Statutes Amendment (Possession of Firearms and Prohibited Weapons) Bill

Second Reading

The Hon. S.C. MULLIGHAN (Lee—Minister for Transport and Infrastructure, Minister for Housing and Urban Development) (16:25): I move:

That this bill be now read a second time.

The Firearms Act 2015 and the Firearms Regulations 2017 took effect on 1 July 2017, replacing the firearms act 1977 and the Firearms Regulations 2008. A key purpose of the firearms legislation is to ensure public safety by preventing persons considered not fit and proper to possess firearms, from those with mental health or demonstrated behavioural issues and offending antecedents to those with a propensity for violence or those who associate with such people, from possessing firearms.

An example of how the new act does this is by the power it provides at section 44(1)(a) that empowers the registrar of firearms, the Commissioner of Police, to issue a firearms prohibition order (FPO). Since 2009, FPOs have been issued to maintain public safety by providing a legislative framework to prohibit, in set circumstances, people from holding and accessing firearms. The framework provides a rebuttable presumption of possession, which operates against a very small group of the community to whom an FPO applies (264 persons as at 18 April 2017) many of whom are known criminal offenders who have become the subject of an FPO, in order to protect the community. There are no adverse impacts or risks associated with this proposal.

On 27 June 2017, the Governor proclaimed the Firearms Act 2015 (the new act) to repeal the Firearms Act 1977 and to commence operation with the Firearms Regulations 2017 on 1 July this year. This amendment is to be made to section 45(16)(a) of the new act. The bill also raises a small number of other amendments; however, its main purpose is to amend FPO legislation at section 45(16)(a) of the new act in order to resolve any uncertainty as to its operation. The amendment sought is a narrowly defined issue arising from a judicial interpretation in the decision of the R v loannidis (2015) SASCFC 158 (loannidis). The issue relates to the operation of a presumption of possession in relation to firearms prohibition orders.

In January 2016, the Director of Public Prosecutions alerted the Commissioner of Police to Chief Justice Kourakis's interpretation of the statutory construction and operation of legislation in relation to FPOs. The matter arose, as I mentioned, in R v Ioannidis. In Ioannidis, police stopped a vehicle in which the defendant was a passenger. The defendant subsequently alighted from the vehicle before police lawfully searched the vehicle and a handbag belonging to the defendant in which ammunition was found. The possession of ammunition by Ioannidis constituted a breach of an FPO to which Ioannidis was subject.

While this Supreme Court appeal decision fell in the Crown's favour, and the defendant was ultimately found to be in possession of the ammunition in contravention of her FPO, the Chief Justice suggested the presumption only applies if an item (in this case ammunition) is found when the person is in the vehicle at the time the item is found during a search. By implication, the presumption is suggested not to arise if the person has exited or been removed from the vehicle before a successful search is conducted, which are common practices facing and employed by investigating police for reasons of safety.

In this case, the DPP suggests that parliament may not have intended the presumption to operate in this way. It is undesirable for the Chief Justice's comments to stand unremedied at law. The bill will amend the new act to resolve any uncertainty on the Ioannidis issue before section 45(16)(a) is proclaimed. The presumption of possession in relation to FPOs, legislated at section 10C(14)(a) of the current act and replicated verbatim at section 45(16)(a) of the new act, is in the following terms:

(a) if a person to whom a firearms prohibition order applies is on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) when a firearm, firearm part or ammunition is found on or in the premises, vehicle, vessel or aircraft, the person will be taken to possess the firearm, firearm part or ammunition unless it is proved that the person did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on or in the premises, vehicle, vessel or aircraft; and

On a strict interpretation of the statutory construction and operation of the presumption of possession, as found by Chief Justice Kourakis in Ioannidis, the presumption only applies when the relevant person is on or in the premises or vehicle, etc., when a contraband item is found. By implication, the presumption is suggested not to arise, for example, if the person has exited or been removed from a vehicle moments before a successful search is conducted.

It is assumed unlikely that parliament intended this presumption to operate in this way, given the express inclusion of the word 'vehicle' in the draft of the section but, given the circumstances of Ioannidis, there is ambiguity. This will be overcome by the provisions of clause 6 of the bill to clarify that the rebuttable presumption of possession can be relied upon when an FPO is not physically on or in the premises, vehicle, vessel or aircraft when a relevant item is found. This amendment will allow, for prosecution purposes, proof only that the person had been on or in the premises, vehicle, vessel or aircraft immediately before a relevant item was found on or in, or in the immediate vicinity of the premises, vehicle, vessel or aircraft.

An identical amendment is proposed by clause 7 of the bill to alter the presumption of possession at section 21I(10) of the Summary Offences Act 1953 that is only applicable to the holder of a weapons prohibition order (WPO), of which there were only nine such persons at 18 April 2017. This amendment provides consistency with the proposed change to section 45(16)(a) of the new act, removes potential ambiguity in section 21I(10) of the Summary Offences Act and remedies the possibility of section 21I(10) being subject to a future judicial interpretation similar to that in the case of Ioannidis.

Clause 4 of the bill provides a minor amendment to alter section 12 of the new Firearms Act, to the effect of clarifying that a firearms licence issued under the new act may authorise the manufacture of firearms and firearm parts, as contemplated by section 37 of the new act.

Clause 5 of the bill provides for a further minor amendment proposed to the title of part 6 of the new act in order to align that title with the title of the code of practice for the security, storage and transport of firearms, ammunition and related items at schedule 1 of the Firearms Regulations 2017. I commend this bill to members. I seek leave to insert the explanation of clauses in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Firearms Act 2015

4—Amendment of section 12—Licence categories and authorised purposes

This amendment is for clarification purposes and amends section 12 to indicate that a firearms licence may authorise the manufacture of firearms and firearm parts (as contemplated by section 37 of the Act).

5—Amendment of heading to Part 6

This clause corrects the heading to Part 6 of the Act to reflect the fact that under section 35 of the Act, the code of practice may address the security of items in addition to firearms and ammunition (such as sound moderators and restricted firearm mechanisms).

6—Amendment of section 45—Effect of firearms prohibition order

Section 45 of the Act provides that if a person who is subject to a firearms prohibition order is on or in premises or a vehicle, vessel or aircraft when a firearm, firearm part, sound moderator or ammunition (a relevant item) is found, there is a rebuttable presumption that the person is in possession of the relevant item. This clause amends the provision to clarify that, in order to rely on the presumption, the person does not need to be physically on or in the premises, vehicle, vessel or aircraft when the relevant item is found. This means that it will only be necessary to prove that the person and the relevant item were in or on the premises, vehicle, vessel or aircraft at the same time (not that the relevant item was found on or in the premises, vehicle, vessel or aircraft at the same time the person was on or in the premises, vehicle, vessel or aircraft).

Part 3—Amendment of Summary Offences Act 1953

7—Amendment of section 21I—Effect of weapons prohibition order

This amendment makes the same change to a similar provision of the Summary Offences Act 1953 in relation to a weapons prohibition order.

Mr KNOLL (Schubert) (16:35): I rise to speak to this bill and indicate that I will be the lead speaker for the Statutes Amendment (Possession of Firearms and Prohibited Weapons) Bill. This bill, obviously coming from the other place, seeks to make a fairly simple amendment in relation to firearm prohibition orders as well as weapons prohibition orders and makes changes to both the Firearms Act and the Summary Offences Act.

Essentially, it is fairly simple. It involves a case from November 2015 in the Supreme Court where the justice handed down the judgement in R v Ioannidis, where even though the appeal was dismissed on other grounds, Chief Justice Kourakis expressed a view that potentially the intent of the legislation was around whether or not somebody had to be in the vehicle at the time it was being searched or whether, as in the case of Ioannidis where he had just alighted from the vehicle, somebody was in a vehicle (or had been in a vehicle immediately prior as it is being searched) and whether you can essentially tie that prohibited firearm or the prohibited possession of that firearm to the person so that we can clean that up.

It is a fairly simple amendment. The only comment that I would make is that it was presented to me on a Monday afternoon at about 3.30 and it was suggested to me that it would be really good if we could pass it through the Legislative Council in the next couple of sitting days. I said, 'Hang on. That is not normally how the process works. I don't understand why a Supreme Court judgement which was handed down in November 2015 has become urgent, so let's suspend the normal processes of our houses in order to jam it through 18 months later.'

So, we took our time. Given the fact that this is a pretty isolated issue, a very minor issue we are dealing with, it was appropriate that we took some time to make sure that in our estimation there was not another unintended consequence that could potentially happen out of us trying to fix the unintended consequence of the previous legislation. I know that the Firearms Act and associated regulations came into force on 1 July, and today being 6 July I suppose we have now had six days of not having this clause inserted into the Firearms Act. That is about to be remedied this afternoon because the Liberal opposition will be supporting this amendment.

Put simply, as far as we can reasonably ascertain, this is exactly what it purports to be. There is nothing hidden, nothing otherwise in there, and we defer to the supreme wisdom of the Supreme Court justice in this regard. We are very happy to support this bill. In doing so, in closing, I simply want to state that this is one of those times when the government and the opposition can come together to do something quite sensible, if not minor. As you will notice, the media will not report this. Essentially, the good work of our parliament in helping to make a more complete set of statutes continues.

The Hon. A. PICCOLO (Light) (16:38): I would like to speak in support of this amendment to the Firearms Act 2015 and the Summary Offences Act. My understanding is that this has come as a consequence of a decision by the Supreme Court which was subsequent to the act being passed by parliament. They were close together and they were the result of the act which I had carriage of when I was minister for police when we overhauled the act. The intention of that act is clear, from my perspective as well as from SAPOL's point of view. The Chief Justice has a different view and his views are very important, and we need to tidy this up.

The amendment was sought arising from a judicial interpretation in the decision of R v Ioannidis—and I know that is how it is pronounced because I went to school with an Ioannidis—relating to the operation of a presumption of possession in relation to firearms prohibition orders. Firearms prohibition orders (FPOs) and weapons prohibition orders (WPOs) operate to prevent unfit people from possessing firearms and prohibited weapons.

I would like to add at this point that that was one of the major reforms in the most recent act, where a whole range or class of people was automatically prohibited from having access to firearms, particularly people who deal with drugs and a range of other matters. That was one way of ensuring that only people who are fit to hold a firearm can hold a firearm. We often hear that law-abiding people should not be affected by laws, and that was clearly an intention of the reform, to ensure that law-abiding people would not be adversely impacted but that people who are not law-abiding would be impacted by firearms laws.

The amendments will encourage legislative compliance by persons subject to a firearms prohibition order or a weapons prohibition order and reduce opportunities for those persons to escape convictions for regulatory compliance breaches due to legal technicalities in the circumstances surrounding their possession of prescribed items. In the matter I mentioned, police stopped the vehicle in which the defendant was a passenger. The defendant subsequently alighted from the vehicle before police lawfully searched the vehicle and a handbag belonging to the defendant in which ammunition was found. The possession of ammunition constituted a breach of a firearms prohibition order to which Ioannidis was subject.

Whilst this Supreme Court appeal decision fell in the Crown's favour, the Chief Justice suggested the presumption only applies if an item is found during a search at the time when the person is in the vehicle. By implication, the presumption is suggested not to arise if the person has exited or was removed from the vehicle before a successful search was conducted. The parliament may not have intended the presumption to operate in this way, and this amendment removes any doubt. It would be remiss of this parliament if it were not to remedy that grey element of the law.

It is proposed that the presumption will apply when a person with an appropriate nexus link to the relevant premises or vehicle is, for example, found in the premises or vehicle but alights or is removed before a search is conducted, or is in the immediate vicinity of the relevant premises or vehicle being searched. For those reasons I support this amendment, and note that both the Firearms Act 2015 and the relevant regulations came into effect on 1 July. I also understand that SAPOL has been very busy writing to firearms owners. I should declare my interest in this matter: I am a firearms owner and I have a firearms licence, and I received my letter from SAPOL telling me what to do over the next 12 months as well.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr KNOLL: This amendment is going to be included as part of the Firearms Act, and the new Firearms Act has actually just come into effect. The new Firearms Act does make a huge number of amendments. It is a completely new act. I know that the Firearms Branch within SAPOL has been handling this baby quite actively for—it depends how long a piece of string is—at least the last couple of years.

Now that this is going to form part of that act, given the magnitude of the changes in relation to the Firearms Act and the associated regulations, I simply want to ask whether every one of the 66,000 licence holders has actually received notification of how this affects them, given that it came into effect on 1 July?

The Hon. S.C. MULLIGHAN: I thank the member for Schubert for his question. I am advised that everyone has received a letter and a flyer about the changes, as well as there being a significant amount of information available online that people are directed towards from that communication. I also understand that there are regional forums to be held in different locations around the state in the coming weeks.

Mr KNOLL: As a follow-up question, would it be possible for members of this house to be advised when those regional forums are so that we can get local constituents to come along? The information that has been provided to people so far, I assume, is of a general nature, rather than anything specific. For people who are going to have significant changes around the security of the storage of firearms, have they been contacted specifically or, again, has everybody just been given a generic mail-out?

The Hon. S.C. MULLIGHAN: Can I clarify whether you are speaking about the general changes within the Firearms Act or specifically about the prohibition order element of the bill.

Mr KNOLL: Generally.

The Hon. S.C. MULLIGHAN: I assume that the member for Schubert was relating to the 80-odd people who are owners of a large number of firearms (more than 50). They have been contacted directly. Let me clarify that: they are to be contacted.

Mr PISONI: On the commencement of the bill, is there a standard set of processes in which police operate? Will there be random visits to those with registered firearms to see if they are complying? How will the police treat noncompliance if it is seen to be an oversight? Is there any discretion for police in that instance? Is there a protocol for a random check, for example, on compliance as opposed to one that may have been received from a tip-off or a concern of safety? Is there a different protocol in dealing with that situation?

The Hon. S.C. MULLIGHAN: In response to the member for Unley's questions regarding the ongoing compliance efforts of the legislation generally, there is a process of random audits which has been in place for the past five years. I am advised that there is a high caution rate if there are found what would be considered to be relatively minor infractions against the legislation. It is part of what I am advised is called Operation Secure, which is more of an educative operation rather than a punitive operation. In that vein, I am advised that South Australia Police will be engaging in a 12-month period after the legislation comes into effect, again to be educative. In the second matter that the member for Unley raised regarding tip-offs—and I assume he is asking for a friend rather than for himself—they are likely to be treated differently, particularly if they might be related to criminal investigations, and such discretion is unlikely to be exercised if indeed that is the case.

Mr PISONI: Is the minister able to inform the house whether there is an estimate of the number of lost firearms that are registered and not accounted for? Also, is there an official estimate of the number of unregistered firearms in South Australia at the latest count?

The Hon. S.C. MULLIGHAN: I am advised that it is difficult for South Australia Police to have an estimate of unregistered firearms. The only way in which they might derive such a figure is by going off what they understand to be the national figure, which is something in the order of a quarter of a million firearms being unregistered, and then perhaps making a determination about what an appropriate South Australian share of that national total would be. So I take it that it is very difficult to come up with an estimate of the total number of unregistered firearms. The member for Unley's first question was whether there is an estimate about lost or missing firearms. I am advised that each year there is a report of approximately 450 since the commencement of Operation Secure some five years ago.

Mr PISONI: To clarify, are you saying that there are 450 or thereabouts registered firearms but you do not know where the firearms are?

The Hon. S.C. MULLIGHAN: I am advised that those registered firearms are reported by the owners as being lost or missing each year, and that is that smaller figure of 450. The other part of the question, just to delineate between the unregistered firearms, was the reference to the much bigger national number.

Mr PISONI: How many are recovered? Of those 450 lost firearms, how many are recovered?

The Hon. S.C. MULLIGHAN: I am advised, in an average year, approximately 15 per cent.

Clause passed.

Remaining clauses (2 to 7) and title passed.

Bill reported without amendment.

Third Reading

The Hon. S.C. MULLIGHAN (Lee—Minister for Transport and Infrastructure, Minister for Housing and Urban Development) (16:55): I move:

That this bill be now read a third time.

Bill read a third time and passed.

Sitting extended beyond 17:00 on motion of Hon. S.C. Mullighan.