Tuesday, 17 November 2015
Statutes Amendment (Firearms Offences) Bill
The Hon. K.L. VINCENT: I take this opportunity to speak on behalf of Dignity for Disability at the second reading of the Statutes Amendment (Firearms Offences) Bill 2015. Can I first say how much Dignity for Disability loathes violence, particularly violence as gruesome as involving firearms. I would hope that our record in this place, our work on the domestic violence, Disability Justice Plan and other projects would clearly illustrate our absolute intolerance for any form of violence. For that reason, I very much look forward to debating the Firearms Bill when it comes to this place next week to take a holistic look at how we can better protect against the improper use of firearms in this state. Having said that, though, I do indicate that at this stage we will oppose this bill.
Honourable members would be aware that the bill seeks to address serious firearms crimes, such as the Humbles case, in which the defendant gives the principal offender a gun and the principal offender later commits a murder with that gun. The bill proposes two measures:
1. Amending the Criminal Law Consolidation Act 1935 and the Criminal Law (Sentencing) Act 1988 in order to designate trafficking offences in section 14 and 10C of the Firearms Act 1977 as serious firearm offences; and
2. Adding a new statutory complicity offence to ensure that those offenders who commit serious firearms offences are held fully responsible for the consequences of their offending.
The Statutes Amendment (Serious Firearms Offences) Bill in 2012 created a series of interlocking measures which imposed a severe approach to the sentencing of serious firearms offenders. It amended the Criminal Law (Sentencing) Act to include those who commit a firearms offence involving the use or carriage of a firearm that involves in any way a firearm that is illegal under all circumstances, a fully automatic firearm and a handgun that is unregistered and the person is unlicensed. It is presumed that a sentence of immediate imprisonment will be imposed on such offenders unless exceptional circumstances apply.
On 16 July 2014, the government announced that it would change the law so that an offence of trafficking a firearm would qualify as a serious firearms offence which must attract a sentence of imprisonment. The liability of a person who is complicit in criminal offences committed by another is governed by the law of complicity, partly statutory and partly common law. Section 267 of the Criminal Law Consolidation Act 1935 states:
A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.
At common law, a person may be found guilty of a crime committed by another if under a common purpose, sometimes called a joint enterprise. As firearms are uniquely and directly dangerous to life and limb, the government proposes that the law should be changed so that, if a person commits a firearms trafficking or supply offence which results in a firearm coming into the possession of an unlicensed person, the first person is liable for any offence committed by the second person with that firearm. The extended liability provision will apply, I understand, to juveniles also. I would like to turn to the Law Society’s position on this bill. In summary, I understand that the Law Society opposes the bill because:
1. Derivative liability has no place in criminal law, as the Law Society puts it. The bill makes a criminal offence event based on these principles.
2. The proposed offence is not a criminal offence in character and is not capable of being defended.
3. The proposed offence has neither mental nor physical elements, therefore it cannot constitute criminal liability for a serious offence.
4. The proposed offence is unfair and unjust as the essence of the offence is in the prescribed offence already prosecuted, so the weapon supplier could be in jeopardy the second time.
5. There is no need for the proposed offence because the present offence of supply already attracts serious penalties.
In expanding on these points the Law Society submits it is inherently dangerous to enact a law in direct response to one incident such as the Humbles case, and to do so to fulfil a promise given to a select group. It could not reasonably be suggested that the sentences imposed on the murderer, Humbles—life with a non-parole of 17 years on appeal; and the gun supplier, Cullen, eight years, non-parole, three years and nine months, are inadequate.
The Law Society also says the bill, and specifically the derivative liability provision in section 267AA, is unnecessary. The law relating to derivative liability in section A is settled and effective. A person will be held criminally liable for the act of another where they have aided, abetted or procured the commission of the act or taken part in a joint criminal enterprise to that end. A person’s liability for the act of another is partly related to their state of mind, i.e. whether the person knew of the other’s intention to commit the subsequent act.
The bill does not create a new offence capable of being prosecuted in a court. Rather it establishes an administrative process whereby a person, based on two conditions precedent, becomes liable to be sentenced for an act for which, in most cases, the person had already been sentenced. The bill is unprecedented in any jurisdiction in Australia. On the issue of causation the Law Society submits:
The bill’s extension of criminal liability is contrary to the common law principle of causation, i.e. that it is enough that the applicant’s conduct contributed significantly to the death of the victim.
The bill provides for an automatic assumption that the unlawful supply of a firearm is causative of any offence committed by any person who may then possess and use that firearm later. That cannot be correct says the Law Society. The law has recognised that a chain of causation cannot be broken. The Law Society also asks whether the bill addresses a deficiency in the criminal justice system, and says:
The report does not make it clear whether there has been any analysis of the nature of sentences imposed by section A, imposed by courts for offences against section 10C (10) and (14) of the Firearms Act 1977. The maximum penalty for these offences is 15 years’ and 20 years’ imprisonment respectively. Legislative intervention to address a perceived shortfall in the judicial system should only be made after careful consideration of its necessity.
There are simpler ways than the bill to address a purported failure by sentencing judges to consider the danger to the public caused by the supply of unregistered firearms to unlicensed persons, for example, the considerations in section 10C of the Criminal Law (Sentencing) Act 1988. The Law Society then turns to concerns as to how the bill gives effect to its purpose and says:
In addition to the above concerns, the new section 267AA offence creates a potentially unlimited category of offenders. The bill does not limit the degree of separation between an accused and the principal offender.
The Law Society argues that the bill also creates uncertainty for convicted offenders, which arguably could amount to cruel and unusual punishment. The bill does not place a time limit to the period between the original supply offence and the subsequent offence, that is, the offence of supplying the firearm and the offence of using that firearm to murder someone. Therefore, says the Law Society, someone could serve their entire sentence for the original sentence before being punished again for the same act.
The Law Society goes on to say that the bill could also create an offence that in most circumstances would be impossible to defend. It is an offence without the traditional elements required to be proved beyond reasonable doubt. The offence is not one based on certain mental and physical elements but on two separate findings of fact not linked by causation. The Law Society also argues that the bill creates uncertainty as to its retrospectivity. The bill does not contain any transitional provisions. This is unsatisfactory when the bill purports to govern events and findings of fact that may have occurred before the bill is assented to.
The Law Society also submits that the bill, in their opinion, may in fact be unconstitutional. They state that it is arguable that the effect of the bill is to deny a person a fair trial according to law and that it is questionable whether the prosecution of an offence proposed in section 267AA could be described as in accordance with the judicial process. It appears to be no more than a rubber stamp exercise, the Law Society argues. In that way, the bill arguably infringes on judicial independence, which is of course a requirement of the constitution. The Law Society does not believe that a successful prosecution pursuant to the proposed section 267AA has been decided independently of the executive government.
Considering the number of arguments against this bill in the Law Society’s submission and the expressions of concern and doubt in some of the opposition members’ statement of support in this bill, there would appear to be some risk that this legislation may be vulnerable to legal challenge. The opposition appears to be supporting this bill because it quite understandably, as I am sure we all do, empathises with the McPherson family and agrees that something should be done about illegal firearms. On that idea, you certainly do not get any opposition from Dignity for Disability, but at the same time it acknowledges the apparent legal shortcomings of the bill and ‘hopes’ that it will be judged valid by the courts and be effective.
I, too, want to extend my sympathy to the McPherson family and all families and individuals impacted by the use of firearms, particularly those that have been used illegally. However, I respectfully submit that hope is not a sound basis for making and modifying the laws of this state. We need evidence-based law making and, given the concerns that the Law Society has with this bill and the concerns that were raised even by the Liberal opposition as they supported this bill, I am not convinced that we have sufficient evidence to support this bill at this time.
The law is likely to be highly uneven, and therefore Dignity for Disability cannot support the passage of this particular bill. However, as I say we look forward to a debate on the Firearms Bill next sitting week so that we can holistically look at how to responsibly deal with the issue of firearms in this state.
Debate adjourned on motion of Hon. J.S.L. Dawkins.