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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
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STATUTES AMENDMENT (SERIOUS FIREARM OFFENCES) BILL

Second Reading

Adjourned debate on second reading.

(Continued from 10 July 2012.)

Mr PENGILLY (Finniss) (16:27): I never thought we were going to get to this bill today, the way we were going.

The Hon. M.J. Atkinson: We were having so much fun.

Mr PENGILLY: It may have been fun for you, Mick. I wish to make a few comments on this legislation and pose a few questions that I am sure my colleague the member for Bragg will raise in committee. Obviously we are supportive of the legislation; I think it is absolutely critical that we put in place measures that protect our police force. There is no question about that.

There are small numbers of people who want to go around and do the wrong thing in relation to the police, and the police—who are going about their lawful duty—should be protected at all times, so I have no argument with that debate whatsoever. Indeed, it is a heinous crime when anyone gets shot deliberately, but it makes it even worse when the custodians of law and order in our state, the police, are shot. I think it was only in the last edition of the Police Journal that there was an article to do with the young police officer who was shot a couple of years ago.

I would like to have fleshed out somewhat, in committee perhaps, some parts of the bill. I think the mandatory conditions are something that need fleshing out, and the 'cogent reasons'. For the life of me I do not know what 'cogent reasons' will be, but I sincerely hope that we come up with some explanation of that during the course of the committee. He also talked about courts describing exceptional circumstances. That is something also that needs further explanation, as does 'cogent reasons'. What also needs saying in this place is that the number of people who offend with firearms is very small in South Australia and across the nation. We witnessed the absolute madness in Tasmania when John Howard was prime minister and the flat panic—

The Hon. J.R. Rau interjecting:

Mr PENGILLY: No, it occurred soon after he became prime minister, as you well know. It was a terrible event, but the government at the time rushed into wiping out semiautomatic weapons. Let me tell you that there are people in this place (and I am speaking of the House of Assembly and possibly also the other place) who use firearms regularly for sport and recreation purposes or who, like myself and others who live on the land, carry them around regularly.

I regularly carry around in my ute a .22 rifle, as does another member who may wish to speak. I carry it around for very good reasons. If I find stock that are down and cannot get up, I put them out of their misery immediately. If I find vermin that need destroying, I put them out of their misery and my misery immediately. Also, there are things that occur from time to time. Like the member for Flinders, I live on a country road and, if I am driving along the road, I frequently find kangaroos and, in my case, wallabies, koalas and other animals that have been hit by vehicles. People have not stopped to check out those animals and they have been left suffering, sometimes all night. The first thing I do is take the .22 out of the ute and shoot them to put them out of their misery.

I suppose technically I am committing an offence by driving around with a .22 in my ute. This is where it gets particularly stupid. This is where this business of trying to actually contain firearms, and seemingly create this state of mind that guns are bad, is totally erroneous. I also speak up for people with antique firearms who are pilloried. They come into my office regularly, most upset. They are antique firearm collectors; they are very responsible and look after their weapons, but they are pilloried and seemingly put under pressure by authorities because of legislation passed in this parliament on how they can house their guns, when they can use them, and the list goes on.

I have home in my gun cabinet I think 10 weapons, but they are not weapons, they are guns. Some are antiques that I have had for years. I recently purchased a .223 for shooting kangaroos, because the National Parks Act states that you have to have something a bit bigger than a .22 to shoot a kangaroo, and that is fair enough because you do. Unless you hit a kangaroo in the right place with a .22, they do not die. If you use something like a .223 they die pretty quickly.

We are sensible gun owners. We use our guns for sensible reasons and as a necessity, and I am sure the many farmers, station owners and primary producers around this nation, and around South Australia in this case particularly, are fed up with having this seemingly stupid opinion that circulates that because you have a gun you are a lunatic. I do not like it, and I am not sure whether the Attorney likes it.

The Hon. J.R. Rau: I don't.

Mr PENGILLY: Well, that's good: I am pleased to hear you say that. Some of us need to stand up in this place and speak up for the vast majority of firearm owners who do the right thing. I am sure he will not mind me mentioning it, but the member for Newland loves going target shooting, regularly—he loves it. Others do it and they should be given the benefit of the doubt. They are not evil people, neither am I, and neither is the member for Flinders. I am sure the member for Bragg has a couple of guns stashed away somewhere home on the farm. We need them. We treat our weapons with respect.

The other thing I mentioned is about having firearms in your vehicle. I suggest you could go out now and find that six out of 12 farmers drive around with firearms in their ute. If I am home on the farm and I have the firearm in my vehicle, and all of a sudden I have to go to town to get something, I do not drive back to the house and say, 'Whoops, I have got to take the gun out, I have got to put it in the cabinet and I will come back and pick it up again.' I go, in this case to Kingscote, get what I want to get and I take the firearm with me. We should be able to do that and we should not be pressured.

If I am pulled over by the police, I probably get accused of being an irresponsible firearm owner. It has not happened and it probably will not happen, but the point I make is that we are doing the right thing. We are not stupid.

Returning to the point of the bill—serious firearm offences—yet again, I totally endorse the aims of the bill in protecting people like the police and co. It is a necessity. We have these absolute idiots who run around and do the wrong thing with guns. Whether they are violent people, whether they are under the influence of drugs or whether they are involved in criminal motorcycle gangs—they could be any of those things—all I say to the government is: do not penalise the rest of us who do the right thing just because of those damn fools. Lock them up, by all means. I will help you take them out.

Ms Chapman: Not literally.

Mr PENGILLY: Not literally. No, I do not mean it like that. I will do everything possible to bring those sorts of people to justice. What the parliament needs to understand and what the government needs to understand is that the vast majority of gun owners are good people. We want to get on with our lives, we want to get on with our business, we want to use our weapons as needed and not be penalised.

I speak again on behalf of the antique firearm owners in my electorate, who come to see me regularly and who feel as though they are being badly penalised. I say: get on with this piece of legislation. I know the Attorney wants to move on it, but please answer a few of the questions that will be raised in committee. Once again, for the final time, at the risk of repeating myself yet again, leave those of us who use firearms for business or for pleasure and who are responsible alone, for heaven's sake.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (16:37): I thank everybody who has contributed and, in fact, thank some of those who have not contributed because they have appreciated my scheduling difficulties and I do appreciate that, in particular, the member for Little Para. Can I just say a few things very quickly because, if it is possible for me to deal with what would otherwise be a matter raised in committee now, I would like to speak very quickly about those matters so we do not have to repeat ourselves then because I have had regard to the comments made by the member for Bragg and, indeed, the member for Finniss.

If I start with the member for Finniss and say that, at all times, it was my intention to have as the question set that had to be asked: will this interfere with law-abiding people who lawfully have registered firearms? If any of the answer to that was no, I was okay with it; but, if the answer was 'Yes, it will interfere with law-abiding people lawfully in possession of firearms that are registered,' then I have said, 'No, that is not what we want to do.' I particularly had in mind farmers because I know that, in rural parts of the state, a firearm is perhaps as much a tool in trade as a shovel or a pick or anything else.

Mr Pengilly: It is for fishermen too.

The Hon. J.R. RAU: Yes, so I understand that. It is important to know that this legislation basically targets two things: very small groups of criminal behaviour and firearms that people should not have at all, which immediately excludes you, member for Finniss, who lawfully has, for example, a .22 calibre, a .243, or whatever you might have. However, it does catch the person who does not have a firearms licence and who commits a serious criminal offence with a firearm, and it does catch the person who does not have a firearms licence and who is discovered with an UZI machine pistol or a Kalashnikov, or some other weapon, which cannot be legally held in this country, full stop.

These are the people we are trying to catch, not people who are just getting on with their business being farmers, or whatever—not interested in them. If you look at the legislation and you look at the particular classes of weapon that are picked up in there, it does not include stuff that you can lawfully have and register. You are not going to be worried about .22s and things like that unless they are used in the context of a serious organised crime offence, but that is not what we are talking about—driving down the street with it in the back of your ute.

If that is an offence—and it may well be—that is under the Firearms Act, and I am not disturbing that one bit here. I am not touching any of that. That is either an offence now or it is not. Nothing we are putting in here is going to change that one way or the other. That is the first thing. The second thing is that the member for Bragg asked a number of questions about particular words that are being used in the legislation, and that is fair enough.

Those words were chosen with care on the basis that I believe—and I know that the member for Bragg in particular has had the experience of observing—that the courts are capable of applying these words, and in many cases the words actually have an accepted judicial interpretation—they always treat certain words as meaning particular things, whether they are in this statute or that statute.

The first term I think the member for Bragg asked about was 'cogent'. It was intended to be used in its natural and ordinary meaning. I think that the honourable member gave us some lessons in Latin, and that is fine, because that is helpful and it actually does illustrate the point. 'Cogent' is meant to be applied by the courts in a common-sense way, and to say that it is cogent would mean that it is convincing, believable, forceful, clear or whatever; and it is intended that the court would apply that common-sense standard.

However, 'cogent' does not mean possible, an allegation, or something like that. It means something that, on the face of it, is cogent. I do not know that I can take that much further. The second one is that the member for Bragg spoke about the evidence and suggested that about a third of offences are about safe storage, and so on. Again, safe storage is not under this area. That is under the Firearms Act, and I am not in that space with this legislation.

I am advised that, of the 3,842 possess or use firearms charges against the Firearms Act between 2006 and 2010, the majority (which was 64.3 per cent) related to section 11(1), which is 'possess a firearm without a licence', and I am including in there the aggravated and non-aggravated versions of that. The government is also concerned that, for these offences, these are not storage offences but far more serious offences.

In a lower court a fine was the most common penalty; in fact, in 74.2 per cent of cases there was a fine. Suspended imprisonment and imprisonment resulted in only 2.4 per cent and 0.7 per cent of cases respectively. In the contrast, 60.6 per cent of cases finalised in the higher courts resulted in suspended imprisonment while 20.8 per cent resulted in imprisonment. This is what is behind the bill. It is not to do with storage offences. There is nothing misleading or irresponsible about the statistics.

I think the member for Bragg also sought some guidance about how the proposed presumptive imprisonment would work. I (and I am sure the member for Bragg would probably also agree with this) do not think that mandatory imprisonment is a good idea because it leads to absurdities in difficult cases. However, short of mandating imprisonment, what can the government do to say to a court dealing with a case, 'We regard this class of misbehaviour so seriously that the norm should be imprisonment'?

Ms Chapman: Only a day.

The Hon. J.R. RAU: That's making a mockery of it, isn't it? If they do get into the position where we are getting people imprisoned for an hour, or a day, or something like that, that would be the judiciary thumbing its nose at the legislature. It would be an observance in form, not substance, of the spirit of this legislation and we would have to revisit it if that absurdity went on.

I think we have to actually assume that the legislature will be respected by the courts and that the clear emphasis of this will be picked up. If we do find smart alecs behaving that way, yes, we will have to revisit it. All we are doing is saying to the court, 'We are not mandating imprisonment but, if a person who has done one of these serious offences does come to your attention, you had better have a really, really good reason why they are not imprisoned.' That is what we are saying.

There was also a request for an explanation about exceptional circumstances. I have been given a quote, and this is from Justices Gray and Layton—

Ms Chapman: That's already in your second reading.

The Hon. J.R. RAU: Right. I guess, without going through it again, what that illustrates is the fact that the courts themselves are used to applying a concept of exceptional circumstances in relation to many statutes. It is not as if it is an alien concept that has no meaning for judges. Phrases like 'equity, good conscience and the substantial merits of the case' or 'exceptional circumstances' or 'must have regard to' are time-honoured judicial formulae, if you like. There are many cases that discuss them and the courts are familiar with them.

It is not possible for me to put a definition around what circumstances might throw up but, if you want me to make up a hypothetical that might come into that category, let's say there is an instance where an individual's car has been used by another person and this is an objective fact—it is not just an assertion: it is a known fact—and that individual retakes possession of their car and they are driving down the street 10 minutes later and they are pulled up and there is an Uzi pistol in the boot. Let's say—again, for argument's sake—that that individual can prove to the satisfaction of the court that what I have just told you is, in fact, what happened.

By any fair definition of that, whilst the person may be technically in possession of an illegal firearm, that offence has occurred in an exceptional circumstance. That is an example of where perhaps this sort of thing might have application. I do not mean by offering that example to in any way confine what the application of that might be. I am sure that the capacity of human beings to throw up peculiar circumstances is infinite—

Ms Chapman: It's not exhaustive.

The Hon. J.R. RAU: It is not exhaustive, absolutely not. It is impossible now to imagine all the weird and wonderful things that might be brought up, but I think it is pretty clear that 'exceptional' means exceptional, not just run-of-the-mill.

Referring to the business about a person on conditional liberty having a firearm, again, for the same reason, I cannot really give you the absolute parameters of it but let me give an example of something which might conceivably fit in that box. Let us say you have a farmer, or a person who works in a rural environment, who, as part of their normal activity, has a firearm which they use for shooting rabbits, or whatever it might be, they are the lawful holder of a licence for that weapon and the weapon is registered. If that person is charged with fraud and they are out on bail on a fraud charge, there is no suggestion of violence on the part of the person, there is no history of violence on the part of the person, there is no history of misuse of firearms and the person is able, in accordance with the formula given here, to provide affidavit evidence to the court that it is an essential part of their ongoing business or employment that they have access to firearms and they have a legitimate reason for wanting that, then that might be a circumstance in which this sort of thing would apply.

Again, it is not for me to define those things. I am just trying to give you an example that I think, by any definition, would probably fit. You have a person who has no history that is relevant, who is otherwise a lawful and responsible user of firearms, who has a legitimate reason to continue to have use of a firearm and is charged with an offence that has nothing to do with abuse of firearms. That circumstance is obviously quite different to that of a person who is charged with domestic violence and who may also have no history of firearm abuse, but one might be a little bit worried about giving the same latitude to that person. I am confident that the courts will be capable of dealing with those things.

As I understand it, there was also a question about serious repeat offenders. I have been advised by the DPP that they ran a text search within the electronic copies of sentencing remarks kept by the office. The search located four declarations under 20B since 2003. As the search conducted was a text search it is reliant on the search function picking up the appropriate phrase within the sentencing remarks, so I think we need to know that that does not necessarily mean it is an exhaustive and absolutely foolproof search. These declarations are not meant to be common. They are a drastic measure designed to deal with the worst habitual offenders.

I think the honourable member for Bragg raised a question about our amendment No. 1. I can tell the member that the chronology of this is roughly along these lines: like everybody else I was a bit concerned about the plight of the two police officers who were shot at by that fellow last year. I waited for the matter to be disposed of by the courts before I formed any view about whether things were going to be okay or not. I met with Mr Carroll and those two police officers in about October of last year, I had a bit of a chat to them and, in the context of having a number of other things relating to firearms on the boil, I added that into the mix.

When we got to the point of having the main part of the bill ready to go we were still having a discussion amongst ourselves about how exactly we would proceed with our solution, because there were alternatives. In the end, we settled upon the one that is amendment No. 1, 64(1). Accordingly, because the debate was coming on this week, we filed it so that everyone in this house would have an opportunity to see what we were doing and it would not emerge for the first time in the other place. So, that is basically an explanation of where we are up to.

In summary, I thank everyone who has made a contribution and, indeed, those who have forgone a contribution. I cannot emphasise strongly enough that these measures are not intended to have any impact on people who lawfully have possession of registered firearms and are not committing a serious criminal offence. That is the important bit. If you have a registered firearm and you have a licence it still does not mean that you can commit a serious criminal offence. Those two things will not help you by themselves, but by the mere fact of you being in possession of a firearm, if the weapon is registered and you are licensed, we are basically not interested in you in this legislation. You are not in our radar screen unless you go out with your registered licensed weapon and commit a serious and organised crime offence, in which case you bring yourself back into the frame again, or if you shoot at police officers with your licensed weapon obviously you are back in the frame, but otherwise we are not interested in you.

The last thing I would say is that those provisions in there about conditional liberty, about bail, about licence, and everything else, are not mandatory either. They are intended to be the default setting, and the courts still have the jurisdiction to be able to, for good reason, change the default setting. That is all they are, just like the business about these people not receiving bail. Again, that is the default setting, but it does not mean there is mandatory imprisonment whilst on bail. It does not mean that; it just means that is the default setting.

All of this is to try to convey to the courts, at all levels—not just the superior courts but also the Magistrate's Court—that the parliament and the people of South Australia take these types of offences particularly seriously. All of us here are asking them, or directing them, really, on behalf of the people of South Australia to treat these amongst the most serious sorts of misbehaviour they have coming in front of them and to demonstrate that by actually, in effect, reversing a lot of the presumptions that presently apply to most people coming before a criminal court, but only reversing presumptions. With those probably too many words I finish.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 14 passed.

Clause 15.

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

Page 8, after line 8 [clause 8, inserted section 20AA, definition of serious firearm offence]—Insert:

(ba) an offence against section 29A of the Criminal Law Consolidation Act 1935; or

Amendment carried; clause as amended passed.

Clauses 16 to 25 passed.

New clause 25A.

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

Page 14—

After line 24—Insert:

25A—Insertion of 29A

After section 29 insert:

29A—Shooting at police officers

(1) A person who—

(a) discharges a firearm—

(i) intending to hit a police officer with shot, or a bullet or other projectile, fired from the firearm; or

(ii) being reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from the firearm; and

(b) by that conduct, causes serious harm to the police officer, is guilty of an offence.

Maximum penalty: Imprisonment for 25 years.

(2) If, however, the victim in a particular case suffers such serious harm that a penalty exceeding the maximum prescribed in subsection (1) is warranted, the court may, on application by the Director of Public Prosecutions, impose a penalty exceeding the prescribed maximum.

(3) In proceedings for an offence against subsection (1), it is not necessary for the prosecution to establish that the defendant intended to cause serious harm to a police officer.

(4) A person who discharges a firearm—

(a) intending to hit a police officer with shot, or a bullet or other projectile, fired from the firearm; or

(b) being reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from the firearm is guilty of an offence.

Maximum penalty: Imprisonment for 10 years.

(5) If—

(a) a jury is not satisfied beyond reasonable doubt that a charge of an offence against this section has been established; but

(b) the Judge has instructed the jury that it is open to the jury on the evidence to find the defendant guilty of a specified lesser offence or any 1 of a number of specified lesser offences; and

(c) the jury is satisfied beyond reasonable doubt that the specified lesser offence, or particular 1 of the specified lesser offences, has been established,

the jury may return a verdict that the defendant is not guilty of the offence charged but is guilty of the lesser offence.

(6) In this section—

reckless—a person is reckless as to whether a police officer is hit with shot, or a bullet or other projectile, fired from a firearm discharged by the person if the person—

(a) is aware of a substantial risk that a police officer could be hit with shot, or a bullet or other projectile, fired from the firearm; and

(b) discharges the firearm despite the risk and without adequate justification.

Ms CHAPMAN: I thank the Attorney for outlining in his response a number of issues that I flagged during my second reading contribution. I suppose one has to say that we would expect the judiciary to act responsibly and, as the Attorney has quite rightly pointed out, there are a number of cases—some of which he has referred to in his contribution already—that provide some guidance as to the use of some of this language. However, bearing in mind that this legislation, to the small extent that we are talking about here, applies serious fines/penalties to serious offenders—that group; narrowing that down—I think it is terribly important that we make sure that we do not inadvertently capture others and, if we do, that there is a proper process to ensure that they can be excluded.

It is all very well to have Full Court decisions telling us about what the difference is between exceptional circumstances and good reasons and so on, but we want to make sure that, in a law that is not going to apply to everybody and we are going to be cherrypicking out the very bad, we have very clear provision for those who are not very bad but are found in circumstances where, like you say, they are accidentally driving along in their car with some kind of disgusting weapon in the back. We need to make that clear, and I thank the Attorney for that.

This amendment, which introduces an offence specifically for conduct where a person discharges a firearm at a police officer with the intent of hitting that police officer, or being reckless as to whether the police officer would be hit or shot, is one that the opposition supports. Indeed, as the Attorney knows, it was announced yesterday morning by the opposition that it was the intention to move an amendment to this legislation. Very shortly thereafter, this amendment was tabled in the parliament.

Whatever the reason for the delay, I think the government has been a bit churlish, and I appreciate the chronology that has been outlined by the Attorney. Having met with victims apparently last year and waiting for the proper conclusion of criminal proceedings, the Attorney made some assessment about whether it was reasonable to progress this. If someone else—whether it is the opposition, an Independent or other people in the community—raises a legitimate reform that is ultimately embraced and taken up, I think they should be acknowledged and recognised.

Mark Carroll, as the head of the Police Association, on behalf of two of his members in particular who were the victims of the disgraceful circumstances mid last year, has championed this as a significant reform that would in some way recognise and hopefully have the flow-on effect of protecting his members—namely, police officers—in the line of duty. He championed that. He championed it to the government, on our understanding, and he championed it to the opposition. The opposition—particularly the Hon. Stephen Wade—took up that important initiative. He presented it to the members of the opposition and we supported it. He made it public that this area needs to be embraced. The government shortly thereafter announced that they would be doing that, but with absolutely no recognition of what has occurred.

The Hon. J.R. Rau: That's not true.

Ms CHAPMAN: The Attorney shakes his head and says, 'That's not true.' After the government announced publicly that they were going to progress this offence, the shadow attorney, I think in good grace, welcomed that from the government as a decision that they had decided to take up, but again in a circumstance where there is no acknowledgement of that. I have to say that there have been other occasions when the government has been quick to bring in, embrace, hug, support and give accolades to other members of the parliament who are Independents or who are in minority parties when it suits.

I simply make the point that I expect—and I think every person in this house, whether they are an Independent or a member of any political party, including the same party as the Attorney, ought to expect—that, if the government does present with a particular proposal which is ultimately taken up and embraced as a government initiative, proper recognition is given it. Even the previous attorney did this from time to time—usually when it suited him, of course; never to a Liberal, I might say—when an Independent member of the house or a member of the community championed a particular reform. I think that that should not go unsaid. Nevertheless, it is here, it is before us. We welcome it and support it. I look forward to the passage of the bill.

The Hon. J.R. RAU: I just want to respond very briefly to the honourable member for Bragg. Obviously, we were aware that this bill was going to be coming on for debate this week. Equally obviously, we already had our draft provision ready to go by this week.

Ms Chapman: Why wasn't it in the bill?

The Hon. J.R. RAU: I agree: it was not in the bill. I told you before that we were still working on exactly how we were going to manage this, because there were a number of different ways one could do it. Anyway, the point is this: we had it ready, obviously, because you cannot just summon a provision out of thin air in five minutes. We had this; we had the bill coming back on. In my press conference the other day where I spoke to the media about this, I actually acknowledged that the opposition was supporting this, and I welcomed it. I said that at my press conference. I acknowledged that and welcomed it.

I do not think I am in a position now where I can actually pick up the opposition's legislation because, as far as I am aware, nothing has even been filed yet on behalf of the opposition. However, I did acknowledge the supporting sentiments expressed by the Hon. Stephen Wade and said that I welcomed that at my media conference about this the other day. I say it now on the Hansard: I acknowledge that the opposition has supported this. The advocates for this, which is basically the Police Association, have been—as the honourable member quite rightly says—speaking to members on all sides. They have spoken to me. They have not only brought the two victims of this last shooting to visit me, but they have also come to see me about this, and we have been working through our methodology for doing it.

Just to make it absolutely clear, we knew that the legislation was coming on for further discussion this week. We obviously had this draft in our ready-to-go pile, and it is a happy coincidence that both the government and the opposition agree on this. I welcome the opposition's support and I am sure that the Police Association will also welcome the opposition's support. I look forward to the speedy passage of the bill as amended.

New clause inserted.

Remaining clauses (26 to 36) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Planning, Minister for Business Services and Consumers) (17:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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