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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Firearms (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 September 2021.)

Mr ODENWALDER (Elizabeth) (11:05): I rise to speak on the Firearms (Miscellaneous) Amendment Bill 2021. I will not keep the house in suspense: I indicate from the outset that the opposition will support this bill in the House of Assembly. I thought I might outline a little about Labor's approach, since this is the first time I think we have met and opened up the Firearms Act in this session of parliament.

I thought I would put on the record, first, the Labor Party's position generally on firearms, so that no-one has any doubt. It is our position that of course public safety, the safety of the community, is absolutely paramount. Any law changes or any rejection of law changes comes on the back of that one principle: public safety.

Having said that, we are not religiously averse to the legitimate use of firearms. There are thousands and thousands of people in this state who enjoy the use of firearms for sporting or hunting purposes and for legitimate uses such as police, security officers and so on. None of those things would come under threat by this parliament while this opposition is here, or while we are in government, unless of course it offends that first principle of public safety, which remains paramount.

I am pleased to speak on this bill and I am pleased to support it. It arises out of two events or two sets of circumstances, the first being the coronial inquest into the murder of Lewis McPherson in 2012. The second lot of amendments arise from the National Firearms Agreement, which all the states are either in the process of signing up to or will sign up to at some point, I am sure.

I might just read a little from the inquest, which lays out the reasons for some of the amendments in this bill, which relate generally to public safety, particularly the safety of young people in this state. We are seeing more and more news events of people, particularly young people, engaging in violent acts, particularly with knives but also occasionally with firearms. We are seeing this more and more, and we are also seeing, sadly, young people arming themselves in the event that they themselves get attacked, so there is a kind of arms race we are seeing going on in terms of weapons.

This is one measure I am happy to support, which might go some way to addressing that. I will advise the house of the beginning of the finding of inquest into the death of Lewis McPherson:

Lewis Mike McPherson was 18 years of age when he met his death on the evening of 31 December 2012. As he walked with his two male companions in Sixth Avenue, Warradale he was shot once to the chest with a projectile from a small calibre handgun. People in the street rendered assistance. Ambulance officers arrived at the scene. By then Lewis McPherson was unresponsive, with absent pulse and respirations. Resuscitative measures were administered at the scene by ambulance officers. He was transported to the Flinders Medical Centre Emergency Department where resuscitation efforts continued but which were ultimately unsuccessful. Lewis McPherson's life was certified extinct at 8.50pm that evening.

Autopsy findings supported the clinical view that death had resulted from uncontrolled haemorrhage as the result of gunshot injuries to the lungs.

I will not go into the injuries. I continue:

The person who inflicted the fatal gunshot wound was Liam Patrick Humbles who at that time was 17 years of age. Although Humbles and Lewis McPherson were known to each other at the time, there was no evidence that there was any animosity between them. The same applies in respect of Lewis McPherson's two friends who were with him at the time of the shooting.

That evening, which was New Year's Eve, Humbles had been at [an address] along with a number of other youths. During the course of that day those present at that address, including Humbles, had consumed alcoholic beverages in significant quantities. Cannabis had also been smoked. Humbles in particular was intoxicated during that day and evening having consumed alcohol, cannabis and MDMA...

This is the important point:

The gun and ammunition that he would use to shoot and kill Lewis McPherson had been in his possession for some time. As a person under the age of 18, he was not lawfully permitted to possess the firearm. Prior to the shooting Humbles had irresponsibly caused the weapon to discharge on two occasions of which the Court is aware, one time in a public park and the other inside a house.

Then it goes on at quite extensive length to detail Humbles' addiction and mental health issues, which I will not go into here.

The salient point of the inquest in this regard, and in regard to this bill, is the age of the offender. He clearly had ready access to a firearm at an age of 17 or younger. As always, the law is at a loss really to see what we can about these things. All we can do is try to tighten up the regulations around these things and perhaps increase penalties where we can in an effort to inform the community and to discourage the community from any of this type of unlawful activity.

Importantly, the bill amends section 22 of the Firearms Act by imposing greater penalties for aggravated offences. It redefines an aggravated offence as circumstances in which it has been proven that the person to whom the firearm was supplied was a person under the age of 18 years.

As always with these aggravated offences, this is a relatively minor change. If you understand anything about the criminal mindset, they are largely undeterred by slightly increased penalties for offences that take place in the course of their businesses, but we do what we can. I think this bill does try, so I am happy to support that provision. We do not want to see any more firearms unlawfully in the community and we certainly do not want to see firearms unlawfully in the hands of young people.

The inquest goes on to make several recommendations and another of them is enacted by this bill. The bill introduces a requirement upon a court to impose cumulative sentences for certain offences relating to the unlawful possession—and I stress unlawful possession—use and acquisition of firearms or ammunition.

Currently, I am told, and as is generally the case in the law, sentences are served concurrently. For instance, and to put it very simply, if someone is discovered with one illegal firearm, they are sentenced to a certain penalty. If another person is caught with 10 or 15 illegal firearms, generally speaking, while you would expect the head sentence to be higher, those offences are not dealt with concurrently.

This bill makes the fairly simple and I think fairly sensible amendment that sentences should be served cumulatively for the possession of each firearm, as I understand it. The minister can correct me if I am wrong, but it is a sentence for each possession offence. Of course, this does get complicated by definitions of firearms.

We have heard many instances—I will not reopen this debate here and now—of persons arrested for or charged with possession of a deadly firearm and then also charged with possession of a gel blaster, which now is defined as a firearm. So, you may have a situation where you have a cumulative sentence and the sentence for the initial deadly firearm is dwarfed by the cumulative sentences for the gel blasters. Be that as it may, I think this is a good step forward. I think that possession of any illegal firearms in the community should be punished and punished with whatever force we can apply.

The final thing this bill does—again, the minister can correct me if I am wrong; there will be a short committee stage—is reclassify lever action shotguns entirely. Those with a capacity of five rounds or less will be category B firearms, and those with capacity of more than five rounds will be category D firearms. I am told they are all currently classed as category A firearms.

This is important because once you have a category A firearms licence, as I understand it, the test to then purchase and register firearms is reasonably low. It is stringent, obviously, and thank goodness we have tight controls over firearms in this state and in this country. I am advised by the police that the tests to register a category B firearm or a category D firearm—the fit and proper person test and the reason for use test—are far more stringent. I am advised that this basically puts lever action shotguns in the same category as pump action shotguns.

We all understand what a pump action shotgun is, and I am advised by the police again that the essential function of a lever action firearm is similar to a pump action firearm. I will be asking a couple of questions about that in committee just so that we all understand what we are talking about when we talk about these two different types of firearms. If I did not mention it before, this was not a recommendation of the inquest into Lewis McPherson but part of a national firearms agreement.

With those few words, I do support this bill and I indicate the opposition does support this bill in the House of Assembly. I hope it goes some way to making firearms more difficult to get, particularly for young people. I also want to reiterate to those people who were consulted during the course of this bill—and I understand there has been considerable consultation—and to reassure the legitimate and law-abiding firearms community, that the opposition support these measures because they believe that they are in the interests of public safety, and we will always put public safety first.

Mr PEDERICK (Hammond) (11:16): I rise to support the Firearms (Miscellaneous) Amendment Bill 2021. Coming off the land, like a lot of others, I like to own some firearms for vermin control. They are a practical part of the agriculture and farming community. I have a Harrington and Richardson single shot .410 shotgun—a very handy little piece—and I have had for quite a few years a Remington 870 magnum pump action shotgun, which you can only own under a C-class category. You have to have primary production land to own that. In the last couple of years, I have purchased a Remington .22 bolt action with a 10-shot magazine capability. They are very much part of the tools of trade of running agricultural properties, and most landowners would have a form of firearm.

In regard to what we are discussing here today, this is part of the coronial inquest into the very sad death of Mr Lewis McPherson back in 2012 in very tragic circumstances, as described by the member for Elizabeth. In 2017, Deputy State Coroner, Anthony Schapel, released his findings of that coronial inquest into the death of Mr Lewis McPherson and made 17 recommendations. In recommendation 8, the Deputy State Coroner recommended that a person who supplies a firearm to a person under 18 years of age be subject to greater penalties than provided for under the Firearms Act 2015 in South Australia (the act).

In recommendation 9, the Deputy State Coroner recommended that a person convicted both of unlawfully supplying ammunition and unlawfully supplying a firearm be required to serve the sentences of imprisonment for both offences cumulatively rather than concurrently.

In regard to recommendation 10, the Deputy State Coroner recommended that a person convicted of both unlawfully possessing ammunition and unlawfully possessing a firearm be required to serve the sentences of imprisonment for both offences cumulatively rather than concurrently.

In regard to the Council of Australian Governments (COAG) agreement on lever action shotguns, between 2015 and 2017 the National Firearms Agreement (NFA) was reviewed, updated and endorsed by COAG, with all states and territories committing to enacting the legislative updates. As part of the review, COAG agreed to recategorise lever action shotguns based on the availability of magazine capacities exceeding five rounds.

COAG recognised particular concerns with the recently developed—and it has been around a few years—Adler A110 lever action shotgun, which is manufactured with a magazine capacity of either five or seven rounds. I have seen one of these at a field day with a legal capacity of, I think it was, 13 rounds in an extended magazine. The Adler A110 and other lever action shotguns with similar capacity and rapid firing capabilities result in the firearm having a similar operating capacity to category D firearms, such as pump action shotguns.

Currently, section 5 of the act recognises lever action shotguns as category A firearms, regardless of their magazine capacity. Category A firearms are the most prevalent and accessible firearms in South Australia, as licensees are not required to establish a genuine need for their acquisition.

In regard to discussion around this legislation, the Firearms (Miscellaneous) Amendment Bill 2021, this bill does deliver on recommendations 8 to 10 of the coronial inquest into the very tragic death of Mr Lewis McPherson and recategorises lever action shotguns in accordance with the national agreement made by COAG.

In regard to the McPherson coronial inquest, to address recommendation 8 the bill amends section 22(10) of the act by introducing tougher penalties for the offence of trafficking in firearms where it is proved the offence was committed with aggravating factors. The penalties for an aggravated offence will be as follows: if the firearm is a prescribed firearm or a category C, D or H firearm, $100,000 or imprisonment for 20 years; if the firearm is a category A or B firearm, $50,000 penalty or imprisonment for 10 years.

The penalties for non-aggravated offences will remain as follows: if the firearm is a prescribed firearm, $75,000 or imprisonment for 15 years; if the firearm is a category C, D or H firearm, $50,000 or imprisonment for 10 years; if the firearm is any other category of firearm, $35,000 or imprisonment for seven years. The bill inserts a new section 22(14) to prescribe that an offence of trafficking in firearms will be an aggravated offence if it is proved the firearm was supplied to a person under the age of 18 years.

In regard to addressing recommendations 9 and 10, the bill inserts new section 66A, which prescribes that a court must make any sentences of imprisonment cumulative if a person is convicted of both unlawfully supplying ammunition and unlawfully supplying a firearm or of both unlawfully possessing ammunition and unlawfully possessing a firearm.

In regard to the Council of Australian Governments agreement in regard to lever action shotguns, to implement the updated National Firearms Agreement as agreed to by all states and territories, the bill amends section 5 of the act to recategorise lever action shotguns as follows: lever action shotguns that have a magazine capacity of five rounds or less will become a category B firearm, and lever action shotguns that have a magazine capacity of more than five rounds will be a category D firearm.

Importantly, schedule 1 of the bill provides for transitional arrangements so that those who currently lawfully possess lever action shotguns are permitted to continue to possess their firearm. I think that is important as part of the transitional arrangements until the appropriate time when those licences can be updated, because obviously the shotguns are owned by people who are legal gun owners at the moment.

In relation to the consultation in regard to the changes contained in the bill, SAPOL engaged with firearms dealers, industry representatives and other stakeholders on these amendments and has received broad support. I note that Mr Mark and Mrs Kim McPherson, the parents of Mr Lewis McPherson, have also been consulted and are supportive of the amendments.

It is timely that we are getting on with this. The Coroner's inquiry, the legislative framework and the consultation all take time, but we are here today to make real change and get these licences updated so that we get the appropriate outcomes for the community. I support the bill.

The Hon. V.A. TARZIA (Hartley—Minister for Police, Emergency Services and Correctional Services) (11:26): I would like to thank members on both sides of the house for their support for what is a very important legislative change in the firearms space. I would also like to thank the stakeholders for having their say. This reform has been long overdue and I think it will go a long way towards increased firearm safety in this state. I commend the bill to the house.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr ODENWALDER: I open by thanking the minister and his advisers and indeed SAPOL for the depth of information they were willing to provide in terms of this bill. I know the McPherson family is supportive and very keen to see these changes passed, and we certainly do not want to stand in their way.

I have some questions about consultation. Could the minister tell me—and I think I know the answer to the first part of this question—if the Sporting Shooters' Association and the Shooters Union were consulted on the content of this bill, whether they were supportive and, if they provided written submissions, what their submissions were to the bill?

The Hon. V.A. TARZIA: I thank the member for the question. Consultation was quite significant. It was a significant process and it was managed by SAPOL in relation to these various amendments. The stakeholders consulted included the Sporting Shooters' Association of Australia, the Combined Firearms Council of South Australia, firearms dealers, the South Australian Gun Club office bearers, the Law Society of South Australia and also owners of lever action shotguns.

I think it goes without saying that, following the coronial inquest, for a long period of time it has been on the cards to push on with change in this area. In terms of when they were consulted, a meeting was held with firearms dealers and other industry representatives, including the Sporting Shooters' Association of Australia South Australia on 11 April 2019, when SAPOL outlined the intended changes. No significant issues were raised at the meeting attended by 46 dealers and representatives. A meeting was also held on 16 April 2019, and firearms club representatives and over 108 people attended and the proposed changes were explained. Again, no significant issues were raised then.

Furthermore, in July 2019, over 2,800 letters were sent to stakeholders outlining the proposed amendments and also the purposes of recategorising, if you like, the lever action firearms. There was information relating to the proposed changes that was made available on the SAPOL website. Of course, Mr and Mrs McPherson, parents of Mr Lewis McPherson, the subject of this tragic death reviewed by the Coroner in 2017, were kept informed of the proposed amendments and progress throughout.

To give the member for Elizabeth a time line, in 2021 the final draft of the bill was completed. A draft bill was provided to key select stakeholders for further consultation. Those were the Combined Firearms Council, the Sporting Shooters' Association SA, the Shooters Union SA—to the member for Elizabeth's point—the Law Society, the Commissioner for Victims' Rights, Gun Control Australia and also Mr Mark McPherson and Mrs Kim McPherson.

Mr ODENWALDER: Given that—and I am sorry if you covered in the earlier part of your answer—did the Sporting Shooters' Association or the Shooters Union provide any written submission or any objection at all to any of the measures in this bill?

The Hon. V.A. TARZIA: There was an email sent and it was broadly supportive. My advice is that it highlighted some of the history and issues concerning the legislation proposed but was broadly supportive.

Mr ODENWALDER: I know you touched on this, but were there any representations from individual lever action shotgun holders who were opposed to this bill and what were the reasons?

The Hon. V.A. TARZIA: What will happen in relation to parties that are affected is that the SAPOL firearms branch will make direct contact with the owner of any registered lever action firearm. They will provide confirmation of the change of category for their lever action firearm to category B or D, depending on the magazine capacity. Any licence holder—and this has been explained—who does not have a category B or D licence approval will be provided with a temporary variation for the ownership life of that specific firearm. All those variations will be fee free. SAPOL is managing the transition relatively well.

The CHAIR: Member for Elizabeth, that question seemed to relate to clause 4 more than anything else.

Mr ODENWALDER: It was arising out of the minister's answer.

Clause passed.

Clause 2.

Mr ODENWALDER: Notwithstanding the minister's detailed answer about consultation—and I take all that on board—these changes, while important, are relatively minor. They impose greater penalties for aggravated offences, they impose cumulative sentences for certain offences and they reclassify, or whatever term you use, lever action shotguns. Given that the coronial inquest reported in 2017 and the McPherson family are rightly very keen to see these changes enacted, why has this taken so long to come to fruition? I understand that consultation has been quite fulsome, but these are relatively minor changes.

The Hon. V.A. TARZIA: Obviously, this is much-needed reform. I have been the minister for just over a year now, so it certainly was a high priority for me. All I can say is that we have got on with the job of trying to put these changes in as soon as possible. Of course, there have been a number of other balls in the air that SAPOL has also had to juggle, but we want to get these changes right and here we are before the house with very sensible changes. I think that we should not hold up the process and let's get on with it.

Mr ODENWALDER: I agree. Arising from that, the member for Hammond said there were 15 recommendations of the coronial inquest. Can you tell me how many of those relate directly to the Firearms Branch and the Firearms Act and whether there are any that have not been enacted by this?

The Hon. V.A. TARZIA: I am advised that all the recommendations in respect of firearms have been enacted.

Clause passed.

Clause 3 passed.

Clause 4.

Mr ODENWALDER: This is the clause that recategorises lever action shotguns. I do not know very much about firearms. I do not know very much about shotguns. It has been suggested to me that lever action shotguns and pump action shotguns are not so similar as might have been suggested or that I might have been advised earlier. I do not know the veracity of that and I wonder if the minister could explain in which ways they are similar and/or different. I do not know if the minister is a firearms expert either, so I would appreciate if he could seek advice.

The CHAIR: That is a very good question, member for Elizabeth. I, too, would like to know the difference.

The Hon. V.A. TARZIA: Mr Chair, I will endeavour to do my best here. Ultimately, both have the capability to fire rapidly. In terms of the mechanism as to how that rapid fire is attained, one is via a pump and another is via a lever so, whilst they are slightly different, the concern around them and the need to regulate them and regulate them carefully is obviously around the ability to rapidly fire without having to reload all the time.

Mr ODENWALDER: So what this clause does then is reclassify. I do not know if I am using the right term, but it changes the status of the lever action shotgun to either a category B or a category D, depending on the number of rounds. Can the minister then explain what the differences are in the tests between A, B and D? What is the difference in rigour of the tests and what that achieves?

The Hon. V.A. TARZIA: Obviously they have different tests. To obtain a category A test there are not reasons, if you like, that have to be disclosed in order to obtain—whilst all the other measures have to be satisfied you don't necessarily have to provide a particular, specific reason as to why an A might be obtained. However, when you go B, D and those upwards from A, obviously you are required not only to meet the mandatory requirements but also to show a reason why the firearm is being acquired and used, and obviously there is a much more rigorous testing regime as the firearm strength capability to fire increases as well. It is a proportionate test, if you like.

Mr ODENWALDER: Let us take the highest category then, category D. Can you explain the testing regime? Can you explain what you would need to obtain a category D firearm, what process do you go through?

The Hon. V.A. TARZIA: You will need to illustrate that you have a genuine need for that firearm and that that need is not satisfied by a firearm that you possess at the moment. Of course, you also have to be a fit and proper person and all those other regulatory necessities as well.

Clause passed.

Clause 5.

Mr ODENWALDER: This amendment deals with trafficking and my questions are statistical, really. Can you tell us how many illegal firearms are currently estimated to be in the community?

The Hon. V.A. TARZIA: I thank the member for the question. Obviously, one is too many, but we will have to take that on notice. Perhaps we will be able to furnish that information between the houses; we don't have that level of detail on us at the moment.

Mr ODENWALDER: Another statistical question which I am sure the minister will have to take on notice, but I wonder if there is a record of how many charges there are for underage possession of firearms or ammunition.

The Hon. V.A. TARZIA: I will make that inquiry for the member for Elizabeth.

Clause passed.

Clause 6.

Mr ODENWALDER: This regards cumulative sentencing. I will try to wrap this up in three questions. My first question is a general one: are there any other offences within the Firearms Act which impose cumulative sentences on offenders, or is this a new provision?

The Hon. V.A. TARZIA: Not that I am aware of, but again we can certainly look at that for the member for Elizabeth.

Mr ODENWALDER: I just want to get to the guts of when a cumulative sentence would be imposed. From my rereading of it, I might have been slightly wrong because it seems to only apply to a combination of offences. So if there is an offence of possession of a firearm plus a possession of ammunition then those two sentences are applied cumulatively. Whereas I was of the understanding, perhaps a misunderstanding, that what these provisions would do is impose a separate sentence for each offence more than two. Is it limited to two that can be imposed cumulatively?

The Hon. V.A. TARZIA: It is certainly not limited to two.

Mr ODENWALDER: Can the minister point to the section of the bill which extends it beyond two because, from my reading, if a person is convicted by a court of an offence against section 9 and an offence against section 31, the court must make the sentences imposed for the two offences cumulatively, and that is all it says.

The Hon. V.A. TARZIA: Yes, so both sections, but there could be more offences caught within those sections.

Mr ODENWALDER: So you are saying that, in the drafting of this, an offence plus an offence equalling two offences could actually mean an unlimited number of offences, which would be sentenced cumulatively.

The Hon. V.A. TARZIA: Yes.

The CHAIR: Member for Elizabeth—

Mr ODENWALDER: I do have one more question.

The CHAIR: This will be number four.

Mr ODENWALDER: Will it?

The CHAIR: You are seeking clarification, I guess.

Mr ODENWALDER: Yes, I am seeking clarification, thank you. Given that then—and we will stick with subsection (1) because subsection (2) is similar—does the cumulative effect of the sentencing rely on two separate types of offences? Does it have to be an offence against both section 9 and section 31 for this to take shape or can you have, for instance, three offences against section 9 sentenced cumulatively?

The Hon. V.A. TARZIA: My advice with that one is that we will get some advice and perhaps provide it to the member between the houses.

Mr ODENWALDER: I would appreciate that. I will not ask any further questions.

Clause passed.

Schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. TARZIA (Hartley—Minister for Police, Emergency Services and Correctional Services) (11:48): I move:

That this bill be now read a third time.

The SPEAKER: The member for Elizabeth would like to make a third reading contribution.

Mr ODENWALDER (Elizabeth) (11:48): Yes, thank you, a very brief contribution. I want to thank the minister's staff and SAPOL for their information during the course of analysing this bill, and I also want to thank those legitimate and law-abiding members of the firearms community who reached out to me after this bill was introduced for their advice. I commend the bill to the house, as I would any other public safety measure.

Bill read a third time and passed.

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