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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Firearms Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 September 2015.)

Mr GARDNER (Morialta) (22:32): I am pleased to rise at this late hour to speak on the Firearms Bill 2015.

Members interjecting:

The DEPUTY SPEAKER: Order, please listen to the member for Morialta in silence. Order!

Mr GARDNER: To be clear, when I woke up this morning I had a shave, and now I feel a bit like what Mitch Williams must feel like every morning.

The DEPUTY SPEAKER: Order! Could we please give the courtesy of the chamber to the member for Morialta?

Mr Pederick: Chuck them out!

The DEPUTY SPEAKER: They will all have to go; I am getting out the Speaker's book—that's it.

Mr GARDNER: I thank you for your protection, Deputy Speaker. I know that members are interested in the matters at hand, and of course this is a very significant bill, a very complex bill, a long bill. I note, in brief, that the bill seeks to rewrite the Firearms Act in total. I note that in its endeavours to simplify the bill it must be said that we have taken an 85-page act and replaced it with an 88-page bill. It would be trite to just look at the length, because there are some measures in the bill that will simplify the interpretation of the legislation for legitimate law-abiding firearms owners, although there are other matters that will not. It is something that cannot just be judged by length; we must look at it in total, and we will endeavour to do so.

The six goals of the new legislation that were identified in the minister's second reading, as well as in briefings provided to opposition members by South Australia Police, are to improve public safety and prevent crime, reduce red tape, overcome deficiencies, facilitate a nationally consistent approach to firearm control, increase functionality of the act and to modernise the act. In setting out the opposition's point of view on this—

Members interjecting:

The DEPUTY SPEAKER: Order! We can hear you over here. Please lower your voices.

Mr GARDNER: I will endeavour to set out the opposition's point of view in broad terms first, and provide some context in which the bill and its provisions have arisen. I will start by going through a general description of the measures contained in the bill, and then move to focus on some of the major points of concern that have been raised by stakeholders, a broad range of stakeholders coming at it from a range of different perspectives on the bill, and go through some of those points, and then conclude with a detailed summation of the clauses. I am not a prolix speaker as a general rule. I will endeavour to be concise, but it is a complex matter, and we have had an enormous amount of interest from a wide range of stakeholders, and it would be remiss not to put that range of points of view on the public record in this forum.

To a point, the opposition agrees with the purposes of the bill. The six goals of the new legislation are laudable. Improved public safety is important, firearms are potentially dangerous implements, obviously, and that is why we have regulation around their use, but a key point the government seeks to put forward in their goals for the bill is, in fact, to reduce red tape, increase functionality of the act, and of course those are matters that will be welcome to all law-abiding firearms owners and I know are welcome to them.

In putting the bill together, the minister had a round table with a range of stakeholders, who had a number meetings during the period from September last year to August this year. Many of them spent many hours at those meetings and many more hours preparing comments, thoughts and their views, and in consulting with members of their relevant organisations. An enormous body of work has gone into this document by an enormous number of people, both within South Australia Police and the stakeholder groups. Since the release of the draft bill and, indeed, the tabling of the bill in the house, an enormous extra body of work has been done not only by those stakeholders who are already involved but also by a number of others who have done us the great courtesy of providing us with their point of view.

We are not 100 per cent sure that the government has achieved all it has set out to do in their six purposes. However, the opposition will endeavour to work with the government and other parties in the other place to improve the bill such that it does meet the goals the government has set out: that it will improve public safety and prevent crime, reduce red tape, overcome legislative deficiencies, facilitate that nationally consistent approach, increase its functionality, and modernise the legislation.

In particular, as I have said, we will endeavour to ensure that we will improve that public safety while endeavouring to ensure that law-abiding firearm owners are not unduly penalised or persecuted for carrying on their legitimate activities and interests. We will raise issues where we have concerns that the bill has unintended consequences, we will suggest amendments that we believe may address some of these matters, but we will also listen to the government's responses and, in some cases, I imagine that we will be open to compromise. It is a complex piece of legislation, and we will be endeavouring, through the facilities of both the House of Assembly and the Legislative Council, to come to the best outcome.

Some amendments I can flag with the government that we will be moving in this chamber. I believe that that list has been circulated. There are a couple on the list that we have identified deficiencies with and will not be proceeding with. There are other amendments that I imagine will come out of questions that are asked in the committee stage and potentially be put to the Legislative Council, and the opposition obviously retains the right to move some extra amendments in the Legislative Council that arise out of matters that are explored in the committee stage, where a compelling case is put or where a compelling case is put between the houses.

To be clear, it is important that this bill improves public safety. We will not be seeking to scale back public safety measures which are already in place and which already exist as a result of the current act. However, when it comes to new measures being sought in this bill we prefer, first, measures to be clear in the act rather than in regulations and, for those measures where that is not possible, as a general rule we prefer new measures to be in the regulations rather than left to the discretion of a decision-maker, as a point of principle. However, as I say, we are not seeking to scale back measures for public safety that are already in the existing act.

By the same measure, where there are protections, particularly for citizens in place that have been actively put in place by previous parliaments—and I am particularly thinking of the general defence here—rather than just accidentally turn up as legislative loopholes that have been exploited by lawyers, we will endeavour to keep them in place. I identify that reintroducing the general defence that exists in the current act, for example, into this new act is one of the amendments that we will seek to do. I will talk a little bit more about that in the course of debate.

As to the context—and I just touched on this briefly before—when the current Firearms Act was introduced in 1977, it ran to fewer than 20 pages. In fact, it comprised 19 pages as it was amended in 1991. It was introduced in 1977 and, as it was amended in 1991, it comprised 19 pages. It has expanded to 85 pages and the new bill expands it to 88. This is, as I say, complex, but there are reasons why these things have happened.

The bill has been amended with, I think, some 11 packages of significant amendments over that course of time. All of those amendments have sought to achieve certain public policy aims and certain public policy goals. The purpose of those amendments has been to achieve those goals, such as after the 1996 National Firearms Agreement, which put in place a very broad range of measures, and so our act was amended and so on over the years. At none of those points has there been a suggestion that we stop and contemplate the act as a whole and make it something that is easy or understandable for a non-lawyer, shall we say, to read and interpret and have a credible chance of understanding.

When it comes to an act such as this, where there are so many powers that impact on the legitimate activities of law-abiding firearms owners, for example, or members of the general public, or people who live in the same premises as firearms owners, I think there is a level of ambiguity. I think it is important that people be able to understand the law that applies to them. That is why there is a significant benefit in having an act that is rewritten in its totality with that view. That is why the opposition supports that. Indeed, we indicated before the election that we supported a review of the Firearms Act to see if it could be rewritten in a way that was more understandable and clearer, just as the government did, and this was the purpose of the government.

At the moment, as a result of those 11 changes, the act is ambiguous and complex; it is often difficult to understand, follow and administer; it is deficient and it is antiquated. I think it would be fair to say that all parties that were participating in the stakeholder round tables that the minister organised would broadly agree with that point of view, although it should be noted that consensus on the range of measures that will be necessary to be included in the new act was not achieved.

Many of the details relating to aspects of the act will, of course, be contained in the regulations, perhaps more than the opposition would ideally like to see. As I said, we would like to see things in the act, where possible, but there are places where it is, of course, appropriate that those things be in the regulations. We will see with the amendments where we end up and exactly how much is in the act and how much is in the regulations, but I imagine that most of those things that are currently in regulations will continue to be but, hopefully, it will be in a way that will make sense on a reading of the act.

I note that the minister has announced that a working group to draft the regulations will again include representatives from a range of groups, and it will be chaired by former premier Rob Kerin. I believe that those working groups will seek to do their work over the summer and be ready by early autumn for the act to take effect from 1 July 2016.

I note that, for the sake of completing context, there are 65,473 South Australians holding firearms licences as at September (when I suspect this document was prepared) and there are 309,209 registered firearms in South Australia. I put those figures on the record to identify the impact that the bill we are debating is going to have, and the range of numbers of South Australians upon whom it will impact. Some of the measures have a fairly significant impact, and it is on that basis that we should understand the gravity of some of the measures that are sought to be put in place.

As for a general description of the bill and its measures, I note the minister provided a level of detail in the second reading speech, which is perhaps worth adding a little to. I start by talking about those six goals that he has identified and talk about some of the measures within each of those first. In terms of improving public safety and preventing crime, one of the impacts of the bill is that it creates a regulatory power for the introduction of what is called a security code of practice around storage of firearms and the security required. This is obviously to be identified in the regulations. The security code of practice will be introduced in the regulations and, obviously, the stakeholders and the working groups with Rob Kerin will put these together. We hope that it will be a very positive one that everyone can agree on.

The broad push of the government which the opposition is comfortable with is that security required will reflect the level of risk involved. More guns will need a higher level of security. In relation to public safety notices, which are to be available under the bill to a senior police officer who can serve it on the owner or occupier of a regulated premises (such as a dealership for firearms or firearm range) that will require them to take certain action in relation to whatever the public safety concern is. This may include taking action in relation to certain activities, or closing the premises, or possibly producing items for inspection. A public safety notice may remain in force for up to 72 hours.

In relation to firearms prohibition orders, the registrar may issue a firearms prohibition order against members of criminal organisations or against people who are subject to a control order under the Serious and Organised Crime (Control) Act. Police officers will be permitted to require of a person suspected of being issued with a firearms prohibition order that they provide identifying information about themselves or people with whom they reside and to provide written notice within seven days of a change of address. These endeavours to stamp out bikie gangs and the dreadful criminal activities that they perpetrate are of course important work in protecting the community.

In relation to self-audits, licensed firearm owners or dealers may be required to undertake a self-audit of firearms in their possession at the time of renewing their licence. We will probably get into that a little bit more in the committee stage, but I identify that the purpose obviously is to ensure that, where firearms are missing or stolen, the police are apprised of that, if somehow they were not, so that people have to take responsibility for identifying what they have in their possession. I think some 250 to 300 firearms were stolen—I will just get the exact number.

Mr van Holst Pellekaan: 230 to 250.

Mr GARDNER: There are 230 to 250 firearms stolen each and every year, and that is obviously of some concern. In relation to guns and drugs, under the act there is an aggravated offence for unlicensed possession of a firearm if an unlicensed person commits a drug-related crime. Specific offences against the Controlled Substances Act that would lead to the aggravation will be prescribed by regulation but, in very broad terms, I think it could be characterised as particularly seeking to target criminals using firearms to protect cannabis crops, for example.

In relation to employees of dealers, there will be some disqualifying offences that will render someone unable to be a dealer if they have been convicted of those offences in the last five years. Offences will include indictable offences, offences against the Firearms Act, and other offences may be prescribed by regulations. The registrar will also be given powers to investigate matters relating to whether someone is a fit and proper person to have a firearms licence.

On that matter, I will have a bit more to say because I am not entirely sure that what sounds like a benign sentence is in fact one when one looks at the legislation in practice. The opposition will be opposing clause 54 in the bill. I will talk a bit more about why later but, in short, I think that there are significant powers already existing. Certainly, to have powers available to impose some intrusion on a legitimate, law-abiding, firearm-owning individual when there is no criminal intent established or even suspected, necessarily, is extraordinary.

In relation to red tape reduction, firstly in relation to sound moderators, or silencers as they are more often known, silencers are currently banned outright but, in circumstances where shooters are culling animals close to built environments, for example, I believe that there is some suggestion from the briefings that there may be appropriate circumstances for some silencers to be authorised in some circumstances. We believe that where there are circumstances when that might be appropriate—for example, in relation to the culling of feral pests—there is opportunity for an amendment that will improve the bill, and I will touch on that later.

There is a broader permit scheme introduced in the bill, with new permits to be introduced for foreign firearms dealers, foreign theatrical armourers, to make it easier for people to participate in arms fairs and film, television and theatrical productions. There are to be non-specific permits to acquire firearms. Permits to acquire firearms will become generic, not requiring the specific serial number of the proposed firearm to be acquired to be on the permit, as is currently required. This is an intensely sensible move by the government and I think it will be welcome to many people and I am pleased to see it in there.

The class D and H licence terms will be extended to three years (I think it is one at the moment). When the police have the IT systems that we are very much looking forward to the government delivering for them in, I suppose, the rollout of Project Shield, which we will see over the next five years, I hope firearms will get their software and hardware that will mean that they too can have a late 20th century computer system, rather than a mid-20th century paper-based system. That will make their lives easier and the lives of those seeking to have their licences easier. When that happens my understanding is that those licence terms will be extended to five years.

I believe those IT systems are expected in the next two years. We will be keeping an eye on the government for them. I hope they do roll this out because it is quite important, both from the perspective of reducing red tape for legitimate firearms owners but also from the perspective of ensuring public safety. The thing about the Project Shield computer system is that if somebody does commit an offence, that feeds into the system and then that will immediately be linked to the identification on their licence, so things can be updated in real time. That is why you can have a longer licence term because if there is a problem it can be identified immediately and dealt with.

In overcoming legislative deficiencies, which is the term identified, there are some matters in relation to vicarious liability. It was described in the second reading explanation as:

Inserting vicarious liability provisions which state that company directors and nominees are guilty of offences committed by a company unless proved that the director or nominee could not have reasonably prevented the commission of the principle offence by the company.

I will identify that I suspect we will have some conversation and questions about that in the committee stage to determine what that impact will mean.

In relation to deactivated firearms, currently no registration is needed. It has been argued that the public safety concerns of having no register of deactivated firearms was demonstrated by the case in Queensland where 4,000 deactivated firearms, or so-called deactivated firearms, were reactivated and circulated amongst criminal organisations. The government further argues that South Australia and Western Australia are the only two states where deactivated firearms do not fall within the definition of firearm. This bill requires that deactivated firearms, therefore, be registered. There is to be, I think, a deactivated firearms category of licence.

There are a lot of people in the community who have deactivated firearms who currently do not have a firearms licence. They have never needed one, their firearm is deactivated, whether it be a souvenir of war or a family heirloom. This will have an impact on people. The government has advised that no cost is to apply to the registration if done within the first 12 months of the operation of the new act and that that first registration may be for several years, but after that period it will attract a registration fee or a renewal fee and, obviously, they have to have that licence.

We will be exploring this in the committee stage. We will, potentially, be moving an amendment that will reduce the burden on the owners of deactivated firearms. It is my point of view, and I will get into this a bit further later, but it is the opposition's point of view that these people have done nothing wrong and are doing nothing wrong and that if they have to go to the trouble and expense of registering their heirloom, or indeed it could be an RSL club or a museum that are often holding these items, then that is an imposition by government and it is unclear that there is any public safety benefit, given that if it is a genuinely deactivated firearm then it should pose no further threat.

We will be expecting that if we are supporting the creation of the register, because we do not want to see an outcome like in Queensland, then the burden of compliance must be as minimal as humanly possible on those people, many of them elderly, who are holding those deactivated firearms. I would imagine that if, for example, there is a register of the firearms where somebody has their firearm taken in once and it is certified by police to be a deactivated firearm, I have every faith in our police that they would not give that certification as the firearm is a deactivated firearm, unless it is incapable of being reactivated. We will be introducing an amendment to specifically prohibit the charging of a fee for the registration or licence for the deactivated firearms. I hope the government will consider that.

In relation to regulated imitation firearms, again I will refer to the minister's second reading. The bill will be remodelling the Firearms Regulations to provide clarity regarding the types of imitation firearms falling within the definition of regulated imitation firearms and how those firearms relate to or differ from children's toys and novelty items. I imagine we will get to that in the committee too, but I make the point that this is one where I suspect the work that is done on the regulations will determine its effectiveness or its intrusiveness, so I urge the government to be very careful about the way that those regulations are to be promulgated. I can imagine circumstances where it could be very easily argued that something sounds good on paper but in reality is a bit of a nonsense. I do not think that is what the government is trying to achieve but care will need to be taken.

In relation to transportation, and I think this goes along with the security codes of practice, but there will be a code of practice that will also be in relation to the transportation of firearms and, in fact, the focus will be on reasonable precautions being taken and that will be in the regulations as well. The intent of the government is to make that more easily understood by everybody and where reasonable behaviour takes place, reasonable precautions take place, then people's lives will not be badly impacted, and again public safety will be served better than the current regulations.

Finally in relation to overcoming legislative deficiencies, and I think this would fall into the category of a loophole, prescribed firearms will be excluded from the definition of hand guns, so sawn down long arms will be specifically defined as prescribed firearms and not as hand guns. In relation to the national approach to firearm control, I think there are a couple of aspects that are left over from the 1994 National Firearms Agreement that had never been implemented in South Australia and they are in relation to a genuine reason being required to acquire a firearms licence and a genuine reason and need to acquire a firearm other than a category A firearm.

Again, this is one where I suspect on the face of it it sounds like one thing but we will have to get down to the detail in the committee, and I know a number of members are going to be interested in those matters. There is also to be an information exchange provided for. New provisions in the bill will enable the maintenance and interstate transmission of data between jurisdictions. For increased functionality of the act, to make it simpler there will be a list of disqualifying offences in the regulations relating to firearms licence applications. There will be an ongoing general amnesty from 1 July 2016 for someone who has unauthorised access to a firearm to be able to hand it in at a police station. I note that the government has already announced an amnesty that will operate until 1 July 2016, so in effect this provision is in place from now and publicity has—

The Hon. A. Piccolo interjecting:

Mr GARDNER: From 1 December—and publicity has started so that from 1 December people will be encouraged to undertake this. Its legal application from 1 July next year is a bit different but this is a measure that the opposition thoroughly supports and I think it is going to be quite sensible. There is a general exemption from any provision of the act described in the second reading as:

Enabling the Registrar to exempt a person from a provision of the Act creating significant administrative flexibility of the legislative scheme.

The act is being modernised in several ways. There are three new additional licence categories to be introduced in the regulations, they being: professional shooter, commercial range and shooting gallery. This will replace the current method for such applicants who are currently listed as, 'approved by Registrar'. I note that this one area where I suppose the government has taken on board the philosophical motives that are always put forward by the Liberal Party to put things in the act where possible so that it can be clear and well understood—rather in the regulations than by the decision-maker.

Service of notices by fax and email is to become available as an opt-in system. People are still entitled to receive notice by mail if they prefer. A note for those who do opt in, though, is that service is deemed to have been received once it has been sent by the registrar, so it is important that people bear that in mind. However, I think that is a similar provision to those that appear in any act that deals with a service by email and fax.

I am slightly amused that, at a time when I think half the electorate offices in South Australia and certainly many commercial enterprises in South Australia are getting rid of their fax machines, we are modernising the act to allow service by fax but, as I say, sometimes things move slowly, but at least email is still a communications tool that many people will be using for some time to come.

In relation to expiable offences, expiation notices are to be introduced for minor breaches of regulations. I think it is important to note that the government officers in the briefing assured the opposition that these would never be disqualifying offences, so somebody who takes the opportunity to do the expiation rather than defending themselves in court, is never going to be incentivised in that way to do something that inadvertently disqualifies them from a licence.

It is important from their point of view and obviously it is important from the public safety point of view that we are not offering expiable offences for something that would be so serious as we would want to have them disqualified. That is just plain, sensible legislation and I think it would be welcomed by many law-abiding firearms owners. I certainly get the impression from the briefings that it would be welcomed by police, who will be able to deal with those minor breaches much more easily.

While not separately referenced in the minister's second reading explanation, the briefing provided to the opposition specifically identified a number of areas of red tape production that were applicable specifically to farmers, and referenced a number of issues that had been raised in this context. In particular the opportunity for appropriately licensed farm employees to access a farm safe for joint storage of firearms and for the relaxed regulation of the transportation of loaded firearms when driving between paddocks will, I think, be seen as positive steps by a number of people.

I turn now to some of the other issues that have been raised by stakeholders. I will endeavour not to repeat myself too much but we will see how we go; it is most easily done by going through the bill itself. Starting pretty much at the beginning, in relation to the principles and objects of the act, these are new, and by and large I imagine they are a statement of intent as to how the government wishes the act to be presented.

Having said that there are six main goals sought to be achieved through the introduction of the act, and in particular those four reasons for it that we started with—that the act is ambiguous and complex; difficult to understand, follow and administer; deficient; and antiquated—clearly, not without some reason, the focus of the principles and objects is to show an interest in public safety.

We are all interested in public safety, there is no question about that. But, at the same time, we are also talking about the legitimate activities and interests of over 60,000 South Australians. To be clear, we have an understanding that it is utterly legitimate—it is necessary, I imagine—for most farmers to have firearms on their properties. It would be a cruelty, when you are dealing with a number of animals, not to have the capacity to euthanise with a firearm.

I think that it is also worth stating that sporting shooters are pursuing an entirely legitimate sporting recreational activity. Everyone is happy to celebrate gold medals won at the Olympics by sporting shooters. The correlation of sporting shooters and people with a legitimate firearms interest and crime is very low. They are not people who are by and large undertaking criminal activities.

Public safety needs to be targeted very much at the criminal elements in society. What they can do with firearms is terrible. We need to be focused on achieving that; therefore, the principles and objects of the act should reflect that balance. We believe that improvements are going to be needed.

I will talk about our amendments as I go through my second reading speech, because the casual reader of Hansard who reads a range of bills would know that doing so saves time in the long run because it means I do not have to repeat myself every time we get to the amendments and the third reading. Also, it will enable the government to provide some response in the second reading. For those who are contemplating the debate, they may save themselves some time by just focusing on the second reading speech. Our first amendment is to clause 3(a), which currently reads:

(a) to confirm firearm possession and use as a privilege that is conditional on the overriding need to ensure public safety;

The opposition's view is that a form of words that would more accurately represent the position of the parliament and the balance that I have just described would be to instead have a line that says:

(a) to confirm that firearm possession and use is subject to the overriding need to ensure public safety;

Privilege is a word that is described in many different ways, and it has a number of different meanings. We recognise that the case law currently identifies that 'privilege' is potentially a suitable word for firearms ownership, in the same way that privilege could be a word that is suitable for being able to hold a driver's licence, but nobody is putting into the road rules in the objects of the act the first thing that it is in fact a privilege. It is this emphasis that I think means that many law-abiding firearms owners have found that they are treated somehow differently, as if they are doing something wrong.

It is not just in relation to the word privilege, it is based on a total reading of the principles and objects that identify that, but I would identify the Law Society's comments on the use of the word 'privilege'. I am quoting from the Law Society's President, Rocco Perrotta, who writes:

The prime difficulty is that the word 'privilege' has quite a number of meanings, and so including it in the Bill is likely to lead to confusion, rather than clarity. Ownership of a firearm often meets a sentimental reason, such as the desire to keep a gun once used by a forebear. Further, some people require use of a firearm as a work tool—e.g. vermin hunters, farmers, vets, and knackers (viz. those who take and process injured livestock). It is difficult to see this falling within the definition of 'privilege'.

It may be better to emphasise the serious responsibility invested in persons who possess and use firearms.

I note that, in terms of the legal application of the bill, this is unlikely to change the application of the law, and I think that the government's argument would be the same. The question is whether or not it is appropriate to include something whose impact is largely divisive, rather than something that brings people together and makes them feel like this is an act that appropriately applies to them and that they wish to be a part of. So I encourage the government to contemplate that seriously. As I do our second amendment which goes to the first object of the act which identifies:

(a) to prohibit the possession and use of all automatic and self-loading firearms except in strictly limited circumstances;

To which the opposition proposes in our amendment listed No. 2:

(a) to ensure that the possession and use of automatic and self-loading firearms is permitted only in strictly limited circumstances;

Again, the same legal application, but when a farmer, or one of these other people undertaking legal professions—important professions, professions without which none of us could live, frankly—looks at this act that applies to them and in the very first object sees themselves as being an exception to a prohibition, it is not a message that encourages them to be supportive of the outcomes of the act. We encourage the government to take a look at that amendment and I hope that they will support it.

The third one in relation to the principles and objects of the act is in relation to subclause 2(f) which currently reads:

(f) to prevent or restrict criminal persons or organisations from accessing, possessing or using firearms for criminal purposes;

If this is an intentional doubling up of the word 'criminal', then I would question again whether it is something that is designed to make people feel like this act applies to them, but I would make the point, perhaps grammatically, that I am certain the Speaker would agree with, that repetition and tautology in this way is utterly unnecessary. The act should, in fact, as the Law Society points out, apply to all persons, and if somebody is undertaking criminal activity that also makes them a criminal person, so the use of the first 'criminal' before persons should be removed, and that is our third amendment.

In relation to the definitions, the interpretations in clause 4, there have been an enormous amount of suggestions from stakeholder groups. I do not intend to traverse each and every one. There will be some questions at the committee stage certainly. We have a couple of amendments that I think improve the general meaning of things, but I think 'identifiable' is the problem. We would welcome the minister's reflection on some of these matters.

When one is reading a bill and you are looking at the interpretation phase, it is normal in legislation for interpretations to provide clarity. It is a legal definition to something that is also otherwise understood, but legal clarity in the circumstances as it applies in the bill. What interpretations should not do is describe things under definitions that are not also available in common English. I will use an example where we have amendments listed and that is in relation to ammunition, where there have been some changes since the draft bill, which I welcome. Ammunition is identified under clause 4 of the interpretation and it has four inclusions and five exclusions. The inclusions are:

Ammunition means ammunition suitable for use in a firearm, and includes—

(a) an article consisting of a cartridge case fitted with a live primer and a projectile; and

(b) an article consisting of a cartridge case fitted with a live primer and containing a propelling charge and a projectile; and

(c) live primers, propellants and blank cartridges; and

(d) an article of a kind declared by the regulations to be ammunition,

It does not include inert blank cartridges, inert drill rounds and so forth. The problem is that not all of those things are ammunition. Live primers and propellants, for example, in and of themselves are components in ammunition, to be sure, but they do not comprise ammunition by themselves. Consequently, when it comes to live primers and propellants, the opposition will be seeking to amend that.

We will see what impact that has if the government opposes it. We will contemplate the impact that is going to have on both law enforcement and the everyday lives of those who may hold these items, but I think that, as a general point of principle, it is useful for legislation, and interpretations of the same, to actually reflect the standard use of the English language. There are a number of items, technical in detail, in the definitions that are worthy of consideration and we may look at some others between the houses along those lines.

Further in relation to ammunition, there is one other small amendment that the opposition will be moving in relation to (g), which is the exclusion: 'snap caps or other item designed to fit in the breech for the purpose of preventing damage to the firing pin'. We identify that 'or the chamber' should be added to improve the meaning.

Clause 5 deals with categories and types of firearms, and many of those are reflective of the current arrangements and the opposition, obviously, will be going along with where the current arrangements are reflected, but we would suggest one improvement in relation to definitions of category B firearms, and this will be amendment No. 6 in relation to clause 5, page 12, line 19, subclause (1)(b)(iv). It currently refers to 'double barrel centre fire rifles' that are not designed to hold additional rounds in a magazine as a category B firearm.

The problem is that there are, in fact, other firearms, such as triple-barrelled centrefire rifles, that are not designed to hold additional rounds in a magazine that there are a number of in the community. Some of them are collectors' items but, certainly, some of them have been in use. The opposition will be suggesting that, to ensure that such items are not excluded from the category B firearms and are included in category B firearms instead, that we just replace the word 'double' with 'multiple'.

Amendment No. 7 of the opposition, which also deletes 'double' and substitutes 'multiple', listed on the next page we are withdrawing, and I believe the government will be contemplating an improved form of words for that as well.

In relation to the fit and proper person test, which is clause 7, this is one where a range of stakeholders and members of the community have had some concerns as to how this appears in the act, but I identify that the provisions contained herein are largely the same as currently exist in the act. However, I do bring to the attention of the house that this is a broad set of purposes available to the registrar to judge whether somebody is a fit and proper person. I particularly draw attention to the fact that regard may be had to the reputation, honesty and integrity of the person, close associates of the person and any people with whom the person associates. Subclause (5) says:

A person may be taken not to be a fit and proper person for a purpose under this Act if the person has made a threat of violence, or stated the intention, or sought, to acquire or use a prescribed firearm or any firearm for an unauthorised purpose.

That one is significant because it does not actually require a finding of fact in a court before someone can be considered by the registrar not to be a fit and proper person.

At this stage we not proposing any changes to clause 7; however, I particularly draw attention to this because it impacts on two other amendments that we will be moving later down the track. They are, first, in relation to matters that are reviewable by the South Australian Civil and Administrative Tribunal and the powers that SACAT will have to review it. The opposition contends that when SACAT does review something it should be a full merit-based review where SACAT substitutes itself as the decision maker so that it can ensure that natural justice and procedural fairness are in place and that the categories in the fit and proper person test are not overreached.

Secondly, in relation to clause 54, which gives the registrar those extraordinary and unusual powers I identified before, I think the breadth of the fit and proper person test that already exists under the registrar's discretion surely means that if there is any suspicion of criminal intent or, here, as I say we do not even need a finding of fact, we just need the registrar to decide that a 'person has made a threat of violence, or stated the intention, or sought to acquire or use a prescribed firearm…for an unauthorised purpose,' it is my view, and the opposition's view, that that flexibility renders the government's intended clause 54 utterly irrelevant, utterly unnecessary for the purpose of what it seeks to achieve. If there is a concern the registrar now has that capacity under clause 7.

There is an amendment we are moving to clause 8 which deals with the application of the act. Throughout the act there are restrictions and special treatments of minors. Junior shooters and shooters from the age of 14 to 18, under the supervision prescribed, have a certain capacity, and shooters from the age of 10 to 14 have the capacity to use category A firearms. That may surprise people who are not familiar with firearms, but I encourage them to read the definition of a category A firearm before they get too concerned; we are talking about air guns, paintball firearms and the like.

All of that is well and good. The issue we have is that the bill elsewhere has identified the rules for 10 to 14 year olds, and clause 8(g) then sets the age of 12, not 10. Given that I do not believe that is the government's intent, the opposition will seek to amend that to provide consistency throughout the bill.

There will be some questions, I let the minister know, about matters in clause 9 and, in particular in clause 9(7), which deals with an aggravated offence if it has been proved that the firearm to which the offence relates was 'in the immediate vicinity of ammunition suitable for use in the firearm'. I think we want a little bit more clarity on the meaning of 'immediate vicinity', and perhaps the minister might like to touch on that in his second reading response. That may well assist.

As I have identified, employment of persons by licensed dealers is clause 11. There are extensions in the licence categories in clause 12, and the opposition has an amendment to clause 12(5), which provides that a firearms licence may, if the registrar so determines, indicate the purpose for which a firearm may be possessed under the licence, and indicate that firearms may be possessed under the licence by specifying on the licence document the particular category of firearms. This is another new insertion of the registrar into something that can be quite adequately dealt with under the regulations, so the opposition will be endeavouring to remove the words 'if the registrar so determines' with amendment No. 9. Frankly, they are superfluous.

In relation to the next clause, clause 15, which is on the granting of licences, the opposition's view is that, where an application for a licence is to be refused, it is only fair that the applicant have, within a reasonable time frame, information from the registrar as to that refusal and why. Consequently, clause 15(6) currently states:

If the Registrar refuses an application for renewal of a firearms licence, the Registrar must, by written notice served personally or by registered post on the licensee, notify the licensee of the refusal.

The opposition will be seeking to add the terms, 'within 28 days of the decision to refuse the application'. I neglected to mention before that the minister, his staff and the senior police who provided briefings to the opposition and other members did so readily on numerous occasions. I think we had four or five lengthy briefings over the course of several months; maybe one of them was for less than two hours. I appreciated the time that they provided, as I have appreciated the time of all those stakeholders (whom I will touch on a bit later), who also gave freely of their time to the opposition to assist our understanding of the bill.

For the record, I am not a licensed firearm owner. In my entire life I have shot five bullets from a gun. All of them were at the police academy under the instruction of the fellow who instructs the police cadets. I have come to an understanding of some of these matters in much greater detail in the last two months than in the rest of my life put together, and I am grateful for that.

In that briefing, the question was asked whether written notice within 28 days of the decision to refuse the application was a credible time. The police insisted it was, and I identified that, of course, if there was ever a problem with the backup of paperwork, then we would be keeping an eye on the government and encouraging them to provide the necessary resources to the firearms branch to help keep that under control. I indicate to the police officers, as they would know, that they can always come to the opposition when there are problems with what the government provides and let us know about those details. We would be pleased to have a chat.

The next significant matter in the bill is in relation to clause 20—Variation, cancellation and suspension of licences. We will talk a little bit perhaps in committee. I had hoped that we might have been able to do something about the section where the registrar might be able to suspend the licence of somebody, if perhaps they are being investigated for a matter, because it is an open-ended time period.

I note, of course, that as a result of the Attorney-General's abject failure to deal in a reasonable way with our court system over the last 13 years, and the extraordinary problems created by the lack of courtrooms and the government's failure to deliver a new court precinct, a huge number of court cases take a lot longer than you would hope they would. The opposition is determined not to seek the initial time-limiting amendment that we were going to in relation to allowing the registrar to suspend licence pending investigations of that nature, because frankly, with so many of these cases taking more than six months just to get through the court system, I think that it would provide a disincentive for the registrar to use that provision. The registrar might have an incentive to try to use a more heavy-handed provision that might remove somebody's licence rather than suspending. I note that that is something that impacts on people's lives, not as a result of things being done by this minister but by the failings of another minister in this place.

The next measures deal with trafficking of firearms, which of course is a grievous and serious offence, and one where the opposition has agreed with the government in recent weeks on highlighting the grievousness of the offences, especially when you have extraordinary negative consequences, such as in the Humbles case and the death of Lewis McPherson. The opposition stands with the government on matters to do with the trafficking of firearms.

In relation to that matter, which was dealt with in another bill but is relevant to the trafficking clause in this one, I note that from some of the correspondence we received and a number of the conversations I have had with law-abiding firearms owners in the community there is a suggestion amongst some that somebody who sells a gun to somebody that is then later used in the crime might become liable to the sentence for that crime. It is important to understand, and I reiterate to the casual reader of Hansard and anybody who is dealing with their constituents, that that is just not the case.

If you sell a gun lawfully, then you sell a gun lawfully. If you traffic a gun, that means that you are selling a gun to somebody who does not have a licence, or you are selling an illegal weapon. That in itself is a very serious offence; I think, depending on the nature of the trafficking, that we are talking about 15 or 20-year sentences for that offence alone. If that gun is then used in a crime, such as in the shocking and dreadful case resulting in the death of Lewis McPherson, then you are liable, if you have trafficked that gun, but if you have been a legitimate actor in the transfer of a weapon, then you will never be caught by those provisions because you have not trafficked a firearm. It is important that members of the community be assured that is the case.

Clause 31 deals with of acquisition and possession of ammunition. The opposition seeks to introduce some clarity here. It is it largely a clear clause, but I note that the only references in the existing clause to minors are at subclauses (10) and (11). They are currently say:

(10) Despite anything in this section, a person aged under 18 years must not purchase or own ammunition.

It then gives a penalty. Subclause (11) states:

(11) A person who sells ammunition to a person under 18 years is guilty of an offence.

Subclause (12) identifies a penalty for that as well. They are the only references specifically to minors in clause 31.

A casual reader of the bill, who does not notice a couple of other clauses, might think that that means that a minor is excluded from being able to go to a shooting range or a gun club and be provided with ammunition. Through discussions with the drafters of the legislation, it is clear that that is not the intent and it is not the application either. I draw members' attention in particular to clause 31(2)(b), which provides that this subclause does not apply to the acquisition of ammunition by a member of a shooting club from the club. I believe that their understanding is that that includes minors when they are members of a club, or (c):

(c) the acquisition of ammunition from a shooting club by a visitor to the club...

That also can include minors, who are therefore entitled to be supplied with ammunition, so long as it is to be used at the time, and the offence is for a minor to own or be sold ammunition because minors are not supposed to. They can be supplied with ammunition for use at the range.

Further, I would draw the attention of anybody who is concerned about this area to clause 8(g), which deals with junior shooters on the grounds of a shooting club. To be very clear, clause 8(2) says:

(2) Subject to subsection (3), this Act does not apply to...

(g) (junior shooters on grounds of shooting club)…

It talks about how, if the person is a member of that shooting club and 'under the continuous supervision of, a recognised coach who holds a firearms licence authorising the possession of the firearm for the purposes for the purpose for which it is being used' then they are fine.

However, for the casual reader of the bill it is not clear, so the opposition is moving amendments Nos 12, 13 and 14 to seek to provide that clarity. I hope that the government will support them because, in providing that clarity, I think that will provide a lot of comfort to people who might otherwise be concerned. The amendments will not change the government's legislative intent but will clarify it. In all of them, we are seeking to add after clauses 31(2)(a), 31(2)(b) and 31(2)(c) a line that says, 'Including subject to subsection (10) where that visitor is under the age of 18 years', making it very clear that junior shooters are not going to be impacted here.

In relation to clause 32, which has to do with permits to possess ammunition, there is, it would seem, a new power being given to the registrar over and above what currently exists under the act. I identify it to the minister. He can deal with it in the second reading response or we can deal with it in the committee stage. Clause 32(8)(b), reads:

A permit to possess ammunition is subject to—

(a) any limitations or conditions prescribed by the regulations; and

(b) any limitations or conditions imposed by the Registrar.

Given that (a) is a regulation-making power and that (b) gives further power on top of the regulation-making power to the decision-maker himself, I invite the minister to comment in the second reading response or, indeed, in the committee stage on what impact it would have if (b) was not there and we dealt with this by regulation because, as I have said, it is a legislative tool and generally we prefer to have things clear in the regulations so that they can be understood by everyone rather than just looking at a decision-maker. That said, I do not intend to move any amendments on this matter. I am interested, however, for the sake of clarity, in a better understanding for the parliament of the importance, as the government sees it, of clause 32(8)(b).

Moving on (and we are more than halfway through the bill), clause 39 deals with the possession of sound moderators and certain parts of firearms. Sound moderators have been identified, as I said earlier, for the culling of pests in built-up urban areas. I think it would be useful, and the opposition thinks it would be useful, to clarify that through an explicit mention in the bill. We have suggested amendments, and I look forward to the government's consideration of the same, and amendment No. 16 is to that end.

If amendment No. 16 is successful, we are also looking at section 18, which would include the explicit description of culling feral pests as one of those matters that can be reviewable by SACAT. I identify that, if the amendment is not successful, we will not be pursing amendment No. 18 because, frankly, I am concerned that, unless amendment No. 16 is successful in providing that specific reference to culling feral pests as being the purpose of the sound moderator, I think that amendment No. 18 would invite far too many claims upon the time of SACAT with no obvious benefit.

Moving further on to clause 47, which deals with the review by the tribunal, the opposition's view is that those decisions that are reviewable by the tribunal should be somewhat expanded. I would like to see that expanded through the proposed amendment to include 'the refusal or approval of a person as a company's principal or secondary nominee to revoke such an approval'. I invite the minister to identify further things that might be dealt with in the regulations

We also think that, in the case of non-recognition or revocation of recognition of a firearms club, commercial range operator or a paint ball operator or the non-approval or revocation of approval on the grounds of a recognised firearms club, recognised paint ball operator or a recognised commercial range operator, those matters should be reviewable by a tribunal too, but I note that they are not referenced in the act, but they will be referenced in regulations, so they will come under paragraph (g), which is, 'a person aggrieved by the decision of the Registrar declared to be reviewable by regulations made for the purposes of this section may apply to the Tribunal.'

They will come under paragraph (g) which is that a person aggrieved by a decision of the registrar, declared to be reviewable by regulations made for the purposes of this section, may apply to the tribunal. I will be hoping that the minister can identify that those other two matters in relation to firearms, clubs, commercial range operators and paintball operators, will also be reviewable decisions under the regulation-making powers. I think that would be very useful.

A further amendment in relation to clause 48 is amendment No. 19. This is important and is in relation to the South Australian Civil and Administrative Tribunal Act. The opposition believes that it should be a full merits-based review when the SACAT contemplates these matters. If the bill passes as it is, then I will acknowledge that it is not just a process-based review, so it is not just the SACAT ticking off that the i's were dotted and the t's were crossed and the processes applied. However, if somebody does have a grievance and they take it to the SACAT, then the opposition believes that the SACAT should review it as if it is reviewing the matter afresh. I believe that the legal term is de novo.

Under the current SACAT Act, section 34(4) identifies that on a rehearing the tribunal must reach the correct or preferable decision but in doing so must have regard to or give appropriate weight to the decision of the original decision-maker. It is possible that under that section it is certainly something that can provide an outcome, a route of appeal for an aggrieved person who feels that they have not been dealt with appropriately; however, it is suboptimal to what the opposition proposes.

To think of it football terms, for somebody who is unfamiliar with the de novo or the SACAT or any of these other terms, if somebody under the AFL's current system was to kick a goal that maybe just scraped the post and the goal umpire makes a decision—and they have a review of that these days—the goal umpire's decision pretty much stands unless the review makes it quite clear that definitely the decision was wrong.

What would be preferable to many people sitting at home, if you are going to have a review at all, is to say, 'Well if you are going to have a review, then let's make the reviewer make the decision.' It's not an entirely perfect analogy. The fact is that the SACAT does not just assume that the question is right unless they can prove it is wrong, but it is a part merit-based review; it is not a whole merit-based review, which is what the opposition proposes. We would like to see the SACAT given that power, and consequently amendment No. 19 is proposed and I urge the government to give it serious consideration. If you are going to have a reviewing body, then I do not think there is any reason not to have that reviewing body capable of doing a proper review.

Clause 54 is the Power of registrar to investigate—and this is where the opposition has significant concerns. It states:

The Registrar, or a person authorised by the Registrar, may, for the purpose of determining whether a person should be granted, or continue to hold, a licence, permit, authorisation or approval under this Act, or whether a licence, permit, authorisation or approval under this Act should be varied—

The registrar may require a person to do one or more of the following: to answer questions and to be present to attend at a specified place and time as reasonably required by the registrar. 'Reasonably required' is not defined, it is up to somebody to appeal to a court and have a court uphold their opinion. The registrar may also require a person to provide information or produce material for inspection the registrar reasonably requires.

Under subclause (5) their common law right to silence, their common law right not to incriminate themselves is removed. Paragraph (b) states, 'at any reasonable time'—and, again, 'reasonable' is not defined, it is up to a court to make that decision if somebody is aggrieved—'enter and inspect any premises'. A warrant is required under subclause (3) for residential premises but a property or business at any time. Those who are in farming communities would identify with the extraordinary imposition that can have on people in their general business and the general course of their lives, not while they are conducting business necessarily. Then subclause (1)(c) is in addition to answering questions, being present with the right to silence removed, with the imposition of people being able to enter their property at any reasonable time with an undefined reasonable test. Also paragraph (c) identifies that while on premises entered they can seize anything found on the premises that the registrar or other person acting under this section reasonably believes may assist in making the determination.

What an extraordinary new set of powers that is, especially when one considers that no criminal intent, no criminal involvement, no criminal suspicion even has to be entered into, and our South Australian police have, of course, under their general warrant, a unique opportunity, if there is suspicion of criminal involvement, to investigate such matters now, yet we are seeking to impose this on 65,000 South Australians who are required to do nothing more to make themselves susceptible to this section of the act than apply for a renewal of their licence, or apply for a renewal of a permit, or an authorisation.

So, any licensed firearm owner, just by merit of the fact that they are a licensed firearm owner who has done nothing wrong becomes subject to this extraordinary expansion of powers of intrusion of the state in their lives, and the opposition will not stand for it and the opposition will not support it. If there are reasons to establish that extremely broad frame of reference for a fit and proper person to be established that we discussed earlier, if there are reasons why there are matters that the police need to do extra things to establish that somebody fits within that extremely broad range of things they can exclude from somebody from being a fit and proper person, if the government can demonstrate reasons, maybe come and explain why they need more than just the general warrant they have or the general investigative powers that they currently have. It is very hard to understand what this clause is seeking to achieve and the opposition will not support it.

The next clause talks about the power of a police officer to require information, and I come back to the point I made at the beginning of the speech; that is, the opposition will not be seeking to scale back public safety measures that are already in place. There is an unusual power in relation to firearms in the Firearms Act that does not exist in most areas in relation to self-incrimination, some very specific questions that police can compel an answer to now, and the answer to that is only capable of incriminating somebody under this section of the act.

Effectively, if you tell them that you do not want to answer the question the crime is that you have refused to state your name and whether you are the owner of a firearm. A police officer can ask that under section 30, I think, of the current act. The opposition will stand by that continuing to be the case. As I say, we are not seeking to scale anything back. In this section, the government has seen fit to attempt to expand that power somewhat, firstly by adding the terms 'firearm' or 'firearm-related item', whereas at the moment it is just 'firearm'.

For the record, a firearm-related item is firearm part, sound moderator, ammunition or a restricted firearm mechanism. Effectively, we are talking about a semantic increase in the range. 'Is this silencer yours?' is a question that the police can now ask under this bill, rather than just, 'Is this firearm yours as well?'

Inasmuch as in clause 55(2)(b)(ii) and (iii), where the only change is to allow firearm-related items to be inquired upon in addition to firearms, that appears on its face reasonable. The issue the opposition has with this clause is in 55(2)(b)(i), where a police officer may require:

(b) the owner of a firearm or firearm related item to answer questions relating to—

(i) the firearm or firearm related item;

That is very broad, that is extraordinarily broad. It is a significant increase in the number of things that the police officer may compel a question of while abrogating somebody's common law rights to the right of silence. So, the opposition will not support that subclause.

After clause 74, the opposition proposes reintroducing the general defence in the same terms that exist under the current act. New clause 74A would read:

General defence

It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid commission of the offence.

As I said earlier, that is something that exists in the current act. It is a natural justice mechanism that is important, and the opposition will be seeking to support it and working very hard to ensure that that clause is included in the new act.

The final amendment that the opposition will seek to move is in relation to schedule 1, clause 29, page 84 after line 21, and that is the particular case that I spoke about before in relation to deactivated firearms. We will not be standing for those people who have a deactivated firearm not only having the imposition on their lives of having to have them registered but also the cost. We will be demanding that they have no cost that will apply to them.

The opposition will be open to further amendments and further discussions. The government, I imagine, given the 88 pages of technical, complex, dense legislation, will probably have some amendments of their own. In fact, one came out of a discussion with the government about a concern the opposition had where the government had a suggestion that I think will be useful in relation to the multiple-barrelled guns that I identified before. I expect there will be others.

I think that the suggestions that are put forward in the amendments have been done so in a respectful manner, and I have appreciated the respectful manner in which the government has engaged the opposition. We seek to improve public safety, and we seek to reduce complication and ambiguity that impacts unfavourably on the lives of law-abiding firearms owners. Those are the stated goals of the government, too, and with good faith, I would hope that they will look at the amendments that I have outlined already and support many of them.

Some of those aspects we will need to go into in greater detail. There are significant matters in relation to items that are currently not described as firearms, by nature of the fact that they are not handheld, that are often dealt with in historical exhibitions through RSLs or museums, and that, under the changes in this legislation, will now be described as firearms and requiring regulation. A number of my colleagues will deal with some of the matters raised by historical firearms clubs, and we will explore that further in committee.

With the hour about to close, and given the parliament does not sit past midnight these days, I will conclude my second reading contribution here, identifying that there are some matters that did not quite make it into the second reading speech that we will be raising in the committee stage. I again place on the record my thanks to the very large number of stakeholders, groups such as the Combined Firearms Council, the Sporting Shooters' Association and the very many other clubs, groups and representative groups that have made contributions. I have read through all of their correspondence.

I have taken dozens and dozens of meetings, as have other members of the opposition, and we will endeavour to work with the government and the other parties in the other place to achieve a piece of legislation that fulfils the laudable goals suggested. That does not give the government a blank cheque. We trust that they, in seeking to enact those goals, will work with the opposition with respect so, therefore, I commend the government to that process. We will see the passage of the bill through the House of Assembly. Hopefully, the government will support many of the amendments, if not all, and, through the Legislative Council, we will resolve a position where the bill will be in better shape and worthy of full support.

Debate adjourned on motion of Mr Pederick.


At 00:00 the house adjourned until Thursday 29 October 2015 at 10:30.


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