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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-02-08 Daily Xml
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SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 11 November 2010.)

The Hon. S.G. WADE (17:04): I rise to indicate that the opposition broadly supports this legislation. I intend to speak briefly. Because of the nature of the bill, I think it would assist the council to consider the issues in detail at each stage of the committee, so my comments at this stage will be broad. I will take the opportunity to assist the government by placing on record a number of questions at the second reading stage so that we might continue to progress the bill through the parliament.

Australia has been fortunate to have a relatively low level of violence compared with comparable Western countries, and one of the contributing factors is that we have a relatively low access to weapons. In 1996, under the Howard Liberal government, Australia introduced significant laws to suppress access to firearms in particular. I note that that effort received bipartisan support.

This bill is a continuation of efforts to minimise access to weapons in public places. It was introduced in the House of Assembly on 15 September last year and to this place on 11 November. It was prompted by the murder of Mr Daniel Awak, on 12 November 2008, in Grenfell Street in the city. The person charged with the murder, I understand, is alleged to have purchased the knife immediately before the attack and I understand that that person was a minor. The matter is still being dealt with by the court, so I will comment no further.

The history of weapons in Australian society indicates the need to ensure that we do not just focus on the weapons but that we also address the underlying factors contributing to weapon-related violence. Weapons are tools that are used to express conflict; they do not cause it in and of themselves. We need to do what we can to reduce the level of disputation in our community. This bill focuses on knives as weapons and makes a number of changes to improve the presentation of our laws relating to weapons.

We need to remember that there are a number of alternative weapons out in the community and, in that regard, I will quote an article from Security Solutions, which states:

There has been a great deal of information regarding edged weapons in the media over the past several years. The incidence of people carrying edged weapons is increasing with access to possession as simple as raiding the cutlery drawer at home, making a quick trip to the local hardware store, or using the grey matter to create innovative alternatives from everyday items.

It is naturally presumed that people carry edged weapons with criminal, malicious or mischievous intent. But there is also a 'catch-22' trend emerging, indicating that some people carry edged weapons simply because they realise that others do too, and if they are attacked they do not want to be caught defenceless. With more people in possession of edged weapons, it flows on that the incidence of aggravated assault involving edged weapons is also increasing.

I pause to highlight that it is important that we, as legislators, take very seriously the responsibility we have to take what steps we can to stop that escalation of weapon possession and use in our community. The article continues:

During a recent security industry firearms instructor forum, Victoria Police presented statistics showing that the most common item used to commit aggravated assault was, in fact, a pen. This innocuous, everyday item can hardly be regulated, yet it is a potentially edged weapon that everyone has access to. This statistic highlights the imposing and very real threat posed by edged weapons in society.

I think that article highlights the risk we take in regulating a weapon because of what I might call the displacement effect. We have seen that in relation to firearms since the initiatives of the Howard Liberal government in the mid-1990s. Data from the Australian Institute of Criminology has found that there has been a pronounced change in the types of weapons used in homicides since monitoring began.

Firearm use has declined by more than half since 1989-90 as a proportion of homicide methods and there has been an upward trend in the use of knives and sharp instruments which, in 2006-07, accounted for nearly half of all homicide victims. In fact, the trend is particularly marked since 1996. Knives and sharp instruments have overtaken firearms as a weapon in homicide. By 2006-07, knives and sharp instruments accounted for 45 per cent of weapon-related homicides and firearms had fallen to less than 15 per cent.

While the decline in the use of firearms is welcome, we also need to be mindful that legislation dealing with knives might well have an impact on the use of other weapons, so we need to be alert to minimise the use of any weapon in whatever form in public places. Of course, knives by their nature provide particular regulatory challenges. Whereas relatively few households carry firearms for normal everyday use (perhaps more so in rural and regional South Australia), it certainly would be true that there would be very few households in South Australia that do not have items that would be defined as knives under this legislation.

To assist further consideration of this bill, I propose to put a set of questions on notice at this stage and hope that the government might be able to provide the answers as soon as possible. I appreciate that may not be possible before the second reading consideration is concluded, but the earlier the answers are able to be provided, the more likely the opposition will be to progress to the committee stage.

Before asking my questions, I thank the government for its assurance that it will provide the draft regulations to this bill before the committee stage. It would certainly assist the opposition to understand how it is intended that this legislation would operate. I am sorry; with all due respect to other members, I am sure it will assist all members to consider how this legislation would operate in practice. So, I thank the government for that commitment and look forward to receiving a copy of the draft regulations.

All of the data I seek is for South Australia only. It is difficult to get South Australian-specific data available from institutions such as the Australian Institute of Criminology, but we are dealing with South Australian law and we would appreciate understanding the incidence of weapon-related crime in South Australia. My questions are:

1. In South Australia, how many charges and offences have involved the use of a knife since 1996?

2. How many of those charges and offences have involved the use of a knife by a minor since 1996?

3. How many of those charges and offences have involved the purchase of a knife by a minor before the charge or offence occurred since 1996?

4. How many charges and offences have involved each age cohort since 1996?

5. I seek information on the possession and use of other weapons, including firearms and other edged weapons, other than knives, in South Australia.

6. In relation to the carrying and possession of weapons, what weapons, other than knives, cannot lawfully be carried or possessed in schools or public places under South Australian law?

7. How broad is a public place in terms of the meaning of the act?

8. What is the scope of lawful excuse within the act? In particular, in terms of parents and guardians transporting a child to a school where the weapon is not needed for a task at the school but is being carried or in their possession for a purpose beyond the school, would that constitute a lawful excuse?

9. Would the presence in a student's lunch box of a fruit knife related to that lunch be a lawful excuse?

10. Would a Stanley knife in the art kit of a student in their locker be a lawful excuse?

11. Does a person need to know that they are carrying or possessing a weapon for the offences under this bill to be established?

I thank the council for the opportunity to put some questions on notice at the second reading stage and look forward to further consideration of this bill in committee.

The Hon. A. BRESSINGTON (17:13): I rise to speak to the Summary Offences (Weapons) Amendment Bill 2010. My comments today will be brief, as I am yet to finalise my intentions relating to amendments that I am considering and, as a result, determine my position overall on this bill. It goes without saying that I am supportive of measures to reduce knife crime. Every violent incident, particularly those involving knives, should be dealt with adequately by the law. More importantly, however, our legislation should seek to prevent such incidents occurring, something that this bill clearly endeavours to do.

In particular, the creation of offences to further restrict the sale of knives to minors and of having possession of a knife in a school or public place, with a separate offence of brandishing that knife in a manner likely to cause others to fear for their personal safety, are indeed welcome advancements in criminal law. However, many provisions of the Summary Offences (Weapons) Amendment Bill cause me concern. Specifically, there are significant incursions into the rights of citizens, including the increased power given to police to search a person without reasonable grounds and detain them for that purpose, as well as another reversal of the onus of proof, this time for a defendant who has allegedly breached a weapons prohibition order.

While I am supportive of the creation of weapons prohibition orders, I am yet to be convinced that the model proposed is ideal. In particular, I see the Police Commissioner's role in imposing weapons prohibition orders as quasi-judicial and inappropriate for the commissioner to be exercising, and I would be more comfortable with an order being imposed by the judiciary as part of sentencing a defendant who has committed a weapons-related crime. Additionally, as identified in the other place, some of the more onerous requirements of the orders may indeed prove to be unworkable in practice and encourage noncompliance.

I am aware that this bill, or elements of it, was requested by the police. However, just because the police have supposedly asked for many of the provisions in this bill is not, at least to me, sufficient justification to blindly give it our support. While he may have been flippant in his calls for criminals to be microchipped, the recent controversy surrounding Police Commissioner Mal Hyde demonstrates that the desires of our police do not always match those of our community.

I have confirmed that the Attorney-General has agreed not to proceed the bill through to the committee stage this week, and I am grateful for that because, as I have said, I am considering amendments to this bill and would like time to hear what other members have to say about this bill and what their concerns are as well. In saying that, I look forward to the committee stage of this bill.

The Hon. M. PARNELL (17:16): All violent crime is abhorrent, but knife crime is a particularly frightening phenomenon, which is of great concern to many but especially to the parents of teenagers, who worry that some of the trends we have seen overseas, such as in the UK, might find their way here.

One thing I am sure all members would agree on is that knife crime is unacceptable. However, this bill is a very complex response to tackling the problem of weapons-related crime and, more specifically, knife crime. It is the government's response to a request from the police, which flows from the incident in Grenfell Street some years ago that has been referred to already, where one youth was attacked with a knife by another youth and died as a result.

The bill repeals two sections of the current act and replaces them with a new part that is far more complex than the sections replaced. The new part 3A is some 11 pages in length and deals solely with weapons. The new part creates new categories of offence. It provides for weapons prohibition orders and includes the power to search for prohibited weapons.

This bill sets up the use of regulations to prescribe a number of things: first, the circumstances that relate to lawful excuses in relation to knives; secondly, specified classes of weapons; and, thirdly, evidentiary provisions. I am encouraged by the undertaking, as I have heard it referred to, that we will be seeing the regulations before we conclude the committee stage of this bill.

There are a number of aspects of this bill that concern the Greens, not the least of which is the use, again, of criminal intelligence. We find that this concept infringes many established legal principles, such as the right to know the case against you. Whilst it may have started off with good intention in antiterrorist laws, it has found its way into numerous other pieces of legislation since. The Greens do not support criminal intelligence in legislation, and we do not like it in this bill.

As other members have referred to already, the Law Society has put in a comprehensive submission that raises serious questions about whether this bill is the right tool for the job. The society makes three general comments before outlining in some detail various clauses in the bill. I think that detailed analysis can and should wait until the committee stage, but I will put on the record the three overarching comments made by the Law Society.

The first thing the Law Society says is that the bill invests the police with extraordinary powers, particularly the commissioner—powers which, in the Law Society's view, more properly reside with the court. Secondly, the Law Society points out that a number of the new sections in the bill reverse the onus of proof and the Law Society sees reversing the onus of proof as a creeping tendency in legislation and they reject it out of hand. The third overarching comment they make is that this bill goes beyond the boundaries of other criminal offences and many of the provisions are not consistent with the rule of law to provide citizens with full procedural fairness.

That is about as tough as it gets with Law Society submissions. They often invite us to tinker around the edges of legislation. They do not like this bill at all. The Law Society makes the observation—and I think we would all agree with this—that we all understand the desirability of reducing the incidence of violent offences involving weapons. No-one could doubt that is a noble intention. As the society points out, the more difficult issue is where to draw the line between acceptable preventative conduct by the state and conduct which unduly infringes on the liberty and rights of privacy of the citizen.

I look forward to seeing the proposed regulations and I also look forward to seeing the minister's answers to the questions that have been put on notice. They were many of the same questions that I was proposing to ask but I do not need to now. I will conclude by saying that the government has a lot of work to do before the Greens would consider supporting this bill.

Debate adjourned on motion of Hon. J.M. Gazzola.


At 17:22 the council adjourned to Wednesday 9 February 2011 at 14:15.


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