Bills

Statutes Amendment (Possession of Firearms and Prohibited Weapons) Bill

Introduction and First Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (11:05): Obtained leave and introduced a bill for an act to amend the Firearms Act 2015 and the Summary Offences Act 1953. Read a first time.

Second Reading

The Hon. P. MALINAUSKAS (Minister for Police, Minister for Correctional Services, Minister for Emergency Services, Minister for Road Safety) (11:07): I move:

That this bill be now read a second time.

The Firearms Act 1977 (the current act) and the Firearms Regulations 2008 (the current regulations) are a complex legislative scheme for the control of firearms. A key purpose of the act and regulations is to ensure public safety by preventing persons considered not fit and proper to possess firearms, from those with mental health or demonstrated behavioural issues and offending antecedents to those with a propensity for violence, or those who associate with such people, from possessing firearms. An example of how the current act does this is by the power it provides at section 10B(1) that empowers the Registrar of Firearms (the Registrar) to issue a firearms prohibition order (FPO).

Since 2009, FPOs have been issued to maintain public safety by providing a legislative framework to prohibit, in set circumstances, people from holding and accessing firearms. The framework provides a rebuttable presumption of possession which operates against a very small group of the community to whom an FPO applies (264 persons as at 18 April 2017), many of whom are known criminal offenders who have become the subject of an FPO in order to protect the community. There are no adverse impacts or risks associated with this proposal. In December 2015, the Firearms Act 2015 (the new act), which will repeal the current act, passed both houses of parliament. This amendment is to be made to the new act (to section 45(16)(a)) before it is proclaimed.

The bill also raises a small number of other amendments (discussed below), however its main purpose is to amend firearms prohibition orders legislation at section 45(16)(a) of the new act in order to resolve any uncertainty before it is proclaimed. The amendment sought is a narrowly defined issue arising from a judicial interpretation in the decision of the Crown v loannidis (2015). The issue relates to the operation of a presumption of possession in relation to firearms prohibition orders.

In January 2016, the DPP alerted the Commissioner of Police to the Chief Justice's interpretation of the statutory construction and operation of legislation in relation to FPOs. The matter arose out of the Ioannidis matter. In Ioannidis, police stopped a vehicle in which the defendant was a passenger. The defendant subsequently alighted from the vehicle, before police lawfully searched the vehicle and a handbag belonging to the defendant in which ammunition was found. The possession of ammunition by Ioannidis constituted a breach of an FPO to which Ioannidis was subject.

Whilst this Supreme Court appeal decision fell in the Crown's favour, and the defendant was ultimately found to be in possession of the ammunition in contravention of her FPO, the Chief Justice suggested the presumption only applies if an item (in this case ammunition) is found when the person is in the vehicle at the time the item is found during a search. By implication, the presumption is suggested not to arise if the person has exited or been removed from the vehicle before a successful search is conducted, which are common practices facing and employed by investigating police for reasons of safety.

In this case, the DPP suggests that parliament may not have intended the presumption to operate in this way. It is undesirable for the Chief Justice's comments to stand unremedied at law. The new act is anticipated to come into effect on 1 July this year. The bill will amend the new act to resolve any uncertainty on the Ioannidis issue before section 45(16)(a) is proclaimed.

The presumption of possession in relation to FPOs, legislated at section 10C(14)(a) of the current act and replicated verbatim at section 45(16)(a) of the new act, is in the following terms:

(a) if a person to whom a firearms prohibition order applies is on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) when a firearm, firearm part or ammunition is found on or in the premises, vehicle, vessel or aircraft, the person will be taken to possess the firearm, firearm part or ammunition unless it is proved that the person did not know, and could not reasonably be expected to have known, that the firearm, firearm part or ammunition was on or in the premises, vehicle, vessel or aircraft...

On a strict interpretation of the statutory construction and operation of the presumption of possession, as found by the Chief Justice in Ioannidis, the presumption only applies when the relevant person is on or in the premises or vehicle, etc., when a contraband item is found. By implication the presumption is suggested not to arise, for example, if the person has exited or been removed from a vehicle moments before a successful search is conducted.

It is assumed unlikely that parliament intended this presumption to operate in this way given the express inclusion of the word 'vehicle' in the draft of the section but given the circumstances of Ioannidis, there is ambiguity. This will be overcome by the provision of clause 6 of the bill to clarify that the rebuttable presumption of possession can be relied upon when an FPO is not physically on or in the premises, vehicle, vessel or aircraft when a relevant item is found. This amendment will allow, for prosecution purposes, proof only that the person had been on or in the premises, vehicle, vessel or aircraft immediately before a relevant item was found on or in, or in the immediate vicinity of, the premises, vehicle, vessel or aircraft.

An identical amendment is proposed by clause 7 of the bill, to alter the presumption of possession at section 21I(10) of the Summary Offences Act 1953 (SOA) that is only applicable to the holder of a weapons prohibition order (WPO) of which there were only nine such persons at 18 April 2017. This amendment provides consistency with the proposed change to section 45(16)(a) of the new act, removes potential ambiguity in section 21I(10) of the SOA and remedies the possibility of section 21I(10) being subject to a future judicial interpretation similar to that in the case of Ioannidis.

Clause 4 of the bill provides a minor amendment to alter section 12 of the new Firearms Act, to the effect of clarifying that a firearms licence issued under the new act may authorise the manufacture of firearms and firearm parts, as contemplated by section 37 of the new act.

Clause 5 of the bill provides a further minor amendment proposed to the title to part 6 of the new act in order to align that title with the title of the Code of Practice for the Security, Storage and Transport of Firearms, Ammunition and Related Items at schedule 1 of the Firearms Regulations 2017, the making of which is currently the subject of a separate submission to cabinet.

In relation to the Ioannidis issue, consideration has been given to the need to amend section 10C(14)(a) of the current act in line with the proposed amendment to section 45(16)(a) of the new act; however, such an amendment is not sought at this time given the anticipated short period of time until the current act will be repealed by the new act, and the unlikelihood of the Ioannidis issue arising again during that short period of time. If the anticipated proclamation of the new act was not so proximate to the making of this submission then action seeking amendment to the current act would have been taken. I commend this bill to members, and I seek leave to have the explanation of clauses inserted without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Firearms Act 2015

4—Amendment of section 12—Licence categories and authorised purposes

This amendment is for clarification purposes and amends section 12 to indicate that a firearms licence may authorise the manufacture of firearms and firearm parts (as contemplated by section 37 of the Act).

5—Amendment of heading to Part 6

This clause corrects the heading to Part 6 of the Act to reflect the fact that under section 35 of the Act, the code of practice may address the security of items in addition to firearms and ammunition (such as sound moderators and restricted firearm mechanisms).

6—Amendment of section 45—Effect of firearms prohibition order

Section 45 of the Act provides that if a person who is subject to a firearms prohibition order is on or in premises or a vehicle, vessel or aircraft when a firearm, firearm part, sound moderator or ammunition (a relevant item) is found, there is a rebuttable presumption that the person is in possession of the relevant item. This clause amends the provision to clarify that, in order to rely on the presumption, the person does not need to be physically on or in the premises, vehicle, vessel or aircraft when the relevant item is found. This means that it will only be necessary to prove that the person and the relevant item were in or on the premises, vehicle, vessel or aircraft at the same time (not that the relevant item was found on or in the premises, vehicle, vessel or aircraft at the same time the person was on or in the premises, vehicle, vessel or aircraft).

Part 3—Amendment of Summary Offences Act 1953

7—Amendment of section 21I—Effect of weapons prohibition order

This amendment makes the same change to a similar provision of the Summary Offences Act 1953 in relation to a weapons prohibition order.

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