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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-04-05 Daily Xml
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SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: In relation to clause 1, I was wondering if the government could explain how this bill fits in any broader strategies that the government might have to reduce knife crime.

The Hon. B.V. FINNIGAN: I am not sure how that relates to the bill before the house. The government, as I believe we have mentioned on previous occasions, has invested heavily in our police force. We have expanded the number of sworn officers. We have a commitment to expand further, by some hundreds, the number of sworn police officers. The government is ensuring that police are well equipped to do their jobs, and that is something we will continue to be committed to.

There are a number of other crime prevention strategies and education strategies that are in place. We also, of course, encourage economic growth and jobs wherever possible, and it is understood that economic activity and people being in employment will generally ensure that they are less likely to get up to mischief than people who are long-term unemployed and unable to find work. Ultimately, I suppose, there is a whole range of measures or initiatives that the government supports in order to try to reduce crime overall. I am somewhat puzzled as to the nature of the question, unless there is some specific query the honourable member is making.

The Hon. S.G. WADE: I appreciate the minister is not the Attorney-General, so I do not reflect on him for not having the details of the broader strategy, but the reason for the question is that it is well known that knife control legislation such as this does not act in a vacuum. In that regard I would refer to the writings by Associate Professor Julian Bondy from RMIT University in Victoria, who stresses the importance of a multi-agency strategy to tackle knife crime, involving police, ambulance services, general practitioners, schools and local councils. The minister mentioned police and schools but again, on behalf of the opposition, I stress our hope that the government will not take a narrow approach to dealing with knife crime.

In relation to weapons there has been significant displacement, as I suggested in my second reading speech, from firearms to knives following the measures in the 1990s which received bipartisan support at the federal and state levels. Does the government expect any displacement as a result of the knife legislation and, if so, what measures are being taken to avoid that?

The Hon. B.V. FINNIGAN: I am not aware of any advice to the government from the police or anyone else that we anticipate any shift, but that is not to say such advice has not been received; I would not be in possession of it, if it was. I would say that, while this bill is intended to ensure that we have particularly stringent provisions in relation to knives, nonetheless the current Summary Offences Act does, of course, include a number of provisions which we believe are of general assistance in this regard. This bill, in particular, is designed to ensure that there is no doubt about some particular things being regarded as weapons.

Certainly, there are already provisions, and this bill seeks to strengthen the provisions, to ensure that people do not use other things—not knives, not guns—as offensive weapons. In winding up my second reading I went through the statistics relating to a number of things which some of us would probably not consider using as weapons, but nonetheless other people do, so the intention is to ensure that we have provisions which ensure it is an offence to use anything as a weapon, inappropriately, to commit violence or threaten another person or what have you. I am not aware that there is any anticipated shift from knives to some other form of weapon, but we would certainly want to ensure, through this legislation and existing legislation, that anybody who tries to use any object as an offensive weapon will face the wrath of the law.

The Hon. J.S.L. DAWKINS: On clause 1, I would like to take the opportunity to ask a question or two in relation to specific knife amnesties. The minister may recall that I have raised this matter in this chamber on a couple of occasions and, indeed, his predecessor, as leader of the government, responded to my question by saying that I had raised a matter of legitimate public concern. In the preparation of this amendment bill, did the department evaluate the knife-focused amnesties undertaken at least in the State of Victoria and in any other jurisdiction?

The Hon. B.V. FINNIGAN: I am advised that no consideration has been given that I am aware of in relation to an amnesty. I think certainly there are a number of knives that are already prohibited weapons (such as flick-knives and so on), so we would already be hoping that people do not have them in their possession, even though there may be some who do. Unless they have an exemption, they would be acting illegally. Particularly, this bill is ensuring that we address knives of any sort or, indeed, any weapons that are covered by the bill, being used in an illegitimate way, or being carried around without lawful excuse. I am not quite sure what sort of amnesty the honourable member envisages.

Certainly, we would not be suggesting an amnesty of butcher's knives, for example, because if you have a lawful excuse to possess one—whether that be in your home in a domestic context or for some professional reason—then it is not envisaged under this bill that you are going to have a problem. What we are trying to do is ensure that it is not lawful for people to carry a weapon such as a knife around on their person without lawful excuse. I am not entirely certain what sort of weapons the honourable member envisages would be captured by an amnesty, but I am not advised that any was considered. In addition, I am advised that we do have an amnesty power, but it has not been considered on this occasion.

The Hon. J.S.L. DAWKINS: I thank the minister for his response, but perhaps I could just clarify something. The information, which came, to my knowledge, from the Deputy Commissioner of Police in Victoria, Mr Kieran Walshe, was that a month-long amnesty in that state saw more than 800 weapons handed in, including: machetes; swords; hunting knives; butchers knives; and flick-knives.

I know that the minister asked why someone would hand in a butchers knife if they had a legitimate reason to have a butcher's knife, but it may well have been that people handed these things in as they had them because they had been handed down to them, and they did not have a legitimate need for them. I would speculate that there are probably a lot of knives out in the community which, if people had an opportunity to easily bring them forward and hand them in, they would do so. I suppose I would like to clarify (and the minister said at the end of his last response that there is a capacity for an amnesty): would the government consider a specific knife amnesty or a general amnesty focused on knives?

The Hon. B.V. FINNIGAN: I am advised that this bill provides an amnesty power. As I have indicated, I do not believe one is currently contemplated, but I am happy to refer it to the Attorney-General and the Minister for Police. If the honourable member wants to provide further information about what happened in Victoria, he may well be right that there might be people who have a knife or some such stashed away that they would be happy to offload if they had the opportunity to do so. I am happy to seek further advice from the appropriate ministers as to whether they think it is appropriate that there be an amnesty on knives or weapons generally put in place following the passage of this bill. There has been no decision to plan to have one at this point.

The Hon. S.G. WADE: To make a brief comment, I was derelict in my clause 1 comments in not thanking the minister and the Attorney for their assistance with this bill. Not only did we receive a briefing but we also received detailed answers to questions by the minister at the end of the second reading. We were provided with a draft of the regulations, and I am sure the information provided will mean we get a better bill as a result.

Clause passed.

Clauses 2 to 4 passed.

Clause 5.

The Hon. S.G. WADE: I move:

Page 3, line 21 [clause 5, inserted section 21A(1), definition of criminal intelligence]—

After 'suspected' insert:

serious and organised'

This is the first of the amendments related to criminal intelligence. The amendment proposes to change the definition of 'criminal intelligence' by focusing it on serious and organised criminal activity. This is an issue that has come before the house in a number of forms in recent months. I suggest that this clause should be treated as a test clause for two other amendments—[Wade-2] 6 and [Wade-2] 8. Since the bill was tabled, the Legislative Council has rejected the formulation of criminal intelligence that is reflected in this bill. It did so in consideration of what is commonly known as the criminal intelligence bill.

Just as the council accepted the opposition amendments to the criminal intelligence bill, I urge the council to do the same here. The issue of criminal intelligence is being looked at by the Legislative Review Committee. It would be logical for the Legislative Council to maintain consistency between the criminal intelligence bill and this bill and maintain its position while the Legislative Review Committee undertakes its inquiry.

The Hon. B.V. FINNIGAN: The government opposes the amendment and the consequential amendments in relation to criminal intelligence. We have been over this ground a number of times before. The government, acting on the advice of the police, believes that the wording of the criminal intelligence provisions is appropriate. However, given that this matter has already been referred to the Legislative Review Committee, I do not propose that we divide on this. I do not agree with the honourable member's supposition that, because the Legislative Review Committee inquiry on this is under way, we should just continue to knock these provisions out of legislation until that happens.

It would seem that, if we are to continue to remove these clauses from bills regardless, I am not quite sure what is the purpose of the Legislative Review Committee inquiry. In any event, the government's position is unchanged that we oppose these amendments. However, for the sake of expeditious progress of the bill and, given what other members have said in the past in relation to this going to a Legislative Review Committee inquiry, we do not propose to divide.

The Hon. D.G.E. HOOD: Subject to the debate that ensues, I anticipate that Family First will support a number of amendments today, but we will not be supporting this one. We voted against a changing of the definition of the criminal intelligence provisions in previous legislation. We remain consistent with that position and, as such, we will not be supporting this amendment or the two consequential amendments.

The Hon. S.G. WADE: I respect the Hon. Mr Hood's position, and I suggest that it would be appropriate for all members to maintain that consistency. I acknowledge the minister's eagerness to facilitate the debate by not dividing.

The Hon. M. PARNELL: The Greens will be supporting the amendment.

The Hon. A. BRESSINGTON: I will also be supporting the amendment.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 3, line 26 [clause 5, inserted section 21A(1), definition of dangerous article]—

Delete 'regulation' and substitute:

Schedule 2 Part 2

This is the first of the amendments which I would describe as addressing the relationship between the act and the regulations. The amendment proposes to put the list of dangerous articles in a schedule to the act rather than the regulations. I should mention that this was not, if you like, the actual trigger; the trigger for consolidating in the schedule was actually consideration of exemption of prohibited weapons, which I will explain in a minute.

I hope this is more helpful than confusing, but I suggest that this is a test clause for four other amendments: [Wade-2] 5, [Wade-2] 13, [Wade-2] 15 and [Wade-2] 44. I acknowledge that the government bill is a significant improvement in the act. For example, over the years section 15 has become complex and cumbersome and the bill is useful in making the law clearer and more accessible. However, the opposition is concerned that the parliament should maintain an adequate oversight in the development of the law into the future.

In that context, we are particularly concerned about the proposal to transfer the exemptions for prohibited weapons that are currently in the act and put them in the regulations. There is a range of other exemptions that currently sit in the regulations, so the proposed approach in the bill does have the benefit that it brings all the exemptions for prohibited weapons into one place. However, it also has the disadvantage that a range of important exemptions, which are currently in the act and require parliamentary approval for any change to them, are put in the regulations and therefore could be amended by executive action alone.

We propose that a new schedule (schedule 2) be established which consolidates the exemptions for prohibited weapons in the schedule to the act and enumerates dangerous articles and prohibited weapons in the schedule. This particular amendment relates to dangerous articles. Through this consolidation, we submit that we would improve the clarity and accessibility of the law, we would preserve statutory protection of exemptions that currently have it, and enhance the statutory protection of a group of exemptions which do not have significant conditions on them. We are mindful of the need for the government to be nimble in relation to dangerous articles—prohibited weapons, in particular—and so we would not want to reduce the flexibility of the government in responding to developments with weapons.

I can remember that, in recent years, we had such a need to develop the law in relation to lasers. However, we do not believe that they would inhibit flexibility by putting them in the act because we propose subsequently to amend section 85 such that those exemptions without specific conditions will be the only ones that could not be amended by regulation. So, in other words, if a condition is currently in the regulations and has detailed conditions, that would continue to be able to be amended by regulation. The only exceptions to that would be those that do not have significant exemptions, for example, those to police officers, those to delivery to police officers and those in emergencies. So, I urge the committee to support my amendment.

The Hon. B.V. FINNIGAN: I never wish to be accused of not being nimble. The government opposes this amendment which amends section 21A(1) of the act so that a dangerous article is defined as a thing or article declared by schedule 2 part 2, 'to be a dangerous article for the purposes of this Part'. This amendment is the first in a series of amendments designed to move, from the regulations to the act, the list of weapons that are declared to be dangerous articles, the list of weapons that are declared to be prohibited weapons and the exemptions for prohibited weapons. Indeed, as the honourable member has indicated, this amendment should be treated as a test amendment for a number of others.

As already indicated in the other place, the government believes that the regulations are, and have always been, the most appropriate place to put this kind of detail. It allows the law to respond quickly to changing circumstances without having to return to parliament to amend the act. In order to facilitate the consideration of the bill, a copy of the proposed regulations was provided to the opposition in advance.

The honourable member may argue that he has addressed this with one of his later amendments, as indeed he did, in amendment 44, which provides that the regulations may:

...vary the provisions of Schedule 2 (other than clauses 5 to 7 inclusive and 19 to 25 inclusive) by including provisions in, or deleting provisions from, the Schedule.

Clauses that allow for the amendment of an act by subordinate legislation are generally objectionable and should only be used in unique cases such as in the Cross-border Justice Act. What we have here is not a unique case. The current act allows these matters to be prescribed in the regulations, as they should be. It is not appropriate for the regulations to be able to vary the act in this manner. All it does is make the legislation more complex and difficult to understand for the average person.

So, again, while there is always a balance to be struck between what is in the act and what is in regulations, it does not make sense to the government to put what is proposed to be in regulation in the act on this occasion. In particular, I do not consider that it is good legislative practice to allow essentially the amendment of the act by regulation, in effect.

The Hon. S.G. WADE: I do not disagree with the minister that it is not normally good legislative practice to allow an act to be amended by regulation but it is not uncommon. The minister refers to cross-border justice, but I would also draw to his attention an act in his own portfolio: the Workers Rehabilitation and Compensation Act 1986 is an act that can be so amended, as is the Environment Protection Act 1993, the Local Government Act 1999 (which is, in fact, also in the minister's portfolio), the National Parks and Wildlife Act 1972 and the Health Practitioner Regulation National Law (South Australia) Bill 2010. So, I would suggest that, whilst it is something that the house should think twice about before it does it, it is not something that is inherently offensive.

In relation to the issue of accessibility for citizens—and I think the council is maintaining a strong interest in accessibility of the law to citizens—I would suggest that this actually improves accessibility for the citizens because, rather than having to look for the dangerous articles, prohibited weapons and exemptions in three different places, they only have to look in one place. In that context, I would stress that I think that citizens would care little as to the mode of future amendment of a clause they are looking at.

So, the complexity for both the parliament and for the government in terms of how future amendments is implemented is an issue that, I think, our professional officers can professionally manage. I think it has no detriment to the citizen whatsoever.

The Hon. D.G.E. HOOD: We will be supporting this amendment and the consequential amendments to it. The reason for that is quite simple. I think the government has a good point when it says that it is, generally speaking, not ideal to put regulations into legislation because regulations are more flexible.

However, in the case we are dealing with here, specifically with respect to weapons, and in particular knives in some cases, knives have not changed a lot in thousands of years, so I do not see the flexibility of regulations as being a particularly significant issue in this particular case. For that reason, I think we are inclined to agree with the Hon. Mr Wade that it is more accessible for members of the public, and certainly just plainly simpler to follow, to have them in the bill, and for that reason we will support it.

The Hon. A. BRESSINGTON: I indicate that I will also be supporting the Hon. Stephen Wade's amendment.

The committee divided on the amendment:

AYES (13)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Franks, T.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Vincent, K.L.
Wade, S.G. (teller)
NOES (6)
Finnigan, B.V. (teller) Gago, G.E. Gazzola, J.M.
Hunter, I.K. Wortley, R.P. Zollo, C.
PAIRS (2)
Stephens, T.J. Holloway, P.

Majority of 7 for the ayes.

Amendment thus carried.

The Hon. S.G. WADE: I move:

Page 3, after line 32 [clause 5, inserted section 21A(1)]—After the definition of 'knife' insert:

lawful excuse—see section 21E;

This is the first of the amendments related to lawful excuse. The amendment proposes to define lawful excuse in terms of the new clause 21E that is proposed in [Wade—2] 12. I would suggest that this clause is a test clause, therefore, for [Wade—2] 12 and I propose to address the issue of lawful excuse at that point.

Under the current law a range of offences provide a defence of lawful excuse. Section 21C(1), for example, provides a lawful excuse when carrying an offensive weapon. Section 21C(2) provides a defence of lawful excuse when in possession of a dangerous article, and section 21C(3) makes it an offence to carry an offensive weapon in the vicinity of a licensed premises without lawful excuse. Section 21E relates to knives in schools and public places without lawful excuse.

The government does acknowledge that a defence of lawful excuse is necessarily included so that people who innocently and legitimately possess and use knives are not in breach of the law. The changes proposed by this bill significantly expand the impact of weapons offences on South Australians, including law-abiding South Australians. It does so particularly by expanding the use of the concept of possession as opposed to use. Accordingly, the need for lawful excuse is significantly increased.

The term 'carry', which has been particularly the focus of offensive weapons in the past, means to have an offensive weapon on or about your person, or having it under your immediate control. The term 'possess' has a wider meaning than 'carry'. It could include, for instance, having the article in one's locker at school, in a locked car on school grounds or in a public car park. The Attorney-General in his second reading explanation in the other place said:

The bill does not target people who have a legitimate reason for the possession and use of a knife in a public place. It is squarely aimed at those who misuse knives. The new offences and enhanced police search powers should discourage such people from possessing or using knives in public places unless they have good reason for doing so.

From the opposition's point of view, the moot point is: what is a good reason? The need for a lawful excuse puts a burden on the citizen. It is not a reversal of the onus of proof in the normal sense, but, as the government's own knives discussion paper states:

If the accused person claims to have a lawful excuse then he or she has to prove it.

The paper cites the case of Poole v Wah Min Chan, a case from 1947. The government position on lawful excuse, as I understand it, can be summarised as follows: lawful excuse and similar defences are intended to allow the accused to explain possession of the thing by reference to his knowledge or intent. The onus is on the accused person to prove a lawful excuse and, generally, self-defence will not be a lawful excuse to carry a knife.

What constitutes a lawful excuse will depend on the circumstances. The act does not define 'lawful excuse' as it would be impossible to set out every circumstance that would amount to a defence of lawful excuse. It could result in the law becoming too inflexible in its application and provide offenders with a ready-made list of excuses.

The government goes on, in material available in both houses, including the answers to questions which the minister put on the record at the end of the second reading, to suggest that the police can decide in each case whether to charge the person. The explanation given by the person when questioned by the police will be relevant to the decision whether to prosecute. The opposition's concern is the jeopardy in which ordinary law-abiding South Australians are placed. The government said that the police would not charge a person if they think that the explanation is credible and the reason for possessing or carrying it is lawful.

They gave us some reassurance in that the government asserted that a parent or guardian, who can provide a legitimate reason for carrying a knife, has a lawful excuse. But it ends up being a bit circular: if you need to have a legitimate reason to have a lawful excuse, then what is considered a legitimate reason?

They reassured us that a child who has a fruit knife in his lunchbox, and can show it is for the purpose of cutting fruit, would have a lawful excuse. I hope he has his answers ready when he is questioned. A child who carries a Stanley knife in his art kit for the purposes of participating in an art class at school would have a lawful excuse.

But the government's reassurances fade dramatically when you get to what I would call the more fringe cases—for example, whether a person has a lawful excuse if they possess a knife on their way to school or for use in an activity beyond the school. The government tells us that would depend on the circumstances. If the person is participating in an activity beyond the school that requires the use of a knife, then that would likely constitute a lawful excuse, particularly if the person was travelling straight from school to that activity. If the person is prosecuted, the person bears the onus of proving that he or she had a lawful excuse for possessing the knife with reference to his knowledge or intent.

In conclusion, the government said that the court must determine on the evidence and its credibility whether the accused has a lawful excuse. So the government says that 'those without a legitimate reason for possessing a knife in a public place or school would have nothing to fear.' But this position is somewhat naive. Ordinary law-abiding South Australians will fear; they will worry whether or not their use will be seen to be lawful. In the opposition's view, the government's position puts ordinary South Australians in an unnecessary fear of prosecution. Law-abiding citizens are more likely to be stressed by the risk of prosecution and unnecessarily restrict their practices. It is our view that we need to give South Australians more confidence that they are not breaching the law. So the opposition proposes that 'lawful excuse' be partly codified in the proposed new section 21E.

We say that because, when we are significantly expanding offences beyond carrying weapons to include possession, we need to provide a high level of clarity as to what is a lawful excuse. I stress that the amendment No. 12 (Wade 2) which proposes to insert a new section 21E will not limit the excuses. Subsection (1) specifically provides:

Nothing in this section limits the circumstances in which a person will, or will not, be taken to have a lawful excuse for the purposes of this Part.

My amendment will not guarantee a defence; it will still be a matter for courts. But it means that citizens would have to rely on more than two words: 'lawful excuse'. They will have some guidance as to the content of those words with reference to the act.

Members might be asking themselves what the origin is of section 21E. Proposed section 21E(2) to (4)(c) correspond to the elements currently enumerated in section 15(2a)(b) to (f) of the current Summary Offences Act that relates to exemptions for prohibited weapons. Proposed section 21(5) relates to section 15(2a). These provisions provide content to 'lawful excuse' in terms of possession and use of weapons. Section 21D and E are drawn from New South Wales legislation which are also provided in the context of lawful excuse.

In terms of specific examples of lawful excuse, I have mentioned the fruit knife after school. I stress that these are not just the fanciful imaginings of a Legislative Councillor late at night. They were brought to the attention of the government as a result of the consultation that resulted in relation to the knives discussion paper which, if I remember rightly, was in 2009-10.

In that context it is worth considering the submission of Scouts SA which asks whether a scout or a young person in public, on an organised and supervised hike with an organisation, might be a lawful excuse to carry a knife. Wildcatch Fisheries SA mused whether possession of knives in public places, at boat ramps, is an essential part of their normal commercial activity. They asserted that possession of knives in public places, at boat ramps, is an essential part of their normal commercial activities and should not be curtailed, and they raised concerns that that be addressed by a lawful excuse.

There were other concerns raised by organisations such as the Royal Caledonian Society, but we believe they are indicative of the level of concern that would be in the broader South Australian community if there was, if not complete codification, at least some clarification as to what constitutes a lawful excuse.

The opposition does not assume that the set of lawful excuses is exhaustive, and we will be moving an amendment to section 21M so that, by regulation, the government can provide clarification that provisions do not apply to specific classes of person. In that sense we believe that a wise use of the exemption power, in concert with the lawful excuse clarification, will provide more reassurance to South Australians that this legislation should not unduly interfere with law-abiding citizens going about their business.

The Hon. B.V. FINNIGAN: I thank the honourable member for that thorough contribution. The government opposes the amendment, which inserts the definition of 'lawful excuse' into the bill. As the honourable member has indicated, the defence of lawful excuse is intended to allow the accused to explain his or her possession of the thing by reference to his or her knowledge or intent. It is currently a defence to a number of offences in the Summary Offences Act, including the offensive weapons and dangerous articles offences.

What constitutes a lawful excuse is not defined in the act as it would be impossible, in our view, to set out all of the circumstances in which a person might have a lawful excuse. Instead, whether an excuse is lawful or not will depend on the circumstances surrounding the offence. Setting out what might constitute a lawful excuse also has the effect of providing offenders with a ready-made list of excuses.

The government believes a lawful excuse should remain undefined unless a substantive issue arises in the future concerning how lawful excuse is defined or interpreted. If that occurs, the government can address it through a regulation, as 21M(a) of the bill already provides that the regulations can prescribe the circumstances in which a person will or will not be taken to have a lawful excuse in relation to an act or omission referred to in section 21C or 21E, so the amendment is opposed.

I find it interesting that it seems we have legislative philosophy turned on its head here where for many years the trend has been to put everything in statute, rather than leaving things to the common law. People like the Hon. Mr Wade and the Leader of the Opposition in the other place have long railed against this government, particularly the Premier and the former attorney-general, for always trying to talk down the courts or not trust the courts and not let judges make decisions, and for constantly talking tough on law and order.

What we have here is the opposition saying, 'We don't trust the police in relation to whether or not they are going to use their judgement about whether charges are laid, and we don't trust the courts to interpret a perfectly regular, normal, common term that is used in all sorts of statutes which we trust the court to interpret properly.'

Instead, what we have here is the opposition saying, 'We have to lay down in minute detail what something means because we can't trust the courts to interpret something, even though it has been a standard phrase used in common law for, probably, centuries.'

It seems extraordinary that the government, which has often been accused of not having due respect for the courts and the law by left-leaning lawyers like the Hon. Mr Wade, is now being told that it is not good enough to let the courts interpret whether or not you have a lawful excuse, and it is not good enough to let the police use their judgement. Instead, we are going to have to lay down, in statute—in excruciating detail—exactly what that term means.

The Hon. S.G. WADE: I would stress to the committee that I made no comments in reflection on the courts or the police. In fact, in my contribution, except for quoting the government's statement as to what the police would do, I do not think I mentioned them. My focus was and remains the minds of South Australians. South Australians may well, in response to a lack of clarity, inhibit their activity—whether that is fishing, school, employment, or whatever. They might overly react to this legislation because of its lack of clarity and curtail it in a way that the police would never be interested in and the courts would never regard as questionable. So, it is a matter of providing some reassurance to South Australians.

I do not accept that this is codification. The new subsection 21E(1) says that it is not. It says that nothing in this section will limit lawful excuse. So, the Hon. Mr Finnigan and, wherever his lawyers lean—I do not know; Labor lawyers seem to lean all over the place depending on where the polls are going—those lawyers can continue to use the common law and lawful excuse. It is just that this statute, with this clause, will have some clarity so that ordinary South Australians going about their business can have some reassurance that the police are not interested in their activities.

The committee divided on the amendment:

AYES (13)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Franks, T.A. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Vincent, K.L.
Wade, S.G. (teller)
NOES (6)
Finnigan, B.V. (teller) Gago, G.E. Gazzola, J.M.
Hunter, I.K. Wortley, R.P. Zollo, C.
PAIRS (2)
Stephens, T.J. Holloway, P.

Majority of 7 for the ayes.

Amendment thus carried.

The PRESIDENT: It would save time if some of the minor parties and Independents indicated what they were doing.

The Hon. S.G. WADE: I move:

Page 4, lines 3 to 9 [clause 5, inserted section 21A(1), definition of offence of violence]—Delete the definition and substitute:

offence of violence means an offence where the offender uses a weapon, or threatens to use a weapon, against another for the purpose of committing the offence, or escaping from the scene of the offence;

Under section 2G of the bill the commissioner may issue a weapons prohibitions order against a person if the person has been found guilty of an offence of violence. An offence of violence is defined in section 21A as where a person uses a weapon or inflicts serious harm or threatens to inflict serious harm on another. The bill does not require that a person has used a weapon, and my understanding is that it would include common assault without a weapon. In that sense it could even involve threats made without a person being physically present.

The government misleads us in the second reading on this point. This is reflected in both the Attorney-General's second reading explanation in the House of Assembly and in the second reading explanation in this place by the minister representing the Attorney-General in another place. The relevant section reads as follows:

As part of its election platform the government pledged to introduce weapons prohibition orders modelled on the firearms prohibition orders legislation, which enable police to ban persons with a known propensity for violence and with a history of carriage of weapons from possessing or accessing prohibited weapons in a public place. Sections 21G to 21J of the bill implement this election commitment.

I draw the council's attention to that phrase. The government told us that it would relate to people with a history of carriage of weapons. That is not my understanding of the operation of the clause. This statement is not true; the bill does not require a history of carriage of weapons.

It is the opposition's view that there should be a clear nexus between a person's behaviour and the restrictions we propose to put on them. The government has offered no evidence of a correlation between a person's propensity to make threats, a person's propensity to inflict harm and a person's propensity to use a weapon. In the absence of some evidence, the opposition thinks that a preventive tool like this arrangement is best applied to those who have shown some predisposition to abusive weapons. I urge the council to support the amendment.

The Hon. B.V. FINNIGAN: As already indicated in the other place when this was dealt with, the government opposes the amendment. The amendment limits the application of a weapons' prohibition order to people who have committed an offence of violence with a weapon. The government believes the amendment is too narrow and that the circumstances that the bill is addressing are serious enough to warrant the broader definition that a weapons prohibition order can be issued for an offence involving the use of a weapon or an offence where the offender has inflicted serious harm on another person. Members may be aware that this was the subject of some debate in the other place. While reiterating that the government opposes the amendment, I do not propose to spend a lot of time on it.

The Hon. D.G.E. HOOD: Family First opposes this amendment. We believe that this is very serious indeed, and we do not want to limit the potential for orders to be made in the rare cases where it may be relevant to make such an order where it was not involving weapons. So, for that reason—and, I might say, it is a somewhat difficult decision because it is obviously a very significant issue—we do, on balance, oppose this amendment.

The Hon. A. BRESSINGTON: I indicate that I will be supporting the amendment.

The Hon. T.A. FRANKS: I indicate that the Greens will be supporting this amendment.

The Hon. K.L. VINCENT: Opposing.

The committee divided on the amendment:

AYES (9)
Bressington, A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Wade, S.G. (teller)
NOES (10)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V. (teller)
Gago, G.E. Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Vincent, K.L. Wortley, R.P.
Zollo, C.
PAIRS (2)
Stephens, T.J. Holloway, P.

Majority of one for the noes.

Amendment thus negatived.

The Hon. S.G. WADE: I move:

Page 4, after line 12 [clause 5, inserted section 21A(1)]—After the definition of offensive weapon insert:

official ceremony means a ceremony conducted—

(a) by the Crown in right of the State or the Commonwealth; or

(b) by or under the auspices of—

(i) the Government of the State or the Commonwealth; or

(ii) South Australia Police; or

(iii) the armed forces;

I apologise to the council for tabling this amendment late. It is consequential. It is necessary to give clarity to lawful excuse. The term 'official ceremony' is used in the lawful excuse, which is 21E. The concept of official ceremonies looks familiar to members, of course, because you have seen it in the schedule. It is exactly the same definition as in the schedule. It is just that it needs to do work, not just in the schedule in relation to exemptions; it needs to do work in the act in relation to lawful excuse. So, it is consequential to the previous division on [Wade-2] 3, in relation to lawful excuse.

The Hon. B.V. FINNIGAN: The government opposed the insertion of the definition of lawful excuse, so logically we oppose this amendment as well, but we do not propose to divide on it.

The Hon. S.G. WADE: With all due respect, I accept that the minister is not going to divide, but if a clause has been put in which the government does not support, I would have thought it was logical to not actually sabotage the clause by allowing a definition to be inserted. So, I appreciate there is no division, but I would ask the minister to think about good legislative practice. If you have lost the vote to put the clause in, do not denude it by not allowing it to be defined.

The CHAIR: The honourable minister, we have not heard from the minor parties or the Independents. Somebody might indicate where the numbers are and there might not be any need to divide. That is probably what the minister is talking about.

The Hon. B.V. FINNIGAN: Sorry, Mr Chair, if I may. Given that we are talking about good legislative practice, this was filed, I think, half an hour ago, so you could hardly expect that I would have had time to consult the law lords and the man on the Clapham bus about an amendment that you have just filed. So, I do not think you should be getting upset because we are not saying we are going to support it. We have indicated that we did not support the insertion of the definition and I have said we would, therefore, logically oppose this. It was the will of the council to insert the definition of lawful excuse, ergo, the council is, of course, free to add this to it. As I indicated, we will not be dividing on it, but I do not see that we should be obliged to support something we saw about half an hour ago.

The Hon. S.G. WADE: I draw the committee's attention that the minister is moving from argument to argument.

Members interjecting:

The Hon. S.G. WADE: I am sorry. The minister is suggesting to the committee that he and the government members are going to vote against this legislation—

The CHAIR: That is the minister's prerogative.

The Hon. S.G. WADE: —on the basis of good legislative practice because he says that, if we opposed the clause, then we should oppose any definition that relates to it, any consequential amendment; that is not how consequential amendments work in this place. Now the minister is arguing that it was inappropriate for me to table the amendment late. I have already apologised to the council for that.

The CHAIR: Hear, hear! So you should.

The Hon. S.G. WADE: I am more than happy for the committee to report progress and further consideration to be given, but we have now shifted from the argument about whether or not the government wants to be consistent in its support to an argument about whether the government has had an appropriate time to consider it. If the government wants to allow this to go through without giving it due consideration, well, that is a different argument.

The CHAIR: It is their prerogative.

The Hon. S.G. WADE: I just think the committee should be clear as to what the government is saying.

The Hon. D.G.E. HOOD: I understand this is consequential to [Wade-3] 2?

An honourable member: Yes.

The Hon. D.G.E. HOOD: Yes, okay. Well, we supported that amendment and we will be supporting this one.

The Hon. B.V. FINNIGAN: I believe it is quite common for ministers to indicate that we oppose consequential amendments because we opposed the test amendment, but we will not divide on them for the purpose that the council has expressed its will and we accept that.

The CHAIR: The Chair appreciates that.

The Hon. B.V. FINNIGAN: I did not say it is inappropriate. The Hon. Mr Wade can file any amendments he likes, as any other honourable member is free to do. However, on behalf of honourable members, we do not believe we have had time to consider this properly and so, for that reason, as well as for the reason that we opposed the definition insertion in the first place, we will oppose the amendment. Other honourable members are free to do as they wish. As I well imagine that they wish to insert this, then they can do that. I have indicated that we will not divide on it on that basis, so I am not quite sure what the honourable member is unhappy about.

The Hon. M. PARNELL: The Greens support the amendment.

The Hon. A. BRESSINGTON: I support the amendment.

The Hon. J.A. DARLEY: I will be supporting the amendment.

The Hon. K.L. VINCENT: Support—it is a lot of trouble to go to for one word, but thank you.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 4, line 13 [clause 5, inserted section 21A(1), definition of prohibited weapon]—Delete:

'regulation' and substitute:

Schedule 2, part 3

I would suggest to the committee that [Wade-2] 5 is consequential on [Wade-2] 2.

The Hon. B.V. FINNIGAN: At the risk of incurring the ire of the honourable member, the government did not support the original proposition, but we do accept that this is a consequential amendment, so we will accept its passage.

Amendment carried.

The Hon. S.G. WADE: I move:

Page 4, after line 15 [clause 5, inserted section 21A(1)]—After the definition of school insert:

serious and organised criminal activity means criminal activity involving 2 or more persons who are reasonably suspected of associating for the purpose of organising, planning, facilitating, supporting or engaging in serious criminal activity (within the meaning of the Serious and Organised Crime (Control) Act 2008);

I would suggest to the committee that [Wade-2] 6 is consequential on [Wade-2] 1, and I seek the committee's support.

The committee divided on the amendment:

AYES (10)
Bressington, A. Dawkins, J.S.L. Franks, T.A.
Lee, J.S. Lensink, J.M.A. Lucas, R.I.
Parnell, M. Ridgway, D.W. Vincent, K.L.
Wade, S.G. (teller)
NOES (9)
Brokenshire, R.L. Darley, J.A. Finnigan, B.V. (teller)
Gago, G.E. Gazzola, J.M. Hood, D.G.E.
Hunter, I.K. Wortley, R.P. Zollo, C.
PAIRS (2)
Stephens, T.J. Holloway, P.

Majority of 1 for the ayes.

Amendment thus carried.

The Hon. S.G. WADE: I move:

Page 4, after line 18 [clause 5, inserted section 21A(1)]—After the definition of 'suitable for combat' insert:

'vicinity of licensed premises' means—

(a) the area within 50 metres of the boundary of the licensed premises; or

(b) an area—

(i) in which people are queuing to enter the licensed premises; or

(ii) for carparking specifically provided for the use of patrons of the licensed premises,

(whether or not lying within 50 metres of the boundary of the licensed premises);

I believe that I should move this amendment because it relates to the definition of 'vicinity of licensed premises' in section 21C(3). The reason why I am being cautious about that is because the opposition is somewhat attracted to the amendments of the Hon. Ann Bressington in relation to 'vicinity of licensed premises' in section 72A(9). Considering that the Hon. Ann Bressington has not moved an amendment to this clause, I believe that I still need to move [Wade-2] 7 standing in my name.

What this does is insert the definition of 'vicinity of licensed premises' in the definition clause, and it has work to do outside of section 72A in the context of 'carriage' in section 21C(3). So, I acknowledge that there will be an inconsistency between the two definitions of 'vicinity of licensed premises', if other members are attracted to the Hon. Ann Bressington's amendments, as we are.

I would suggest to the council that if, in fact, that is the result, then we may want to recommit this clause at the end. If, in fact, the council is not attracted to the Hon. Ann Bressington's amendment at a later stage, then we will be persisting with our amendment because we believe it is better than the act as it stands.

In neither section 21C(3) or section 72A(9) is 'vicinity of licensed premises' defined. Whether in relation to an offence or in relation to the exercise of search powers, it is important that there is clarity as to the geographic boundaries. It would assist the police so that they know more clearly when an offence has occurred and when they can use the enhanced search powers, and it is important that the community knows when they are in the vicinity of a licensed premises. It will help keep people with weapons away. It will let people know that they will be more liable to be searched for weapons.

The definition that the opposition proposes at this point, and in relation to section 72, is a combination of two elements: one, a reasonable distance, which is 50 metres. I appreciate that is reasonably arbitrary, but it is a reasonable distance. Secondly, it includes relevant portions of the definition of a prescribed area in the Controlled Substances (Miscellaneous) Amendment Act 2010.

I note that the government actually had a definition of 'vicinity of licensed premises' in its 2009 bill, and I seem to recall that the government was suggesting, at that stage, 500 metres. That was clearly ludicrous. If you had a radius of 500 metres around each licensed premises you could basically carpet the whole of metropolitan Adelaide. We do not agree that the government's current approach to leave it undefined is constructive. I urge the council to support my amendment.

The Hon. B.V. FINNIGAN: The Hon. Ann Bressington's amendment, as I understand it, was filed today, so I am not in a position to advise the government's position on that at this time. I am happy for progress to be reported but, if any other honourable member would like to put a view, then perhaps now would be a good time to do it. From the government's view, that would be a more sensible approach rather than deal with an amendment that we may then wish to pass a different amendment in lieu of if we would be happy to support either of them.

Progress reported; committee to sit again.

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