Bail (Terror Suspects and Firearm Parts) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (16:19): I move:

That the time allotted for all stages of the bill be 60 minutes.

The house divided on the motion:

Ayes 22

Noes 12

Majority 10

AYES

NOES

PAIRS

Motion thus carried.

The Hon. J.K. SZAKACS: I move:

That this bill be now read a second time.

The bill contains two distinct parts, one dealing with a definition in the Bail Act 1985, herein referred to as the Bail Act, of 'terror suspect' and the other dealing with the use of the terminology 'any part of a firearm' in the Bail Act. Both sets of amendments contained in the bill have arisen from submissions to the Attorney-General by South Australia Police, who have identified the issues related to both the definition of 'terror suspect' and the use of 'any part of a firearm' during the course of their ordinary operations. The government is grateful to South Australia Police for bringing the issues to our attention so that they can be addressed.

The bill corrects a loophole in the way in which the presumption against bail applies to applicants for bail who are terror suspects. The Bail Act was amended by the Statutes Amendment (Terror Suspect Detention) Act 2017, referred to as 'the amending act', in 2017 in response to the decision of first ministers at the then Council of Australian Governments meeting of 9 June 2017 that there should be a presumption against bail and parole for persons who have demonstrated support for, or have links to, terrorist activity. The amending act commenced operation on 26 February 2018.

The presumption against bail for terror suspects operates as part of the prescribed applicant scheme inserted into the Bail Act by the amending act. The definition of 'prescribed applicant' includes an applicant who is a terror suspect. In accordance with section 10A of the Bail Act, a prescribed applicant is not to be granted bail unless they can demonstrate that there are special circumstances justifying their release on bail.

If an applicant has no past terrorist offence convictions or charges, but the current bail application follows an arrest for a state terrorist offence that is not dealt with under the commonwealth Crimes Act, they are not a terror suspect pursuant to the Bail Act and will not fall within the prescribed applicant scheme, and the regular presumption in favour of bail being granted will apply to that defendant. This will occur when an applicant has been charged with a state-based terror offence and has no previous convictions, terror offence-related charges or terrorism notification.

The proposed amendments will act to correct the anomaly in the way in which the provisions of the Bail Act apply to persons charged with state-based terrorist offences and include them in the definition of terror suspect such that they will be subject to the presumption against bail.

In the Bail Act, the terms 'firearm' and 'ammunition' are both defined by specifically referencing the definitions used in the Firearms Act 2015. However, the Firearms Act also contains a definition of 'firearm part', which is not picked up in the Bail Act. In the Firearms Act a firearm part means:

a barrel, firing mechanism, magazine, cylinder, hammer, bolt, breech block or slide designed as, or reasonably capable of forming, part of a firearm.

This definition is intended to cover firearm parts that are essential to its function and therefore can present a risk to public safety.

Rather than using the term 'firearm part', the Bail Act uses the terminology 'part of a firearm'. The term used in the Bail Act, 'part of a firearm', is not specifically defined but has been interpreted more widely to include any part of a firearm, including non-operational or cosmetic parts. The difficulty that the South Australia Police have encountered as a result of the use of 'part of a firearm' phrase in the Bail Act relates to the automatic condition of every bail agreement pursuant to section 11 that the applicant is prohibited from possessing 'a firearm, ammunition or any part of a firearm.'

Therefore, a person is required to surrender these items to avoid breaching a condition of their bail. If a person breaches a bail condition, all of their items in their possession falling within the ambit of 'part of a firearm' are liable to be seized by police, who are then required to store the items. This presents a particular difficulty if the person in question is a firearms dealer, as this results in their entire stock having to be seized, including items such as pins and bolts.

Another example of the issues caused by the discrepancy between the Firearms Act and the Bail Act relates to firearms prohibition orders (FPOs), pursuant to section 45(2) of the Firearms Act. Currently, a person who is on bail will be required to surrender all firearms, ammunition and 'any parts of a firearm.' If they were subsequently convicted and an FPO imposed on that person, they would be prohibited from possessing firearms, ammunition and 'firearm parts', requiring police to return to the person all the items seized under the Bail Act that are 'parts of a firearm' but not a 'firearm part'. This causes confusion and additional work for police.

As the non-operational parts of a firearm do not present a public safety risk, there is little reason for them to be seized. Therefore, to address this issue, the bill amends the Bail Act to replace the use of the terminology 'part of a firearm' with 'firearm part', and defines 'firearm part' in the same way as the Firearms Act. This will ensure that the terminology is consistent between both the Bail Act and the Firearms Act. I commend this bill to members in the house and seek the leave of the house to have the explanation of clauses inserted in the Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clause are formal.

Part 2—Amendment of Bail Act 1985

3—Amendment of section 3—Interpretation

This clause inserts a definition of firearm part.

4—Amendment of section 3B—Terror suspects

This clause amends section 3B to apply to persons charged with a terrorist offence under State law.

5—Amendment of section 11—Conditions of bail

6—Amendment of section 11A—Bail authority may direct person to surrender firearm

These clauses are amended to refer to the new defined term of firearm part.

Schedule 1—Transitional provision

1—Transitional provision

The proposed amendments to section 3B of the Bail Act 1985 would only apply in relation to a person taken into custody on a charge of an offence allegedly committed after the commencement of that provision.

Mr TEAGUE (Heysen) (16:32): I rise once again to indicate the opposition's support for the bill, as is well known, and I give the minister 10 out of 10 for reading once again, in terms of bringing it to this house, the contribution of the Attorney in another place back in February of this year. I will not stay to repeat that. The speech adequately describes those two parts of the bill. It is an uncontroversial matter. That we are here under the shadow of the sixth guillotine in the course of the day will be a matter to the eternal shame of the member for West Torrens.

The ACTING SPEAKER (Mr Brown): Member for Heysen, I am loath to interrupt you while you are complaining about the guillotine, but can you let us know whether you are the lead speaker for the opposition on this bill?

Mr TEAGUE: I indicate that I am the lead speaker for the opposition and, in doing so, just once again make clear that the opposition's support for this bill is well known. It remains to be seen whether or not the government, in fact, has the courage of its convictions in terms of actually passing the bill today, but I indicate that I will not stay to reiterate those matters that have been the subject of debate in this and another place over the course of the year.

I say again that the member for West Torrens' remarks in relation to the use by government in particular of the guillotine on 24 July 2008 now stand diametrically opposed to the government's hypocritical behaviour, led by the member for West Torrens now in his capacity as Manager of Government Business. There is no articulated purpose, let alone necessity, for accord with any of those sentiments, in terms of opposing the use of a guillotine in ordinary circumstances, that has been indicated by the government.

The fact that it has been necessary for the opposition to indicate its distress at the repeated use of that process alone is a source of reflection, I suggest, for all members of this house. The member for West Torrens, in his remarks in 2008, identified that elements of the quality of the debate included the capacity for all of the 47 members of this place to contribute to debate and that debate was public in the sense that the gallery is open, that the Hansard is recording what is said and that there be a great reticence to apply a guillotine, and what we have seen today is directly to the opposite.

It stands particularly to the shame of that particular member. It is yet another stain on the government's reputation, a government that from very early days indicated that it would avoid transparency where it could. Now it adds to that the desire to impose itself belligerently on this parliament, and to do so not once but six times and counting in the course of just one day. With those remarks, again indicating my appreciation for the Attorney in another place and his staff and advisers in terms of the work they have done in relation to the bill and the provision of a briefing to me for the purposes of the opposition's consideration, I commend the bill to the house.

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (16:37): I again note the member's contribution and, again, support for this bill, and others that have been passed today.

Bill read a second time.

Third Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Trade and Investment, Minister for Local Government, Minister for Veterans Affairs) (16:38): I move:

That this bill be now read third time.

Bill read a third time and passed.