Statutes Amendment (Firearms Offences) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 1 July 2015.)

Mr WINGARD (Mitchell) (15:40): I am pleased to be speaking first today but note that I am not the lead speaker on this bill. I start by saying I am pleased to support this bill. Lewis McPherson should be about to celebrate his 21^st birthday with his family and a horde of friends. Instead his mum is planning a party for his mates, but Lewis will not be there. She is planning a lot of food, music and a few drinks and there is sure to be loads of yellow which was Lewis' favourite colour.

Lewis was in the volleyball program at Brighton Secondary School and was highly regarded. He was a popular young man and liked by everyone and affectionately known as LewMac. Lewis was shot dead on New Year's Eve 2012 in the suburban streets of Warradale while on his way to a party. He was shot by another young man who was drunk and high on drugs, a young man who was carrying an illegal gun. The shooter's name is Liam Humbles. Humbles opened fire with a .22 calibre pistol aiming at Lewis McPherson and his two friends, Liam Trewartha and James Lamont. The trio crossed paths with Humbles on Sixth Avenue at Warradale at about 7.40pm, a moment in time that ended Lewis' life and impacted so many people in my community who knew the young man or his family and friends.

Humbles was found guilty of murder and sentenced to a 23-year nonparole period which was reduced to 17 years on appeal. At the time the sentence was reduced, Mark McPherson, Lewis' dad, said he believed that if tougher gun laws had already been in place there was a chance his son would still be alive. He said:

If Humbles did not have a gun that night, what was the worst that could have happened? He could have picked a fight with the boys, he might have got a smack in the mouth at worst and that would have been the end of it. But instead everyone is left dealing with what happened.

Which turns the attention to Charles Alexander Cullen, the man who supplied the gun to Humbles, an illegal and unregistered firearm. Cullen was given an eight-year gaol term with a nonparole period of three years and nine months for supplying the gun and for drug offences, and he is appealing.

On the technical side, the bill proposes to reclassify offences against section 10C(10) and section 14 of the Firearms Act as serious firearm offences by adding them to the definition of serious firearm offences under the Criminal Law (Sentencing) Act. These sections relate to offences of supplying a firearm to a person to whom a firearms prohibition order applies (section 10C(10)) or trafficking in firearms (section 14) which includes the offence of acquiring a firearm without a licence or supplying a firearm to someone without a licence.

In addition to the reclassification of these offences as 'serious firearm offences', the bill also creates a 'derivative liability' for certain offences. Many legal experts have suggested to me that on a technical level this is poor legislation being put forward. It has been described as sloppy from a legal standpoint. Be that as it may, I will support this legislation because it will get illegal gun dealers off our streets and keep our community safe. This 'derivative liability' form of legislative arrangement creates a stand-alone criminal offence so that, as quoted from the second reading speech:

…if a person commits a firearm trafficking or supply offence, and the commission of that offence results…directly or indirectly, 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 derivative offence has been designed to be a stand-alone offence, with a maximum penalty of a term of imprisonment no longer than the maximum term of the subsequent offence, being the offence committed by the person who has received the gun from the supplier.

So in the case of Mr Cullen who supplied the gun to Mr Humbles who shot Lewis McPherson, it would mean that upon Mr Cullen's conviction of the trafficking offence by supplying the gun illegally to Mr Humbles who then committed the murder, the derivative liability would also have Mr Cullen convicted of murder and liable to a sentence of up to the duration given to Mr Humbles. It may sound messy, perhaps, but, as it was described in the second reading:

The policy of the law should be that, if you put a gun in the hands of an irresponsible person, and you do so illegally, then you wear the consequences of that action. Cullen should be guilty, not just of the weapons offences, but of murder or manslaughter. Firearms are uniquely and directly dangerous to life and limb and should be a special case.

Putting aside the varying opinions on the framework and formation of this bill, I support this in a stand to prevent anything like what happened to Lewis McPherson from happening again, to stop people being shot on our streets. I live in a community scarred by the fatal actions of New Year’s Eve 2012. I see young people growing up in our community with an innocence lost from their lives forever through having experienced what happened on that fateful evening or from knowing Lewis or the other young men who were shot in a suburban street.

I see a mum walk on the beach, always wearing yellow, often a LewMac jumper or T-shirt. Every time I see her or have a chat, my heart breaks and fills with admiration at the same time. Kim is a very strong woman. So if you ever make it to my electorate of Mitchell and drive around the suburbs in my community, around Warradale or the neighbouring streets that cross over into Bright, Elder and Davenport, you will see the black and gold LewMac sticker on every second car. It is another beautiful reminder of a lovely young man who was taken too soon, but it is also a reminder of how guns in the wrong hands can be devastating.

The LewMac logo is also seen on the Brighton Secondary School’s end of year celebration jumper, and the students have started a yearly volleyball game in Lewis’ honour. Much has been done to remember Lewis and support his family, but as a father myself, the words of Mark McPherson ring in my ears. He said:

My personal interest in trying to get unregistered firearms out of the community will be my focus…we are making good progress with that in Lewis’s honour.

If Lewis were my child I would want the same, and I truly hope this bill helps.

Mr GARDNER (Morialta) (15:47): I indicate that I am the lead speaker for the opposition on this bill. The opposition will be supporting the Statutes Amendment (Firearms Offences) Bill. The bill implements the government's announced policy to reclassify offences against sections 10C(10) and 14 of the Firearms Act as serious firearm offences by adding them to the definition of serious firearm offences under the Criminal Law (Sentencing) Act. These sections relate to the offences of supplying a firearm to a person to whom a firearms prohibition order applies, which is section 10C(10), or trafficking of firearms, section 14, which includes the offence of acquiring a firearm without a licence or supplying a firearm to someone without a licence. I will go into that in detail shortly.

As the member for Mitchell described, in addition to the reclassification of these offences as serious firearm offences, the bill also creates what the Attorney and his legal officers have described as a derivative liability for certain offences. The member for Mitchell described the circumstances of the McPherson/Humbles case, which I think has framed the public consideration of this matter. I pay tribute to the member for Mitchell for the way in which he has passionately and eloquently brought forward the pain in his community locally and the surrounding communities of the south and south-western suburbs of Adelaide where the McPherson family and the community has lost their beautiful boy Lewis.

I think it is important to say that it is not necessarily just one case that drives support or otherwise for any particular piece of legislation. This case does exemplify, I think, the community sentiment about the need to take the illegal trafficking of firearms and the irresponsible and reckless supply of firearms to those who seek to do harm to others in the community very seriously.

The Liberal Party in opposition endeavours to represent our community's concerns and ensure that the law is there to provide justice as well as protections to members of our community. While we do have some concerns about the manner of the construction and the novel approach to legislation being taken here, we do hope that this legislation will achieve the policy outcome that it seeks to, that our community expects and desires, and that we all desire in that it will have a very real effect on reducing the reckless trafficking of guns in the community by people who are dealing in illegal firearms or, indeed, providing firearms to those who do not have a licence.

People who are responsible gun owners and people who deal responsibly in firearms and according to the law have nothing to fear from this legislation. Only someone who is convicted of trafficking or supplying a firearm to someone to whom a firearms prohibition order applies is capable of being caught up in this legislation. However, and we will go into this in a little detail, there are some questions about the legal framework.

It is possible that, if it is challenged, the opposition is not as confident, I think, as the Attorney-General of the bill's legal status, but that at the end of the day will be a matter for the court to decide. In the meantime, the ill that this bill seeks to address is a serious one and we hope that this bill will remedy it. There are, perhaps, other ways that I might have gone about seeking the legislation to be framed were I in the Attorney-General's position, but I am not.

The Attorney-General presents this bill and we in the opposition hope that it will withstand any potential challenge. In doing so in the meantime, and while it stands as legislation, it will provide an extraordinary deterrent towards those seeking to traffic in firearms, because knowing that any firearm they have supplied to somebody with a firearms prohibition order, or, indeed, trafficked in anyway, stands that person under the jeopardy if that firearm is then used to commit a murder, for example, of not only the significant penalties that the trafficking offence would have required but also the life imprisonment sentence that comes with murder.

I described the derivative liability that this offence creates as 'novel'. In his second reading explanation the Attorney-General said:

The derivative offence has been designed to be a stand-alone offence, with a maximum penalty of a term of imprisonment no longer than the maximum term of the subsequent offence, being the offence committed by the person who has received the gun from the supplier.

In relation to the McPherson case, Mr Cullen who supplied the gun illegally has been convicted. He was sentenced to eight years, although I understand that he is appealing. If that offence had happened after the passage of this legislation it would have meant that, upon Mr Cullen's conviction of the trafficking offence by supplying the gun illegally to Mr Humbles who then committed the murder, and as a result of this new derivative liability, Mr Cullen would also have been convicted of murder and liable to a sentence of up to the duration given to the Mr Humbles. Again, as the Attorney described in his second reading explanation:

The policy of the law should be that, if you put a gun in the hands of an irresponsible person, and you do so illegally, then you wear the consequences of that action. Cullen should be guilty—

and I am still quoting the Attorney-General here—

not just of the weapons offences, but of murder or manslaughter. Firearms are uniquely and directly dangerous to life and limb and should be a special case.

I thank the government and the Attorney's legal officers and advisers for the briefings provided to members of the opposition, and subsequent information, including precedent cases that they have provided to members of the opposition. Those officers provided further arguments complementing those arguments contained in the second reading explanation. However, while the concept of derivative liability is novel in its legislative expression, its principles fall within the parameters of the common law, allowing a similar vein to the joint enterprise offence, the law of complicity and so on. Inasmuch as those arguments are to be taken, that has given us some comfort in supporting the legislation today.

I think this is probably a suitable time to put on the record, however, alternative points of view that have been put on the public record by the Law Society. I do so not out of a desire to lend my own support to the arguments they provide, but this is a serious matter and I think the public record demands that the Law Society's point of view be put on the record in this chamber for those contemplating in full the spectrum of points of view that have been put as to the legal validity of the bill.

To be clear, the opposition is supporting the bill. The opposition is not seeking to move amendments to the bill. The opposition desires the public policy outcomes that the bill seeks to create. However, we put on the record the Law Society's concerns and I invite the Attorney-General to contemplate the points made. I am certain he would have had this submission drawn to his attention at some stage. Perhaps in his second reading response he would like to respond to the points made by the Law Society, and some of those points we may explore further in the committee stage, depending on the Attorney's response.

The Law Society, as is their habit on all relevant pieces of legislation, writes to the Attorney-General and then posts this publicly, but it is important in the context of the second reading. I am quoting from the Law Society President, Rocco Perrotta:

The Society opposes this Bill for the following reasons:

a) There is no place for derivative liability in the criminal law. This Bill makes into a criminal offence an act based on loose principles of causation which, in many instances, would not give rise to tortious liability;

b) The proposed offence is not in character a criminal offence. It is not capable of being defended. Any trial for the offence must necessarily be unfair. It appears to be invalid;

c) Criminal liability for serious offences must include mental and physical elements. The proposed offence has neither;

d) The proposed offence is unfair and unjust. The essence of the offence is in the prescribed offence, which has already been prosecuted. The person who supplies the weapon is then at jeopardy a second time if the subsequent offence occurs. The prescribed offender would have no involvement in the subsequent offence. The prescribed offender then faces being sentenced for a second time for the same conduct. Both sentences would be lengthy terms of imprisonment;

e) There is no need for the proposed offence, because the present offence of supply is serious enough, attracting serious penalties.

Mr Perrotta goes on to say, in relation to the underlying purpose of the bill:

As stated in the Explanatory Report the Bill purports to be a direct response to the 'Humbles case' and gives effect to a 'promise' given to those affected. Principally, the Bill provides a mechanism for those who supply/traffic illegally in firearms to be held accountable for the actions of any person who subsequently should use the firearms for a criminal purpose.

He goes on to write:

The Society is concerned that the base proposition emphasised above—

that Cullen should be guilty not just of the weapons offences but of murder or manslaughter—

and upon which the Bill is founded is, from a legal perspective and without more, unfounded.

The Society has a number of concerns in relation both to the underlying purpose of the Bill as well as the manner in which it gives effect to that purpose. The Society opposes the Bill.

It is, in the Society's submission, inherently dangerous to enact legislation in direct response to a single incident and to do so in fulfilment of a 'promise' purportedly given not to the South Australian public but to a select group.

I think I would identify in my own thoughts here, interposing on my recitation of the Law Society's point of view, that I am not convinced that this bill would have the support of this parliament if it was only the single offence that was relevant. I, for one, am concerned, to a large extent, about stopping the trade in illegal guns, stopping the supply of guns to those who are not licensed in our community and, in particular, those who are the subject of a firearms prohibition order. I think the tenet of the parliament should always be to that broader goal rather than just dealing with one case. However, it would be foolish, I think, to ignore the fact that this one case has galvanised significant concern around this area and brought it to the fore. The society goes on to write:

When one considers the respective sentences imposed upon both Humbles and Cullen it is not immediately apparent why legislative intervention is required. Humbles was sentenced to life imprisonment with a non-parole period of 23 years (later reduced on appeal to 17 years). Cullen, whose offending extended beyond the supply of a firearm to Humbles, was sentenced (after applying a 30% discount on account of his guilty plea) to 8 years imprisonment with a non-parole period of 3 years and 9 months. It cannot reasonably be suggested that these sentences are inadequate or would otherwise be contrary to those that might be expected by the public.

Again, I add my own thoughts there, that I am not 100 per cent sure that all members of the public would agree in relation to the nonparole period of three years and nine months given to Mr Cullen. Mr Perrotta goes on to write:

Ultimately, it is the Society's submission that the Bill, and more specifically the derivative liability provision contained therein (section 267AA), is surplus to requirements. The law as it stands in South Australia is capable of holding appropriately to account those who commit firearms offences and, in particular, those who supply a firearm to another with the knowledge that it will be used subsequently for a criminal purpose…The principle that a person can only be held criminally liable for their own acts has been eroded such that a person may now be criminally liable in a number of ways for a crime physically committed by another person. That erosion has largely been effected by the development of the common law.

Mr Perrotta goes on to write:

As is identified in the Explanatory Report the law in relation to derivative liability in South Australia is both settled and effective. The current statutory and common law is such that a person will be held criminally liable for the act of another in circumstances where they have aided, abetted or procured the commission of that act or have engaged in a joint criminal enterprise to that end.

I think this is the purpose to which the argument actually is that the derivative liability is valid. In fact, the common law that is established in this area, I think the government might argue and I think I would probably agree, is potentially unclear and this bill will seek to very much clarify; but, of course, this bill does not leave the flexibility. It requires that the derivative liability be applied. The Law Society goes on to write:

A person's liability for the act of another is in part referable to that person's state of mind at the time of the assistance provided. In other words, the trier of fact must ask: did the accused know of the other's intention to commit the subsequent act or, in the case of a criminal enterprise, was it within contemplation or otherwise foreseeable?

The effect of the Bill is to remove that element of knowledge (actual or constructive) from the equation. Accordingly, a person could be held liable for the actions of another whose identity and intentions they had no knowledge of or could not have foreseen. This is a step too far.

The lack of any mental element, or mens rea, is particular troubling in circumstances where the nature of the new derivative liability offence is such that there is no physical element, or actus reus. This begs the question, what are the elements of the new offence created by the Bill?

It appears to the Society that the Bill, rather than creating a new offence capable of being prosecuted in a Court of law in accordance with established principles, in fact establishes an administrative process whereby a person upon two conditions precedent being realised becomes liable to be sentenced for an act in respect of which, in the majority of cases, the person will already have been sentenced for.

The Society is not aware of any legislation in any other Australian jurisdiction that extends criminal responsibility to the extent proposed in the Bill. It is unprecedented.

I think the word I used before was 'novel'. I invite the Attorney in his response to identify if there is other legislation in other Australian jurisdictions that do so. After some other preamble in relation to arguing that point, Mr Perrotta goes on to write in relation to causation:

Leading on from the above, it is the Society's submission that the Bill's extension of criminal responsibility is contrary to the common law principle of causation, the basic tenet of which is that an 'accused's conduct need not be the sole, direct or immediate cause of death. It is enough that the applicant's conduct contributed significantly to the death of the victim.' However, and critically, 'where the death is not caused directly by the conduct of the accused but by something done by a third person, there may be a question whether the chain of causation has been broken.'

He goes on to write:

The effect of the Bill is to remove the troublesome, but entirely necessary, question of causation from the equation. The Bill essentially provides for an automatic assumption that the unlawful supply of a firearm is causative of any offence committed by any person who may subsequently come to possess and use that firearm. That, as a general proposition cannot on any view be correct. There are many and varied ways in which the law has recognised that a chain of causation can be broken.

I will identify an example perhaps in layman's terms and again invite the Attorney in his second reading response to clarify that this would in fact be the case. If a person, say, James, was to supply a firearm legally to John and John was to then supply the firearm illegally to Paul, because Paul did not have a firearms licence, and Paul was then to supply the firearm illegally to Andrew who then committed an offence subject to this legislation, my understanding is that Andrew, Paul and John would all be liable under the derivative liability but the initial person who supplied the firearm legally would not have that derivative liability. That is certainly my understanding of the bill and I invite the Attorney to correct that down the track or we can explore it in committee. Mr Perrotta goes on in relation to a different question to ask, does the bill address a deficiency in the criminal justice system? He writes:

It is not clear from the Explanatory Report whether any analysis has been conducted in relation to the nature of the sentences imposed by South Australian Courts upon those convicted of offences against sections 10C(10) and 14 of the Firearms Act 1977. Notably, the maximum penalty in respect of those offences is 15 and 20 years imprisonment respectively.

The Society submits that legislative intervention designed to address a perceived or prospective shortfall in the judicial system should be made only after careful consideration of its necessity. In this case, the 'shortfall' is presumably a purported failure by sentencing Judges to consider the significant danger to the public caused by the dissemination of unregistered firearms to unlicensed persons.

If that is a consideration the legislature desires Judges to have particular regard to when sentencing 'serious firearm offenders' then there are much simpler ways than this Bill to require it of them.

Mr Perrotta goes on to identify section 10 of the Criminal Law (Sentencing) Act and goes on to put some further concerns as to how the bill gives effect to its purpose. Mr Perrotta writes:

In addition to the concerns set out above in relation to the utility, purpose and base proposition that underpins the Bill, the Society has identified a number of potential issues with its proposed execution. In particular, the new section 267AA offence creates:

6.1.1. a potentially unlimited category of offenders;

6.1.2. uncertainty for convicted offenders, which, at its highest, arguably amounts to cruel and unusual punishment;

6.1.3. an offence that, in most circumstances, would likely be impossible to defend successfully;

6.1.4. an offence without the traditional elements required to be proved beyond reasonable doubt; and

6.1.5. uncertainty as to its retrospectivity.

We will have some questions in relation to the retrospectivity aspect and, in particular, in the Attorney's response he might like to contemplate giving clarity to the historical provision of guns many years ago, before the current Firearms Act was written, when people might have been guilty under historical offences that may or may not exist anymore, whether that all gets caught up in the trafficking offence.

I note some discussions I have had with people in relation to one of the possible effects of the passage of this legislation, in that presumably anyone who is currently being convicted of a trafficking offence, or indeed supply of a firearm to someone who is under a firearms prohibition order, if that gun is still in the community and is subsequently used to commit a murder, that person would be subject to the derivative liability here and a further life sentence. I suggest that perhaps one outcome of the passage of this legislation would be that anyone who has been convicted of a firearms trafficking offence or a supply offence of this nature, one of the first things they would probably do upon leaving custody would be to try to track down every gun they ever got rid of illegally and make sure they are taken out of circulation, so that they cannot subsequently be convicted of further legislation. That might be a positive outcome. Mr Perrotta goes on to write:

The proposed section 267AA(2)(b) provides that 'the subsequent offender need not be the person to whom the accused supplied the firearm in respect of the prescribed firearm offence.'

The bill as drafted does not place any limitation upon the degrees of separation between an accused and the principal offender (as defined in the bill). It is entirely possible for a firearm to be the subject of multiple exchanges before ultimately being used in the commission of a criminal offence.

He goes on to identify an example not entirely dissimilar to that identified earlier in my second reading speech. The Law Society's view is:

That situation is on any view, and particularly when regard is to be had to the principles of causation discussed above, unsatisfactory.

The Law Society extends further concerns in relation to uncertainty, which it describes as a cruel and unusual punishment. In particular, in points 6.7 and 6.8 of its submission Mr Perrotta writes:

The bill as drafted does not place any temporal limitation upon the original supply offence and the subsequent offence (as defined in the bill). Without such a limitation it is entirely possible that a person could serve the entirety of their sentence in respect of the original offence only to later be punished again for what is, in fact, the very same act.

This creates a situation where persons who illegally supply a firearm will forever be in jeopardy (or until the firearm supplied is either used in the commission of an offence or otherwise located by authorities before that happens). The society submits that this is manifestly unfair, unreasonable and also a barrier to rehabilitation.

That is, of course, the society's view. The society asked the question: 'Is the offence created by section 267AA defensible [and] what are its elements?' Mr Perrotta writes:

This problem has been identified previously in the submission where the society posed the question—what are the elements of the offence created by the bill?

It seems to the society that the offence created by section 267AA is not an offence in the traditional sense. That is, one committed upon the satisfaction of certain mental and physical elements but, rather, one committed upon two separate findings of fact being made by a court. Any question of causation, ordinarily left for a jury, is usurped.

In those circumstances, how does an accused defend the charge? Is an accused able to challenge the verdict of a judge or jury in relation to the subsequent offence? Should an accused be able to be heard in the trial of the subsequent offender and take points or raise defences that otherwise would not be made? On paper, this of course sounds absurd. But, in circumstances where the section 267AA accused is in no less jeopardy than the subsequent offender—why shouldn't they have a right to be heard?

An individual's right to be heard or to challenge a criminal allegation decision that affects that individual is fundamental to our justice system and to Australian society. Any attempt by the legislature to infringe upon that right must be scrutinised with the utmost care to ensure that any such infringement is…absolutely necessary; and…the infringement is precisely proportionate to the issue sought to be addressed.

For my own part, I would respond to the Law Society at this point by saying that it seems, given the circumstances such as those which occurred in the Humbles case, the extreme ongoing danger to the community when illegal firearms are provided to reckless people who do not have a licence, or particularly those with a firearms prohibition order, does elevate it to the point where hard laws may be seen to be necessary. We certainly hope that it will in fact provide that deterrence to make it much less likely that this trade will continue. In relation to transitional provisions—and I am nearing the end of the society's submission:

The Society notes that the Bill does not contain any transitional provisions. That is particularly unsatisfactory when the Bill, on its face, purports to govern events and findings of fact that may have occurred long before the Bill is ultimately assented to.

For example, it is entirely possible that a firearm illegally supplied, say, two years ago could be used in the commission of offence well after the Bill becomes an enactment and is assented to.

Accordingly, is it intended that all persons who have been found guilty of offences contrary to sections 10C(10) and 14 of the Firearms Act…since their commencement will be, upon the commission of a subsequent offence (as defined by the Bill), liable to prosecution pursuant to the new section 267AA? If that is the intention, then the Society is opposed to such a course.

Finally, the society asks the question: 'Is the bill unconstitutional?' I do not really offer any response to them on that question, other than that, ultimately, if challenged, the courts will decide that matter. I suppose the opposition hopes that it would meet the threshold in seeking to achieve the public policy outcome that we all desire and that the community certainly desires. We are relying, as I described earlier, on principles such as the joint enterprise offence (the law of complicity) currently existing in the common law. We would certainly hope that it would meet that threshold but the Attorney is welcome to respond if he wishes.

I noted there was some comment in the media. The Attorney said, on 20 October last year, that he:

…felt confident his proposed laws, if ratified, would survive a constitutional challenge in the High Court.

'I realise that this is a big step, but how else do you actually make it clear to people out there that we are deadly serious about sending this message?' he said.

I am not sure that quote was directly relevant to the Attorney's confidence in its meeting the constitutional requirements; nevertheless, that is how he presented his case in October last year as to why it would be constitutional. I invite him to expand that defence in his response in the second reading. Again, these are the society's comments, not mine. This is a very serious matter that we must reflect on, and the Law Society has put forward its concerns in an articulate manner. Therefore, before passing legislation of this gravity, I put them on the record for the Attorney to consider. Mr Perrotta writes:

Finally, the Society has considered briefly whether the bill may in fact be unconstitutional. The Society's answer to the question posed is: quite possibly.

It is arguable that, for certain of the reasons set out in this submission, the effect of the Bill is to deny a person a fair trial according to law. To do so would be unconstitutional. As stated by Gaudron J in Dietrich v R…at 362:

'The fundamental requirement that a trial be fair is entrenched in the Commonwealth Constitution by [chapter] III's implicit requirement that judicial power be exercised in accordance with the judicial process'.

In the Society's submission, it is questionable whether the prosecution of an offence under the proposed section 267AA could be described as being 'in accordance with the judicial process'. It appears to the Society to be nothing more than a rubber stamp exercise. In that regard, the Bill arguably infringes upon judicial independence.

As stated by Chief Justice French in SA v Totani…

'Courts and judges decide cases independently of the executive government. That is part of Australia's common law heritage which is antecedent to the Constitution and supplied principles for its interpretation and operation. Judicial Independence is an assumption which underlies [chapter] III of the Constitution'.

'It is a requirement of the Constitution that judicial independence be maintained in reality and appearance for the courts created by the Commonwealth and for the courts of the States and Territories. Observance of that requirement is never more important than when decisions affecting personal liberty and liability to criminal penalties are to be made.'

Could it be said that a successful prosecution pursuant to the proposed section 267AA has been decided 'independently of the executive government'? The Society does not believe so.

On one view, the accused is only guilty because the executive has deemed him/her to be so. In many cases, if such an accused were tried according to law and was able to question for example, whether their act was causative of the subsequent offence, they would likely, in a great many cases, be entitled to an acquittal.

In conclusion, Mr Perrotta writes:

The Society must oppose the Bill. It provides for an automatic and unprecedented extension of criminal liability that imputes causation without any regard to the facts of the particular case. It is arguably unconstitutional. The Bill, in the Society's submission, cannot stand.

I note Mr Perrotta's final sentence, which is perhaps said slightly tongue-in-cheek, given the tenor of the previous 11 pages. He writes:

I trust these comments are of assistance.

I hope they are of assistance to the parliament. In fact, I do not subscribe to the opinions offered therein, but I do think that they are of such a serious nature that they require consideration prior to members supporting the bill, which I hope they do because I do support this legislation. I think it will have a positive outcome for our community.

To go into a little more detail in relation to what the bill will do, for any member who is slightly unclear on the requisite offence that must be established in a court of law to prompt the derivative liability being enacted, the two sections are section 10C(10) and section 14 of the Firearms Act. Section 10C(10) in the Firearms Act states:

A person must not supply a firearm, firearm part or ammunition to a person to whom a firearms prohibition order applies or permit such a person to gain possession of a firearm, firearm part or ammunition.

Maximum penalty:

(a) in the case of a firearm—$75,000 or imprisonment for 15 years;

(b) in the case of a firearm part or ammunition—$35,000 or imprisonment for 7 years.

It is clear that it is in relation to somebody whom that firearm prohibition order applies, and even the supply of ammunition or a firearm part can trigger the offence. Trafficking in firearms is section 14, which is a longer section. In short, we are dealing with someone who:

(i) acquires a firearm; or

(ii) knowingly takes part in the acquisition of a firearm

without being authorised to acquire the firearm by a permit under this Part (or…

(b) who—

(i) supplies a firearm; or

(ii) knowingly takes part in the supply of a firearm,

to a person who is not authorised to acquire the firearm by a permit under this Part…is guilty of the offence of trafficking in firearms.

There are a series of penalties that currently apply in relation to this section: imprisonment for 15 years or a $75,000 fine if the firearm is a prescribed firearm. If it is a C, D or H class firearm, we are looking at $50,000 or imprisonment for 10 years. For any other kind of firearm, it is $35,000 or imprisonment for seven years. If the offence involves more than one firearm, or there is more than one offence, then the maximum penalty goes up to 20 years.

It is worth noting that this not only catches people who had offences that would have that 15 to 20 years' sentence but potentially those with lesser maximum sentences as low as seven years or, indeed, under subsection (9):

A person who has not previously been found guilty of an offence against this section may, at the discretion of the prosecutor, be prosecuted for a summary offence against this section except where the offence involves a prescribed firearm, but on conviction of a summary offence against this section the maximum penalty is $10,000 or imprisonment for 2 years.

I would invite the Attorney to clarify in his response—given this is still under section 14, the trafficking section—whether somebody who has been convicted at the discretion of the prosecutor, what then becomes a summary offence with a maximum penalty of two years, that despite the fact that it has only been a two-year sentence as a summary offence, whether that person is then also subject to the derivative liability if that is used for murder and can potentially get a life sentence for something that up to now has just been a summary offence with a two-year sentence.

In relation to consultation, I thank not only the Law Society for their considered submission but those other people who have provided input in relation to this bill. The briefing that we received identified that at the time of the briefing the government had consulted with the DPP and the Solicitor-General as to both the bill's workability and constitutionality. We were advised that the Law Society at that time had been provided with a copy but had not yet provided a response. They certainly have since.

We were advised that no other consultation had been undertaken in response to the legislation which we subsequently checked. We asked the Commissioner of Police whether they would like to comment on the matter. The Minister for Police subsequently wrote back to me identifying that the South Australian police had provided input on the legislation, but provided no further detail of what that input was or what their commentary was as to the workability or any other matter that they might have taken into consideration. I would be interested in the Attorney's response as to what the police's view was on the matter because we certainly did not receive any detail of that.

A number of other individuals and representative groups expressed their comments on the bill. Some were seeking technical clarification, in particular along the chain of provision of firearms going back to somebody who might have supplied a firearm legally in the first instance. It appears that such a person would not be caught up so that gave some people that we consulted with some comfort.

I think it is reasonably fair to say that, when we consulted with people who had a specific interest in dealing firearms, the scorn that the responsible and legal firearms community has for those who use firearms illegally is palpable. Responsible gun owners, legitimate users of firearms in our community, and those who supply them legitimately and responsibly have no more regard for illegal firearm users than people who have never held a gun because those who supply and use guns illegally and use illegal guns cause significant danger to all in our community. They put an extra burden upon those who use legitimate firearms in the challenges that they have to put up with in their daily lives as they seek to go about their lawful behaviours.

I took the opportunity while visiting one gun dealer in particular to ask them about the processes that they use to ensure that the person who they are supplying a gun to has the appropriate permits and the appropriate licence. Their view was that if somebody is caught for trafficking guns then the chances of that happening randomly or by accident, oversight or omission is very long indeed. They were certainly not concerned themselves that they would ever be liable to being caught up accidentally and so they were comforted by the reassurance that the legislation does not deal with anyone who supplies guns in a legal fashion.

The impact on our community of this legislation will hopefully be very positive. It will hopefully reduce the risk to law-abiding members of our community from illegal firearms. It will hopefully provide an extraordinary deterrent to people providing, trafficking or supplying illegal guns or providing guns illegally, and the opposition supports the passage of this bill.

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (16:29): I rise to speak on the Statutes Amendment (Firearms Offences) Bill 2015. Unsurprisingly, the public were outraged to hear of the 2012 New Year's Eve murder of Lewis McPherson, and many questions were asked: how could a 17-year-old Liam Humbles get hold of a gun and then go out in a drunken and drugged state and murder this young man Lewis McPherson? Apart from being what was on the face of it a senseless and devastating act, of course it had very real consequences and was a great tragedy for the family of Lewis.

Unsurprisingly as well, his father has maintained a public call for legislative reform, in particular, from his perspective, mandatory imprisonment for anyone who supplies a gun to another party which ends up being used to murder someone. His plight and plea, on behalf of his son and to try to protect others against this type of senseless violence and act, in this case fatal for his son, is well understood. The government's response to this has been to express, appropriately, concern and to say that there should be a clear review of the reform of the legislation.

As is well known, Liam Humbles, a young man himself, is now in prison serving a life sentence. The factor which was certainly exposed as being offensive to the public was that Charles Cullen was given an eight-year sentence, four years for supplying an illegal weapon and, I think, close to that for drug offences, totalling eight years. To provide a .22 calibre handgun to a young person who then used it to murder someone was seen as just utterly irresponsible and obscene, and I think as a result of that the public were even more outraged.

I do not criticise the government for reacting to the extent of saying that they will leave no stone unturned to review our legislative and sentencing regimes to ensure that, as best we can, we use this instrument, blunt as it may be for some, that we use our criminal and sentencing regime to ensure that it is an effective deterrent against not only future murders but, in particular, the provision of a firearm that could be used in a murder. However, what concerns me—and I think the shadow minister for police has certainly given a very significant and detailed presentation—is the question of whether the government has gone too far in this legislation.

By going too far, let me say this: to reclassify offences, particularly under sections 10C(10) and 14 of the Firearms Act, as serious firearm offences, by adding them to the definition of serious firearm offences under the Criminal Law (Sentencing) Act, attracts a much more severe penalty. It means that sections relating to the supply of a firearm to a person to whom a firearms prohibition order applies or trafficking in firearms will attract this higher level of offence with a higher level of sentence. I think that is reasonable. I think that on any account that would be acceptable.

What is concerning is the further action of the government in attempting to introduce a reclassification of the offences, and in addition to that also creating a derivative liability for certain offences. It has been described as novel. It is certainly unprecedented. On the face of it, it contravenes the requirement that a person who is convicted of an offence must have some causal link, some link of causation between them and the act that is undertaken; and, for all of the reasons that have been outlined by the shadow minister for police there are legal implications with progressing legislation which could ultimately come under challenge.

I ask this question: what is the point in saying to Mark McPherson, 'We will act as a parliament to ensure that the memory of your son is not lost and that we act as best we can for the future protection of others,’ if in fact we end up in the courts with legislation which we are being asked to consider, which is challenged and which is found to be invalid? That gives no comfort, in my view, to those who are grieving as a result of this event, and it certainly would not give comfort to other families who may feel that someone they loved was also a victim in these circumstances.

In short, we have an obligation here in the parliament to make sure that, if we are going to introduce some unprecedented approach to the criminal convictions and/or sentencing of someone who we find to undertake conduct that is offensive, we need to make sure as best we can that it is going to stack up. I have contributed to debates in these circumstances before. I particularly remember the criminal organisation legislation that ended up in the High Court. We had the state government with egg on its face—it is embarrassing to the parliament—and we had bikie gang members rejoicing in the streets, and the poor old taxpayer of South Australia was left with a huge bill. How does that help deal with the victims of those who we were trying to prosecute and put behind bars when that type of embarrassing outcome occurs?

I am cautious in jumping off with the government into an area which, on the face of it, is going to go straight to the appeal courts and be undermined. I am much more reticent to walk arm in arm with the government and say, 'Well, look, let's give it a crack. Let's see if it works and we can follow that through. We will just see how it goes.'

I simply cannot trust the government to have acted responsibly on its own after its own investigation, and I think the shadow minister's proposal to support the bill is certainly one direction to go. However, in years to come and I am standing here in parliament after I have read a Full Court judgement or a High Court determination which has thrown it out, then I will be having a lot to say about it. That would be unusual, I know. So, the government is on clear notice that I am very cautious about how we approach this. I thank the shadow minister for all of the work that he has done in thoroughly examining this. The words of Mr Rocco Perrotta may come rebounding back to us.

I want to say something about Mr Perrotta, and that is that he is an experienced criminal counsel in his own right and, of course, he is President of the Law Society of South Australia. Whilst from time to time the government appears to be quite dismissive of the views of the Law Society and do not care to take much notice of them, in this instance in particular the president himself has a significant level of experience and, frankly, the Attorney should have been looking at this much more carefully.

The other matter I want to raise is that the government, in bringing this amendment to the criminal law, have been highly selective in their reaction to what has occurred. I think it is time the government understood that there is a serious problem in respect of illegal firearms. Whilst, on the one hand, I know the Minister for Police has tabled a bill today to look at updating the regulatory regime for possession and ownership, and dealing in firearms through the legitimate process, much of which is meritorious—of course, I cannot say anything more about that because it is a bill we have to discuss. That is good, but there is an unquestionable problem that we have in South Australia, and that is we have illegal firearms in the community. We have illegal firearms coming in and out of South Australia. We have the trading or at least exchange of illegal firearms; they are washing around there in the community in the wrong hands and nobody seems to be doing anything about it.

It is too late to come in here and say, 'Haven't we done a good job by throwing the key away to somebody who has allowed a gun to be used in another offence?' It is too late. Somebody has already been shot. Somebody is likely to have already died. What the government has to get into its head is that it has to put some effort into getting those illegal guns off the streets and out of the hands of people who should not have them before they are used to kill some child, or anyone. That is what they have to do and, until they face up to the fact that that is a much bigger problem out there, we are not going to save people's lives.

The other thing I want to say is that, on the issue of parading around with guns, I have said before that I am not happy with people wearing guns in a public place and, in particular, in this parliament. We have somebody, as a security officer who comes into the precinct of this room every day that we sit, who is wearing a firearm. We have security around the building, and I understand that there has obviously been some call for that for security reasons. I will not name them, but three other government buildings which house senior members of government and some of their departments have this special security, and I understand that.

What I do not accept is that in this chamber we have to have people wearing guns. We have seen a situation, I think most recently in Canada, where a person was wearing a gun within the precinct of the parliament and, ultimately, someone wrestled with that person, got hold of the gun, and some other security that was in the precinct dealt with it.

What is not acceptable, in my view, is that we have to be sitting here in this parliament at risk of someone else wrestling a security officer to the ground, getting that weapon and using it. What I am advised is that the reason it is necessary for the person sitting here in the chamber to wear a gun is that there is not sufficient facility here at Parliament House, and/or it takes too much time, to go and put the gun in security before they come into the chamber.

The DEPUTY SPEAKER: They are going to be shooting me, not you, because I'm in the middle—especially not a moving target.

Ms CHAPMAN: That would be a tragedy, Madam Speaker, if you were a victim but I would have to say, for anyone else sitting on the other side, I would be very saddened. It really does not matter who it is: it is not acceptable.

What happens in every prison in Australia and every facility where people wear weapons is that they go and put their gun into a secure locker. In fact, I do not think they can even get their car keys to go home in some prisons in South Australia before their gun is securely back in the locker. That is good and very important, but why is it here in this parliament that we have to have someone sitting here wearing a gun and therefore vulnerable to having it removed from them and therefore placing us in a vulnerable position—not just us as MPs but, of course, everyone working here in this room. I add that to the list of things that the Attorney-General can fix up in between.

Mr PEDERICK (Hammond) (16:46): I rise to speak to the Statutes Amendment (Firearms Offences) Bill 2015. I express my support for the bill but it certainly does need some debate. Obviously, this is following the widely known case where on New Year's Eve 2012, extremely sadly, a young man, Lewis McPherson, was shot dead by some drug-crazed felon. This is a great tragedy and, as a father of a couple of young boys, it weighs heavily on my heart and I can barely understand what has gone through the minds of this lad's parents. It is just a terrible thing for a parent to have to deal with.

I do know that since then the Attorney announced on 17 July 2014 that legislation would be introduced to classify those offences for providing a gun to someone who does not hold a licence as serious firearm offences. In regard to serious firearm offences, the presumption is against a suspended sentence and the presumption is against bail. As the Attorney-General has quoted, people who sell guns to those without a licence should expect to go straight to gaol.

This bill implements the Labor government's announced policy to reclassify offences against sections 10C(10) and 14 of the Firearms Act as serious firearms offences by adding them to the definition of 'serious firearms offences' under the Criminal Law Consolidation Act. These sections relate to offences of supplying a firearm to a person to whom a firearms prohibition order applies (section 10C(10)) or trafficking in firearms (section 14), which includes the offence of acquiring a firearm without a licence or supplying a firearm to someone without a licence.

In addition to the reclassification of these offences as serious firearms offences, the bill also creates a derivative liability for certain offences. This form—some would say it is a novel form—of legislative arrangement creates a stand-alone criminal offence so that if a person commits a firearms trafficking or supply offence and the commission of that offence results, directly or indirectly, 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 derivative offence has been designed to be a stand-alone offence with a maximum penalty of a term of imprisonment no longer than the maximum term of the subsequent offence, being the offence committed by the person who has received the gun from the supplier. In relation to the Lewis McPherson case, this has provided the most significant political impetus for this legislation being put forward. The person who supplied the gun illegally has been convicted and was sentenced to eight years for the firearms offence, and I note he is putting up an appeal to that sentence.

What would this mean? It would mean that, upon Mr Cullen's conviction of the trafficking offence, by supplying the gun illegally to the offender who then committed the murder as a result of his derivative liability, Mr Cullen would also have been convicted of murder and liable to be sentenced for up to the duration given to the person who fired the shot. As it states in the second reading:

The policy of the law should be that, if you put a gun in the hands of an irresponsible person, and you do so illegally, then you wear the consequences of that action. Cullen should be guilty, not just of the weapons offences, but of murder or manslaughter. Firearms are uniquely and directly dangerous to life and limb and should be a special case.

I will express my interest in firearms. I am a firearms owner—a licensed firearms owner, which you would be glad to know. I have a C class licence because I have a farm. I have a property so that entitles me to have my 5-shot pump action shotgun, that is a 12-gauge, and I have a little single-shot 410 shotgun as well, securely locked up as they need to be, with ammunition stored separately.

I guess some concerns that have been relayed to me that I want to express to this house are to do with what happens in the advent of a stolen firearm. We note that these can amount to potentially 200 to 300 a year in this state. What would be the consequences of a stolen firearm being used for a terrible murder such as this one or another serious crime? People have expressed issues with that. Gun dealers have expressed concern. As it states in the bill, the amendment of the Criminal Law Consolidation Act 1935 and the insertion of part 7C is the derivative liability for certain offences as the offence where an unlawfully supplied firearm used in a subsequent offence, so that gives me some heart that this legislation is most likely worded appropriately. But I think there needs to be some teasing out, perhaps during the committee stage with the Attorney, so that people who are legal firearms owners—and there are over 50,000 of them in this state—who conduct their business legally can be sure that they will not be caught up in this legislation.

Certainly in regard to unlicensed firearms and supplying these firearms illegally, yes, there should be a high penalty to be paid for people who peddle unlicensed and unregistered firearms, especially knowing that they will be used in some crime or another. In this case, in the Lewis McPherson case, what happened is an absolute tragedy, but there are also other forms of hurt and stress that can be placed on people. Over the years, for as long as we have had banks in this state, we have had many bank hold-ups over time.

Thankfully they have slowed down quite a bit with changes in technology and security services getting on board but, sadly, we still have inside jobs. I note there was one at Mannum not that many years ago, just across the river from my electorate. It was an inside job, where people had to face the trauma of having a gun used in front of them. Obviously they can also be used in service station hold-ups and the like.

There should not be any way that people handling these unregistered firearms get away with it at all. I acknowledge what the deputy leader, the member for Bragg, said, that there should be more done in trying to round up these illegal weapons. I know it is probably a pretty tough job because these illegal weapons would be underground but, from what you hear anecdotally on the street, it would not be that difficult to obtain one if that were your desire. Hopefully with legislation like we have passed in this place recently, cracking down on bikie gangs and legislation such as this, perhaps we can save some lives and save some trauma in the future.

Sadly it will be too late for some, like a young lad like Lewis McPherson and his family. We do not want this to happen to one more family in this state, let alone anyone else. With those few words I commend the bill.

Sitting extended beyond 17:00 on motion of Hon. J.R. Rau.

Mr VAN HOLST PELLEKAAN (Stuart) (16:56): I rise to speak on behalf of the opposition and the people of Stuart on this bill. I will be fairly brief, because people who have spoken before me have gone into great detail and given thorough and genuine contributions.

As has been said, this bill is before us largely because of the great tragedy of the Lewis McPherson case. However, while in many ways that was the catalyst for this proposed change of law, I would like to stress that Mr Mark McPherson, whom I met with a few times when I was shadow police minister, made it very clear that in his mind it was not only about his son and his family but also very much about trying to help people so that they never end up in the same situation, to do everything possible to prevent any family having a son or daughter, or a grandmother or grandfather, or any member of their family caught up in a great tragedy the way the McPherson family has been.

So while that very sad incident is, in many ways, the catalyst for this, it is not only about that. As good laws are, it is about trying to make good things happen or about trying to prevent bad things from happening. That is very much the foundation from which the opposition comes to this issue.

We do have some concerns about it, but let me say very clearly that the opposition supports this bill. The opposition will support this bill in both houses and will not try to amend it in any substantive way. If there are some technical amendments which come to the surface—

An honourable member interjecting:

Mr VAN HOLST PELLEKAAN: Correct—for some reason, as the Attorney-General has brought to our attention, so be it. We will work through those responsibly. However, we are supporting the bill and we will not look to change its intent in any way whatsoever.

At the heart of this issue is the fact that there are so many illegal firearms out in the community. We know that between 230 and 250 firearms are reported stolen every year, and we know that hundreds more, every year, are reported missing. So there are several hundred, and one report, about three years ago, which came from the Australian Crime Commission, said that there were approximately 1,100 firearms in South Australia every year reported stolen or missing. That is one of the absolute foundations of this problem, because we are here to talk about ways to try and prevent trafficking of illegal guns. If we can go a step before that and do whatever is necessary to stem the supply of illegal guns so that the traffickers have less material to work with, that would go a very long way to addressing the issues that the McPherson family, many other people in the public, and both the Liberal and Labor parties in this chamber want to address.

Trafficking is at the heart of this, and trafficking firearms can never come to any good. There is never going to be a law-abiding, responsible firearms owner or user who would receive an illegally trafficked firearm. It does not matter whether that person needs it for feral animal eradication, for target shooting with a club, or any other legal responsible purpose that you could think of, nobody who would be a responsible, law-abiding firearm owner or user would ever receive an illegally trafficked firearm. There is never any reason to accept the trafficking of firearms. Everything we can possibly do to stamp it out needs to be done.

I said that we have some concerns, and I am not legally trained and do not pretend to be, but the legal fraternity is very concerned about the issue of derivative liability. The deputy leader, shadow attorney-general and member for Bragg, has covered that issue, and she is legally trained, so I trust what she says on those issues. For myself, I can say I am uncomfortable with the principle that somebody could be found immediately convicted of a crime because another person was convicted of a crime and they had an immediate connection with that. I am not comfortable with that as a complete principle. I would have been more comfortable with the concept of saying that, if one person is convicted of a crime that involves a weapon that was trafficked and it was clear that person B trafficked the weapon, person B should stand trial for the same crime and then at least that person would have their day in court.

However, we as a team, as an opposition, have come to the conclusion that this problem is so big and so far out of hand at the moment, it requires a much heavier hand than we would normally be happy with, and so we will support the government in this bill. There are concerns with it, but this is one of those situations where you need to do what you need to do to fix the problem.

It has been made very clear by speakers who have preceded me on my side and by the Attorney-General—and it is certainly very clear in the words of the legislation—that this could never apply to somebody who participated in a legal transaction of firearms, whether that person was a dealer as a buyer or a seller, or a private person as a buyer or seller, or a dealer-facilitated transaction between a private buyer or seller. If it is done lawfully, efficiently and gets the tick of approval from the police, they cannot get caught up in this legislation. While it is a heavy hand, it is a heavy hand that can only apply to the illegal traffickers of firearms. It is on that basis that the opposition supports the government.

Mr SPEIRS (Bright) (17:04): I rise today to speak on the Statutes Amendment (Firearms Offences) Bill and wish to place briefly on the record my intention to strongly support this legislation. There has been controversy about this legislation and we know that there are people within the legal fraternity who are concerned about it, but at the end of the day this legislation has come to us because of a real-life tragedy. A young man lost his life in the most abhorrent way because there was an illegal firearm in the possession of someone who should not have had that illegal firearm. A young man lost his life because laws like this were not in place and you could say that, if laws along these lines had been in place, Lewis McPherson may be alive today.

I speak as someone who has a very close connection to the community in which Lewis McPherson lived and went to school. I am the local member for that area and for Brighton Secondary School. I follow on from the member for Mitchell who has already spoken in support of this legislation. The crime occurred within the member for Mitchell's electorate and we both see ourselves as having a significant responsibility to our community to stand up and say this is legislation that we will support and this is legislation that the Liberal Party, the opposition in this state, should be supporting, because at the end of the day, leaving legal arguments aside, there is someone who is no longer here in our community because firearm laws were perhaps not what they should be.

This is about real life. This is about the impact of illegal firearms in our community and, as a parliament, from time to time we need to make difficult decisions that may not necessarily sit well with the legal fraternity but nonetheless need to be made because there has been a significant wrong here. If anything good can come out of the tragedy of the murder of Lewis McPherson perhaps it is that South Australia will have tougher firearm laws and will have put in place mechanisms that might just scare some people into doing the right thing when it comes to dealing with firearms legally or illegally.

There has been a lot mentioned in the media by the Law Society and by stakeholders in this field about a fear within those who use firearms legally that somehow this legislation will impact their ability to act legally with the guns that they own. That certainly is not the case. If you are doing the right thing and if you are behaving responsibly and being a firearm owner or conveying firearms in a legal manner, there is nothing at all that anyone needs to fear. People in rural South Australia who use guns on their properties and people who use guns for sport do not need to fear this legislation. This legislation is to stop bad people from doing bad things. It is as simple as that.

I want it clearly on the record today in parliament that I am here to support the McPherson family and to support the community that I represent which has been deeply affected by this crime. As I drive around my community through Brighton, Seacliff, Marino, Kingston Park and Somerton Park, on every two or three vehicles you will see the LewMac bumper sticker in yellow writing on a black background. This is a crime that has had a significant impact on my community.

It has made people aware of perhaps the failings in firearm legislation in this state and, most importantly, it has made people aware that something needs to be done about this, and that is what is happening in parliament today. My feelings about this are on the public record. I am quite happy to speak to anyone who has difficulties with this legislation. I certainly do not, and I am happy to support the government in full in this legislation before the parliament.

Mr WHETSTONE (Chaffey) (17:09): I also rise to echo the sentiments and concerns of the member for Bright and many speakers about the dark side of firearms. I make the point in my contribution that the majority of firearms owners, licensees, do the right thing and use their firearms for the right reasons. I declare that I have a firearms licence, class C. I have a self-loading shot gun, I have a self-loading rifle, and I use that on my primary production operations mostly for vermin control. I use it for my livelihood, but others use it for their sport, and others use it for all the wrong reasons. Sometimes those people are the ones who have given firearms and handguns, over the lifetime of us on the planet, a bad reputation.

What really concerns me are the complexities of the current rules and legislation for firearms at the moment. I am glad to see that the Statues Amendment (Firearms Offences) Bill will provide some changes regarding illegal firearms within the system. Currently SAPOL is looking at red tape reduction and making the system much more streamlined and easier to navigate. Obviously, that will be music to the ears of many people in my electorate of Chaffey, known as one of the premium food bowls, because that is what many of the farmers use to protect their crops and control vermin and to keep their livelihood viable.

I notice in the statistics that nearly 65,500 South Australians hold a licence and 55,000 of them currently have firearms. If you delve into the numbers, there are 309,200 registered firearms in South Australia, 17,000 handguns, and 230 firearms are stolen each year. Sadly, most of the firearms that have been stolen are normally stolen for the wrong reasons. Sometimes they are stolen simply for money and sometimes they are stolen simply to be put into the hands of people who should not have them. What this tells me is that there is an average of about five firearms per licensee, and that is of concern. A briefing by SAPOL representatives this morning also highlighted some of the inefficiencies within the Firearms Act.

The issue that has been documented here today is that the tragic incident of Lewis McPherson is something that would make every South Australian shudder, quiver, to think that something like that could have been prevented. I sympathise with his family. Today we will streamline those offences and make South Australia a better and safer place to live.

I do not want to make much more of a contribution. Having had a friend who was shot and killed, it really is a tragedy. That is why today I stand here and just make a small contribution. The destruction that firearms cause when they are in the wrong hands, whether it is intentional or people with mental strain, mental illness, is really the real issue here. I do rise to support this bill and wish it a speedy passage through the parliament.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:14): First of all, I thank all of the members who have made a contribution today, and I will say a few words about some of those contributions in a minute. I also will try to answer a few of the general questions that have been put forward.

Can I also, again, as many have done, acknowledge the great community-spirited work that Mark McPherson and Tina Pitman have put in arising from a deep personal tragedy to champion reform in this important area of firearm safety. I want to say that they have been instrumental in the development of this legislation. They have assisted me and those with whom I work greatly in identifying the sorts of factors that we were trying to deal with, and I believe that this legislation does properly target the people who we really want to target, namely, the illegal traders particularly in illegal firearms.

I know that the member for Chaffey comes from a part of our state where there are people who have absolutely legitimate reasons to have a firearm and a firearms' licence and who, by and large, are totally responsible with them. I want to make it clear to the member for Chaffey, and through him all of his constituents, that this legislation is not directed at them. This legislation is directed at the people who are illegally procuring and distributing firearms in circumstances where neither the person holding or selling a firearm or the person buying it has any entitlement at law to have a firearm.

I want to say a couple of other things. As I said, all of the contributions were, I thought, very supportive, and I thank all the members for that. I was slightly tantalised by the member for Bragg, as I often am, when she made the observation that if certain things happened she would be 'having a great deal to say'. I did find that slightly comical because, in my experience, she does have a great deal to say a great amount of the time about a great many things. Anyway, be that as it may, she is not happy unless she has a bit of a go at me.

The other thing is that she called upon the government to, I think her term was, 'wake up and do something about firearms. Do something about it.' Can I just say a couple of things to the member for Bragg, lest she does make good on her threat of having a great deal to say. First of all, we have this piece of legislation here. This is doing something about firearms. Secondly, she should recall that not that long ago we introduced a whole range of very particular measures about people who were charged with firearms offences to make the point that if you are out there committing offences with firearms that is a quantum difference from other offences that are committed, and we actually have a reversal of the presumption about bail for those people. That is another thing we have done about it.

Of course, the Minister for Police and the Minister for Emergency Services has today, I think, introduced a very comprehensive piece of legislation, which I think the member for Chaffey acknowledged might actually be very helpful in terms of getting some of the clutter out of the old legislation. In addition to all of that, over the last several years we have had a number of firearms' amnesties where we have got the police to publicly call upon people to surrender firearms that they do not have for any good reason, and each one of those amnesties has produced some hundreds, I think, of weapons.

It is very interesting actually if you go in and see the product that comes out of these amnesties. There are all sorts of things in there. There are literally homemade weapons where somebody has used pipes and other bits and pieces. You have modified weapons where you have something which sounds a little bit like the shotgun that the member for Chaffey might have but, by the time these characters are finished with it with a hacksaw, it does not look anything like that. Of course, there are pistols and other things. Occasionally, there are things which quite probably owe their presence in our community to a war veteran who brought some little souvenir home some 10, 20 or 50 years ago and, instead of it being on the mantelpiece, it has found its way into the marketplace.

The other thing we have also done about this is that it is well known that organised criminal groups, amongst other things, trade in illegal firearms, and we have been doing our best to make life a little bit uncomfortable for them as well. Hopefully, having said those few things, the member for Bragg will not need to make good on her threat.

I would now like to mention a few matters of particular interest to perhaps satisfy some of the questions and issues that were raised. First, the government will be moving an amendment, which I think has been circulated and people are aware of that. I want to explain at this point that this amendment is designed to ensure that the scope of the policy of the bill is not confined to subsequent offences committed within the territorial borders of South Australia but extends to offences equivalent to South Australian offences if committed in another state. The amendment was suggested by the Commissioner of Police and I agree with the idea.

I want to make it clear that 'subsequent offence for the purpose of criminal activity' is equivalent to the interstate offence actually committed and not equivalent to the corresponding South Australian offence not committed. So, if the gun is used to commit a bank robbery in Victoria, the subsequent offence is the equivalent to the Victorian offence, whatever that might be (presumably bank robbery) and not the South Australian robbery offence.

There were some other things that came up in the Law Society's comments and I think, whilst we are at it, I might as well read onto the record some responses to those things. First, it was suggested by the Law Society that there is no place for derivative liability in the criminal law. I do not believe that is correct. There is an extensive common law on complicity and conspiracy, not to mention liability for common purpose, joint criminal enterprise and extended common purpose.

The Hon. T.R. Kenyon: There you go.

The Hon. J.R. RAU: That's what you were going to say. These doctrines are extensive and extend criminal liability very considerably. The submission actually and inconsistently points this out later on. The next point:

Criminal liability for serious offences must include mental and physical elements. The proposed offence has neither;

This submission is also incorrect. The proposed offence has both physical elements and mental elements. Further, not all offences have mental elements anyway.

The prescribed offender would have no involvement in the subsequent offence.

Not so. The involvement in the second offence is the supply of the weapon used to commit it. In this case:

Cullen, whose offending extended beyond the supply of a firearm to Humbles, was sentenced (after applying a…discount on account of his early plea) to 8 years imprisonment with a non-parole period of 3 years and 9 months. It cannot reasonably be suggested that these sentences are inadequate or would otherwise be contrary to those that might be expected by the public.

That was a quote from the Law Society. The response to that is: it can and is reasonably suggested that the sentence for supplying a gun to such a person in such circumstances is not proportionate to the offence actually committed and is contrary to that which might be expected by reasonable members of the public. The next point made by the Law Society is:

Why not extend…liability to the drug dealer whose consumer later overdoses or to the bartender who serves alcohol to a patron who later king-hits a passer-by?

The Law Society appears not to be aware that, under Australian common law, the administrator of a drug to another, by consent, who dies of the dose is guilty of an offence. The liability of the supplier of alcohol to victims of the drunk have been canvassed, particularly in the context of a subsequent fatal car crash, and liability has been imposed in such cases in various states of the United States. We are talking there about criminal liability. There is certainly civil liability there—absolutely no question.

They then go on to say that this is a step too far and any trial for the offence must necessarily be unfair, that the proposed offence is unfair and unjust, there is no need for the proposed offence and the bill is surplus to requirements, cruel and unusual punishment, manifestly unfair and unreasonable and also a barrier to rehabilitation. These are all statements of mere opinion and they have no legal content or significance. Opinions can, and often do, differ, even amongst rational, well-meaning people.

'The bill is unprecedented,' is another statement. This is true but, if that was a reason for not doing it, nothing new would ever be done and nothing would ever be done for the first time. The Law Society says that the bill is contrary to established principles of causation and cites the English decision in Pagett for that proposition. The Law Society ignores the fact, whatever the high-sounding principles it quotes in theory, that what happened in that case was a person was found guilty of the homicide of his hostage when the shot that killed the hostage was fired by an arresting police officer.

There is just one further example which I think might help people understand the notion of how this offence cascades from one person to another, potentially, and I think this comes from an example which was discussed by the member for Morialta. It goes something like this, and we have real names for the people here. James supplies legally to John, who supplies illegally to Paul, who supplies illegally to—and I think I am going to change this from Andrew to Ringo, who commits an offence.

The Hon. P. Caica: Ringo does?

The Hon. J.R. RAU: Ringo does. So it's gone from John to Paul to Ringo.

Mr Gardner: It's gone from James to Paul to Ringo.

The Hon. J.R. RAU: It started with James but he was okay because he was legal.

The DEPUTY SPEAKER: So, Ringo has got the gun?

The Hon. J.R. RAU: Ringo has got the gun, illegally. In this example, John and Paul would be liable to the derivative liability offence but not James, as he supplied the firearm legally and, of course, Ringo would be facing the actual offence for having committed the crime. So that is it. That is how it works. It cascades. The trigger, the cascading—

Members interjecting:

The DEPUTY SPEAKER: Members are asked to listen to the Attorney in silence.

Mr Whetstone: It sounds like The Beatles.

The DEPUTY SPEAKER: Member for Chaffey, I don't think it is a good time for you to start. You are already on two warnings and you will be leaving us.

The Hon. T.R. Kenyon: Send him out now.

The DEPUTY SPEAKER: No, member for Newland; I do not need your assistance.

The Hon. J.R. RAU: Deputy Speaker, some members may not be aware that the member for Chaffey and I, for a period of time, at least, attended the same school and—

The DEPUTY SPEAKER: And your point is?

The Hon. J.R. RAU: I am going to slightly change this. It is but a twinkling of the eye ago and, when we went to school, this proposition would have sounded more like this. George supplies legally to John, who supplies illegally to Paul, who supplies illegally to Ringo. Does that help?

Mr Whetstone: Now I've got you.

The Hon. J.R. RAU: Got it. So, that is how it all works. The critical point is the illegal supply is what engages this provision.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Progress reported; committee to sit again.