted from conduct on 2 or more occasions taken together—the occasions of conduct occurred during a 6 month period.
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.
Provisions relating to basic offence and aggravated offence
(1B) Absolute liability applies to paragraphs (1)(ab) and (1A)(c) and (g).
Note: For absolute liability, see section 6.2.
(1C) Strict liability applies to paragraph (1A)(f).
Note: For strict liability, see section 6.1.
(1D) To avoid doubt, it is immaterial for the purposes of paragraphs (1A)(b) and (f) whether the firearms or firearm parts are of the same kind.
Definitions
16 Subsection 360.3(2) of the Criminal Code (at the end of the definition of firearm)
Add “or (1A)(e) (as the case requires)”.
17 Subsection 360.3(2) of the Criminal Code
Insert:
firearm part means either of the following within the meaning of the firearm law mentioned in paragraph (1)(c) or (1A)(e) (as the case requires):
(a) a firearm part;
(b) a part of, or for, a firearm or weapon.
18 After section 360.3 of the Criminal Code
Insert:
360.3A Double jeopardy and alternative verdicts
Double jeopardy
(1) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.
(2) However, subsection (1) does not prevent an alternative verdict under subsection (4).
(3) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.
Alternative verdict—aggravated offence not proven
(4) If, on a trial for an aggravated offence, the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;
it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions
(5) In this section:
aggravated offence means an offence against subsection 360.2(2) or 360.3(1A).
basic offence relating to an aggravated offence means:
(a) if the aggravated offence is an offence against subsection 360.2(2)—an offence against subsection 360.2(1); and
(b) if the aggravated offence is an offence against subsection 360.3(1A)—an offence against subsection 360.3(1).
19 Section 360.4 of the Criminal Code
Before “This”, insert “(1)”.
20 At the end of section 360.4 of the Criminal Code
Add:
(2) Without limiting subsection (1), this Division is not intended to exclude or limit the concurrent operation of a law of a State or Territory that makes:
(a) an act or omission that is an offence against a provision of this Division; or
(b) a similar act or omission;
an offence against the law of the State or Territory.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following:
(a) provides for a penalty for the offence that differs from the penalty provided for in this Division;
(b) provides for a fault element in relation to the offence that differs from the fault elements applicable to the offence under this Division;
(c) provides for a defence in relation to the offence that differs from the defences applicable to the offence under this Division.
21 At the end of Part 9.4 of the Criminal Code
Add:
Division 361—International firearms trafficking
361.1 Definitions
In this Division:
export a firearm or firearm part means export the firearm or part from Australia.
firearm has the same meaning as in the Customs (Prohibited Imports) Regulations 1956.
firearm part has the same meaning as in the Customs (Prohibited Imports) Regulations 1956.
import a firearm or firearm part, means import the firearm or part into Australia, and includes deal with the firearm or part in connection with its importation.
361.2 Importing prohibited firearms or firearm parts
Basic offence
(1) A person commits an offence if:
(a) the person imports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the importation of the firearm or part:
(i) was prohibited under the Customs Act 1901 absolutely; or
(ii) was prohibited under that Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
Aggravated offence—importing 50 or more prohibited firearms or firearm parts in 6 month period
(2) A person commits an offence if:
(a) the person imports (on one or more occasions) one or more things; and
(b) each thing is a firearm or firearm part; and
(c) the importation of the firearm or part:
(i) was prohibited under the Customs Act 1901 absolutely; or
(ii) was prohibited under that Act unless the approval of a particular person had been obtained and, at the time of the importation, that approval had not been obtained; and
(d) any occasion of importation, or 2 or more occasions taken together, results in the importation by the person of:
(i) 50 or more firearms; or
(ii) 50 or more firearm parts that might be used to constitute one or more firearms; or
(iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and
(e) if the importation of the firearms or parts mentioned in paragraph (d) resulted from 2 or more occasions of importation taken together—the occasions of importation occurred during a 6 month period.
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.
Provisions relating to basic offence and aggravated offence
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c) and (e).
Note: For absolute liability, see section 6.2.
(4) Despite subsection (3), for the purposes of an offence against subsection (1) or (2), strict liability applies to the physical element of circumstance of the offence, that an approval had not been obtained at the time of the importation.
Note: For strict liability, see section 6.1.
(5) Strict liability applies to paragraph (2)(d).
Note: For strict liability, see section 6.1.
(6) To avoid doubt, it is immaterial for the purposes of paragraphs (2)(b) and (d) whether the firearms or firearm parts are of the same kind.
361.3 Exporting prohibited firearms or firearm parts
Basic offence
(1) A person commits an offence if:
(a) the person exports a thing; and
(b) the thing is a firearm or firearm part; and
(c) the exportation of the firearm or part:
(i) was prohibited under the Customs Act 1901 absolutely; or
(ii) was prohibited under that Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained.
Penalty: Imprisonment for 10 years or a fine of 2,500 penalty units, or both.
Aggravated offence—exporting 50 or more prohibited firearms or firearm parts in 6 month period
(2) A person commits an offence if:
(a) the person exports (on one or more occasions) one or more things; and
(b) each thing is a firearm or firearm part; and
(c) the exportation of the firearm or part:
(i) was prohibited under the Customs Act 1901 absolutely; or
(ii) was prohibited under that Act unless the approval of a particular person had been obtained and, at the time of the exportation, that approval had not been obtained; and
(d) any occasion of exportation, or 2 or more occasions taken together, results in the exportation by the person of:
(i) 50 or more firearms; or
(ii) 50 or more firearm parts that might be used to constitute one or more firearms; or
(iii) a combination of firearms and firearm parts such that the sum of the actual firearms and the firearms that might be constituted by the parts is 50 or more; and
(e) if the exportation of the firearms or parts mentioned in paragraph (d) resulted from 2 or more occasions of exportation taken together—the occasions of exportation occurred during a 6 month period.
Penalty: Imprisonment for life or a fine of 7,500 penalty units, or both.
Provisions relating to basic offence and aggravated offence
(3) Absolute liability applies to paragraphs (1)(c) and (2)(c) and (e).
Note: For absolute liability, see section 6.2.
(4) Despite subsection (3), for the purposes of an offence against subsection (1) or (2), strict liability applies to the physical element of circumstance of the offence, that an approval had not been obtained at the time of the exportation.
Note: For strict liability, see section 6.1.
(5) Strict liability applies to paragraph (2)(d).
Note: For strict liability, see section 6.1.
(6) To avoid doubt, it is immaterial for the purposes of paragraphs (2)(b) and (d) whether the firearms or firearm parts are of the same kind.
361.4 Defence—reasonable belief that conduct is justified or excused by or under a law
A person is not criminally responsible for an offence against this Division if:
(a) at the time of the conduct constituting the offence, the person was under a mistaken but reasonable belief that the conduct was justified or excused by or under a law of the Commonwealth or of a State or Territory; and
(b) had the conduct been so justified or excused—the conduct would not have constituted the offence.
Note: A defendant bears an evidential burden in relation to the matter in paragraph (a) (see subsection 13.3(3)).
361.5 Double jeopardy and alternative verdicts
Double jeopardy
(1) A person who has been convicted or acquitted of an aggravated offence may not be convicted of a basic offence relating to the aggravated offence that is alleged to have been committed in the period during which the person was alleged to have committed the aggravated offence.
(2) However, subsection (1) does not prevent an alternative verdict under subsection (4).
(3) A person who has been convicted or acquitted of a basic offence relating to an aggravated offence may not be convicted of the aggravated offence if any of the occasions relied on as evidence of the commission of the aggravated offence includes the conduct that constituted the basic offence.
Alternative verdict—aggravated offence not proven
(4) If, on a trial for an aggravated offence, the trier of fact:
(a) is not satisfied that the defendant is guilty of the aggravated offence; but
(b) is satisfied beyond reasonable doubt that he or she is guilty of the basic offence relating to the aggravated offence;
it may find the defendant not guilty of the aggravated offence but guilty of the basic offence, so long as the defendant has been accorded procedural fairness in relation to that finding of guilt.
Definitions
(5) In this section:
aggravated offence means an offence against subsection 361.2(2) or 361.3(2).
basic offence relating to an aggravated offence means:
(a) if the aggravated offence is an offence against subsection 361.2(2)—an offence against subsection 361.2(1); and
(b) if the aggravated offence is an offence against subsection 361.3(2)—an offence against subsection 361.3(1).