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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-10-14 Daily Xml
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Statutes Amendment (Firearms Offences) Bill

Committee Stage

In committee.

(Continued from 24 September 2015.)

Clause 2.

The Hon. J.R. RAU: The point at which we left off was where we had been discussing John, Paul, George and Ringo in an example.

The CHAIR: Member for Morialta, do you have a question on clause 2?

Mr GARDNER: Yes, I do. The Attorney will appreciate that I have not done a lot of these committee stages, so I seek his indulgence if the question is an unusual one. I am interested to know that if the passage of this legislation, which I imagine there is a reasonable chance will conclude in the house this afternoon, and then the council will consider it in their own way, does happen by the end of November, what is the expectation of the government—is the date to be fixed by proclamation the date on which it will be done immediately? Are the regulations ready? When does the Attorney expect that the timing will be taking place? When will the bill commence and come into effect?

The Hon. J.R. RAU: I thank the honourable member for his question. As far as I am concerned, it would be in everyone's interest if we proceeded with getting on with the matter as quickly as possible. I do not believe that there is any lengthy period of consideration required for SAPOL or anybody else in this. They would be made aware of the change in the law and adjust their investigation processes accordingly. If we could get the thing through this year, I would be hopeful that it would be in force before the end of the year, or by 1 January, something of that nature.

Clause passed.

Clause 3 passed.

Clause 4.

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

Amendment No 1 [AG–1]—

Page 2, lines 19 and 20 [clause 4, inserted section 267AA(1)(b)]—Delete 'of an offence against this Act (the subsequent offence); and' and substitute 'of—'

(i) an offence against this Act; or

(ii) an offence under the law of another jurisdiction consisting of conduct that would, if engaged in this State, be an offence against this Act,

(the subsequent offence); and

Mr GARDNER: The amendment strikes one as sensible. If you are supporting the bill, the amendment seems sensible.

The Hon. J.R. RAU: Perhaps I should put on the record exactly what the amendment means. I do appreciate the opposition supporting it but, for the sake of those people out there at home who are poring over the pages of Hansard in weeks to come, it would probably be useful to put it on the record.

The amendment is designed to ensure that the scope of the policy of the bill is not confined to subsequent offences committed within the territorial borders of South Australia but extends to offences equivalent to South Australian offences committed interstate. The amendment was suggested by the Commissioner of Police, and I agree with the idea.

I want to make it clear that a subsequent offence for the purpose of 'criminal liability' is equivalent to the interstate offence actually committed and not equivalent to the corresponding South Australian offence not committed. So, if the gun is used to commit a bank robbery in Victoria, the subsequent offence is equivalent to the Victorian offence, whatever the exposure to liability might be, and not a South Australian robbery offence.

Amendment carried.

Mr GARDNER: Can I briefly indicate in my preamble to my question that, in the course of my second reading speech, I put a great many questions and thank the Attorney for seeking to provide responses to a number of them in his second reading response. What I had expected would be a longer series of questions in committee the Attorney has essentially curtailed by providing some response already. I am hopeful that the bill will survive any consideration by legal challenge but, again, in the second reading we put on the record the concerns that the Law Society, for example, had about the same and the Attorney provided his alternative view.

In relation to clause 4—I do not have it consolidated with the amendments so I assume it is the same still—subsection (1) talks about the penalty for the derivative liability and it is identified that the penalty is imprisonment for a term not exceeding the maximum term that may be imposed for the subsequent offence. A subsequent offence is, of course, the murder conviction or the manslaughter or the other related conviction. I wish to seek clarification from the Attorney whether the penalty will be the same penalty applied for the subsequent offence or an alternative penalty of up to that level which is to be applied by the judge at the time of sentencing for the serious firearms offence.

The Hon. J.R. RAU: I am advised the answer to that is the latter of the two alternatives.

Mr GARDNER: If the conviction for the serious firearms offence, which may be a penalty of seven years or 15 years, takes place prior to a conviction being attained for the subsequent offence, being the manslaughter or the murder, how is the derivative liability penalty to be arrived at? Is it the judge in the subsequent case who has, for example, provided the sentence for the manslaughter or the murder who at that time provides this extra sentence to the firearms offender, or do you bring back the original court that heard the firearms case?

The Hon. J.R. RAU: I will be gratefully corrected if this is not an accurate answer but my understanding of the matter is this. An offender is convicted of a firearms offence of some description by judge A—

Mr Gardner: A serious firearms offence.

The Hon. J.R. RAU: A serious firearms offence, by judge A. They are sentenced to whatever. Subsequently, one of the people to whom they have supplied a weapon commits another offence.

Mr Gardner: Illegally supplied the weapon?

The Hon. J.R. RAU: Correct, yes, and let's say they commit a murder. That second defendant is then put to trial and judge B sentences that second defendant. At the moment that the authorities become aware that this second accused, or defendant, has been convicted of the offence and the connection between the provision of the firearm used in that offence and the first offender, the first offender, who is by that stage already in gaol, would be then charged with a new offence, which is the derivative offence, and then there is a trial which may be heard by any judge, not necessarily judge A or B because judge B (a hypothetical now) might even be living in Victoria or New South Wales.

Mr GARDNER: Just to conclude for the sake of clarity: if the murder conviction were to come first and then subsequently the person is charged with a serious firearms offence and it is identified that the firearm in question was illegally provided to the person who committed the murder, would the derivative offence be done in the course of the same trial with the murder conviction already having been attained?

The Hon. J.R. RAU: This comes down to a matter of an exercise of discretion by the trial judge as to whether or not it is appropriate for a joinder of those proceedings to be dealt with as a single bundle, or whether the consequence of so doing is so unduly prejudicial to one or other of the defendants that they should travel separately.

Clause as amended passed.

Remaining clause (5) and title passed.

Bill reported with amendment.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (17:17): I move:

That this bill be now read a third time.

I thank everybody who has contributed to this and I thank the opposition for their support. I indicate that it has just been conveyed to me that this matter has, since the last time we were here, been the subject of conversation with the Solicitor-General who has confirmed his view that there is no constitutional issue associated with this matter.

Mr Gardner: Which is the same as your view.

The Hon. J.R. RAU: Which actually corresponds with mine.

Bill read a third time and passed.

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