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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-04-10 Daily Xml
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FIREARMS (FIREARMS PROHIBITION ORDERS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. P. HOLLOWAY: The Hon. David Ridgway asked a number of questions when he spoke on this bill over two separate days. I provided an answer to some of those questions but there were some others that remained unanswered and I would like to put those on the record now.

The Hon. David Ridgway first asked how the firearms clubs would be notified of firearm protection orders. Clause 6A(3) of the bill provides that the register of firearm prohibition orders must be made available to the public by electronic or other means. It is proposed to place this information on the firearms website for access by clubs, and the information will be updated by the firearms branch every morning. Clubs can access this information at any time. If the person is not listed when the club has any interaction with them, then they will have a defence to a breach of a firearms prohibition order. The emphasis is on communication with clubs to prevent people with FPOs accessing firearms. Prior to implementation of the legislation the firearms branch will consult with the firearms industry to discuss the best method of communication. So, I stress that there will be (as there ought to be) some consultation with the clubs, the operators of shooting galleries, and the like, to ensure that that communication is effective.

The second question was regarding the impact of introducing the term 'found guilty'. This proposal allows the registrar to take into account matters where the court has exercised its discretion not to record a conviction. If the person is found guilty, the court has determined that, based on the facts, the person has committed the offence. The registrar may take the proven facts of this matter into account in determining the fitness of a person. The decision of the court not to record a conviction against a person will not be altered. This allows the registrar to consider the facts of a case as opposed to the requirement for a conviction. Registrars look at all facts and intelligence regarding a person as opposed to only one incident.

A proposal to change regulations will provide a list of offences that the parliament has deemed would render a person unfit to possess firearms. This list is being developed and may include such items as people who are found guilty of selling or growing drugs (due to the link with illegal firearms use), or paedophiles, who may be deemed unfit because of the nature of their behaviour and risk to society. The regulations are being developed and will reduce the uncertainty regarding the term 'unfit'.

Regarding proceedings for offences, this bill proposes removal of section 38 of the Firearms Act. Section 38 provides:

Proceedings for an offence against this act may be commenced at any time within 12 months after the date of the alleged offence.

By removing this provision the limitation of time to commence offences is stipulated by the Summary Procedures Act 1921, which will apply. This provides for a two-year limitation of time for summary offences and no time limit for indictable offences. The section limits police action to a 12 month period of time in which to commence proceedings. Numerous offences detected by police have been withdrawn because of this time frame. The 12 month time limitation does not provide police with enough time to investigate the movement of firearms between people to prove offences. This can be a time-consuming activity that involves interaction with other police jurisdictions and, on some occasions, federal and international law enforcement.

The next matter raised by the Hon. David Ridgway was that the Firearms Traders Council has argued that, where people's livelihood is affected, police should investigate matters within two months. The investigation of firearms offences can take a considerable period of time, as it often involves tracing firearms ownership as part of the process. The movement of firearms is part of a global economy, and police may be required to conduct interstate, intrastate and international inquiries during the investigation. This is a time-consuming task that cannot be completed within two months.

The Hon. David Ridgway then asked why the function of the Firearms Consultative Committee, the FCC, should be abolished. The function of the FCC has not been abolished; it has been modified to independently review decisions of the registrar to either affirm or refer the matter back to the registrar with advice to reconsider his decision. The registrar does not have discretion to refuse a request for review of his decisions. Clause 26B(8) provides that the registrar must refer the request to the Firearms Review Committee. The appeals process has been strengthened by providing people with the opportunity to take their matters to the expertise of the administrative division of the District Court if they are unhappy with the decision of the registrar or with the review by the Firearms Review Committee. Appeals to the District Court will provide people opposing decisions of the registrar with access to the expertise of the administrative division of the District Court, which is the expert in the field of administrative law and the interpretation of 'unfit' provisions.

The Hon. David Ridgway then asked what argument there was to have the registrar approve this referral, when it is the registrar's decision that is being questioned. The registrar does not have a discretion to refuse a request for a review of his decisions by the Firearms Review Committee. Section 26B(8) provides that the registrar must refer the request to the Firearms Review Committee.

Would people spotlighting be subject to a firearms prohibition order? People will be issued with an interim FPO only if the police suspect on reasonable grounds that they are an undue risk to people or property or they are unfit. Prior to issuing any interim order, police officers must provide the grounds for seeking to issue an interim FPO to their supervisor. The order will be issued only if the supervisor is satisfied that the issue of an interim FPO is justified. The grounds and statement of facts regarding the issue of an interim firearms prohibition order are then forwarded to the Registrar of Firearms who may either affirm or revoke the order.

Spotlighting itself is not likely to result in the issue of a firearms prohibition order unless the behaviour and circumstances result in a risk to public safety. I would not like to see some spotlighting in the Parklands, for example.

Members interjecting:

The Hon. P. HOLLOWAY: Yes, that, too. The question then is: why is the interim firearms prohibition order power required? Police do not have the ability to prohibit a person from accessing firearms at the time of an incident being detected. For example, if police attend a high risk incident where a person has threatened others with firearms, the person may be arrested but, if bailed, they may attend at a commercial firing range and hire a firearm without prohibition. I think one can take from that and, extending the example, see the risk that might follow from that if the person is agitated.

The Hon. David Ridgway then asked, 'Why are young people under 18 excluded?' In fact, firearms prohibition orders apply to all people regardless of age. He also asked, 'Will firearms owners be required to report any modifications to their firearms?' Section 25 of the existing Firearms Act requires a person to notify the registrar if they alter their firearm and the firearms becomes a firearm of a different class. Minor modifications to sights for sporting shooting requirements is not an alteration to a firearm, as it does not change the classification of the firearm.

Proposed section 27(3), regarding the manufacture of firearms, provides a defence for a registered owner to prove that the firearm part was manufactured for a registered firearm in their name. So, it is just not the case that it applies to changing the sights for a shooting competition or something. It would only be if someone was actually changing the class of a firearm that there would be a breach of the legislation.

The next question was, 'Why are people who already have a licence required to wait 28 days before they can purchase a firearm of the same class?' This was a requirement of the National Firearms Agreement established in the mid 1990s, which probably followed on from Port Arthur. In the consultation process, this was the most common proposal for change by firearms owners. This legislation removes that requirement. If this legislation is approved, people may now acquire a firearm of the same class without waiting 28 days.

The honourable member then asked for clarification regarding the need for an invasive medical procedure. Section 6B(1) of the bill provides for the registrar to require a person to submit to an examination by a health professional, or by a health professional of a class specified by the registrar, to provide a medical report from a health professional or a health professional of a class specified by the registrar, including an examination or report that will require the person to undergo some form of medically invasive procedure.

This power would allow the registrar to require a person to obtain a blood sample to determine whether they had been using drugs that affected their fitness to possess firearms. The term 'medically invasive procedure' is used in health professionals legislation. That is the origin of that term.

The Hon. Dennis Hood also asked some questions. He asked, 'Is the registrar given too much power?' The registrar is the administrator of the Firearms Act and requires some discretion to make decisions regarding the fitness of people to possess firearms. In the existing legislation, the Firearms Consultative Committee (FCC) must agree with the decision of the registrar. This is the only model of this type in Australia. Other states provide the registrar with the ability to make decisions and then for people to access natural justice through the appeal process.

The current model places significant administrative burdens on this role to justify administrative decisions that are made. This diverts resources away from focusing on illegal behaviour and requires them to justify the decisions of the registrar. For example, in the 2007-08 financial year, 96 per cent of decisions by the registrar have been approved by the FCC. The provision of appeal rights to the Administrative Division of the District Court enhances the ability of people to seek natural justice through the expertise of the District Court.

The Hon. Dennis Hood also made the point that this bill will require that people found guilty of minor offences will have a conviction recorded against them. The bill does not change the court's discretion to find a person guilty on the facts without recording a conviction. This change merely allows the registrar to access the finding of guilt. This stipulates that the facts alleged were found proven in the court, even though a conviction was not recorded. In other words, someone may have been found guilty and the conviction not recorded, but it does mean that the registrar is then able to at least access the facts or ascertain that the facts alleged were proven. The registrar can base his decision on that matter.

Finally, SAPOL is committed to managing the proposed legislation within the provisions of the law and in accordance with the aim to target the illegal firearms market, as opposed to legitimate firearms owners. This includes the enforcement of this legislation against people engaged in organised crime, gangs and criminal behaviour and where people are an undue risk to another person, themselves or property.

In relation to some of those administrative matters, that is where it is important that, within the firearms section, the more energy and the more effort the firearms branch can direct towards illegal firearms, the safer the community will be, rather than have those police officers engaged in, if you like, bureaucratic-type management of legitimate firearms owners.

The Hon. SANDRA KANCK: I would like to make a few comments on clause 1. In the rush to get things into committee, we again have a bill which was with us for five sitting days before we went into committee, and it does make it difficult to do the needed consultation. I think most members would be aware that the Democrats have had a very long tradition of seeking to limit the availability of firearms in our society. Around the time of the Port Arthur massacre, I belonged to the gun control lobby (I think it was so called). After the Port Arthur massacre, I was a fierce supporter of the legislation that went through to further restrict the ownership of firearms. I have some sympathy with the view that has been expressed by the DPP that we should be a gun free society, but I think that is an ideal that we are unlikely to ever attain.

As well as supporting the limitations of firearms in our society, side by side, the Democrats have a commitment to the basic principles of justice, proportionality and transparency. One of the things that I note about this bill is that, along with other legislation that we have with us at the present, it has been built by association, but in this bill we now have guilt by proximity. I also believe that this bill is more problematic for rural people than metropolitan people. I am a little surprised that the government is so out of touch with rural South Australia that it has not seen this.

As a consequence of those concerns, I have had amendments prepared, and they have been tabled. When we resume in about a fortnight, I will deal with them in a way that I hope will bring back some of that proportionality that I think is really important to legislation.

Progress reported; committee to sit again.

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