Bills

Summary Offences (Knives and Other Weapons) Amendment Bill

Committee Stage

Debate resumed.

The Hon. S.E. CLOSE: When it comes to the use of the word 'prescribed' relating to an offence, it is actively being consulted on at the moment with SAPOL which offences might fall into that category to assist with the regulation. With (c), any person or class of person, currently there is no-one particularly in mind. That is a catch-all safety provision in the legislation to enable, should that become useful in the form of intelligence or any other changes that would facilitate a swift shift through regulation.

Mr TEAGUE: Okay, that is what it is, clearly. Before I move to subclause (3), the police officer presumably is going to be able to figure that out by some means before going ahead and carrying out the search under the section. Subclause (2) deals with where that person is and subclause (3) is then saying the police officer needs to give certain warnings. The question, I suppose—and this might be just for general interest, present company noted—is subclause (3) is saying that before carrying out the search the police officer has to give the person to be searched some information. It is a question about how the police officer deduces that this person is a person the subject of subclause (1) before undertaking any other inquiries.

The Hon. S.E. CLOSE: Bearing in mind that much of this legislation has been drafted in close consultation with SAPOL in order to make sure that it is responsive to the needs of SAPOL to enact, they will have various forms of intelligence that might inform them: a systems check or intel that has been provided to them. Part of the reason why this needs to be stepped out carefully is to make sure that the procedures within police are ready to be able to take advantage of this legislation. But the police clearly regard this as something that is able to be put into operation and will, in those circumstances, be useful.

Mr TEAGUE: I guess it might just be a point of curiosity that police can go ahead and search people within those categories. It is not entirely clear, to me at least, how they are going to know that they are in those categories and therefore enliven the powers. There is the obligation to give that certain information to the person who is to be searched, and then there is a validation provision that says that failure to give the information does not of itself affect the validity of the search. But if the person turns out not to be a person in those categories, as I read it, that might affect the validity of the search.

If the general practice of police is to provide someone who they are searching with grounds for the search and so on, the question of whether or not they have actually hit upon someone they are entitled to exercise these powers on remains somewhat uncertain, unless and until the police officer is actually able to identify the person and take some further steps. That might be rhetorical.

I suppose the question is that in terms of feedback from SAPOL about the way in which they are going to go about this practical measure, is it the case that they are anyway going to be providing this sort of information, the grounds for searching? Would they not ordinarily be giving grounds along the lines of a reasonable suspicion to someone in the ordinary course, and therefore how is this taking us anywhere new?

If there is any example of police departing from that and saying, 'Alright, I don’t have any reasonable suspicion but I do know that you're in subcategory (1)(a), therefore you're being searched,' and that's how it all proceeds from there, is that a kind of relevant pathway or are we actually really dealing with de facto circumstances in which police are going to talk about their reasonable suspicion anyway and therefore we are not going somewhere terribly new?

The Hon. S.E. CLOSE: I think, largely, the commentary made by the shadow attorney-general is commentary on a description of the way in which this legislation has been formulated and, to the best of my understanding of what he said, it is accurate. Just to be clear, though, this does go beyond reasonable suspicion in the sense that this is what can be used if there is no reasonable suspicion, yet the person falls into those categories, and the police have deemed that there are circumstances where that would assist them in being able to check if the person has a weapon, a knife, where otherwise they would not be able to.

Rather than simply saying that the police can check if anyone at any point has a knife, which is an alternative way of having law, this has been crafted as a means of identifying people who would be regarded as being in a high-risk category for causing violent crime. As the shadow attorney-general rightly points out, there is a provision that says although there is some safeguarding of the approach that requires the police officer to give information and so on, not doing that does not make the search not valid, but were the person not to have reasonably been regarded as being in that category, that would.

This is one of those many pieces of legislation that, I imagine, will at times become the subject of defence lawyers' questions in court and the practice of the police will be sharpened and shifted over time, learning from those experiences, but nonetheless it has been crafted in a way that gives the police the best opportunity to identify someone who might be in a position of attacking someone with a knife that does not, at the point that they are looking at them, constitute reasonable suspicion.

Amendments carried; clause as amended passed.

Clause 10 passed.

Clause 11.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [DeputyPremier–2]—

Page 20, line 21 [clause 11, inserted clause 25]—Delete '(and for no other purpose)'

Mr BATTY: I have some questions on the clause. This is a somewhat curious clause that provides for some exemptions for people for the purposes of an offence involving a machete as a prohibited weapon, which we are legislating, of course, before a machete even becomes a prohibited weapon.

We have learned through the course of the committee earlier that the listing of a machete as a prohibited weapon has come about during the course of the consultation and the police commissioner has raised it. I think the member for Unley asked some questions about when the Commissioner of Police first raised the idea of listing a machete as a prohibited weapon. You were not able to tell us before the dinner break; I wonder whether you have had an opportunity to have a look at when the Commissioner of Police first requested that a machete be listed as a prohibited weapon. Even if we do not have an exact date, just a month, even, would be very useful to understand.

The Hon. S.E. CLOSE: No, I do not know when that was first raised. I just know that it was raised in the course of the consultation.

Mr BATTY: Of course, an idea that the opposition raised about three months ago now was for the machete to be listed as a prohibited weapon, which, of course, would make it illegal to manufacture, sell, possess or supply a machete. At that time, our idea was dismissed by the government—this is three months ago—when a government spokesperson for the Attorney said that a ban was unnecessary and went on to say that we were trying to outlaw something that is already a crime.

Yet here we are three months later not even listing a machete as a prohibited weapon but at least foreshadowing that a machete will be listed as a prohibited weapon, so it is a step in the right direction. My question is whether you know how many machete attacks we have seen in South Australia since the opposition first called for the machete to be listed as a prohibited weapon on 3 November?

The Hon. S.E. CLOSE: No, I do not know.

Mr BATTY: Perhaps I might just return to a question I started with about whether a machete was a knife or not. We explored that a little bit in the interpretation clause. I ask it again because of the way that this clause is worded. This provides an exemption for a person to buy a prohibited weapon if they are using the machete for the purpose of gardening or camping.

Getting back to my question about whether a machete is a knife, is it possible that we could end up in the fairly unusual situation after we pass this bill where a 17 year old, if a machete is not a knife, could go and buy a machete if it is for the purpose of gardening or camping, but they cannot go and buy a butterknife for the purpose of making a scone with jam and cream perhaps?

Mr TEAGUE: Or spreading butter.

The CHAIR: I think you are spreading that one a bit thin.

The Hon. S.E. CLOSE: A common understanding of what a knife would be, given the definition of it being bladed and also that it is not an exclusive exhaustive definition, would be the machete would be regarded as a knife. Now, ultimately, that could be defined in a court case but I would be very surprised if, with this legislation, a 17 year old could buy a machete. It nonetheless remains, irrespective of that, a machete is an offensive weapon.

The CHAIR: Member for Heysen, you look like you want to say something.

Mr TEAGUE: That is quite apt, Chair, if I may, thank you. I was just going to chime in. As I understand it, and I have had the benefit of a briefing, which I appreciate, the issue about the machete is that it is already in this extra serious territory such that you need to be an exempt person in order to be using it and you have your gardening and camping exemption. There is the difficulty about what exactly is a machete, and will it be caught up providing the means for somebody to get access to something that is even more dangerous than the average knife through the gardening or camping exemption?

As I understand it, it is difficult to get a hold of a machete in the first place, and then you are only able to have an exempt purpose if you are using it for certain purposes. Could the minister perhaps just step through the reasons why, if we are establishing that something is a machete, it is actually difficult to get a hold of in the first place, hence the need to create these exceptional purposes? If I am right, it is because it is already in a more serious category.

The Hon. S.E. CLOSE: This has directly come from feedback from SAPOL in terms of the operability of elevating machetes as prohibited weapons. The feedback we have had is that they regard that there are legitimate uses, and therefore they wanted to see these exemptions in order to make it a practical piece of legislation.

Mr TEAGUE: Just to chime in, given that much of the focus of this bill is about making it more difficult to get a hold of the item in the first place—the knife predominantly—then the means of being able to get a hold of one, ostensibly for certain limited purposes, is a source of concern.

I just relay one example. I was involved in a court case—I was not the accused or anything—about 15 years or so ago, where the main action involved some offensive conduct later on in the night. It started, it was all prefaced, with an altercation involving a machete. If it had stopped there, it would have been relatively harmless. Nonetheless, this was an item that was used to send a fairly clear message—the fact that someone was in possession of it, laying into a car in a drive-through.

It was actually at the Emu Hotel, quite close to the Lonsdale RSPCA. We more recently went and picked up a cat at the Lonsdale RSPCA. I attempted to name the cat after the hotel because it was memorable. I wanted to call the cat after the hotel. Zed the Emu was my favoured name for the cat. That did not last. By the time it got home, those who had more influence at home gave it a new name, but that was temporarily the name of this cat that we picked up from the RSPCA because it was nearby this hotel that was memorable for the reason of the case. It was the altercation at the Emu Hotel that led to the events that occurred later on, and that was all about an attack with a machete on a car.

I suppose the point there is that once you have got a hold of it, even for gardening or camping purposes, if the occasion arises and you find yourself then applying it in other ways, then the purpose of the legislation is able to be defeated. If we are focused on preventing access to knives, including machetes, it is a curiosity that that relatively most serious form of knife might become available, ostensibly for those limited purposes, and then redeployed, for example, in the sort of circumstances that I have just described. I suppose the government might take this opportunity at this time to indicate any assurance that there is not a ready access point for minors and others to get their hands on a machete, albeit for these limited purposes and then used for other purposes.

The Hon. S.E. CLOSE: If we regard machetes as knives for the purposes of this legislation, then the idea of a 17 year old being able to purchase a machete becomes moot; regardless of the purpose they are not going to be able to purchase one below the age of 18. In terms of owning a machete, with the exemption that you have it and use it for gardening, if you then use it for something else you are not only committing an offence of violence, you are also committing it with a weapon that is prohibited, and you are no longer protected because you are not using it for that exempted purpose and so the full weight of the law comes down on you, including the fact that you have used a prohibited weapon.

Mr TELFER: Just for further clarification: obviously we are taking this into account on the piece of legislation that it is altering and if you are considering a machete is a knife and reflecting on the definitions that have already been provided in the piece of legislation, there is a whole scope within that existing legislation about prescribed weapons and the exemptions for such prescribed weapons. At the end of the clause that has been put in about machetes being proposed it says 'gardening or camping (and no other purpose)'.

However, within the existing legislation there are aspects of existing exemption for prescribed weapons, including for members of Scottish associations, lodges of Freemasons, etc., astronomical purposes, food preparation and New South Wales fisheries officers. So the statement of 'and no other purpose' at the end of the machetes clause, does that exclude those other exemptions for prescription as a standalone, or does the prescription exemption that is existing within the legislation include machetes if we are considering machetes as knives in the definition which you have provided?

The Hon. S.E. CLOSE: I think I can help by drawing your attention to the government amendment in my name which removes those bracketed words, so that is caught up I think with the question that you are raising.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. S.E. CLOSE (Port Adelaide—Deputy Premier, Minister for Climate, Environment and Water, Minister for Industry, Innovation and Science, Minister for Workforce and Population Strategy) (20:10): I move:

That this bill be now read a third time.

Bill read a third time and passed.