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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

Ms CHAPMAN: Clause 1, of course, is the general clause and, before we move on from that, I was having some discussions with the member for Flinders, who represents a magnificent part of the state, and some of his constituents have raised some questions as to how far this will extend. Accordingly, I advise you, Madam Chair, that he has a few questions and would like to raise some matters.

Mr TRELOAR: If I may, I would like to read into Hansard some of the concerns that have been raised by a constituent of mine. If you will bear with me, I will read those concerns. My constituent wishes to raise—

The CHAIR: I am so sorry, member for Flinders, I am being advised of something by the Clerk. Apparently, this is not an opportunity for debate; it has to be relevant to the clause, which I am sure it will be.

Mr TRELOAR: Thank you, chair. It states:

I wish to raise with you my concern about draconian and inappropriate laws that are being brought in by the South Australian government to allegedly control knife crime. I believe the government's approach of vilifying specific knives and other devices is misdirecting the energy and resources needed to solve the real problem.

While we all want to live in a crime free society, I believe that they are going in the wrong direction. I have recently carried out an extensive search of the Sydney Morning Herald, the Daily Telegraph, the Melbourne Age and the Adelaide Advertiser websites searching under the word 'knife' and 'flick knife'. I have found hundreds of incidents all over Australia where knives were used in the last two years. Unfortunately, most of the incidents do not identify the knife used. I did however find 17 that did describe the 'weapon' used. Of them, nine were kitchen knives; the remainder, were two box cutters, one screwdriver, one broken bottle and one hunting knife or machete. That is fourteen out of the seventeen. The majority of these knife attacks occurred with the sort of knives that you pick up in the kitchen.

Over the years we have had discussions with former and serving police officers. To a person they have informed me that the most common knife that they saw used in attacks came from the kitchen.

One thing that was glaringly obvious in these news reports was that mental health and drug issues are significant factors in many of the incidents. A large percentage of incidents also involve people known to each other, such as family, friends and neighbours and were not gang related.

It is alarming that many young people see it as necessary to carry a knife for self defence. It would seem to us that identifying the threat that the youth live under and taking steps to remove it, might be a more substantial way of solving the problem. Where there is no threat there will be no need to carry a knife for defence. Our society needs to change in its base values.

I hope you will assist in getting proper remedies in place that will address the real problems and result in making the streets safer, that concentrate on the offender and do not just look at ineffective cosmetic measures that will only make life difficult for law abiding people.

Ms CHAPMAN: My question from that contribution—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: He has not posed the question yet; I am going to pose it for him.

The Hon. J.R. Rau: Is this some sort of tag team, is it?

Ms CHAPMAN: It is a bit, yes. I would like to ask the minister whether he could explain in what circumstances, first, a 14-year-old boy can carry a pocket knife if this legislation goes through?

The Hon. J.R. RAU: I just wanted to explore some of the matters that were raised in the preamble to the member for Bragg's question, which was delivered by the member for Flinders. The preamble described the problem of drug abuse, alcoholism or other social ills as being major contributors, and, of course, that is absolutely true, and no-one would argue about that. However, the police are not the agency primarily charged with dealing with those many very serious issues. Others are charged with that and, hopefully, their efforts will be successful over time.

However, history suggests that they will not be successful every time, so there needs to be some safety net in case these people are not fixed up. I agree entirely with the thrust of the comments that were made about that. Yes, that is important.

With respect to the second point about kitchen knives, well, when we were last here we went around the kitchen and we examined all the paraphernalia that one might find in the kitchen and, undoubtedly, a kitchen knife can be a very dangerous thing in the hands of a wrong person, as can a handkerchief, a teatowel or any number of other things. So, yes, that is true.

I have to say that we did not seriously consider taking things to the extent that Qantas has and require everyone to hand in their metal knives and have plastic ones.

Ms Chapman: Except in first class.

The Hon. J.R. RAU: Except in first class, yes. Realistically, I do not think that we were really going to do that. The question really here is the regulation of the sale of knives to people who are young people, and the regulation of particular types of knives generally and their promotion, advertising or whatever. That is really the issue. We are talking here about, in particular, where people have these knives on them.

I find it very worrying that someone living in South Australia today would accept as a valid proposition that any young person should need to carry a knife for their own personal safety. I reject the idea that young people in this state live in an environment that is so dangerous they have to carry with them implements of that type for personal safety. There are some countries in the world where people say the same thing about pistols or machine guns. I assume that in Afghanistan people would say, 'Well, it's necessary for me to walk around the streets with an Uzi in my pocket because there is a fair chance that someone is going to pop out from behind a building with one and have a crack at me.' Hopefully, that is not the sort of place we live in.

Whether we like it or not (and I said this the last time we were here) there are certain groups of young people, usually young men—some of them having a common heritage, some of them just deciding to hang out together—who think it is cool to be out and about with a knife. When they are out and about in a mob, with a knife, and they get charged up with alcohol or amphetamines or whatever else they are charged up with, you start to have a very dangerous and volatile situation.

I do not think we should be ambivalent about that going on, and I do not have any problem with the idea that we, as members of parliament, should say to the community, 'We don't care what you young fellows think you should or shouldn't be carrying around the place to make you feel good, if you have to carry something, carry an umbrella or a skateboard or something like that, that is fine'—although even umbrellas can be dangerous, of course.

The Hon. M.J. Atkinson interjecting:

The Hon. J.R. RAU: Indeed. Even umbrellas in the wrong hands can be dangerous, particularly if it is a Bulgarian chap and it has a little ball bearing on the bottom with terrible poisons on it. However, I think we are digressing slightly. The point is that I really do not think we should tolerate or in any way accept irresponsible behaviour by any person, particularly young people. They are out and about in the streets armed with knives; and, inevitably something will happen some time and they will use them. I do not take a step back from saying, quite clearly, that that is unacceptable.

As to the second part of the tag team, the honourable member for Bragg asked a question, I am advised that a pocket knife is an offensive weapon but can be carried with lawful excuse, including by minors. However, it is up to the court to determine what is a lawful excuse. Self defence generally is not, for the reasons I have just explained, but lawful excuses could include any number of things: for example, that the person is an apprentice and is required to have a knife, or that they are on a camp and need to have a knife, or that they are down at the jetty fishing and they need to have a knife. There could be any number of legitimate reasons for carrying a knife. So, that is the response to those collective matters.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. J.R. RAU: I move:

Page 3, after line 27 [clause 5, inserted section 21A(1)]—After the definition of dangerous article insert:

District Court means the Administrative and Disciplinary Division of the District Court;

I think I have already explained the reasons for this to the member for Bragg.

Amendment carried.

Ms CHAPMAN: I move:

Page 4, lines 1 to 7 [clause 5, inserted section 21A(1), definition of offence of violence]—

Delete the definition and substitute:

offence of violence means an offence where the offender uses a weapon, or threatens to use a weapon, against another for the purpose of committing the offence, or escaping from the scene of the offence;

Essentially, this inserts a new definition of the offence of violence. Members would recall (I hope), from my contribution, that it was the opposition's view that the application of the weapons protection orders, which are proposed as a new regime in this legislation, should be restricted to people where the offence of violence actually involves a weapon. The purpose of this amendment is to redefine the offence of violence, and I hope the government considers accepting it.

The Hon. J.R. RAU: At this stage, I am still of the view, as I expressed before, that this unnecessarily narrows the scope of the operation of the bill and, for that reason, we do not support the amendment. However, I am happy to make the offer to the member for Bragg to have further conversations about that matter between here and the other place and see where they take us.

Amendment negatived.

Ms CHAPMAN: I move:

Page 7—

Line 16 [clause 5, inserted section 21F(2)]—Delete 'subsection (1)' and substitute:

subsection (1)(a)

After line 21 [clause 5, inserted section 21F]—After subsection (2) insert:

(2a) It is a defence to prosecution for an offence against subsection (1)(b) to prove that the defendant was, in accordance with—

(a) subsection (2b); or

(b) a regulation made under subsection (3); or

(c) a declaration made by the Commissioner under subsection (4),

an exempt person in the circumstances of the alleged offence.

(2b) The following persons are exempt persons for the purposes of subsection (2a)(a) in the following circumstances:

(a) a person who uses or has possession of a prohibited weapon for the purpose or in the course of conducting his or her business or for the purpose or in the course of his or her employment, but—

(i) only if the use and possession of the weapon is reasonably required for that purpose; and

(ii) not if the use or possession of the weapon is for the purpose or in the course of manufacturing, selling, distributing, supplying or otherwise dealing in the weapon;

(b) a police officer who uses or has possession of a prohibited weapon for the purpose or in the course of his or her duties as such an officer;

(c) a person who has possession of a prohibited weapon for the purposes of a museum or art gallery;

(d) a person who uses or has possession of a prohibited weapon for the purpose or in the course of providing a lawful form of entertainment of other persons that reasonably requires the use or possession of the prohibited weapon;

(e) a person who uses or has possession of a prohibited weapon for the purpose or in the course of participating in a lawful and recognised form of recreation or sport that reasonably requires the use or possession of the prohibited weapon;

(f) a person who uses or has possession of a prohibited weapon for the purpose or in the course of an official ceremony that reasonably requires the use or possession of the prohibited weapon;

(g) a person who uses or has possession of a dagger for a religious purpose.

Amendments Nos 2 and 3 essentially relate to the opposition's view that we need to ensure that people who are relying on the exemptions are not hindered. So, what we have done is introduce a regime here under these amendments to facilitate that, rather than essentially the government's bill providing for regulations to be made and just praying that everything works out okay.

As you can see, particularly from Amendment No. 3, this would insert a provision that it would be a defence to the prosecution for an offence under certain circumstances as an exempt person in the circumstances of the alleged offence. It then lists a whole group of people who are exempt persons for the purposes of the act. We feel this is a more comprehensive and secure way of ensuring that we do not have a problem here. Accordingly, we would either invite the government to consent to these amendments or, if it does not see fit, at least to consider them between houses.

The Hon. J.R. RAU: These are not issues of substance between the member for Bragg and myself. They are questions of style, I suppose. At this stage, we oppose the amendments for the reasons that I have indicated previously; however, if it is of any comfort to the honourable member, I can indicate that we do not propose to have this legislation made operative absent the regulations. It should be possible, we would hope, for the regulations to be in a position where we can show them at some point fairly soon, and the intention would be to allay any concerns that the honourable member may have about that. For that reason, we would like the matter to proceed as is with the regulations already known and seen, with any discussion the member for Bragg might wish to have about the form of the regulations. That, hopefully, will cure most of the concerns about that.

Ms CHAPMAN: I just place on the record our appreciation of the minister's indication. It seems that we have a new era, where we are going to be seeing draft regulations before bills go through, which is very much welcomed by the opposition. We feel that this is an important way of ensuring that there is no opportunity for there to be even inadvertent omission of things to be covered. If this is a sign of things to come, it is welcomed by the opposition.

Amendments negatived.

Ms CHAPMAN: I move:

Page 12, after line 13—After section 211 insert:

211A—Reports relating to prohibition orders

The annual report of the Commissioner under section 75 of the Police Act 1998 must include the following information in respect of the period to which the report relates:

(a) the number of weapons prohibition orders issued under section 21G;

(b) the number of weapons prohibition orders revoked under section 21G;

(c) the number of appeals under section 211 and the outcome of each appeal that has been completed or finally determined.

This is really to ensure that the reports relating to the prohibition orders, which is the new regime to be introduced under this legislation, include extra information. I have referred to this in the debate. We consider that this information can be provided without any great difficulty and we ask that it be included in an annual reporting procedure.

The Hon. J.R. RAU: On this particular matter I would like to express my thanks to the member for Bragg for bringing forward a very sensible point; namely, that there is appropriate reporting. I agree with that and think it is a good idea. However, the only point I raise is the form in which the reporting is required. I am advised that the proposed amendment takes a slightly different approach to that used for sections 72A and 72B as it requires the commissioner to include the information in his annual report under the Police Act. For consistency, it would be preferable if the bill were amended to require the commissioner to provide an annual report to the minister on the number of weapons prohibitions orders issued and revoked under section 21G, and the number and outcomes of appeals lodged under section 21I. This is in keeping with the reporting obligations under 72A and 72B.

I was going to suggest that, if the member for Bragg is happy to do so, we would be keen to have a go at drafting an amendment which gives effect to those changes which would, I hope, largely meet the honourable member's requirements but still leave us with a fairly consistent reporting regime. We will attempt to do that between the houses but, for that reason, I oppose the specific form of the amendment without opposing the principle behind it.

Ms CHAPMAN: On the basis of that information and the assurance of the Attorney that it will simply be placed in another provision under the Police Act, we are happy with that.

Amendment negatived; clause as amended passed.

Clause 6 passed.

Clause 7.

The Hon. J.R. RAU: I move:

Page 16, after line 26 [clause 7, inserted section 72B]—After subsection (6) insert:

(6a) An authorisation granted under subsection (3) or a variation or revocation of such an authorisation must be by instrument in writing unless the police officer granting, varying or revoking authorisation is satisfied that circumstances of urgency exist in which case the authorisation, variation or revocation may be oral, provided that it is reduced to writing as soon as reasonably practicable.

Again, I think we have already canvassed the reasons for that.

Amendment carried; clause as amended passed.

Remaining clauses (8 and 9), schedule and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Attorney-General, Minister for Justice, Minister for Tourism) (16:55): I move:

That this bill be now read a third time.

Ms CHAPMAN (Bragg) (16:55): An unusual situation has arisen with this legislation being dealt with when we are still dealing with other legislation in respect of criminal intelligence. My purpose in placing a few matters on the record is that, whilst I do not propose to traverse the detail of another bill, which of course is pending before the house, there are a number of different areas of our criminal and licensing laws that currently apply different standards of criminal intelligence. They are currently being dealt with in other bills before this house, and this morning a judgement was delivered by the Chief Justice of the High Court in the case of Totani & Anor v the State of South Australia on matters relating to the Serious and Organised Crime (Control) Act.

One of those matters, which has come up in the course of the debate in the other bill and which is being proposed in this bill, is the terms under which criminal intelligence may be used; in this specific case, for the purposes of deciding whether there be a weapons prohibition order and a prohibited weapons declaration. The bill before us provides:

If a decision was made because of information that is classified by the Commissioner of Police as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.


[Sitting extended beyond 17:00 on motion of Hon J.R. Rau]


Ms CHAPMAN: What is to happen in circumstances where criminal intelligence is received and taken into account comes within what I would describe as the lowest threshold of the obligations of the determining person. In this case, the only reason required to be given is that the decision was made on public interest grounds. So, the person who may be adversely affected by the use of criminal intelligence—usually an applicant or someone who, in this instance, might be the subject of a weapons prohibition order—really does not get much chance to know what the process is and what application is being made for the use of that criminal intelligence. For obvious reasons, they do not know most of what the criminal intelligence may be, but it is at the lower end of what is required.

I just flag at this point the need for the consideration of this bill to take into account what may transpire in other legislation, which may conclude before we conclude this matter. There may be time in another place to look at this issue again, but it is important because whilst the Chief Justice's judgement published this morning does not specifically address the K-Generation case to the extent of, in some other way, redefining the criminal intelligence rules—if I can put them as crudely as that—although I understand some submissions have been made, it does not appear, at least from his judgement, that there is any attempt by the High Court to deviate from its provision in K-Generation.

In which case, I think we are left with a fairly high standard, and whatever is going to be applied within it will be in the debate in the other place. If it turns out that we are going to have one formula across the board, then I suggest that the provisions in this Summary Offences (Weapons) Amendment Bill will not be a high enough standard. I think we need to tidy that up, so I just bring that matter to the Attorney's attention.

I cannot help but note that in the Chief Justice's judgement he sets out, at pages 13 and 14, a number of historical analogies to the serious and organised crime act which may be of interest for the Attorney or other members to read. It talks about the history of statutory provisions in laws which have restricted the freedom of association of persons. Remembering that in this bill there is going to be some of that, unless various notice is given to other people including co-tenants of buildings, etc., South Australia seems to be leading the charge through the last century, including from legislation which commenced back in 1928. What is important is that if we go first, we do it properly.

The Hon. J.R. RAU (Enfield—Attorney-General, Minister for Justice, Minister for Tourism) (17:02): I am very grateful for the honourable member's comments. I agree that we do need to have a good look at all of our measures of this type in the light of what the High Court has said today.

I have had a chance to read some of the judgements today and some of the remarks that have been made by His Honour the Chief Justice, are not necessarily picked up with the same emphasis by other members of the court. That does not necessarily mean they do not agree with him, and I think it is going to take some time for me to satisfy myself that I understand what they are all saying. Indeed, I have indicated to the Solicitor-General and the Crown Solicitor that I wish to have a lengthy discussion with them in due course when they feel they have satisfied their own needs to read and understand the judgement.

I can assure the member for Bragg that it is my view that the good thing to come out of this is that, hopefully, we now have a sound constitutional platform on which we can build whatever provisions we need across the board in South Australia. It is certainly my view that it would be prudent for us to do that very well and apply it across the board, wherever these types of provisions exist.

I am very pleased that the honourable member apparently has a similar view because it may well be that one of the things that we ultimately wind up bringing back to the parliament early in the new year is a bill which, amongst other things, seeks to establish these identical regimes across the board in a number of different areas. I think the honourable member is quite right in saying that the bill we were looking at the other day deals with a number of those—there may be more. There may be more of them sitting around the place, and I agree with her that this is a great opportunity for us to take stock with that. Again, that is something that, hopefully, we will be able to advance between the houses.

I would like to say on the record that I am very happy that we are at that point to have a conversation with the honourable member about that. Whatever issues are there, I would be happy to informally try and tease them out, rather than us having a disagreement about them in here.

Bill read a third time and passed.

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