SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Industrial Relations, Minister Assisting the Premier in Public Sector Management) (17:51): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

As part of its commitment to tackling knife crime, and weapons-related crime more generally, the Government is introducing the Summary Offences (Weapons) Bill 2010.

The Bill fulfils the Government's election commitment to introduce laws to: prohibit the sale of knives to minors; authorise police to use hand-held metal detectors to find knives and other weapons; authorise the issue of weapons prohibition orders; and allow general weapons amnesties to be conducted in relation to dangerous articles and offensive and prohibited weapons.

The Bill also builds on previous work undertaken by the Government, including the 2009 review of the State's knife laws which culminated in the publication of a draft Bill and a complementary discussion paper.

The Government has already made significant changes to knife-related laws in its previous terms in office. This Bill is an important tool in the Government's continuing efforts to reduce crime in this State.

Details of the Bill

The current criminal law in South Australia has a three-tiered approach to weapons offences: an offensive weapons offence; dangerous articles offences; and prohibited weapons offences. These offences are set out in section 15 of the Summary Offences Act 1953 and in the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 and include the following:

It is an offence to carry an offensive weapon without lawful excuse. It is also an offence to carry, without lawful excuse, an offensive weapon or a dangerous article in, or in the vicinity of, licensed premises at night.

A knife is, by definition, an offensive weapon. If a person were not entitled to explain his or her reason for having a knife, every person in South Australia who has a knife anywhere would be guilty of an offence. An offensive weapon also includes a rifle, gun, pistol, sword, club, bludgeon, truncheon or other offensive or lethal weapon or instrument (but not a prohibited weapon).

It is an offence to manufacture, sell, distribute, supply, deal with, possess or use a dangerous article without lawful excuse. The only knife that has been declared a dangerous article is a bayonet. The full list of dangerous articles is set out in Schedule 1 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations.

If the accused person claims to have a lawful excuse, then he or she has to prove it. It is generally not a lawful excuse to carry a knife for self-defence.

It is an offence to manufacture, sell, distribute, supply, deal with, possess or use a prohibited weapon. There are 13 categories of knives that are classified as prohibited weapons, including a dagger, a flick knife, a butterfly knife, a ballistic knife and a throwing knife. The full list of prohibited weapons is set out in the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations.

There is no defence of lawful excuse for a prohibited weapons offence. The only defence is if a person is exempt in the circumstances of the offence. A person may be exempted in particular circumstances by section 15(2a) of the Summary Offences Act or Schedule 3 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations. In addition, a person who is not covered by the exemptions in the Act or regulations can apply to SA Police for an individual or class exemption.

The Bill before the House proposes a number of reforms to the current weapons laws to address the growing incidence of knife-related violence and to restrict the supply of knives to young people. What follows is an account of the reforms embodied in the Bill.

Over the years, with the advent of new technologies and new weapons, and thus the need for new categories of offences and weapons, section 15 has developed into a lengthy and cumbersome section. The proposed reforms represent an opportune time to separate out the weapons offences into a more coherent structure. To that end, the Bill repeals sections 15 and 15A and replaces them with a new Part 3A dealing solely with weapons.

The current provisions in section 15 of the Act setting out the offensive weapons offences and the dangerous articles offences, and the provisions in section 15A setting out the offences in relation to body armour, have been replicated in sections 21C and 21B of the Bill, with minor changes to reflect current drafting practices.

New section 21D of the Bill creates two new offences to restrict the selling or marketing of knives. Firstly, a person who sells a knife to a minor under the age of 16 years will be guilty of an offence and subject to a maximum penalty of $20,000 or 2 years imprisonment. It will be a defence if the seller can prove that he or she required the buyer to produce evidence of age and, based on the evidence produced, reasonably assumed that the buyer was of or above the age of 16 years.

Classes of persons will not be able to be exempted from this offence. This may be criticised as causing inconvenience for some. If we exempt everybody who will be inconvenienced then the law will not have the desired effect. Further, it would create more red tape for retailers if they had to sight evidence of employment as an apprentice or scout membership, as well as evidence of age, in order to determine whether or not a person could be legally sold a knife.

However, specific knives will be able to be exempted from the offence by prescription in the regulations as there are some knives that pose little risk of harm. For example, it is proposed that the regulations will exempt razor blades permanently enclosed in a cartridge and plastic take-away knives.

Secondly, it will be an offence to unlawfully market a knife in a way that indicates, or suggests, that the knife is suitable for combat or is otherwise likely to stimulate or encourage violent behaviour involving the use of a knife as a weapon. A maximum penalty of $20,000 or 2 years will apply to this offence. Exemptions to the offence will be able to be prescribed in the regulations as there are likely to be some limited circumstances where it is appropriate for a knife to be marketed as suitable for combat, such as, to Australian defence forces.

New section 21E inserts two new offences into the Summary Offences Act to restrict the possession of knives in schools and public places.

A person who possesses a knife, without lawful excuse, in a public place or school will be guilty of an offence and subject to a maximum penalty of $2,500 or imprisonment for 6 months for a first offence and $5,000 or imprisonment for 12 months for subsequent offences.

This will give police an alternative charge where a person has a knife (that is an offensive weapon not a prohibited weapon) in their possession (for example, in their locker at school) but does not have the knife on or about their person, or under their immediate control, and so cannot be charged with carrying an offensive weapon. Having an offence specific to knives, that employs the wider concept of possession, supports the intent of the proposed legislation, which is to reduce knife-related violence and to deter the carrying of knives in a public place or school. However, this approach should not be adopted for all offensive weapons offences as the purpose of the offensive weapon offence is to criminalise access to a weapon which is dangerous because it is accessible at any given time to a person with unlawful intentions. The notion of ‘possession' is far too wide for this purpose.

It will also be an offence to, without lawful excuse, use or carry a knife that is visible, in the presence of any person in a school or public place in a manner that would be likely to cause a person of reasonable firmness present at the scene to fear for his or her personal safety. Again this will give police an alternative charge, with a higher maximum penalty of $10,000 or 2 years imprisonment, where the knife is being wielded in a threatening manner.

A defence of lawful excuse is necessary for these offences as there will still be instances where it is appropriate for a person to be in possession of a knife in a public place or school. For example, a tradesperson working in a school may need to use a knife in the course of their work.

As part of its election platform, the Government pledged to introduce weapons prohibition orders modelled on the firearms prohibition orders legislation, to enable police to ban persons with a known propensity for violence and with a history of carriage of weapons from possessing or accessing prohibited weapons in a public place. Sections 21G to 21J of the Bill implement this election commitment.

The Commissioner of Police may issue a weapons prohibition order against a person if satisfied that—

the person has (whether before or after the commencement of this section) been found guilty of an offence of violence or has been declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 by a court dealing with a charge of an offence of violence; and

possession of a prohibited weapon by the person would be likely to result in undue danger to life or property; and

it is in the public interest to prohibit the person from possessing and using a prohibited weapon.

To ensure that all circumstances may be taken into account, and a weapons prohibition order tailored to individual circumstances where appropriate, the Commissioner has the ability to exempt a person, unconditionally or subject to conditions, from a specified provision of the section. In addition, unlike firearms prohibition orders, weapons prohibition orders will not be permanent and will lapse after five years. A new weapons prohibition order will then need to be issued by the Commissioner if the person is still considered to be a danger to the public.

The proposed police powers in relation to weapons prohibition orders are based on the search powers for firearms prohibitions orders. A person subject to one can be stopped and searched on sight and any vehicle, vessel or aircraft they are in charge of can be stopped and searched. However, unlike for firearms prohibition orders, premises can only be searched if the officer suspects on reasonable grounds that they are occupied by, or under the care, control or management of, a person who: has previously contravened a weapons prohibition order; or who the officer suspects on reasonable grounds of contravening a weapons prohibition order.

The Bill provides for a range of offences in relation to weapons prohibition orders, including making it an offence for a person to—

manufacture, sell, distribute, supply, deal with, possess or use a prohibited weapon;

supply any person subject to a weapons prohibition order with a prohibited weapon.

The penalty for contravention of these provisions is $35,000 or imprisonment for 4 years. Although the size of the penalty that may be imposed is unusual in terms of the level of penalties normally found in the Summary Offences Act, there is precedent for including minor indictable offences in the Summary Offences Act. Additional offences, similar to the firearms prohibition orders legislation have also been included in the Bill.

The Bill also establishes a right of appeal by a person aggrieved by a decision of the Commissioner to issue a weapons prohibition order to the Administrative and Disciplinary Division of the District Court.

To support the Government's crackdown on the possession and use of knives in the community, the Bill inserts two new provisions into the Summary Offences Act. The new provisions set out in clause 7 enhance police powers of search in relation to licensed premises and gazetted events in a public place, and in public places where there are reasonable grounds to believe that an incident of serious violence may take place in the area. These differ from current search powers as there is no requirement that a police officer form a reasonable suspicion that the person has possession of a weapon before a search can be conducted.

New section 72A authorises the use of metal detectors by police to search any person who is in, or is apparently attempting to enter or leave, licensed premises (or the vicinity of licensed premises) or a public place holding an event declared by the Commissioner by notice in the Gazette.

There was some concern raised, by respondents to the discussion paper, that the search powers as originally drafted in the consultation Bill would authorise police to enter and remain in private premises for the purposes of conducting a metal detector search. This is not the intent of the proposed search powers, which is to deter and prevent the possession and use of knives in public places, and the Bill makes it clear that the section does not authorise a police officer to carry out a metal detector search of a person in his or her place of residence, or in a hotel room, lodging room or any other place in which he or she is temporarily residing.

Finally, to ensure transparency and accountability in the use of these search powers, the Commissioner is required to report annually to the Minister on the use of the section. This report must contain specific information including the number of declarations made and the number of metal detector searches carried out.

New section 72B authorises the use of special powers to prevent or control incidents of public disorder where a police officer of or above the rank of Superintendent has reasonable grounds to believe that an incident involving serious violence may take place in an area. Once an authorisation is made, a police officer can stop and search a person, and any property in the possession of such a person, if the person is in, or is apparently attempting to enter or leave, the target area.

This search power will be utilised by police to combat serious violence, such as anticipation of a riot, not possible minor public disturbances. It must also not be used in relation to persons participating in advocacy, protest, dissent or industrial action.

An authorisation made under this section must comply with a number of conditions, including that the authorisation must:

be made in accordance with guidelines (if any) issued by the Commissioner; and

specify the area to which the authorisation relates and the grounds for issuing the authorisation; and

specify a period of not more than 24 hours during which the authorisation operates.

Again, to ensure transparency and accountability in the use of these search powers, the Commissioner is required to report annually to the Minister on the use of the section. This report must contain specific information including: the number of authorisations made and the nature of the incidents in relation to which such authorisations were made; the number of occasions on which persons were searched in the exercise of powers under this section; and the number of occasions on which weapons or articles of a kind referred to in part 3A were detected in the course of such searches and the types of weapons or articles so detected.

The Bill also makes some changes to the exemptions for prohibited weapons. The general exemptions, which are currently set out in section 15(2a) of the Summary Offences Act, will be moved to the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations. It is not envisaged that there will be any changes to the general exemptions at this stage. However, if the exemptions are prescribed in the regulations they can be more easily reviewed and updated to reflect any changes or advancements in the law or in practice and procedure.

A deficiency in the current powers to issue individual exemptions is also addressed by the Bill. At present there is no express power to revoke or vary an exemption if a person becomes unfit to possess a prohibited weapon. The Bill inserts a provision into the Summary Offences Act to include an express power to vary or revoke an exemption and provides for the review of such decisions by the District Court.

Lastly, the Bill proposes to amend the Summary Offences Act to include a power to allow general weapons amnesties to be conducted in relation to dangerous articles and prohibited and offensive weapons and a power to prescribe in the regulations an evidentiary provision to facilitate proof of an offence against Part 3A.

The Bill does not target people who have a legitimate reason for the possession and use of a knife in a public place. It is squarely aimed at those people who misuse knives. The new offences and enhanced police search powers should discourage such people from possessing or using knives in public places unless they have good reason for doing so.

I commend the Bill to the House.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

4—Repeal of sections 15 and 15A

This clause repeals sections 15 and 15A of the principal Act, with the relevant sections now to be found in new Part 3A.

5—Insertion of Part 3A

This clause inserts new Part 3A into the principal Act, dealing with weapons etc as follows:

Part 3A—Weapons etc

21A—Interpretation

This section inserts definitions of key terms used in the new Part 3A (including body armour, criminal intelligence, dangerous article, implement of housebreaking, knife, offence of violence, offensive weapon, prohibited weapon, suitable for combat and violent behaviour).

21B—Body armour

This section is the relocated current section 15A of the principal Act.

21C—Offensive weapons and dangerous articles etc

This section comprises the relocated current section 15(1), (1b), (1ba), (1bb), (1bc) and (1f) of the principal Act.

21D—Unlawful selling or marketing of knives

This section makes it an offence for a person to sell a knife to a minor who is under the age of 16 years. The maximum penalty is a fine of $20,000 or 2 years imprisonment. It is a defence to a charge of such an offence if the defendant proves that they took certain steps to verify the person's age and the minor made a false statement or produced false evidence.

The section also makes it an offence for a person to make a false statement or provide false evidence in response to a seller's request for proof of age. The maximum penalty is a fine of $1,250.

Subsection (4) makes it an offence for a person to market a knife as being suitable for combat, or in a way that is likely to stimulate or encourage violent behaviour involving the use of the knife as a weapon. The maximum penalty is a fine of $20,000 or 2 years imprisonment. Subsections (5) and (6) set out matters related to proving offences under the section.

21E—Knives in schools and public places

This section makes it an offence for a person to possess a knife in a school or public place. The maximum penalty is a fine of $2,500 or imprisonment for 6 months for a first offence, or double that for a subsequent offence.

The clause also creates a more serious offence where a person, without lawful excuse, uses a knife or carries a knife that is visible in the presence of any person in a school or public place in a manner that would be likely to cause a person of reasonable firmness present at the scene to fear for his or her personal safety, whether or not such a person was, in fact, at the scene. The maximum penalty for such an offence is a fine of $10,000 or imprisonment for 2 years.

21F—Prohibited weapons

This section comprises the relocated current section 15(1c), (1d), (1e) and (2a) to (2g) of the principal Act, with the following changes: the regulations, rather than the principal Act, set out who is an exempt person for the purposes of the section, and the Commissioner of Police rather than the Minister may declare a person to be an exempt person for the purposes of the section. The new section sets out procedural matters in relation to the making of, and appeals in relation to the making of, a declaration under the section. The section also preserves the effect of current section 15(1f) as it relates to prohibited weapons.

21G—Weapons prohibition order issued by Commissioner

This section allows the Commissioner of Police to make a weapons prohibition order against a specified person. The effect of such an order is set out in section 21H. However, the Commissioner can only make such an order if he or she is satisfied that—

(a) the person has been found guilty of an offence of violence or has been declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 by a court dealing with a charge of an offence of violence; and

(b) possession of a prohibited weapon by the person would be likely to result in undue danger to life or property; and

(c) it is in the public interest to prohibit the person from possessing and using a prohibited weapon.

The section further sets out procedural matters related to the making or revocation of an order.

21H—Effect of weapons prohibition order

This section provides that a person to whom a weapons prohibition order applies is disqualified from obtaining an exemption under section 21F. While such an order is in force, an exemption under the regulations made for the purposes of that section does not apply in relation to the person unless the regulations expressly provide to the contrary and, any such exemption already held by the person is suspended.

The section makes it an offence for a person to whom a weapons prohibition order applies to manufacture, sell, distribute, supply, deal with, use or posses a prohibited weapon. The maximum penalty is a fine of $35 or imprisonment for 4 years.

It is also an offence for a person to whom a weapons prohibition order applies to be present at a place where prohibited weapons are manufactured, repaired, modified, tested, sold or hired out. Other places at which such a person must not be present may be prescribed by the regulations. A person to whom a weapons prohibition order applies must also not be in the company of a person who has a prohibited weapon on or about their person or under their immediate control. The maximum penalty is a fine of $10,000 or imprisonment for 2 years.

A person to whom a weapons prohibition order applies must not live at premises on which there is a prohibited weapon. The maximum penalty is a fine of $10,000 or imprisonment for 2 years. In addition, such a person must inform every other person of or over 18 years of age living or proposing to live at the same premises that there is an order against them and must ask every other such person whether or not they have or propose to have a prohibited weapon on the premises. The maximum penalty is a fine of $10,000 or imprisonment for 2 years.

The section makes it an offence to supply a prohibited weapon to a person to whom a weapons prohibition order applies or permit such a person to gain possession of a prohibited weapon. A person who has a prohibited weapon on or about their person or under their immediate control must not be in the company of a person to whom a weapons prohibition order applies. If a person to whom a weapons prohibition order applies lives at premises, a person who brings a prohibited weapon onto the premises or has possession of a prohibited weapon on the premises commits an offence. The maximum penalty for each of the offences is a fine of $10,000 or imprisonment for 2 years.

The section provides defences to charges of offences against the section. The section also allows the Commissioner to exempt a person from a specified provision of the section and to vary or revoke such an exemption.

21I—Right of appeal to District Court

This section confers a right of appeal to the District Court on a person aggrieved by a decision of the Commissioner to issue a weapons prohibition order, and makes procedural provisions in relation to such an appeal.

21J—Power to search for prohibited weapons

This section empowers a police officer to search people, premises, vehicles, vessels and aircraft for prohibited weapons, and for that purpose, to detain persons, to stop and detain vehicles, vessels and aircraft, and to enter premises. The powers may only be exercised as reasonably required for the purpose of ensuring compliance with a weapons prohibition order issued by the Commissioner. The section also requires any prohibited weapon delivered or seized to be forwarded immediately to the Commissioner.

21K—Forfeiture

This section provides that a court may order the forfeiture to the Crown of a weapon etc used in, or related to, the commission of an offence against new Part 3A.

21L—General amnesty

This clause permits the Commissioner (with the approval of the Minister) to declare an amnesty in respect of a provision of the new Part 3, and sets out procedural matters related to such an amnesty.

21M—Regulations

This section sets out regulation making powers in respect of new Part 3A.

6—Redesignation of section 21A—Tattooing of minors

This clause redesignates current section 21A of the principal Act as section 21N.

7—Insertion of sections 72A, 72B and 72C

This clause inserts new sections granting the police certain powers.

72A—Power to conduct metal detector searches etc

This section empowers a police officer to conduct a metal detector test for the purpose of detecting the commission of an offence against Part 3A. The search must relate to a person who is in, or is apparently attempting to enter or to leave, licensed premises, the vicinity of licensed premises or a public place holding an event (declared by the Commissioner by notice in the Gazette). A search may relate to any property in the possession of such a person.

The section sets out procedural requirements relating to the making of a declaration notice by the Commissioner, including compliance with any regulations prescribing guidelines, the giving of public notice in a newspaper circulating generally throughout the State before the commencement of the operation of the declaration, and the preparation and provision to the Minister of an annual report on declarations made during a financial year period. The report must be tabled in Parliament by the Minister.

72B—Special powers to prevent serious violence

This clause empowers a police officer to carry out a search for the purpose of locating weapons and other articles in a particular area. The search must relate to a person who is in, or is apparently attempting to enter or to leave, the area, and to any property in the possession of the person in the area.

A search may only be carried out if a police officer of or above the rank of Superintendent authorises the search, having reasonable grounds to believe that an incident involving serious violence may occur in the area and that the search is necessary to prevent the incident.

The section sets out procedural requirements relating to the granting of authorisations for such searches, including compliance with any guidelines issued by the Commissioner. An authorisation cannot be granted in relation to persons participating in advocacy, protest, dissent or industrial action.

If a second or subsequent authorisation is to be granted in relation to an area, it cannot commence within 48 hours of the previous authorisation period unless the consent of the Commissioner has been obtained. The Commissioner cannot give consent unless satisfied that it is in the public interest to do so.

The section also requires the Commissioner to prepare and provide to the Minister an annual report relating to authorisations, searches, the detection of weapons as a result of searches and other matters. The report must be tabled in Parliament by the Minister.

72C—General provisions relating to exercise of powers under section 72A or 72B

This section requires the Commissioner to establish procedures to be followed by police officers exercising powers under the new sections 72A or 72B. The procedures must be designed to prevent, as far as reasonably practicable, any undue delay, inconvenience or embarrassment to persons being subjected to the powers.

The section allows police officers to be assisted by other persons and empowers them to enter and remain in premises or places to conduct a search and give directions. A police officer can only detain a person under section 72A or 72B for as long as is necessary to carry out a search.

The section makes it an offence for a person to hinder or obstruct a police officer or assistant exercising powers under section 72A or 72B or refusing or failing to comply with a requirement made of the person or a direction given to the person under those sections. The maximum penalty is a fine of $2,500 or imprisonment for 6 months.

Other provisions include evidentiary aids for the prosecution of offences.

8—Amendment of section 74BAAB—Use of detection aids in searches

This clause amends section 74BAAB to empower a police officer, in exercising powers under the new Part 3A, to use a drug detection dog, an electronic drug detection system, a metal detector or any other system or device designed to assist in the detection of objects or substances.

9—Amendment of section 85—Regulations

This clause amends section 85 to enable regulations made for the purposes of the Act to be of general application or to vary according to prescribed factors and to enable a matter or thing in respect of which regulations may be made to be determined according to the discretion of the Minister or the Commissioner.

Schedule 1—Related amendments and transitional provision

Part 1—Amendment of Protective Security Act 2007

1—Amendment of section 3—Interpretation

This clause is a consequential amendment of the definition of dangerous object or substance in the Protective Security Act 2007, updating the section of the Summary Offences Act 1953 referred to, and updating the meaning of 'firearm' to refer to the meaning of that term in the Firearms Act 1977.

Part 2—Amendment of Serious and Organised Crime (Control) Act 2008

2—Amendment of section 14—Court may make control order

This clause makes consequential amendments to section 14(5)(b)(ii) of the Serious and Organised Crime (Control) Act 2008. It substitutes the reference to 'section 15' of the Summary Offences Act 1953 with 'section 21A'.

Part 3—Amendment of Sheriff's Act 1978

3—Amendment of section 4—Interpretation

This clause makes consequential amendments to the definition of restricted item in the Sheriff's Act 1978, updating the section of the Summary Offences Act 1953 referred to, and updating the meaning of 'firearm' to refer to the meaning of that term in the Firearms Act 1977.

Part 4—Transitional provision

4—Declarations by Minister continue

This clause provides for certain declarations made by the Minister under the Summary Offences Act before the commencement of the new Part 3A inserted by this measure to continue in force as if they were declarations made by the Commissioner of Police under section 21F of the Act as in force after the commencement of Part 3A.

Debate adjourned on motion of Hon. T.J. Stephens.

At 17:53 the council adjourned until Tuesday 23 November 2010 at 14:15.