Statutes Amendment (Explosives) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2017.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (17:02): I rise to speak as lead speaker for the opposition on the Statutes Amendment (Explosives) Bill 2017. This is a bill introduced by the Attorney-General to amend the penalties for possession, manufacture and use of explosive devices, essentially, in line with their risk. The explosives offences that currently sit on our statute book are largely covered by the Explosives Act 1936. There are penalties under that act for possession, manufacture and use of any unauthorised manner: a $35,000 fine for a body corporate, and $5,000 or imprisonment of up to 12 months or both in any other case.

Members who follow this type of legislation, who I am sure are not many, know it is largely to regulate and manage the commercial industry in the area, not terrorists. We have other regulation to deal with explosive devices for the purposes of fireworks and the like, legislation that has been a complete killjoy to Guy Fawkes Day; nevertheless, it is one that has developed in line with acceptance of the safety and risk, often to those attending these types of activity, particularly children, when they have in their control items that can explode and cause either death or serious injury.

Loss of eyes and sight and these types of things are matters that have drawn attention to the whole question of safety and protection against injury. Unsurprisingly, there are aspects relating to property damage as well, but I think it is fair to say that, if you have in your possession explosive material, it can, unchecked and unsupervised, turn into a lethal weapon and for obvious reasons is under restriction.

There are other things which historically we have had to deal with in terms of the storage of explosive material. That is now most commonly all the regulation that sits around ordinary product that needs to be kept in a secure facility away from the public and not in a residential area and the like. A classic example of that is the storage of material such as superphosphate, which on its own is pretty innocuous—it helps the grass grow—but is covered by regulation about where it should be situate.

Other examples include product that historically has been used for explosives. I think of one such as the resin in yakka gum, which over the years has been harvested and manufactured into explosives, particularly during World War II. It was used before that as well, having its lifetime use as an explosive, but it was used as a paint thinning option and the like. Over time, some things come in and out of scrutiny in respect of the regulation that sits around them in order to protect individuals who might use or misuse them and cause harm.

The use of these products either on their own or in a manufactured form in some unauthorised manner—namely, by a terrorist to deliberately cause harm to others—is something that needs our attention. It may be that explosives, bombs and the like were the instruments of terrorists in the past. Who knows how much they will be used in the future? We have seen them used by being left in residences and places of public use. We have seen them destroy motor vehicles, and they have also been sent through the post. They are still a weapon of choice that is available and, if unchecked, will cause havoc and, worse still, death.

The bill before us creates new offences under the Criminal Law Consolidation Act. Those offences are: the unlawful use of an explosive device, which if convicted carries a maximum penalty of up to 20 years' imprisonment; possession of an explosive device in a public area without lawful excuse, which if convicted carries a maximum penalty of up to 10 years' imprisonment; possession, supply or manufacture of an explosive device without lawful excuse, which if convicted carries a maximum penalty of seven years' imprisonment; and possession, use or supply of an explosive substance, prescribed equipment or instruments on how to make an explosive device in suspicious circumstances without lawful excuse, which if convicted carries a maximum penalty of up to seven years' imprisonment.

There is a further offence of making a statement about a bomb hoax knowing the statement to be false. If convicted, it attracts a maximum penalty of up to five years' imprisonment. Essentially, all these new offences will cover the use of explosives and precursors by individual members of the public. All except the bomb hoax offence have the defence of lawful excuse because, by its very definition, a bomb does not exist, but there is a threat of it.

The Attorney has already indicated today, and I fully accept, that there has been discussion at a national level spearheaded by the Prime Minister this year, and indeed in the last couple of years since the Lindt Cafe siege in Sydney, New South Wales. More recently, the publication of a coronial inquiry into the deaths of two visitors to the cafe and the person responsible for their deaths set out a number of parameters of reform that need to be considered. As a result, COAG has met again and, I think it is fair to say, elevated their response.

In the previous couple of years, there have been reforms, there have been protective measures introduced and there has been a response to the original inquiry at a national level, and all these things have been welcomed. One of the initiatives nearly two years ago now was for the federal government to provide funding to the state administrations so that they might appoint antiradicalisation workers in this space. That job was given to the Minister for Communities and Social Inclusion in this state. She was handed $135,000 to appoint a counterterrorism person in this area largely to work with youth and others where there may be some risk of radicalisation, and all that was welcomed.

Disappointingly, it took this government months and months even to appoint a person to work in this space as a youth officer. In fact, when I made a request earlier this year to meet with the youth worker in this space who was being paid to do this job, the unhappy news returned that she had actually resigned and gone. The position was not filled for some months but, fortunately, I understand that at least as of earlier last month this position has been filled again.

It is always disappointing to think that when leaders get together and make commitments to do a number of these things they do not follow through or, if they do follow through, that they are not as vigilant as they should be in ensuring that we have the protections which we expect them to deliver and which they promised. In this case, the federal government gave the money, then the government here dropped the ball on the significance of understanding in this state that radicalisation of our youth is probably the most grave and present danger—a threat to our community.

Fortunately, as the Attorney has pointed out, we have not had recent incidents of actual attacks in South Australia, but they already prevail in other states in the last 10 years, and it is a concern. If our representatives—whether it is the Attorney-General or anyone else—go off to these COAG meetings, then quite frankly I expect that when they come back they do the job properly, especially when they are given money. In any event, in this instance of the provision of a punitive regime for people possessing explosive devices and the like for this potentially unlawful use the penalty should apply, and we support that.

However, this is an area of reform that comes with a second and more controversial aspect, that is, providing special powers to the police to enter and seize and the like and, again, to essentially bypass the usual obligations of a police officer in respect of having access to and the capacity to take into possession and/or forfeit material surrounding this type of legislation.

Typically, when they announced this initiative, the government said, 'We are going to have some tough new penalties for makers of homemade bombs.' They did not mention how this is going to be applied by the police relative to what the law currently provides. However, questions have been raised, including by the opposition, as to why this is necessary. It may come back as exactly the same answer.

The police thought it was a good idea. Obviously, they have not had any cases because we have not had this law in relation to the possession of this material, but I will be interested to hear from the Attorney as to what the justification is for the police to ask for this. This is particularly because in this instance, as distinct from the previous amount of legislation, all the other states have already acted and they have already considered the potential dangers of people who make bombs or attempt to and cause a problem. They have already dealt with it. They have not included in their legislation what we are being asked to consider in this bill by way of police powers, and that is the concern I have.

Other jurisdictions—and we have the benefit of being able to consider this—have already looked at this threat of people who might have in their possession dangerous or explosive substances in suspicious circumstances, and they have legislated to make it an offence in each of their jurisdictions. Western Australia, New South Wales, Victoria, Tasmania and Queensland, in some cases for some years, have had these offences on their statute books, but none of them have had legislation through their parliaments that incorporates what this government is asking us to do in respect of police powers.

The government may have been persuaded by a private briefing from the police as to why this needs to be dealt with in this manner. We are happy to receive any information that could be presented to us to say that this is either necessary or that there have been cases where they have not been able to obtain the requisite threshold authority to take possession of equipment or explosives that has been to the detriment of the safety of the community. We are happy to hear it, but we do need to hear something because at the moment we are not convinced on that aspect. We are minded to remove it in the Legislative Council if we are not provided with some convincing argument, so the invitation stands.

Mr PEDERICK (Hammond) (17:18): I rise to speak to the Statutes Amendment (Explosives) Bill 2017. This bill, which was introduced in September, seeks to amend a couple of acts: the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953. What it is aiming to do as a bill is to make sure that the penalties for the possession, manufacture and use of explosive devices and related substances, apparatus and instructions are commensurate with the seriousness of the risk posed by the reckless and malicious use of improvised explosive devices.

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. These offences in regard to the Explosives Act, and the regulations commensurate thereof, 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.

The government have indicated that they believe the penalties under the legislation are not significant and, if proceedings under the act are to be disposed of summarily, this means that the South Australian police force cannot utilise investigatory options under acts like the Telecommunications (Interception) Act 2012, the Listening and Surveillance Devices Act and the Criminal Investigation (Covert Operations) Act 2009.

Certainly, in regard to those acts and the changing face of the world we live in, we have terrorism and we have people who, for whatever reason and without any thought of the greater community, want to have bomb hoaxes and want to wreak havoc. Sadly, we will see more and more legislation like this being beefed up not just in this state but in other states and across the country.

In the Criminal Law Consolidation Act there will be significantly higher penalties with the new criminal offences that are created. For instance, an explosive device is defined as any apparatus, machine, implement or material used or apparently intended to be used or adapted for causing or aiding and 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 pyrotechnic effect, and any substance or substance of a kind prescribed by the regulations. It is noted that the Attorney-General, by notice in the Gazette, can exempt a specific apparatus, substance, machine, implement or material from the definitions and therefore from the operation of part 3D of the act.

It is noted that the offences are beefed right up. There are three new offences relating to explosive devices. The most serious offence is the unlawful use of an explosive device and that carries a maximum penalty of 20 years' imprisonment. The offence of possessing 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 carries a maximum term of imprisonment of 10 years and seven years respectively. In regard to the lawful excuse, the burden of proof obviously lies with the defendant in accordance with existing section 5B of the Criminal Law Consolidation Act.

In regard to that, I note that over the last 25 to 30 years things have tightened up in regard to buying a substance, used by farmers and miners, called Nitropril. Nitropril is ammonium nitrate. It is a fertiliser, a prilled substance, and when mixed with a certain ratio of diesel it creates an explosive device. It is very effective. I have assisted one of my brothers and one of my friends, who did have tickets to operate with Nitropril, to use it effectively on the farm for blowing out dead trees and also stumps, especially where we wanted to put in new tree lines.

It is something you need to manage when you use it, obviously. It is very dangerous if you do the wrong thing. With Nitropril, before it is mixed with the diesel, the ammonium nitrate is quite stable and reasonably safe to handle. There are safety data sheets available on how you use it. It is in widespread use around the place. It is very effective when you have the odd bit—and only the odd bit—of sheet rock that you cannot dislodge out of a paddock and you can blow that up quite effectively with Nitropril. Obviously you have to have the appropriate people who have the ticket to use the explosive material.

As I said, farmers find it very useful. I would not like to see farmers having to prove their innocence if they have the right licences in place and being put under excess burden because of this impending act, but I do understand why this bill has been brought before us. The world has changed. It is changing all the time but I believe that, since the early nineties when we used to use a lot of this on the farm for tree lines and getting rid of some sheet rock in paddocks, the supply has been heavily regulated.

My understanding is that you cannot just drive in and pick up a tonne of ammonium nitrate. You obviously have to have the right licensing and arrangements under the regulations. I would have to check the facts, but from what I have been told, it has been used in regard to Motorsport Park, which is built on a great big rock, essentially, at Tailem Bend. One or two large explosions were used to create their own rubble and also to create access for putting in underground services.

It is a useful explosive and, as I indicated, it is also used in the mining industry on a pretty broad basis. Obviously powder monkeys and others who use Nitropril know how it works: it always finds the easiest way out. When we were blowing out stumps, we found that we had to pack in a few rocks around the charge because otherwise it would take the easy way out and just blow sand everywhere and do half the job. It is very effective but you do have to respect it, just as you have to respect firearms, because an accident can have very dire consequences.

The bill also creates a new offence, with a maximum penalty of seven 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. Obviously, you need to prove that. I note that the equipment used for mixing ammonium nitrate and diesel is basically just a jug and a big bucket. You mix it up and let her brew. It is pretty simply made, but obviously it has to be done by someone who has a ticket to do it.

The part of the bill that I have some concerns about is in regard to the special powers that will be provided to police officers to enter premises at any time, to search those premises for the purpose of checking whether an offence has occurred under the new provisions. I note that no court order is required for these search and entry procedures. Under the current Explosives Act, police officers may only inspect and enter premises that are licensed by the chief executive officer of the department. These sections restrict any police officer from breaking into any part of the premises and seizing any sample, product or equipment that may be intended to be used for committing any offence.

Obviously, this aspect of the bill is more controversial than the earlier parts of the legislation. The police have the right to enter property, which includes houses and vehicles, in limited circumstances without a warrant. Our current law—and I stress that—would allow the police to do so if they formed the view that an offence was being or had been committed. This bill allows police to enter, seize and destroy devices and to break, enter and search vehicles or vessels. I note that this aspect of the bill was requested by South Australian police way back in early 2007, over 10 years ago. Their primary concern was the risk to police officers. It is noted that in other states legislation does not include the provision of extensive police powers, and obviously this will be debated through this house and the other place as this bill is progressed.

New section 72D in the bill sets out what is to be done in regard to the seizure and destruction of any property that may afford evidence as to the commission of an explosives offence; to do that the safety of officers needs to be taken into account. To investigate the possible explosives offence, the commissioner has broad powers to direct that any seized property should be destroyed. That can be done in situ if required or at some other suitable place, and obviously there are good reasons for that. The material could be volatile.

If they wanted to get rid of the issue—some premixed Nitropril, for instance—I am assuming they would take the appropriate photos and recordings and take the Nitropril away to some place and detonate it. Obviously that would be a reason that you could not transport it. It could either be done on site in a safe location with the appropriate safeguards or taken to a close appropriate facility so that it did not have to be transported too far. If the property is destroyed, the court may order the convicted person to pay to the commissioner the reasonable costs of destruction.

We have talked about the in situ provision, and there is also new section 72E, which refers to the commissioner's appointment of analysts for the purpose of analysing seized property and the use of evidentiary certificates. It refers to the manner in which seized property to be analysed must be set out in guidelines by the police commissioner and placed on a website. Obviously, once the material is analysed, an evidentiary certificate may be used. It will be used in the absence of any proof to the contrary as proof of the fact stated in the certificate. In addition, a subsection in the bill provides a presumption as to the contents of containers or vehicles if the label states or indicates that it contains a dangerous substance.

In the main, this is legislation that is necessary for our time. As I said, we do have some concerns about the police entry rules. Certainly, miners and farmers need access to this material—it is not just Nitropril; I am just using that as an example today. I also note that I am aware that over time, the regulations and legislation have tightened up. As I said, you cannot just turn up to a fertiliser store and buy a tonne of Nitropril and go on your merry way, which is fair enough.

With those few words, we will investigate the possibility of some amendments along the way, whether it is in this place or the other place. We need to make sure that our people are safe, but we also need to make sure that the industries which require explosives have access to these materials, especially in case of farmers, where it might only be once every one or two decades. They are useful and absolutely vital if you need them at that time.

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) (17:35): Can I thank those who contributed to this debate. I am of the understanding that at present there is no particular opposition to this bill. If that is the case, and if I am correct in that understanding, thank you. If there is a wish for further information, I make the offer I made before in the previous debate, which is that I am more than happy to facilitate the commissioner briefing the member for Bragg on all matters that the commissioner is able to do so, pertinent to any questions she has about operational police matters—in particular, the questions about search and suchlike.

Bill read a second time.

Third 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) (17:37): I move:

That this bill be now read a third time.

Bill read a third time and passed.