Senate Legal and Constitutional Affairs Committee Inquiry into the ability of Australian law enforcement authorities to eliminate gun-related violence in the community Attorney-General s Department Submission August 2014
Introduction In Australia, responsibility for firearm matters is shared between the Australian, state and territory governments. The Australian Government is responsible for matters relating to the import and export of firearms, while the state and territory governments have responsibility for all matters relating to manufacturing, possession, licensing and use of firearms. The Attorney-General s Department is responsible for the Commonwealth s overarching policy on firearms and firearm-related matters, as well as having a particular role in the administration of granting import permission for certain types of firearms and firearm-related articles 1. This submission provides information to the Inquiry on the history of firearms regulation in Australia to give context to the current situation, discusses national consistency and the Australian Government s actions to combat the illicit firearms market and firearm-related crime. Department position The Department believes the current approach to firearms policy strikes an appropriate balance between the interests of those with a genuine need to have access to firearms, such as sporting shooters and primary producers, and the interests of the broader community to live safely and securely. Specifically, the Department does not believe that the tests set out in the National Firearms Agreement for the possession or use of firearms need to be amended. Further, putting additional restrictions on the legal ownership of firearms would not necessarily reduce firearm-related crime. Firearm-related crime needs to be addressed both by the effective regulation of the legal firearms market to ensure that it does not become a source of firearms to the illicit firearms market as well as a robust law enforcement response to the illicit firearms market and firearm-related crime, including a collaborative approach across jurisdictions, appropriate prioritisation of resources and strong penalties. 1 The term firearms and firearm-related articles includes firearms, firearm parts, accessories such as silencers, certain types of stocks and devices able to change a firearm to semi or fully automatic operation and firearm magazines and ammunition. Page 2 of 9
Firearm regulation in Australia Prior to 1996 the rules pertaining to firearms varied considerably between the states and territories. The inconsistencies between the jurisdictions extended to many discrete areas of regulation, for example the ability for minors to be licensed firearm owners, the types of firearms able to be possessed by collectors, whether safety training was a prerequisite to gun-ownership, and the requirement for firearms to be registered. One of the most significant consequences of the lack of a uniform approach to gun control in Australia was the opportunity for firearms to be diverted to the illicit market. This was facilitated to an extent by loopholes in legislation and regulation, lack of oversight, and low penalties that were applied to firearms offences. In an initial step to rectify this, and specifically in response to a number of mass shootings in the 1980s, numerous recommendations relating to gun reform were made by the National Committee on Violence (NVC) in its final report in 1990 (Attachment A is an extract of the recommendations related to firearms). One of the primary recommendations was for the establishment of a national strategy on firearms control, though this and other recommendations were not implemented. Firearms Agreements Since 1996, there has been a move to a more consistent national approach to the regulation of firearms, driven largely by three national agreements. 1996 National Firearms Agreement In 1996, the Australasian Police Ministers Council (APMC) agreed to implement the first national plan for the regulation of firearms. The impetus for the national plan was a mass shooting in Tasmania s Port Arthur earlier that year, in which a gunman used two semi-automatic rifles and one semi-automatic shotgun to shoot and kill 35 people and wound 23 others. Using the NVC s recommendations as a foundation, the APMC developed a set of 10 resolutions which later collectively formed the National Firearms Agreement (NFA). The full text of the NFA is at Attachment B. The key elements of the NFA are: requiring people to have both a genuine reason and genuine need for owning, possessing or using a firearm, depending on the firearm s categorisation o personal protection is explicitly excluded as a genuine reason requiring the nationwide registration of all firearms meeting uniform storage and security arrangements as a precondition to the issuing of a firearms licence requiring all firearm sales to be conducted by or through licenced firearm dealers, who should follow specified principles regarding the recording of firearm transactions Page 3 of 9
1996 Firearms Buyback A significant implication of the NFA was the 1996 National Buyback Program under which firearm owners were compelled to hand-in firearms which they were no longer able to legally possess. As part of the Program, which ran in most states and territories from 1 October 1996 to 30 September 1997, approximately 640,000 firearms were surrendered to the government. Owners who relinquished guns received compensation. However, because firearms were not necessarily registered prior to the buyback, it is impossible to determine what percentage of firearms required to be surrendered actually were. The firearms not surrendered now make up what is known as the grey market. 2002 Agreements The National Firearms Trafficking Policy Agreement (Attachment C), drafted and agreed to by the APMC in 2002, committed jurisdictions to putting in place additional controls to address the illegal firearms trade, including the introduction of nationally consistent rules for the legal manufacture of firearms and tighter recording and reporting provisions for dealer transactions involving firearms and major firearm parts. The National Handgun Control Agreement (Attachment D) was prompted by the death of two students in a handgun shooting at Melbourne s Monash University in October 2002. The Agreement s 28 resolutions committed jurisdictions to restricting the use and availability of handguns through such measures as restricting the possession of handguns based on calibre, barrel length and magazine capacity. As with the NFA, the National Handgun Control Agreement was complemented by a handgun buyback scheme, running from 1 July to 31 December 2003. Under the scheme, people were provided compensation for the surrender of handguns and handgun parts and accessories. Terminology - Illegal, legal and outlawed firearms It is important to note that firearms and firearm-related articles are not, and cannot, of themselves be considered either legal, illegal or outlawed. This is because, regardless of the type of firearm or firearm-related article, there will always be a situation in which it is able to be lawfully possessed in Australia. For example, although certain firearms (such as fully automatic firearms) are generally unable to be possessed or used by civilians, they are able to be possessed by law enforcement, the military and private companies engaged in activities such as research and development. It is more accurate to state that a person s possession or use of a particular firearm or firearm-related article is legal or illegal. Generally, illegal possession or use would involve either possession without a licence, without a licence that authorises possession of that particular firearm type or possession or use in contravention of licence conditions. Page 4 of 9
National consistency The adoption of the Agreements discussed above by the states and territories represents a significant achievement in developing a consistent national approach to the regulation of firearms and firearm-related articles. However, since the NFA was signed in 1996, the passage of time, significant technological advancements and local factors have resulted in some variations in how jurisdictions apply aspects of the NFA. This includes different lengths of licences and different requirements that need to be met to own and possess Category D firearms. There are also inconsistencies in areas not covered by the NFA, such as in relation to firearm parts, accessories, magazines and firearm dealers. Although there are sometimes calls for the Commonwealth to take over the entire regulation of firearms and firearm-related articles to remove all differences, experience has shown that state and territory governments are the most appropriate level of government to manage the regulation of firearms and firearm-related articles. This provides the states and territories with flexibility to ensure that their laws and regulations are most appropriate for their local circumstances. The current variations in the regulation of firearms and firearm-related articles do not represent a departure from the key elements of the Agreements and the majority do not create opportunities for people to more easily divert firearms from the legal to the illicit market. However, there are areas where national consistency could be improved to further restrict the movement of firearms to the illicit market, such as the accountability of deactivation standards and agreed firearm descriptors. Deviations also create burdens and complications for the legitimate firearms market, which is increasingly both international and national in scope. Consideration could be given to identifying those areas where consistency is necessary and those where flexibility is more appropriate. This could be achieved through an update to the technical elements of the NFA which would take into account the changes in technology and the legal firearms market that have occurred since 1996. In addition to the areas above, other areas to consider in an update of the technical elements of the NFA could include: regulation of magazines, firearm parts and accessories principles for dealing with interstate transactions, particularly dealers operating in more than one State or Territory the classification of new technology with regards to: o ballistic performance (noting that this can have as much to do with the ammunition as the firearm) o rate of fire (including magazine capacity); and o appearance Page 5 of 9
more explicit guidance on the NFA s genuine reasons for owning, possessing or using a firearm (the genuine reasons), and technological changes with respect to the issuing of licences and permits to acquire. There is no basis to recommend any update of the remaining elements of the NFA to expand the list of genuine reasons or changing the requirements for licensing. Simplifying the regulation of the legal firearms market through an update of the technical elements of the NFA could allow limited law enforcement resources to be more appropriately focussed on areas such as compliance and auditing to ensure that licence and permit holders are meeting their obligations, particularly in areas where leakages to the illicit market could occur, such as the transfer of firearms and storage. Firearms and Weapons Policy Working Group The Commonwealth Attorney-General s Department leads the Firearms and Weapons Policy Working Group (FWPWG). FWPWG consists of representatives from all State and Territory Police, justice agencies as well as the Australian Federal Police, Australian Crime Commission, Australian Customs and Border Protection Service and CrimTrac and reports, through senior officials, to the Law, Crime and Community Safety Council. The FWPWG functions as a mechanism for the ongoing and national monitoring of the effectiveness of the current arrangements with respect to firearms. It does this by brining together all relevant areas to discuss issues of mutual concern, to raise points which may be of interest nationally and to discuss appropriate responses to new and emerging technologies. This includes consideration of matters already described above, such as standards for firearm identification and categorisation and uniform deactivation standard as well as improved intelligence sources for firearm registries, and the continued development of the National Firearms Interface (NFI). The NFI will help track the life of each firearm in Australia from cradle to grave, a capacity previously unavailable to law enforcement agencies. Page 6 of 9
Commonwealth s specific roles As set out earlier, the Commonwealth s main role in relation to the regulation of firearms and firearm-related articles is through control on imports on exports (this submission will focus on imports) and the use of the trade and commerce power in the Constitution in relation to interstate movement. Regulation of importation The Commonwealth s control over the importation of firearms is aimed at ensuring there are minimum standards for the importation of firearms and firearm-related articles that apply nationally and that these standards are consistent with the NFA. This role was put in place at a time when there was a significant lack of consistency between the states and territories. However, as stated above, the states and territories now regulate firearms with only minor variations from the NFA, and certainly consistently in respect of the key components. This results in situations where the Commonwealth s role in the regulation of the importation of firearms and firearm-related articles is of limited or no value, creates anomalies and results in more red-tape for legitimate importers. A particular example is the requirement for firearm dealers to seek import permission from the Attorney-General for certain types of firearms. The only requirement for import permission to be granted by the Attorney-General is that the dealer is licensed or authorised to possess the article in their state or territory. In other situations, the importation of particular firearms or firearm-related articles involves requirements at the Commonwealth level that do not apply in the relevant state or territory. This can result in anomalies where a person is licensed to manufacture, purchase, possess or use a particular firearm or firearm-related article in their state or territory but are unable to meet any of the import tests. Import controls in those situations have limited, if any, effect on the availability of such articles and could represent barriers to international trade. A review of the Commonwealth s role in the importation of firearms and firearm-related articles could be consistent with the Government s deregulation agenda and the desire to reduce unnecessary red-tape. Particular consideration could be given to whether being licensed in the relevant state or territory should be sufficient for import permission. As with the update to the technical elements of the NFA discussed above, this could free Commonwealth resources to focus on compliance. Attachment E provides further detail on the Commonwealth s regulation of the importation of firearms and firearm-related articles. The illegal firearms market In addition to the effective regulation of the legal firearms market, the Australian Government is committed to ensuring that police agencies have the tools and technology they need to effectively investigate illegal firearms and the crimes committed using them. Page 7 of 9
In addition to new legislation on firearms trafficking, discussed later, the Australian Government: is establishing an Australian Border Force to protect the Australian community from the transnational criminal threat posed by drugs, guns and other illicit imports has introduced Anti-Gang Squads in NSW, Queensland, Victoria and Western Australia to detect and disrupt national and international criminal gangs has opened the Anti-Gangs Intelligence Coordination Centre within the Australian Crime Commission to collate federal and state law enforcement intelligence on criminal gangs established the National Border Targeting Centre within the Australian Customs and Border Protection Service which co-locates nine border, law enforcement, national intelligence and regulatory partner agencies to provide a nationally coordinated, whole of government approach inform better operational responses established the Firearms Intelligence and Targeting Team within the Australian Customs and Border Protection Service to provide the National Border Targeting Centre with intelligence products to better target and detect illicit firearms at the international border established a firearm tracing service within the Australian Crime Commission to understand the illicit nature of the Australian firearms market and to assist partner agency investigations launched the Australian Ballistic Information Network, developed by CrimTrac, which is a database of electronic ballistic information from firearms used in crimes to enable national analysis and electronic matching of ballistic evidence to assist police link firearms used in crimes to suspects established the National Firearms Identification Database, which is a web-based reference tool to assist police identify and record firearms consistently, such as at registration or transfer, and is developing a National Firearms Interface, which will provide a national record for each firearm in Australia available to all relevant law enforcement agencies. Importation offences Section 233BAB of the Customs Act 1901 includes an offence of importing firearms and firearm-related articles without meeting the requirements as set out in the PI Regulations. The penalty for these offences is 10 years imprisonment or a fine of 2,500 penalty units or both. Division 360 of the Criminal Code Act 1995 includes offences for the trafficking of firearms within Australia. The existing penalty for these offences is 10 years imprisonment or a fine of 2,500 penalty units or both. The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 includes a provision to include a mandatory minimum sentence of five years imprisonment for firearm trafficking offences. New firearms trafficking offences On 17 July 2014, the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 was introduced into the House of Representatives. The relevant provisions create a more comprehensive set of offences and penalties to address the trafficking of firearms and firearm parts. Page 8 of 9
The Bill proposes to: create new international firearms offences of trafficking prohibited firearms and firearm parts into and out of Australia (new Division 361 of the Code). Currently, criminals can potentially evade trafficking offences and penalties by breaking firearms down and trafficking their constituent parts. The Bill will close this gap, and will enable the conviction of those who engage in the trafficking of firearm parts extend the existing offences of cross-border disposal or acquisition of a firearm and taking or sending a firearm across borders within Australia in Division 360 of the Code to include firearm parts as well as firearms. The Bill will create a new offence in the Code for international trafficking of firearms and firearm parts to complement those international trafficking offences already under the Customs Act 1901. Currently, the cross-border firearms trafficking offences in the Code cover trafficking within Australia, but do not cover the trafficking of firearms into and out of Australia. The criminalisation of international trafficking in the Code aims to capture criminals who illegally traffic firearms (and firearm parts) into and out of the country, and introduce a mandatory minimum five year term of imprisonment for the new offences in Division 361 and existing offences in Division 360. The mandatory minimum head sentence is designed to signal the seriousness of the firearms trafficking offences, though it does not set a non-parole period or extend to minors. Page 9 of 9