Statutes Amendment (Explosives) Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:02): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (16:02): I move:

That this bill be now read a second time.

The Statutes Amendment (Explosives) Bill 2017 seeks to amend the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953 to ensure that the penalties for the possession, manufacture and use of explosive devices, and the related substances, apparatus and instructions, are commensurate with the seriousness of the risk posed by the reckless and malicious use of improvised explosive devices. I seek leave to have the remainder of the explanation inserted into Hansard without my reading it.

Leave granted.

At present, most of the offences relating to the manufacture and possession of explosives are set out in the Explosives Act, the Explosives Regulations 2011, the Explosives (Security Sensitive Substances) Regulations 2006 and the Explosives(Fireworks) Regulations 2016. However, the offences in the Explosives Act and regulations are primarily targeted towards commercial or maritime misuse or manufacture of explosives: covering, for example, rules governing licensing for the manufacture, keeping, sale and transport of explosives. Penalties under this legislation are not significant and the requirement that proceedings under the Act are to be disposed of summarily means that SAPOL cannot utilise the investigatory options under the Telecommunications (Interception) Act 2012, the Listening and Surveillance Devices Act and the Criminal Investigation (Covert Operations) Act 2009.

The Bill inserts a new part 3D into the Criminal Law Consolidation Act to create new criminal offences with significantly higher penalties. For the purposes of new Part 3D, an explosive device is defined as 'any apparatus, machine, implement or materials used or apparently intended to be used or adapted for causing or aiding in causing any explosion in, or with, any explosive substance (and includes any part of any such apparatus, machine or implement)'. An explosive substance is defined as 'any substance used or manufactured with a view to produce a practical effect by explosion or a pyrotechnic effect and any substance, or substance of a kind, prescribed by the regulations'. Both definitions are subject to new subsection 83M(2), which allows the Attorney-General, by notice in the Gazette, to exempt a specific substance, apparatus, machine, implement or material from the definitions and therefore from the operation of Part 3D.

New section 83N sets out three new offences relating to explosive devices. The unlawful use of an explosive device is the most serious offence with a maximum penalty of 20 years imprisonment. It will also be an offence to possess an explosive device in a public place without lawful excuse and to possess, supply or take steps in the process of manufacture of an explosive device without lawful excuse. The maximum term of imprisonment for these offences is 10 years and 7 years respectively. The burden of proving that there is a lawful excuse lies on the defendant in accordance with existing section 5B of the Criminal Law Consolidation Act.

The Bill also creates a new offence, with a maximum penalty of 7 years imprisonment, where a person possesses, uses or supplies an explosive substance, prescribed equipment or instructions on how to make an explosive device, in suspicious circumstances without a lawful excuse. The requirement for suspicious circumstances has been included because many of the substances used to make improvised explosive devices have legitimate uses and can be easily and lawfully purchased from retail stores.

The final offences in new Part 3D relate to bomb hoaxes. The offences have been modelled on similar offences interstate and are punishable by imprisonment for 5 years.

To support the new criminal offences, the Bill also amends the Summary Offences Act to create additional search and seizure powers for police that are limited to the investigation of explosives offences. Under new section 72D, a police officer will have the power to enter and search any premises, and break into or open any part of the premises if reasonably necessary, for the purposes of ascertaining whether an explosives offence is being or has been committed.

New section 72D also sets out the requirements relating to the seizure and destruction of any property that may afford evidence as to the commission of an explosives offence. To ensure the safety of police officers attending to investigate a possible explosives offence the Commissioner has broad powers to direct that any seized property should be destroyed, either in situ if required or at some other suitable place. Reasons for giving such a direction could include that the seized property is considered too volatile to be safely stored and tested or that there is no appropriate facility in which to store the seized property. If the property is destroyed and the person is convicted of an offence in relation to that property, the court may order the convicted person to pay the reasonable costs of destruction to the Commissioner.

The Bill also contains evidentiary provisions that will assist in proceedings for an explosives offence, particularly where the seized property may need to be destroyed in situ because of the risks to SAPOL officers and the public in removing and storing the seized material.

New section 72E provides for the appointment of analysts by the Commissioner for the purpose of analysing seized property and the use of evidentiary certificates. The manner in which seized property may be analysed must be set out in guidelines developed by the Commissioner and placed on a website. Subsection (3) makes it clear that what amounts to an analysis is not limited to the scientific testing of samples which is not always possible with unstable devices and substances and can include physical examination, visual inspection of the property or visual inspection of photographs or films of the property. Once analysed, an evidentiary certificate may be used and will be, in the absence of any proof to the contrary, proof of the facts stated in the certificate. In addition, subsection (6) provides a presumption as to the contents of containers or vehicles if the label states or indicates that it contains a dangerous substance.

The new offences, search and seizure powers and evidentiary provisions in the Bill ensure that police have the tools to effectively detect and investigate activity connected with the domestic manufacture, possession or use of improvised explosive devices and the related precursors, instructions and apparatus and makes it clear to the community that such activity can only be for a lawful purpose.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 31—Possession of object with intent to kill or cause harm

This clause amends some penalties for consistency with the penalties proposed in new Part 3D.

5—Insertion of Part 3D

This clause inserts a new Part 3D creating serious explosives offences as follows:

Part 3D—Explosives offences

83M—Interpretation

This section contains definitions for the purposes of the Part and allows the Attorney-General to make certain declarations exempting devices from the definition of explosive device and exempting substances from the definition of explosive substance.

83N—Explosive devices

This section sets out 3 new offences relating to explosive devices. The most serious offence (punishable by imprisonment for 20 years) relates to unlawful use of an explosive device. Secondly there is an offence (punishable by imprisonment for 10 years) relating to unlawful possession of an explosive device in a public place. Thirdly there is an offence (punishable by imprisonment for 7 years) relating to unlawful possession of an explosive device (which would apply to areas that are not public places), supply or taking a step in the process of manufacture of an explosive device. Under section 5B of the Criminal Law Consolidation Act 1935 the burden of proving lawful excuse lies on the defendant.

83O—Explosive substances, prescribed equipment or instructions

This section creates an offence of using, having possession of or supplying an explosive substance, prescribed equipment or instructions on how to make an explosive device in suspicious circumstances and without lawful excuse. The penalty is 7 years' imprisonment.

83P—Bomb hoaxes

This section creates offences, punishable by imprisonment for 5 years, relating to bomb hoaxes.

Part 3—Amendment of Summary Offences Act 1953

6—Insertion of sections 72D and 72E

This clause inserts new sections as follows:

72D—Explosives offences—special powers

This section sets out powers for police to search for and seize material in relation to the proposed new explosives offences. The section also allows for the destruction or forfeiture of any such seized material.

72E—Explosives offences—analysis and evidence

This section allows for the appointment of analysts by the Commissioner of Police for the purpose of analysing the seized material (and for proof of such appointment in proceedings) and for the development of guidelines on the manner in which the seized material will be analysed and the records to be kept in relation to such analysis. The section goes on to provide for proof of certain matters by evidentiary certificate of an analyst and a further evidentiary provision provides a presumption that a label on a container or vehicle that states or indicates that it contains a dangerous substance contains true information relating to the contents of the container or vehicle.

Debate adjourned on motion of Mr Treloar.