SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 February 2011.)

The Hon. B.V. FINNIGAN (Minister for Industrial Relations, Minister for State/Local Government Relations, Minister for Gambling) (17:41): I assume that no other members wish to contribute to the second reading debate, and I thank the members who contributed to the debate on this bill. As has been pointed out, the bill seeks to prevent and reduce knife crime and weapons-related crime more generally by curbing access to knives, preventing persons with a propensity for violence from possessing prohibited weapons and providing police with appropriate powers to search for knives and other weapons in specific circumstances.

The Hon. Mr Wade asked a number of questions in his second reading contribution on the bill, and I will answer them as far as they can be answered. The first question asked by the Hon. Mr Wade was: 'How many charges and offences have involved the use of a knife since 1996 in South Australia?' Information has been extracted from the police apprehensions and police incident reports database to try to provide the information requested on weapons offences and charges.

Statistics are only available from 2000, as prior to that time weapons-related offences were grouped into broad categories that did not allow the ability to distinguish the individual weapon used. I am advised that between 2000 and 2009 there were 10,448 victim reported offences in which a knife or machete was used as a weapon. The number of recorded offences per year have ranged from 1,043 in 2000 to 815 in 2004 and 1,290 in 2009.

The number of charges between 2000 and 2009 in which a knife or machete was listed as a weapon ranged from 625 in 2000 to 697 in 2004 and 1,068 in 2009. The total number of charges involving a knife or machete over that period is 8,282. As the weapon field was an optional component of a police report prior to 2009, the above figures should be used as an indication only. The above figures include possession offences.

The Hon. Mr Wade has asked how many of those charges and offences have involved the use of a knife by a minor since 1996. I am advised that it is not possible to determine the age of the offender from police incident reports. The number of victim reported offences by age of the offender is therefore not available. Of the 8,282 knife or machete charges recorded on the police apprehensions report database between 2000 and 2009, 1,414 of these have involved the use or possession of a knife or machete by a minor under the age of 18 years.

The Hon. Mr Wade asked how many of those charges and offences have involved the purchase of a knife by a minor before the charge or offence occurred since 1996. As there is no offence for the purchase of a knife by a minor this data cannot be extrapolated. The Hon. Mr Wade asked how many charges and offences have involved each age cohort since 1996. I am advised that it is not possible to determine the age of the offender from police incident reports.

The number of victim reported offences by age of offender is therefore not available. However, the total number of recorded charges in which a knife or machete was listed as a weapon between 2000 and 2009 for each age cohort are as follows: 10 to 14 years, 206 charges; 15 to 19 years, 1,472 charges; 20 to 24 years, 1,260 charges; 25 to 29 years, 1,124 charges; 30 to 34 years, 911 charges; 35 to 39 years, 782 charges; 40 to 44 years, 560 charges; 45 to 49 years, 285 charges; 50 to 54 years, 98 charges; 55 to 59 years, 52 charges; 60 to 64 years, 33 charges; 65 years and over, 25 charges; and, age unknown, 1,474 charges. These figures include possession.

The Hon. Mr Wade has sought information on the possession and use of other weapons, including firearms and other edged weapons (other than knives) in South Australia. As all bladed weapons are recorded under knife/machete, there is no further information about other edged weapons.

Information on the possession and use of other weapons (including firearms) has been taken from the police apprehension reports. The number of apprehensions between 2000 and 2009 that list an offence involving the use or possession of a weapon according to the primary weapon listed are as follows: bats, 2,056; bottle or glass, 138; chemical, 107; crossbow, 64; crowbar/iron bar/gemmy bar, 488; firearm (other), 1,146; hammer, 125; hypodermic syringe or needle, 18; replica firearm, 2; keys, 12; pistol, 286; rifle or air gun, 776; shotgun, 177; screwdriver, 250; rock, stone or brick, 322; shovel, 22; and spanner, 15.

The Hon. Mr Wade has asked in relation to the carrying and possession of weapons: what weapons other than knives cannot lawfully be carried or possessed in schools or public places under South Australian law? What is currently considered to be a weapon under section 15 of the Summary Offences Act is not changed by this bill. An offensive weapon includes: rifle, gun, pistol, knife, sword, club, bludgeon, truncheon or other offensive or lethal weapon or instrument but does not include a prohibited weapon.

Whether an object is an offensive weapon will depend on its nature or on the intention with which it is to be used. Examples of things that have been found by courts to be offensive weapons include: camping shovels, iron bars, baseball bats, broken bottles and pieces of timber.

It is an offence to carry an offensive weapon anywhere without lawful excuse. A dangerous article is a thing or article declared by the regulations to be a dangerous article. These are listed in schedule 1 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 and include bayonets, blow guns, dart projectors and self-protecting sprays. It is an offence to possess or use a dangerous article anywhere without lawful excuse.

Prohibited weapons are listed in schedule 2 of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000 and include ballistic knives, extendable batons, nunchakus, star knives, knuckle dusters and fighting knives such as daggers, butterfly knives and flick knives. It is also an offence to use or possess a prohibited weapon anywhere. However, there is no defence of lawful excuse for this offence. Instead, a person must prove that they are an exempt person in the circumstances of the alleged offence.

The Hon. Mr Wade asked: how broad is a public place in terms of the meaning of the act? A public place is defined in section 4 of the Summary Offences Act to include:

a place to which free access is permitted to the public, with the express or tacit consent of the owner or occupier of that place;

a place to which the public is admitted on payment of money, the test of admittance being the payment of money only; and

a road, street, footway, court, alley or thoroughfare which the public is allowed to use, notwithstanding that the road, street, footway, court, alley or thoroughfare is on private property.

The Hon. Mr Wade has asked three questions about the scope of 'lawful excuse' within the act. He queries the position of parents or guardians transporting a child to a school where the weapon is not needed for a task at the school but is being carried or in their possession for a purpose beyond the school. He also asks about the presence of a fruit knife in a student's lunchbox, or a Stanley knife in the art kit of a student in their locker. The Hon. Mr Hood has also sought clarification regarding lawful excuse. He raises two scenarios: whether the bill will restrict Boy Scouts, for example, or other groups, such as the Sea Scouts or Girl Guides, who use pocketknives from being able to use, possess, or buy a knife. His second scenario relates to the use of knives by recreational fishers and duck hunters in public places.

The defence of lawful excuse is a defence to several offences in the Summary Offences Act, including the offences of carrying an offensive weapon or possessing and using a dangerous article. It is also a defence to the new offences in section 21E of the bill relating to possession and use of a knife in a public place or school. Such a defence is necessarily included so that people who innocently and legitimately possess and use knives are not in breach of the law. Lawful excuse and similar defences are intended to allow the accused to explain his or her possession of the thing by reference to his knowledge and intent. What constitutes a lawful excuse will depend on the circumstances.

The act does not define a lawful excuse as it would be impossible to set out every circumstance that would amount to a defence of lawful excuse. It could also result in the law becoming too inflexible in its application, while, at the same time, giving offenders a ready-made list of excuses. The police decide in each case whether to charge the person. The explanation given by the person when questioned by police will be relevant to the decision whether or not to prosecute. If the person is prosecuted, the person bears the onus of proving that he or she had a lawful excuse for possessing the knife. The court must determine on the evidence and its credibility whether the accused had a lawful excuse.

The police will not charge a person if they think that the explanation is credible and the reason for possessing or carrying it is lawful. Thus, those with a legitimate reason for possessing a knife in a public place or school would have nothing to fear. A parent or guardian who can prove a legitimate reason for carrying a knife, or a child who has a fruit knife in his lunchbox and can show that it is for the purposes of cutting fruit, would be considered to have a lawful excuse, as would a child who carries a Stanley knife in his or her art kit for the purposes of participating in an art class at school.

Whether a child who has a knife in their possession on their way to school, for use in an activity after school, would have a lawful excuse would depend on the circumstances. If the child is participating in an activity after school that requires the use of a knife, such as a Scout group, then that would likely constitute a lawful excuse, particularly if the child was travelling straight from school to that activity. If a Boy Scout, Girl Guide, or Sea Scout has a pocketknife or other knife for the purposes of participating in their activities as a member of one of those groups, then that would be a lawful excuse.

As for buying a knife, the bill does place some restriction on this. If the child is under the age of 16 years, then they will not be able to purchase the knife themselves. They will need to ask their parent or guardian, or Scoutmaster (as the case may be) to purchase that knife for them.

The final question put by the Hon. Mr Wade is whether a person needs to know that they are carrying or possessing a weapon for the offences under this bill to be established. According to the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523, the idea of 'possession' connotes knowledge of the thing possessed. The majority held that where a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of sufficient indication of a contrary intention, be an ingredient of the offences, because the words themselves, 'in his possession', import a mental element.

Honourable members have also raised submissions made by the Law Society on the bill, and particularly those aspects of the bill dealing with weapons prohibition orders. The government has considered the Law Society's submissions on the bill and plans to move amendments in the committee stage to include a statutory defence to subsection 21H(4)(a)(i) and to delete subsection 21 H(8). However, the government believes that the majority of the weapons prohibition order provisions and associated police search powers, while strong, are appropriate.

We are not talking about preventing the possession of a kitchen knife, a baseball bat, a screwdriver or other such items by an ordinary law-abiding citizen. We are talking about preventing a person who has demonstrated a propensity for violence from possessing or using the kinds of weapons that are primarily designed to harm or kill and have little or no legitimate social uses.

Some honourable members have suggested that weapons prohibition orders would be more appropriately issued by a court. The government disagrees. Not only would this be inconsistent with the firearms prohibition orders upon which the weapons prohibition orders are modelled but it would add a layer of complexity to the process that the government considers unnecessary, considering the thresholds that already apply for issuing a weapons prohibition order and the right of appeal to the District Court.

The honourable Mr Hood also asked whether it is anticipated that ordinary eating utensils will always be exempt. Any knives, including those used for eating and cooking, is, by definition, an offensive weapon and can only be carried or possessed with lawful excuse. The bill does not change this. However, the bill will make it an offence to sell a knife to a minor under the age of 16 years. The only knives that the government intends to exempt from this offence at this stage are razorblades permanently enclosed in a cartridge and plastic takeaway-style knives, as these knives pose little risk of harm.

The honourable member also says that under the current domestic violence order regime a magistrate must issue a firearms prohibition order against a person if a domestic violence order is made against them. I understand that is not entirely accurate. Section 10 of the Domestic Violence Act states that a court making a domestic violence order must also make supplementary orders relating to firearms. If a person has a firearm, it must be confiscated. Any firearms licence held by that person must also be cancelled and the person is disqualified from obtaining a firearms licence. They are also prohibited from possessing a firearm in the course of their employment.

Firearms prohibition orders are different. They are made by the Registrar of Firearms pursuant to the Firearms Act and have a number of strict conditions along with significant penalties for a breach of those conditions associated with them.

As noted by the Hon. Mr Hood, although the removal of firearms is automatic if the person is subject to a domestic violence order or a restraining order, it is not the same for weapons. Courts instead have a discretion to order that a weapon or an article that has been used, or might be used, to threaten or harm someone be confiscated. While firearms are lethal and can kill or maim from a distance and are readily identifiable and subject to a licensing scheme, anything can be a weapon if it is carried with intent to threaten or harm someone.

To require automatic confiscation of all weapons would be unmanageable, as weapons can include everyday items such as kitchen knives or household chemicals. Because of the different nature of weapons, the threshold for issuing a weapons prohibition order is higher than for a firearms prohibition order. Finally, some members have foreshadowed that they will be moving amendments to this bill. The government will consider those amendments in the committee stage. I commend the bill to honourable members.