Derivative Liability and South Australia’s New Firearms Law: ‘Inherently Dangerous’ or the ‘Best Gun Laws in the Country’?

Abstract

The Australian common law on extended common purpose has been relatively settled for the past three decades. However, in the face of a 2012 murder in South Australia, it was found to be incapable of holding offenders sufficiently responsible for consequences arising from their illegal supply of firearms.

The South Australian (SA) Parliament, with all party support, passed the Statutes Amendment (Firearms Offences) Act 2015 (SA) to establish the “Offence Where Unlawfully Supplied Firearm Used in Subsequent Offence” (the “new offence”). The new offence extends the application of derivative liability in a dramatic and novel way, by apportioning to a person who illegally supplies a firearm, liability for the criminal acts of anyone who illegally uses that firearm at any time in the future. It has been called both “inherently dangerous”1 and part of “the best gun laws in the country”.2 This article questions whether the new offence is a valid deviation from existing principles of criminal responsibility, including the doctrine of complicity. It outlines the crimes that prompted the introduction of the new offence, then examines the new offence in the context of the law of extended common purpose. It acknowledges that Parliament attempted to address the significant legal and social problem of gun violence, in the light of a heinous crime. However, it concludes that the new offence is, primarily, an expression of tough on crime politics that is an unacceptable deviation from established principles of criminal responsibility, and an ineffective solution to the identified problem.

Keywords: Derivative Liability, South Australian's New Firearms law, firearms law, Gun laws

JEL Classification: K1