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

Committee Stage

In committee.

(Continued from 7 April 2011.)

Clause 5.

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

Page 6, after line 19 [clause 5, inserted section 21D]—After subsection (4) insert:

(4a) No offence is committed under subsection (4) if a person markets a knife solely in a way that indicates or suggests that the knife is suitable for use in a lawful form of entertainment or a lawful and recognised form of recreation or sport.

Currently, marketing of prohibited weapons is prohibited. The government's 2009 discussion paper states that the government questions the need for 'knives that are manufactured and marketed solely as deadly weapons'. In his second reading explanation in the other place, the Attorney-General stated:

Secondly, it will be an offence to unlawfully market a knife in a way that indicates, or suggests, that the knife is suitable for combat or is otherwise likely to stimulate or encourage violent behaviour involving the use of a knife as a weapon.

I read both excerpts to highlight the inconsistency between them. The bill is much broader than the discussion paper. The public of South Australia was asked: do you want to control the marketing of knives which are marketed solely as deadly weapons? The bill, instead, puts forward a limitation of knives that are suitable for combat or are otherwise likely to stimulate or encourage violent behaviour.

The bill, in the opposition's view, is too broad. The phrase 'knife suitable for combat' is not reassuring in this regard. It might otherwise act as a limitation on the provision, but if one turns to section 21A, the definition provisions, a knife 'suitable for combat, in relation to a knife, means suitable for use as a weapon for inflicting injury on a person or causing a person to fear injury'.

It is implicit in this whole bill that knives can inflict injury. In fact, as it currently stands, we stand in fear of butter knives. Knives can inflict injury on a person or cause a person to fear injury, so we believe that this provision is extremely broad. In any event, we want to make the provision more workable by allowing the marketing of knives for lawful entertainment and sports. In that sense, it reflects similar exemptions in relation to prohibited weapons which will be included in the new schedule to this act.

In the context of the need to recognise the legitimate recreational and entertainment needs of South Australians, one only needs to look at The Advertiser of late last year. In an article entitled, 'Swelling ranks of mixed martial arts', dated 30 November, Anna Vlach writes:

He looks like a warrior, but Luke Kimber is really a lover not a fighter. Mr Kimber, 19, of Willunga, is riding the wave of popularity for mixed martial arts. Mick Cutajar, from the Australian Mixed Martial Arts Association, said yesterday national participation in the sport—which combines several martial arts styles—had grown dramatically in the past five years.

'It's the in thing,' he said. 'Five years ago there were about 800 people training in mixed martial arts sports and now just about every martial arts club in the country is offering it.' Mr Kimber said his training is about life skills, not violence. 'I don't usually use a sword when training,' he said. 'You don't learn martial arts to inflict harm on others.'

I appreciate that is widely recognised, but the provision in this legislation would suggest that anybody who was marketing knives for a martial arts purpose could well be in jeopardy of falling foul of this legislation. We believe the government may well need to look at other changes to the scope of this legislation, but we think this is an appropriate statutory recognition of that need. We have made it in the schedules in relation to prohibited weapons; we believe it is appropriate to make it at this point in relation to the marketing of knives.

The Hon. G.E. GAGO: This proposed section 21D(4) of the bill creates a new offence of unlawful marketing of a knife in a way that suggests it is suitable for combat or is otherwise likely to stimulate or encourage violence. 'Suitable for combat' in relation to a knife means 'suitable for use as a weapon for inflicting injury on a person or causing a person to fear injury'.

The government opposes the amendment which provides that no offence will be committed if a person markets a knife solely in a way that indicates or suggests that a knife is suitable for use in a lawful form of entertainment or a lawful and recognised form of recreation or sport. Certain kinds of knives may be used in martial arts competitions or other sporting competitions. A martial arts competition could be considered to be combat in a very broad sense of the word. Knives can also be used for entertainment, such as a knife-throwing act.

However, I find it very difficult to think of circumstances in which would be necessary for a retailer to market a knife for use in recreation, sport or entertainment in a way that would contravene this offence, particularly given the definition of 'suitable for combat'.

Further, the proposed amendment creates a very broad exemption to the offence. It could be difficult to disprove a person's claim that they fell within the exemption and may allow some manufacturers or sellers to escape prosecution when they should not, and it is for these reasons that we oppose this amendment.

The Hon. S.G. WADE: I make the simple point that the problems the minister is envisaging in relation to this exemption would have already been evident as problems in relation to the exemptions under the prohibited weapons in the schedule, if indeed it was a real problem.

The Hon. M. PARNELL: The Greens are supporting this amendment.

The Hon. D.G.E. HOOD: Yes, as are Family First. We see no reason that knives appropriately marketed should not be available.

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

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

Amendment carried.

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

Page 6, lines 32 to 38 and page 7, lines 1 to 11 [clause 5, inserted section 21E]—Delete section 21E and substitute:

21E—Lawful excuse

(1) 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.

(2) It will be a lawful excuse for a police officer to use, carry or possess an offensive weapon or an implement or article if the use, carrying or possession occurs in the course of the officer's duties as a police officer.

(3) It will be a lawful excuse for a person to use, carry or possess an offensive weapon if the use, carrying or possession is reasonably required in the course of conducting his or her business or for the purpose or in the course of his or her employment.

(4) It will be a lawful excuse for a person to use, carry or possess an offensive weapon if the use, carrying or possession is reasonably required in connection with—

(a) a lawful form of entertainment; or

(b) a lawful and recognised form of recreation or sport; or

(c) an official ceremony; or

(d) an official uniform; or

(e) in the case of a knife—

(i) the exhibition of knives for retail or other trade purposes; or

(ii) an organised exhibition by knife collectors; or

(iii) the preparation or consumption of food.

(5) It will be a lawful excuse for a person to carry or possess an offensive weapon if the carrying or possession is reasonably required in connection with a museum or art gallery.

(6) The regulations may, however, despite a provision of this section, prescribe circumstances in which certain convicted persons will not be taken to have a lawful excuse for the purpose of this part.

I would suggest this amendment is consequential on [Wade-2] 3 which was supported by the council, so I suggest it is consequential and should be supported.

The Hon. G.E. GAGO: It is consequential.

Amendment carried.

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

Page 7, line 21 [clause 5, inserted section 21F(2)(a)]—Delete paragraph (a) and substitute:

(a) Schedule 2 Part 4; or

I also suggest that this amendment is consequential and I seek the support of the council.

The Hon. G.E. GAGO: It is consequential.

Amendment carried.

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

Page 7, line 22 [clause 5, inserted section 21F(2)(b)]—Delete 'Commissioner' and substitute:

Minister

This is the first of a series of amendments that relates to the respective roles of the minister and the commissioner in relation to exemptions for prohibited weapons. The bill proposes that the Commissioner of Police rather than the relevant minister may declare a person to be an exempt person for the purposes of this section; in other words, for the purposes of prohibited weapons. The 2011 bill (the bill before this council) proposes to move that power from the minister to the commissioner. I would suggest that this clause is a test clause for 10 other amendments, those being [Wade-2] 16 to 24 and [Wade-2] 46.

In moving this amendment the opposition is asserting that it is appropriate for a democratically elected and publicly accountable person to remain part of the process of granting exemptions for prohibited weapons. We do so on the basis that we believe it is important that the granting of exemptions reflects community values in balancing the management of controls on prohibited weapons. After all, this is the regime that the government has regarded as acceptable up to this point and we as an opposition do not see the need to change it.

We appreciate that ministers do not have time to make a large number of complex decisions, such as exemptions for prohibited weapons, but the opposition does not think that the appropriate response is to take the minister out of the equation. We think that the appropriate response is to allow the minister to delegate, and therefore I draw the attention of members to [Wade-2] 23 which would entitle the minister to delegate his or her power under this section. The delegation may be conditional and it would not derogate from the minister's ability to exercise the power.

We appreciate that the police have and will continue to have a key role in managing the exemptions and, hence, the opposition will put another amendment (which I foreshadow as [Wade-2] 21) which would require the minister to consult the commissioner on exemption. That is, if you like, an explicit recognition of the key role the police have in promoting community safety by managing exemptions for prohibited weapons. Just to reiterate: with this and other matters the opposition has taken the view that it is appropriate for the minister to continue to play a part, together with the police, in the management of this regime. I commend my amendment to the house.

The Hon. G.E. GAGO: This is the first in a series of amendments dealing with the power to issue exemptions for prohibited weapons. The government is not opposing this amendment. It is an offence under the bill to possess, use, manufacture, sell, supply or otherwise deal in prohibited weapons. A person has a defence if they can prove that they were, in accordance with the declaration made by the commissioner, an exempt person in the circumstances of the alleged offence. Under current section 15, the power to issue a declaration that a person is an exempt person lies with the minister or his or her delegate. As a matter of practicality, this power has always been delegated to the commissioner and other senior members of SAPOL and is unlikely to ever be exercised by the minister, which is why the bill gives the power to the commissioner in the first instance. This removes the need for a formal delegation of power from the minister to a delegate.

The effect of the honourable member's amendment would be to return us to the status quo, with one additional requirement—that the minister consult with the commissioner before making a delegation. The government believes that the approach taken in the bill is more practical. However, as I say, we will not be opposing this amendment.

Amendment carried.

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

Page 7, lines 25 to 27 [clause 5, inserted section 21F(3)]—Delete subsection (3)

It is my view that that is consequential on [Wade-2] 2 and I seek the support of the council.

The Hon. G.E. GAGO: It is consequential.

Amendment carried.

The Hon. S.G. WADE: As requested, I indicate clusters of consequential amendments. My understanding is that [Wade-2] 16 to 20 inclusive are all consequential on [Wade-2] 14, which has received the support of the council.

The CHAIR: Is that 16 to 20?

The Hon. S.G. WADE: It is 16 to 20 inclusive.

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

Page 7—

Line 28 [clause 5, inserted section 21F(4)]—Delete 'Commissioner' and substitute:

Minister

Line 31 [clause 5, inserted section 21F(4)(b)]—Delete 'Commissioner' and substitute:

Minister's

Line 35 [clause 5, inserted section 21F(5)]—Delete 'Commissioner' and substitute:

Minister

Line 37 [clause 5, inserted section 21F(6)]—Delete 'Commissioner' and substitute:

Minister

Line 38 [clause 5 inserted section 21F(6)(a)]—Delete 'Commissioner' and substitute:

Minister

The Hon. G.E. GAGO: These are consequential.

Amendments carried.

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

Page 7, after line 39 [clause 5, inserted section 21F]—After subsection (6) insert:

(6a) The Minister must not make a decision on an application for a declaration unless he or she has consulted with the Commissioner.

This amendment is not strictly consequential but, as I have already anticipated, and the minister has already indicated she regards it as linked, I seek the support of the council for this amendment, which would require the minister to consult the Commissioner in the context of a declaration. I should clarify that it is in the context of a declaration, not a delegation, as suggested by the minister.

The Hon. G.E. GAGO: I believe 21 to 24 are consequential.

The CHAIR: Are you happy to move 21 to 24?

The Hon. S.G. WADE: If the rest of the house is happy to interpret them in that way, I am happy to interpret them that way.

The CHAIR: The honourable minister agrees. So, you have interpreted them. Can you move them?

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

Page 8—

Line 1 [clause 5, inserted section 21F(7)]—Delete 'Commissioner' and substitute:

Minister

After line 3 [clause 5, inserted section 21F]—After subsection (7) insert:

(7a) The Minister may delegate his or her powers under this section to any person or body.

(7b) A delegation under subsection (7a)—

(a) must be in writing; and

(b) maybe conditional or unconditional; and

(c) does not derogate from the Minister's ability to exercise the power under this section; and

(d) is revocable at will by the Minister.

Lines 4 and 5 [clause 5, inserted section 21F(8)]—Delete 'Commissioner' wherever occurring and substitute in each case:

Minister

Amendments carried.

The Hon. S.G. WADE: I have a question in relation to section 21F(11). I presume this is the appropriate place to ask that question.

The CHAIR: If you think so, yes.

The Hon. S.G. WADE: Thank you. My question relates to criminal intelligence. In a letter of 27 November 2010, the Australian Lawyers Alliance suggests that section 21F(11) removes the mandatory nature of the confidentiality of criminal intelligence. In particular it states:

Section 21F(11) mandates the court to take steps to maintain the confidentiality of information. In our view it should say that 'it may take steps'.

I should stress that those last four words—'it may take steps'—are in inverted commas.

The court must have discretion to deal with the matter.

In light of the Australian Lawyers Alliance's concerns, I ask the minister: does the government consider that section 21F(11) is consistent with the High Court judgments in K-Generation and Totani?

The Hon. G.E. GAGO: I will have to take that question on notice and bring back a response.

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

Page 8, lines 27 to 30 [clause 5, inserted section 21F(12)]—Delete subsection (12) and substitute:

(12) A person who is entitled to use or possess a prohibited weapon in accordance with this section—

(a) must not use or possess the weapon unless he or she does so in a safe and secure manner; and

(b) must take all reasonable steps to prevent access to the weapon by persons who are not entitled to such use or possession.

Maximum penalty: $1,250 or imprisonment for 3 months.

This amendment proposes to expand the duties on a person who is entitled to possess a prohibited weapon, for example, a person who holds an exemption under this section. Currently, the bill only requires that a person who uses or has possession of a prohibited weapon must do so in a safe and secure manner.

This amendment maintains that duty but adds the duty on the person to take all reasonable steps to prevent access to the weapon by a person who is not entitled to such use or possession. I would suggest to the house that the current duty is almost a passive duty. The proposed duty is an active one.

The opposition considers that making the duties on a prohibited weapon exemption holder more active enhances community safety generally. We consider that it would doubly do so in the context of weapons prohibition orders. So, I commend [Wade-2] 25 to the council.

The Hon. G.E. GAGO: The government will be opposing this amendment. Clause 21F(12) of the bill provides that a person:

...must not use or have possession of a prohibited weapon unless he or she does so in a safe and secure manner.

If this requirement is not complied with then the person ceases to be an exempt person in relation to that prohibited weapon.

The honourable member's proposed amendment adds a further requirement that a person must take all reasonable steps to prevent access to the weapon by persons who are not entitled to such use or possession. This is problematic. It requires a person who is legally entitled to have possession of a prohibited weapon to make a judgement call about whether or not another person is entitled to possess or use that weapon. If they are not so entitled, then they must take reasonable steps to prevent the other person from having access to the prohibited weapon.

There are a number of circumstances in which a person might be an exempt person and therefore be entitled to possess or use a prohibited weapon. It would be extremely difficult to know whether or not another person came within one of these exemptions unless that person actually advised the other person that they were an exempt person. This amendment would be extremely difficult to comply with, and it is for those reasons the government opposes it.

The Hon. S.G. WADE: I would suggest the government has resorted to absurdity to oppose this amendment. The fact of the matter is, if you are prohibited weapons holder, then you would reasonably assume that everyone else does not have an exemption to hold a prohibited weapon. Therefore, you would presume that you need to take reasonable steps to ensure that other people do not get access to it. If for some reason you happen to know that the police officer you are working with or the security guard that you are employed with also has an exemption for a prohibited weapon, or for some other reason is entitled to have a prohibited weapon, then you might take a different course of approach. It is not an unreasonable duty to put on citizens. In my view, it enhances community safety and should be supported.

The Hon. M. PARNELL: The Greens will be supporting this amendment. It seems to be a sensible measure that is aimed at furthering the objects of the bill, which is community safety. I would have thought that taking reasonable steps might be something as simple as putting the weapon away, locking it away so other people do not have access to it. It does not seem terribly onerous to me.

The Hon. D.G.E. HOOD: Family First will also be supporting the amendment. The wording here says 'must take all reasonable steps to prevent access'. I think that is what we would expect people to do.

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

Amendment carried.

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

Page 8, after line 30—After section 21F insert:

21FA—Information relating to weapons related injuries

(1) If a medical practitioner or a registered or enrolled nurse has reasonable cause to suspect in relation to a person who he or she has seen in his or her professional capacity that the person is suffering from a wound inflicted by a weapon or article of a kind referred to in this Part, the medical practitioner or nurse must, as soon as practicable after forming the suspicion, make a report to the prescribed person or body containing—

(a) details of the wound; and

(b) any information provided to the practitioner or nurse about the circumstances leading to the infliction of the wound (other than information tending to identify the person).

(2) Subsection (1) does not apply if, in the opinion of the medical practitioner or the nurse, the injuries are not serious and the medical practitioner or nurse believes on reasonable grounds that the injuries were accidental.

(3) A person incurs no civil or criminal liability in taking action in good faith in compliance, or purported compliance, with this section.

(4) In this section—

enrolled nurse means a person registered under the Health Practitioner Regulation National Law—

(a) to practise in the nursing and midwifery profession as a nurse (other than as a student); and

(b) in the enrolled nurse division of that profession;

medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);

registered nurse means a person registered under the Health Practitioner Regulation National Law—

(a) to practise in the nursing and midwifery profession as a nurse (other than as a student); and

(b) in the registered nurses division of that profession.

Most of the amendments I have moved to this point have been enhancements on provisions, which has therefore given me the opportunity to be more brief than perhaps I need to be in this context, because in this context I am proposing to bring in a fresh provision. I need to put this provision in context to make sure that people appreciate it is not just a thought bubble. In doing so, I bring the committee's attention to the fact that these provisions have been stimulated by developments in the United Kingdom.

In the United Kingdom, there has been a debate continuing for some years in relation to knife laws. In fact, in the government's discussion paper they rightly highlighted the legislative activity in the United Kingdom and New South Wales as instructive in the formulation of this bill. The United Kingdom Violent Crime Reduction Act 2006 is an example of where restrictions on sale were introduced for people under the age of 16.

The opposition's proposed amendment is also based on examples from the United Kingdom which seek to support authorities to address knife violence in the community. Section 115 of the United Kingdom Crime and Disorder Act 1988 permits health professionals to disclose confidential information to the police where they believe such information could assist in preventing a crime or assist an investigation. These provisions are generally seen as permissive, not mandatory.

The guidelines issued by the United Kingdom General Medical Council in November 2009 recommend that practitioners make police aware of any patient who presents with a gunshot or knife wound as soon as practicable and that the disclosure of any personal details should only be done so in the public interest. However, reforms proposed in the 2010 United Kingdom Liberal Democrats election manifesto committed to changing reporting requirements to compulsory reporting of only non-confidential information to police to identify knife and gun crime hot spots. In that sense, I put it to the committee that my amendments before you today are not dissimilar to those proposed by the Liberal Democrats at the election.

The Liberal Democrats, of course, are now part of the governing coalition in the United Kingdom. In its policy, the Liberal Democrats was acting on recommendations from the Knife Crime 2008/09 Report of the House of Commons Home Affairs Committee, which sought to take a holistic view of knife crime in the United Kingdom.

One of the recommendations from the report was reform of reporting requirements consistent with trials that had been undertaken in Cardiff in the United Kingdom in 2002. These trials showed that reporting by accident and emergency wards allowed authorities to target knife crime hotspots with crime prevention activities, and it reduced knife crime wounds in some areas by 40 per cent. All information shared was anonymous. The information included precise locations and times of incidents and reported them to police.

The opposition amendments before the committee today differ from the earlier UK example and would simply require medical practitioners to report anonymous statistical data to identify knife weapon crime hotspots. The amendment adopts contemporary recommendations from the experience in the UK and includes the reporting of all injuries from all weapons named in part 3A, which includes injuries from knives, guns, dangerous articles, offensive weapons and prohibited weapons.

The Australian Medical Association has advised the opposition that much of this data is already collected by emergency wards in South Australian hospitals as a matter of patient treatment. The changes would mandate, without penalty for noncompliance, that such data is provided to a prescribed authority. The changes will place a positive duty on practitioners to report weapon-related crime. By providing authorities with this information, programs, we would hope, would be developed, which would ensure that identified geographic areas of crime hotspots received attention and the underlying causes of crime were addressed.

In that context, I will digress to remind members that, in my earlier contribution, I highlighted that one of the facts that has been brought out by research amongst young people is that a person is much more likely to carry a knife if they themselves were the victim of knife crime. In that sense, you would expect that, if there has been a knife attack in a particular community, a reaction would be for an increased use of knives by other young people in that area. We would suggest that, even if the knife crime had not come to the attention of the police through police enforcement proceedings, a reporting mechanism like this might well be able to highlight to police that there is a risk of knife crime or other crimes increasing in that area because of, if you like, a victim response to their victimisation.

I would stress that this provision does not involve a breach of patient confidentiality. Section 25FA(1)(b), as proposed by the amendment, states that the reported information is not to include information that would tend to identify the person. The provision would mandate the reporting of data but not data that could identify a person. In that regard, I had the opportunity to speak to a medical officer who is involved in mandatory reporting of sexually transmitted diseases, and I took the opportunity to ask whether, in a practical sense, this impaired his ability to deliver services to people in need of sexual health advice.

He said that it is not in relation to that and that it has not been hard to assure people that patient confidentiality is respected. One way they do that is by providing patient ID numbers so that in subsequent visits a person does not need to identify themselves by name to get test results; they can provide an ID number. So, I believe it is possible to have community confidence that, in a case such as this, their patient confidentiality would be respected.

So, this provision supports a proactive, preventive approach, with those with injuries being able to seek medical attention without fear of being referred to police. The reporting is not being made to assist in preventing a specific crime or assist in a specific investigation; it is intended that the reported information would be used only to identify geographic and social trends in weapon crime. It basically gives the authorities the information to target weapon-related crime reduction activities and programs in identified areas.

The amendment would give the government a broad power to manage this responsibility in the regulations. It can determine how the information is gathered and to whom the information is reported. We have not mandated reporting times in the amendment and we believe that reporting times would actually reassure people about confidentiality. If reporting times, for example, were monthly or quarterly, it is likely to reassure patients that their data is not going to be used in a police context.

To address concerns about reporting potentially undermining harm minimisation approaches and to ensure that the victims of weapon wounds do not feel that their interests are threatened, the government may want to consider managing the reporting through Health SA rather than the police. We are not insisting on that, but that is a possibility, and that would perhaps also provide reassurance to patients.

If members have concerns about the potential for a reduction in the crime minimisation principles that allow a person to seek medical treatment without fear of a breach of confidentiality, I remind them that the amendment requires the process to be determined by regulation, and at the times the regulations are introduced this council will have the opportunity to scrutinise them with other members of the council to ensure that patient confidentiality is maintained.

The opposition wants to see a smart approach to tackling crime in South Australia, and to do that police and public health programs need to have the information to target crime and poor health behaviour. We think this amendment will assist the government and those authorities to do so.

The Hon. G.E. GAGO: In relation to the honourable member's question about section 21F(11), I have been advised that it is in fact consistent with the High Court K-Generation case. In relation to the amendment that has just been moved, this amendment inserts a requirement into the bill that if a doctor or nurse has reasonable cause to suspect that a person is suffering from a wound infected by a weapon, or article of a kind referred to in this part, they must make a report to the prescribed person containing details of the wound and any information provided to them about the circumstances leading to the infection of the wound, other than information tending to identify the person.

The government is not aware of any consultation occurring with the Department of Health by the honourable member about the impact of this amendment, which is a bit of a concern. The government has a number of concerns about the practicality of this amendment and the impact that it will have on the medical profession and the provision of health services. It imposes a mandatory reporting obligation on nurses and medical practitioners to report weapons related injuries. Mandatory reporting requirements may dissuade victims, particularly those who sustained an injury as a result of their own criminal conduct, from seeking medical treatment.

Mandatory reporting obligations also place the practitioner in a difficult ethical position, which is likely to lead to non-compliance, despite the legislation offering them protection from civil or criminal liability. The government notes that there is a similar reporting obligation for medical professionals in relation to injuries inflicted by firearms. However, imposing the same obligation in relation to weapons is extremely impractical, given the number of items that can be a weapon. In fact, just about any item could be considered a weapon if used with the intention of causing harm. In many cases it may be difficult for a nurse or even a doctor to determine whether a wound was inflicted by a weapon.

Some examples of that might be the stiletto heel of a shoe or even a pencil or biro; they could all be considered potential weapons. Finally, a report made pursuant to this amendment by a medical practitioner or nurse is only required to contain details about the wound and information provided to the practitioner or nurse about the circumstances surrounding its infliction—if it is known, of course. The report is not to contain information that would tend to identify the person.

The reporting obligations under the Firearms Act require a medical professional to include in their report either the name and address of the person or a description of the person. Given the nature of the firearms, and the fact that they are subject to a licensing system, police would be able to use this information to determine whether a person is complying with the terms of their licence or to assist an investigation into firearms-related offences. The same cannot be said for any information gathered in relation to weapons-related injuries.

Without any identifying details, the only benefit of this provision that the government can see is data collection. Even with identifying details, it is difficult to see what use the police could actually make of this type of information. This requirement will impose a further regulatory burden on these practitioners, and we know that their workloads are busy, and it is important that we do not impose unnecessary burdens that, in fact, do not result in any obvious benefit to the community, and we believe that to be so with this. So, we believe it imposes a further regulatory burden without any demonstrable public benefit, and it is for those reasons that the government will be opposing this amendment.

The Hon. S.G. WADE: If I may respond to some of the comments the minister has made, I would remind the committee that these amendments were tabled on 18 March, two months ago. It is somewhat cute for the minister to suggest that she understands that we have not consulted Health SA. The government takes such a closed, possessive approach to the public service that there is little point in the opposition contacting Health SA.

In fact, in recent months—it was not in relation to weapons: it was in relation a drugs matter—I decided that I would ring a leading expert on drugs with whom I had had previous contact—

The Hon. G.E. Gago: It's not relevant. It is not relevant, Mr Chair, to this amendment.

The Hon. S.G. WADE: Sorry; if the minister has a point of order, she should do so standing, but it is directly relevant, because I have been accused of not consulting Health SA, and I am saying why. There was no point in consulting Health SA.

The Hon. G.E. Gago: Get on with it.

The Hon. S.G. WADE: There was no point in consulting Health SA because, when one does contact experts in Health SA, one gets a response—as I did in recent months, in relation to my contact with the drugs expert—that I should go through the minister's office. Now, I find that objectionable.

Members interjecting:

The Hon. S.G. WADE: If the minister is suggesting that health experts should have been approached in relation to this weapons bill, then the government should not make a practice of insisting that every contact with an expert within Health SA should be through the minister's office.

The Hon. P. Holloway: It is a courtesy that you should know; it has been a long-standing courtesy. It doesn't mean you can't speak to them.

The Hon. S.G. WADE: I am also reminded of the Hon. Tammy Franks' efforts to unpack the issues in relation to eating disorders. We can all remember the crude censoring of the psychiatrist—

The CHAIR: The Hon. Mr Wade should stick to his amendment.

The Hon. S.G. WADE: The point I am making is that the opposition did not consult Health SA because all we would have been told was, 'Go through the minister's office.' Now, considering that this amendment was tabled two months ago, I would have hoped the government had consulted Health SA. By the minister's comments tonight, I suspect all we have had is a bureaucrat in the Attorney-General's Department, because it does seem to be oblivious to recent developments in health.

The minister, for example, asserted that nurses were not trained to understand forensic implications of wounds when, in fact, on the very day that I tabled my amendments, The Advertiser carried a story dated 18 March 2011: 'Nurses on front line of crime detection'. It states:

No longer just bedside health care professionals, modern nurses are learning crime scene investigation techniques to help catch criminals. Forensic nurses collect physical evidence from victims after an assault, identify injuries, analyse psychological damages and uncover a victim's personal details in lengthy interviews.

They also often testify as expert witnesses in court proceedings using specialist, evidence-based medical records. Nursing and midwifery Associate Professor Daniel Sheridan, from the Johns Hopkins University in the US, is working at Flinders University to help further forensic nursing in Australia.

I am particularly surprised that the minister was not aware of these developments, considering her previous involvement in nursing. Professor Sheridan states:

'It (teaching forensic nursing) is not happening on a consistent, regular basis in most nursing schools, which is one of the reasons why I'm here', he said. 'This is not a problem unique to Australia or South Australia...but it is rapidly becoming recognised, a lot of it is because of television and all these different forensic shows that are out there.' Associate Professor Sheridan said forensic nurses in the US were sometimes a part of death scene investigation teams, where they would take samples at the crime scene and interview family, friends [etc.].

I would suggest to the minister that there is the skill in nursing to differentiate how a wound has been delivered. We expect medical staff to be alert in the context of domestic violence, for example.

An honourable member interjecting:

The Hon. S.G. WADE: Sorry, I thought the President was chairing, but I am happy to address my comments to the Chair. We expect nurses and other medical staff to be alert to the possible origin of the injury that they are presenting for. I do not think weapons would be an insurmountable case for nurses. On the point of—

Members interjecting:

The Hon. S.G. WADE: Well, could you do that through the chair? It is not my job to banter with you across the chamber.

The CHAIR: I think you have made your point.

The Hon. S.G. WADE: Sorry, there is one point I have not addressed, which is the point the minister made that—

The CHAIR: You should have done that when you moved your motion.

The Hon. S.G. WADE: —there is no basis for this. As I hope I have highlighted to the Legislative Council, apparently, unlike the government, the opposition has kept abreast of what is happening in the United Kingdom. We believe that this is an enhancement that is recognised by the United Kingdom's Home Affairs Committee and by the coalition partner in the United Kingdom government that it should be considered and we would commend it to the council.

The CHAIR: The Hon. Mr Parnell.

The Hon. M. PARNELL: We are going to keep going, okay. I have a couple of minutes on it. Are we coming back?

The Hon. G.E. GAGO: In light of further contributions, just before we report progress I want to put on the record that in fact the agency did consult with the Department of Health. With that, I move that progress be reported.


[Sitting suspended from 18:07 to 19:49]


The Hon. M. PARNELL: I rise to put the Greens' position on amendment No. 26 of [Wade-2]. The productivity of the dinner adjournment should never be underestimated by members. Had I made my contribution before the dinner break, it would have been to say that the Greens were not inclined to support this amendment, but I have taken the opportunity to consult with the Hon. Stephen Wade over the dinner adjournment, and I have in fact filed, just within the last hour or so, some amendments which certainly address my concerns in relation to this amendment. I will outline what those are.

My original concern with the proposed new section 21FA is that I did not believe it was drafted tightly enough to achieve the purpose that the honourable member wished it to achieve. What I am most concerned about is that I do not want a situation where a person dies from the loss of blood because they are too scared to go to hospital to get treatment.

That situation could arise if someone, for example, may have been the prime mover of a fight involving knives, and they have become injured but may be reluctant to go to hospital if they thought that the doctors may have had some obligation or, in fact, may have simply reported them to the police and they would get into trouble. In those circumstances, it is not impossible to envisage a situation where a person decides not to go to hospital.

The main difficulties with the clause as drafted, as the Greens see it, are first of all the obligation to 'report as soon as practicable after forming the suspicion' that a weapon was involved and, secondly, that the report would be made to prescribed persons or bodies. The result of those two things put together, I think, could have meant that a report could be made almost contemporaneously, within a very short period of the suspicion being formed (for example, within minutes) and, secondly, the prescribed person or body could well be the police if that was in fact what the government of the day chose to prescribe.

That would have meant real-time reporting to the police. That would have meant that people may have been too scared to go to hospital if that was the regime. The solution that we have come up with during the dinner break is to seek to amend the Hon. Stephen Wade's amendment with respect to proposed new section 21FA(1), and, accordingly, I move:

Delete ', as soon as practicable after forming the suspicion, make a report to the prescribed person or body' and substitute:

, within 1 month after forming the suspicion, make a report to the Department (within the meaning of the Public and Environmental Health Act 1987)

That does two things. First of all, it makes it clear that we are not talking about contemporaneous reporting and, secondly, it makes it clear that it is a health authority that is being reported to.

The minister, in her objection to this amendment, said that she could see no great benefit resulting from the mere collection of statistics. I beg to differ on that point because it seems to me that if there are hotspots, as the Hon. Stephen Wade put it, where these crimes are occurring then that is useful information for law enforcement bodies in relation to where they should place their effort. I think that, with that amendment, this new clause 21FA is worthy of support.

The Hon. S.G. WADE: If I could respond to the Hon. Mark Parnell's comments, the opposition greatly appreciates the indications of support given prior to the moving of this motion in relation to this amendment and, out of respect for those honourable members, I do not presume that I speak for them. So it may well be that we have a difference of opinion as to whether or not this amendment actually enhances the clause. I am more than happy, as part of this council, to have that conversation.

In responding to the Hon. Mark Parnell's comments, I reiterate that in my comments in moving the original amendment I indicated why we were not mandating reporting times—and that was because we wanted to maintain flexibility—but I did make it clear that we would expect it to be on the basis of, say, monthly or quarterly because that would enhance the confidence that patients could have that the information was not being used for criminal investigation, that their personal details would be protected, and therefore they could feel comfortable in cooperating with a public health/community safety initiative such as this.

I also said that we were not inclined to prescribe the authority but we did anticipate that it would be health or the police. On balance, we accept the argument of the Hon. Mark Parnell that those two matters are worth putting in the statute to give added reassurance to patients that their confidentiality will be respected and that it is not a police purpose, it is a health purpose or a community safety purpose. Considering that the Public Environmental Health Service within Health SA has a community safety mandate, I acknowledge the sense of the honourable member's reference to the Public Environmental Health Act. I look forward to comments by other members but I indicate that the opposition is inclined to support the amendment of the Hon. Mark Parnell.

The Hon. G.E. GAGO: The government opposes the Hon. Mark Parnell's amendment. We are opposed to mandatory reporting. We believe that this places an unnecessary burden on health service practitioners without any significant demonstrable public benefit.

The Hon. D.G.E. HOOD: Family First had intended to support the amendment. However, we now support the amendment as amended.

The CHAIR: You support the amended—

The Hon. D.G.E. HOOD: The amended amendment.

The Hon. A. BRESSINGTON: I was inclined to support the Hon. Stephen Wade's amendment as it stood for the reason that I did understand the points that he was making; that is, it was not a mandatory reporting for police purposes. I truly believe that the collection of data for these sorts of crimes is important as a preventative measure for police to be able to target certain areas where a trend has been shown of an increase in weapons violence in one particular area; that they know exactly where to target their resources, and I do not believe that you can make effective legislation or have effective law enforcement without the gathering of appropriate data.

I was inclined to support the Hon. Stephen Wade's amendment, but I do support the Hon. Mark Parnell's amendment of that amendment, as well, realising that it is a possibility that people would probably not seek medical treatment if they thought that the information was going to go to the police. This puts it in legislation rather than relying on regulations of maybe a future government that does not interpret this legislation the same as it is intended now. So, I support the amended amendment.

Amendment to amendment carried; amendment as amended carried.

The Hon. A. BRESSINGTON: I move:

Page 8, lines 31 to 42, page 9, lines 1 to 41, page 10, lines 1 to 41, page 11, lines 1 to 43 and page 12, lines 1 to 13 [clause 5, inserted sections 21G, 21H and 21I]—

21G—Court may make weapons prohibition order

(1) A relevant court may, on application by the Commissioner, make a weapons prohibition order against a person (the defendant) if the court is satisfied that—

(a) the defendant has, whether before or after the commencement of this section—

(i) been found guilty by a court of an offence of violence; or

(ii) been declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 by a court dealing with a charge of an offence of violence; and

(b) possession of a prohibited weapon by the defendant would be likely to result in undue danger to life or property; and

(c) it is in the public interest to prohibit the person from possessing and using a prohibited weapon.

(2) A weapons prohibition order may be issued on an application made without notice to any person.

(3) The grounds of an application for a weapons prohibition order must be verified by affidavit.

(4) A weapons prohibition order must—

(a) prohibit the defendant from manufacturing, selling, distributing, supplying, dealing with, using or possessing a prohibited weapon; and

(b) prohibit the defendant from being present at—

(i) a place at which a person carries on the business of manufacturing, repairing, modifying or testing prohibited weapons or buying, selling or hiring out, prohibited weapons; or

(ii) any other place of a kind prescribed by regulation; and

(c) prohibit the defendant from being in the company of a person who has a prohibited weapon on or about his or her person or under his or her immediate physical control; and

(d) prohibit the defendant from being on or in any premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) on which there is a prohibited weapon,

except as may be specified in the order.

(5) A weapons prohibition order remains in force for a period (not exceeding 3 years) specified in the order, unless it is revoked before the expiration of that period.

(6) For the avoidance of doubt, the fact that a weapons prohibition order issued against a person has been revoked or otherwise ceased to be in force does not prevent the Commissioner from applying for a subsequent weapons prohibition order against the person in accordance with this section.

(7) The court may, on making a weapons prohibition order, make any consequential or ancillary orders it thinks fit, including, in a case where the weapons prohibition order prohibits the possession of a weapon of a specified class, orders—

(a) providing for the confiscation and disposal of the weapon or such a weapon; and

(b) if the circumstances of the case so require, authorising a police officer to enter any premises in which the weapon or such a weapon is suspected to be, and search for and take possession of the weapon or such weapon.

(8) In this section—

relevant court means—

(a) the court that dealt with the offence of violence referred to in subsection (1)(a); or

(b) the Magistrates Court.

21H—Form of weapons prohibition order

(1) A weapons prohibition order must—

(a) be directed at the person specified as the defendant in the application; and

(b) set out the terms of the order; and

(c) specify the period for which it will be in force; and

(d) subject to subsection (2)—include a statement of the grounds on which the order has been issued; and

(e) if the order was made on an application made without notice to the defendant—set out an explanation of the right of objection under section 21I.

(2) A statement of the grounds on which a weapons prohibition order has been issued must not contain information that must not be disclosed in accordance with section 21IE.

(3) A weapons prohibition order will have no effect unless a copy of the affidavit verifying the grounds on which the application was made is attached to it.

(4) Subsection (3) will be taken to have been complied with in the case of an affidavit that contains information the disclosure of which would be in breach of section 21IE if an edited copy of the affidavit, from which such information has been removed or erased, has been attached to the weapons prohibition order.

21I—Right of objection

(1) If a weapons prohibition order was made on an application made without notice to the defendant, the defendant may, within 14 days of service of the order or such longer period as the court that made the order may allow, lodge a notice of objection with the court.

(2) The grounds of the objection must be stated fully and in detail in the notice of objection.

(3) A copy of the notice of objection must be served by the objector on the Commissioner by registered post at least 7 days before the day appointed for hearing of the notice.

21IA—Procedure on hearing of notice of objection

(1) The court must, when determining a notice of objection, consider whether, in the light of the evidence presented by both the Commissioner and the objector, sufficient grounds existed for the making of the weapons prohibition order.

(2) The court may, on hearing a notice of objection—

(a) confirm, vary or revoke the weapons prohibition order; and

(b) make any other orders of a kind that could have been made by the court on the making of the weapons prohibition order.

21IB—Appeals to Supreme Court

(1) The Commissioner may appeal to the Supreme Court against a decision of a court on an application for a weapons prohibition order unless the application was made without notice to the defendant.

(2) The defendant may appeal to the Supreme Court against a decision of a court—

(a) if the weapons prohibition order was made on an application made with notice to the defendant—on that application; or

(b) in any other case—on a notice of objection.

(3) An appeal lies as of right on a question of law and with permission on a question of fact.

(4) An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.

(5) The commencement of an appeal under this section does not affect the operation of the weapons prohibition order to which the appeal relates.

(6) On an appeal, the Supreme Court may—

(a) confirm, vary or reverse the decision subject to appeal; and

(b) make any consequential or ancillary order.

21IC—Variation or revocation of weapons prohibition order

(1) The court that made a weapons prohibition order may vary or revoke the order—

(a) on application by the Commissioner; or

(b) on application by the defendant; or

(c) of the court's own motion.

(2) An application for variation or revocation of a weapons prohibition order may only be made by the defendant with the permission of the court and permission is only to be granted if the court is satisfied there has been a change in the relevant circumstances since the order was made or last varied.

(3) The court must, before varying or revoking a weapons prohibition order under this section allow all parties a reasonable opportunity to be heard on the matter.

(4) If an application for variation or revocation of a weapons prohibition order is made by the defendant, the application must be supported by evidence given by affidavit.

21ID—Service

(1) A weapons prohibition order must be served on the defendant personally and is not binding until it has been so served.

(2) If a weapons prohibition order is confirmed in an amended form or is varied before being confirmed or at any other time—

(a) the order in its amended form must be served on the defendant personally; and

(b) until so served—

(i) the variation is not binding on the defendant; but

(ii) the order as in force prior to the variation continues to be binding on the defendant,

except insofar as the variation relieves the defendant of a prohibition or requirement under the order as in force prior to the variation.

(3) If a police officer has reasonable cause to suspect that a person is a person on whom a weapons prohibition order is required to be served in accordance with this section, the officer may—

(a) require the person to state all or any of the person's personal details; and

(b) require the person to remain at a particular place for—

(i) so long as may be necessary for the order to be served on the person; or

(ii) 2 hours,

whichever is the lesser; and

(c) if the person refuses or fails to comply with a requirement under a preceding paragraph, or the officer has reasonable cause to suspect that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for the period referred to in paragraph (b).

21IE—Criminal intelligence

(1) No information provided by the Commissioner to a court for the purposes of proceedings relating to the making, variation or revocation of a weapons prohibition order may be disclosed to any person (except to the Attorney General, a court or a person to whom the Commissioner authorises its disclosure) if the information is properly classified by the Commissioner as criminal intelligence.

(2) In any proceedings relating to the making, variation or revocation of a weapons prohibition order, the court determining the proceedings—

(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information properly classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and

(b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of Superintendent.

21IF—Burden of proof

In proceedings relating to a weapons prohibition order, a fact is not to be taken to be established unless the court finds it proved beyond reasonable doubt.

21IG—Offence to contravene or fail to comply with weapons prohibition order

(1) A person who contravenes or fails to comply with a weapons prohibition order is guilty of an offence.

Maximum penalty:

(a) if the contravention or failure to comply involves the manufacture, sale, distribution, supply, dealing with, use or possession of a prohibited weapon by the person—$35,000 or imprisonment for four years;

(b) in any other case—$10,000 or imprisonment for two years.

(2) A person does not commit an offence against this section in respect of an act or omission if the person establishes that he or she did not know and could not reasonably be expected to have known that the act or omission constituted a contravention of, or failure to comply with, the order.

21IH—Effect of weapons prohibition order on exemptions

(1) A person who is subject to a weapons prohibition order is disqualified from obtaining an exemption under section 21IF.

(2) While a weapons prohibition order applies to a person—

(a) any exemption under a regulation made for the purposes of section 21IF does not apply in relation to the person unless the regulation expressly provides that it will apply to such a person; and

(b) any exemption held by the person under section 21IF is suspended.

21II—Offences committed in relation to person subject to weapons prohibition order

(1) A person must not supply a prohibited weapon to a person who is subject to a weapons prohibition order or permit such a person to gain possession of a prohibited weapon.

Maximum penalty: $35,000 or imprisonment for four years.

(2) A person who has a prohibited weapon on or about his or her person or under his or her immediate physical control must not be in the company of a person who is subject to a weapons prohibition order.

Maximum penalty: $10,000 or imprisonment for two years.

(3) If a person who is subject to a weapons prohibition order resides at premises, a person who brings a prohibited weapon onto the premises or has possession of a prohibited weapon on the premises is guilty of an offence.

Maximum penalty: $10,000 or imprisonment for two years.

(4) It is a defence to prosecution for an offence against this section to prove that the person did not know, and could not reasonably be expected to have known, that a weapons prohibition order applies to the person.

While the amendments may be seven pages long, in essence their effect is relatively simple. As I indicated in my second reading contribution, while I am supportive of the creation of weapons prohibition orders, I am uncomfortable with the quasi-judicial role of the Commissioner of Police in imposing weapons prohibition orders as the bill currently provides.

At present the commissioner, in deciding whether to impose a weapons prohibition order, must be satisfied not only of easily verifiable factual elements, but also subjective judgements, specifically, whether 'Possession of a prohibited weapon by a person would be likely to result in undue danger to life or property,' and 'It is in the public interest to prohibit the person from possessing and using a prohibited weapon.'

These are clearly determinations that should be made following impartial judicial proceedings in which the defendant has the opportunity to be present and to make their case. The commissioner is clearly not able nor required by the bill to undertake such an exercise, and instead will make a judgement call and impose what is a significant impost on a person's liberty from simply reading the person's file and on advice from his staff.

This, to me, is clearly inappropriate. Such power should not reside with any person not bound to act judicially, or a body that is not independent, which, over his protestations I am sure, the commissioner clearly is not. The simple fact that a person subject to a weapons prohibition order has the ability to appeal to a court does not allay the concerns that we are extending to the commissioner what are rightly judicial powers with no expectation that they be discharged judicially.

While it is true that this power is not without precedent, as the commissioner is currently responsible for issuing the equivalent orders for firearms—firearms prohibition orders—I do not see this as binding, nor do I see it preventing this council from asking itself, 'Is it really appropriate for the Commissioner of Police to be making such judgements and imposing such lengthy and significant imposts on a person's liberty?' Should this not be the exclusive role of the judiciary itself?

Clearly, I believe it should, and it is for this reason that I propose to move the responsibility of imposing weapons prohibition orders from the Commissioner of Police to the courts, specifically, either the court in which a person has been found guilty of committing an offence of violence and presumably as part of sentencing considerations or, if those proceedings have been finalised, then in the Magistrate's Court.

It is nothing but sensible to ask a member of the judiciary, who has just heard the circumstances of the offending and the guilty verdict, to determine whether a weapons provision order is appropriate, what prohibitions the order should contain, and the length that it should be. Rather than determining whether to impose a weapons prohibition order, the commissioner will instead be responsible for making an application to the courts.

It is this shift and the subsequent appeal rights to both the defendant and the commissioner which account for the majority of the amendment's seven pages. In the main, the existing wording of the bill is carried over into this new framework. However, that said, included in the substitute provisions are minor tweaks to the government's bill, many of which were identified by stakeholders such as the Australian Lawyers Alliance and the Law Society. These include:

clarifying the person the subject of a weapons prohibition order required knowledge of the terms of their weapons prohibition order when defending an alleged breach;

clarifying the requirements of a person subject to a weapons prohibition order upon learning that a prohibition order is being kept at the premises at which they reside, similar to what the shadow attorney-general proposes;

delete the equivalent subsection 21H(8) which requires persons subject to an order to inform all who reside at the same premises of the fact that they are subject to a weapons prohibition order, and inquire whether they have a prohibited weapon, something I note the government itself proposes to do;

reduce the length of weapons prohibition orders from five years to three, after which the commissioner could reapply for another order to be imposed if needed;

changing the evidentiary burden from the civil threshold of the balance of probabilities for establishing elements of an order to the criminal threshold of beyond reasonable doubt;

given the significant effects of making an order, including the criminalisation of otherwise non-criminal conduct, I believe this threshold will sit more comfortably with the weapons regime;

providing those served with a weapons prohibition order greater details of the terms of the order imposed and their rights of appeal; and

other minor changes recommended.

I believe that my amendments are sensible, practical and in keeping with the intent of the bill. I commend them to the committee. I also have a question for the minister from the Law Society, if I can ask that now, and she may need notice to answer it.

We are being asked to extend to the police powers to arbitrarily search patrons of licensed premises for the purpose of uncovering offensive weapons. However, what happens when the police uncover other illicit items or substances? I ask the minister: is it intended that those items be admissible as evidence in proceedings for other non-weapon related offences? If so, how is it possible to distinguish the search powers for a specific purpose we are being asked to give from general search powers to cover all offending?

The bill is silent on this issue, so I also ask the minister: what is the position of the current law, and how will this be read into this section? These are questions that I note the Law Society, in particular, would like answered before this bill is voted on.

The Hon. G.E. GAGO: Yes, I will have to take those questions on notice and bring back a response.

The CHAIR: What are we doing with the amendment?

The Hon. S.G. WADE: If I may assist, I think the Hon. Ann Bressington anticipates that that question might be of assistance in considering the amendments to do with new section 72. She wanted to raise them now so that the minister might consider them, so I do not think it affects the progress of the amendment at all.

An honourable member interjecting:

The Hon. S.G. WADE: Well, I'm sorry; if you do not want assistance, we can not cooperate.

The CHAIR: Order!

Members interjecting:

The CHAIR: Order! The Hon. Ms Bressington has moved an amendment. Honourable members want to inform the chair what they are going to do with the amendment. Minister.

The Hon. G.E. GAGO: The government will be opposing the Hon. Ann Bressington's amendment. This amendment seeks to delete current new sections 21G, 21H and 21I of the bill and inserts a number of new provisions relating to weapons prohibition orders.

The new provisions do a number of things, including giving the power to issue a weapons prohibition order to the courts and providing for appeals to the Supreme Court. Many of the proposed changes are similar to the current weapons prohibition order powers in the bill.

The purpose of weapons prohibition orders is to prevent persons with a known propensity for violence from possessing or using a weapon that is primarily designed to harm or kill a person and has little or no application for everyday use. Such an order should be able to be issued as quickly as possible.

To require the commissioner to apply to the court for a weapons prohibition order would impact on court resources and add a layer of complexity to the process that could significantly delay the issuing of an order. It is also inconsistent with the firearms prohibition orders on which these orders are modelled.

The government believes that it is entirely appropriate for these orders to be issued by the commissioner. There are sufficient constraints on the exercise of these powers by the commissioner to ensure that they are not misused. If a person is aggrieved by the decision of the commissioner to issue them with a weapons prohibition order, then they can appeal the decision to the District Court. So, it is for these reasons that the government opposes this amendment.

The Hon. S.G. WADE: In rising to speak on behalf of the opposition, I indicate that we take very seriously the issues she raises. They are important issues that go to the heart of our justice system. In the face of a government which treats these values so lightly, we appreciate her case, passionately put. We will be supporting some of her amendments.

I understand that, generally, the amendments proposed by the Hon. Ann Bressington are supported by the Law Society, and I take this opportunity to acknowledge the valuable advice that the Law Society has provided not only to the opposition but also, I understand, to a number of members of the parliament. In this context, I think the Law Society makes comments that are very apposite to the points that the Hon. Ann Bressington has raised, and I propose to read an excerpt from one of their letters. It says:

We do not support this provision in its present form—

that is, section 21G. The comment goes on to read:

The consequences of a weapons prohibition order are so great that only a judicial body should have the authority to issue the order. The order exposes the person to further offences of traditionally non-criminal conduct and to the risk of arrest and detention in custody for non-criminal conduct as follows:

1. deprivation of liberty for an indefinite period for no wrongdoing—section 21G(3)(a);

2. arrest and detention in custody without warrant or charge for the commission of an offence for up to two hours—section 21G(3)(d);

3. at jeopardy of committing an offence of being present at premises and of association—section 21H(4)(a) and (b); and

4. at jeopardy of committing the onerous offence of failing to inform and inquire—section 21H(g).

Additionally, the person will be the subject of the order for five years, which is a very lengthy period of time. Only a court, an independent body that is bound to act judicially, should have the power to make an order with such significant consequences on the individual and set the length of the order during which the citizen is at jeopardy.

We submit that such a power should not reside with the Commissioner of Police or any other non-judicial body. The factors that must be taken into account when considering whether to make the order are in the nature of those taken into account...in a judicial proceeding. The commissioner is not properly equipped to embark on that exercise. Indeed, the maker of the order must be independent. The Commissioner of Police is not.

With all due respect to the Hon. Ann Bressington and the Law Society, the opposition takes a different approach. We agree with the government that it is more appropriate to characterise the orders as preventative measures rather than punitive ones and that, therefore, the weapons prohibition order need not be imposed as part of the original sentencing process.

In taking that view, we are reassured by the fact that the bill establishes a right of appeal by a person aggrieved by a decision of the commissioner in relation to a weapons prohibition order, and that that appeal is to the Administrative and Disciplinary Division of the District Court. With the amendments I will move later, the opposition considers that the weapons prohibition orders, with the appeal provisions provided, do involve an appropriate level of judicial oversight, and we will not be supporting the amendment.

The Hon. M. PARNELL: The Greens will be supporting this amendment, for the reasons provided by the Hon. Ann Bressington and the Law Society.

Amendment negatived.

The Hon. A. BRESSINGTON: I move:

Page 9, lines 18 to 20 [clause 5, inserted section 21G(4)]—Delete subsection (4) and substitute:

(4) A weapons prohibition order served on a person must be accompanied by a notice—

(a) setting out the commissioner's reasons for issuing the order; and

(b) setting out the terms and the effect of the order; and

(c) stating that the person may, within 28 days, appeal to the District Court against the order.

As I outlined when speaking to my earlier amendment, in addition to transferring the responsibility of imposing weapons prohibition orders from the police commissioner to the courts, my amendments also made some minor tweaks to the government's bill, many of which were lobbied for by stakeholders, such as the Australian Lawyers Alliance and the Law Society of South Australia.

One such refinement was requiring those served with the weapons prohibition order to be given a notice that not only sets out the commissioner's reasons for issuing the order (which the bill currently provides) but also sets out clearly the terms and effect of the order, and also a statement of that person's right to appeal to the District Court.

I felt that it was necessary to include such information under my original amendment due to the possibility that an order may be issued ex parte (that is, without the defendant present). However, this is even more relevant now that the commissioner will be issuing the orders, meaning that a person will literally be served out of the blue with no forewarning.

If this is to be the case, it is only appropriate that the terms of the order, which will take effect from the minute the order is served, be clearly set out and for the person to be informed of their appeal rights. It is a simple amendment that only enhances the bill, and I commend it to the council.

The Hon. G.E. GAGO: First, I would like to provide an answer to the question asked by the Hon. Ann Bressington in relation to unlawful items that might be found during a weapons search. I have been advised that, if a search is lawful, anything else that might be found, such as drugs, would be admissible in evidence as part of a lawful search.

In relation to the amendment that the Hon. Ann Bressington has just moved, the government will indicate that it is going to support this amendment. When a weapons prohibition order is served on a person it must be accompanied by a notice setting out the commissioner's reasons for issuing the order.

The proposed amendment extends this provision so that the notice must also set out the terms and the effect of the order and the right of appeal to the District Court. The government agrees that a person should be made aware that they have a right to appeal against the decision of the commissioner to issue a weapons prohibition order. So, it is for those reasons that we support the amendment.

The Hon. S.G. WADE: The opposition supports the amendment.

The CHAIR: The Hon. Mr Parnell: support?

The Hon. M. PARNELL: Yes.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 9, line 26 [clause 5, inserted section 21G(6)]—Delete '5 years' and substitute:

3 years

This amendment seeks to reduce the maximum term of weapons prohibition orders from five to three years. I believe five years to be inappropriate because of the arbitrary manner in which weapons prohibition orders are issued and the low threshold that needs to be met for an order to be imposed, and the significant impediments placed on an individual's liberty by being subject to an order for this long.

It needs to be understood that the commissioner will be able to reimpose the subsequent order on the expiration of the first, and in the case of seriously violent offenders could continue to do so indefinitely. Because of this, the amendment does not detract from the weapons prohibition order regime.

However, reducing it to three years ensures that the necessity for the order is reviewed in a reasonable time frame, and where it is no longer appropriate it is lifted. This amendment was requested by the Law Society as well and, I believe, in its original correspondence circulated to members. I commend this amendment to the council.

The Hon. G.E. GAGO: The government is not opposed to this amendment. Given the nature of weapons, the government decided that, unlike firearms prohibition orders, weapons prohibition orders should not apply indefinitely. A weapons prohibition order will therefore remain in force for a period of five years from the date on which it was served on a person.

If the commissioner still considers that the person is a threat to public safety, he can immediately issue another weapons prohibition order against the person reducing the term of the order from five years to three years. The amendment as proposed by the honourable member will, we believe, have some resource and administrative implications for SAPOL. However, we are not going to oppose the amendment. Although we do not believe it is particularly helpful, we are not prepared to oppose it.

The Hon. S.G. WADE: The opposition supports the Hon. Ann Bressington's amendment.

The Hon. D.G.E. HOOD: To clarify, we support this amendment, but as a general principle we will not be speaking where the government and the opposition agree, to expedite matters before the house.

Amendment carried.

The Hon. G.E. GAGO: I move:

Page 10, after line 23 [clause 5, inserted section 21H]—After subsection (4) insert:

(4a) It is a defence to prosecution for an offence against subsection (4)(a) to prove that the person did not know, and could not reasonably be expected to have known, that the place was a place of a kind referred to in that paragraph.

This amendment addresses matters raised by the Law Society pursuant to subsection 21H(4)(a) of the bill. It is an offence for a person to whom a weapons prohibition order applies to be present at a place at which a person carries on the business of manufacturing, repairing, modifying or testing prohibited weapons, or buying, selling or hiring out prohibited weapons, or any other place of a kind prescribed by regulation.

The Law Society submitted that, without a defence of not knowing that the place was a place of business, the effect of the provision would be far too harsh. Although in most cases it should be clear whether or not a place is a place of business, the government agrees there may be instances where the person could not reasonably have known that the place was in fact a place of business within the particular meaning of this subsection. This amendment therefore inserts into the bill a defence for the offence in subsection (4)(a).

The Hon. S.G. WADE: The opposition supports the amendment.

Amendment carried.

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

Page 10, lines 29 to 41 [clause 5, inserted section 21H(6) to (8)]—Delete subsections (6) to (8) inclusive and substitute:

(6) A person to whom a weapons prohibition order applies must—

(a) immediately on becoming aware of the presence of a prohibited weapon on premises at which the person resides, notify the Commissioner of that fact; and

(b) comply with—

(i) a direction of the Commissioner, given in response to that notification, that the person must not reside at the premises; or

(ii) any other direction of the Commissioner, given in response to that notification, in relation to the weapon.

Maximum penalty: $10,000 or imprisonment for 2 years.

Under section 21H(6) a person must not reside at premises on which there is a prohibited weapon. I understand that an exemption under section 21F does not excuse the subject of a weapons prohibition order from acting in accordance with this section. On this clause, the Law Society states:

Section 21H(6) criminalises residing in a premises at which a prohibited weapon is kept. We do not support section 21H(6) without the inclusion of other provisions that would make section 21H(6) workable. This ties in with our concerns about section 21H(7) below.

Section 21H(6) imposes an intolerable burden on the citizen of having to move out of his or her premises. If the citizen becomes aware of a prohibited weapon owned by a co-tenant or his/her landlord, the citizen may not literally be able to ensure that the weapon is removed from the premises. That being so, the only way to avoid an offence is to move out. Whether intended or otherwise, it cuts at the heart of the liberty of the citizen to have to move from one's home.

Other scenarios of concern would be where the citizen is the owner of the premises, or lessee, and, short of removal of the weapon, must take steps to cause the owner of the weapon to move out. Notice must be provided. Even on a best case scenario, the citizen may be residing with a weapon for 60 days without being able to do anything about it and therefore be committing an offence.

If section 21H(6) is to remain, the legislation should reflect and deal with these types of scenarios. For example, provision should be made for the citizen to avoid being at jeopardy where all reasonable steps to avoid residing with a prohibited weapon are taken. Similar points can be made about section 21H(8). In certain circumstances they may include contacting police.

I note in this context that the government is proposing that subclause (8) be deleted. That will arise in a subsequent amendment. However, as the Law Society puts it, their concerns about (6) tie into their concerns about (8). The opposition shares the concerns of the Law Society. We consider this provision is far too blunt; an unnecessarily blunt instrument which may lead to significant burdens on people trying to live law abiding lives.

Our amendment proposes to delete the prohibition on a person with a weapons prohibition order from residing at the premises on which there is a prohibited weapon located, but the amendment does put in its place an obligation on a person with a weapons prohibition order to notify the police immediately on becoming aware of the presence of a prohibited weapon.

The police can then make an assessment and issue whatever orders they deem appropriate, which would include a requirement to move out. It may well be that the only reasonable way of ensuring community safety is that a citizen is put at the significant burden of moving from their residence, but we do not think that should be the inevitable consequence of a blunt provision. So, our amendment would give them a duty not only to notify but also to comply with any police orders that result.

We are glad that the government had the good sense to delete new section 21H(8), as evidenced by the government's filed amendment. However, we think that the proposed government amendment is not enough to make this provision workable, and we commend the amendment to the committee.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The effect of this amendment is to delete subsections (6), (7) and (8) of new section 21H and replace them with the requirement that a person subject to a weapons prohibition order must immediately notify the commissioner if they become aware of a prohibited weapon on the premises at which they reside and they must comply with any direction given by the commissioner in response to that notification.

The conditions of a weapons prohibition order are strong for a very good reason. A person is issued with a weapons prohibition order only if they have committed an offence of violence and the commissioner is satisfied, first, that possession of a prohibited weapon by the person would be likely to result in undue danger to life or property; and, secondly, that it is in the public interest to do so.

It is an offence under the current subsection (6) to reside at a premises on which there is a prohibited weapon. The person subject to the weapons prohibition order has a defence if they did not know, and could not reasonably have known, that the weapon was on the premises, although this could effectively mean that a person might have to move out of their home, which would obviously be an extremely rare occurrence, particularly when subsection (6) is read in conjunction with new subsection (11).

Subsection (11) makes it an offence for a person to bring a prohibited weapon, or have possession of a prohibited weapon, on the premises of a person who has a weapons prohibition order. Once that person becomes aware that the person with whom they are residing has a weapons prohibition order, they would need to immediately remove the prohibited weapon or risk being charged under subsection (11).

The government considers this amendment unnecessary. If a person has demonstrated propensity for violence, the consequences of breaching a weapons prohibition order should be harsh. There is an issue of public safety here, and such a person should not have ready access to a prohibited weapon.

The current wording of the provision is also consistent with the firearms prohibition orders. However, the government does agree that the deletion of new subsection (8) should occur and, as indicated, we will be moving a government amendment later to do that.

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

The Hon. D.G.E. HOOD: Family First is attracted to this amendment, but there is one difficulty we have on which I would like some clarification from the mover, if I may, please, and that is in paragraph (b)(ii) of the amendment, where it states 'and any other direction of the commissioner'. Our concern and, indeed, the concern that has been expressed to us is that that might possibly open up an avenue to legal wrangling, which could further complicate the issue. I just wonder whether the mover has any comments on that.

The Hon. S.G. WADE: I am happy to take further advice from parliamentary counsel, but my reading of the provisions, if I can follow the flow, is that a person to whom a weapons prohibition order applies must immediately notify the police and comply with 'any other direction of the Commissioner, given in response to that notification, in relation to the weapon'.

We certainly are intending to support the bill to the extent that it provides for an appeal against the application of a weapons prohibition order, and in the first instance that would also be an appeal against the conditions on it. We are also putting before the council a suggestion that a change of the conditions would be challengeable. Parliamentary counsel might be able to provide further advice, but my presumption is, because this is a direction, not part of the order, but a direction under a different section, it would not be challengeable.

To be honest with you, at first blush I would not object to it being challengeable, but my reading is that a right to challenge the conditions of a weapons prohibition order, or even under our intended changes that a variation to the order would be appealable, would not give a person who is subject to an order a right to challenge the directions of the commissioner under this section. I would actually seek the opportunity to seek parliamentary counsel clarification on that.

Parliamentary counsel might have a different view tomorrow when they read the Hansard, but they have not immediately suggested any way in which I have misled the council. They did mention that, in terms of the normal administrative law that applies to decisions of government officers, the commissioner's decision would be reviewable; but we would have to work pretty hard to exclude that level of review. The courts are very insistent that that level of review stays, but putting aside that normal level of review, it is not subject to the normal appeal provisions in relation to weapons prohibition orders or even our request to the council to apply appeal rights for the variations.

If that adequately addresses the concerns of the Hon. Mr Hood, I would like to respond to some comments that the minister made. The minister, as is the wont of ministers in this government, wants to use words like 'strong' and 'harsh' as though they have some virtue in them. The fact of the matter is that this is a blunt instrument; it is inflexible, it will not promote community safety because it will not actually help people stay in stable relationships.

What if the police, the social workers, every Tom, Dick and Harry want, let's say, a son to return to his father's home and reside with him for his rehabilitation, and because that father has a prohibited weapon on his own premises there is no escape. The minister celebrates the blunt, harsh, strong, no apologies approach of this government, but I do not see any merit in undermining community safety for the sake of a media release. The government can persist in its approach; I shall not.

In terms of protecting community safety and supporting police in protecting community safety, let me make this clear: if the police take the view that every person they issue a weapons prohibition order on should not be on a premises with a prohibited weapon, they will put that direction on every person. The police can achieve the government's intent by directions. What we are saying is that the police, working with other relevant government agencies, and for that matter non-government agencies, might well see the wisdom in some cases to not force that, to put conditions on that would allow continued residence.

For example, taking my father and son analogy again, it might be that instead of just relying on the obligations of the father to keep the weapon in a safe and secure manner, and because of the amendments we have made earlier tonight to take every reasonable step to ensure that the person who is not entitled to the access to the prohibited weapon does not have access to the prohibited weapon, the police might also say, 'Well, you have to keep that device in the garage'—or the shed, whatever farmers have nowadays—'and not allow access.' I am imagining a rural context.

It may well be very conducive to the son's rehabilitation to be able to be removed from the metropolitan environment which lead them astray and re-establish their lives in a country environment. So, the government can celebrate being blunt, strong and harsh, but I want to give police tools that can be flexible to actually promote community safety. I commend the amendments to the committee.

The Hon. P. HOLLOWAY: I just want to make some comments on this because I did have some connection, of course, with the firearms prohibition when I was minister for police. It was a bill that I thought was highly necessary because there are some people who just should be nowhere near a firearm. We have seen in recent days someone who fit that description who unfortunately did get near one, but that is another story.

When the Hon. Mr Wade was talking about father-son relationships, I could not help but be reminded of a case that was being considered at the time of the firearms prohibition order where the father was a bikie. When the place was raided and the firearm was found there, he said, 'Oh, it's not mine; it's the son's firearm.' In that case, one of the reasons we needed the firearms prohibition order was that it was not the son's rehabilitation that was necessary; rather, it was the father's that was more necessary. It is an easy excuse in such situations.

It is not just domestic situations that always apply here. You could perhaps have a group of people in a house who may have bad intent. In that case, why would you want to create a loophole in the act that might allow these prohibition orders not to be effective? Perhaps it is all very well for the shadow attorney-general.

Perhaps the shadow minister for police—who is always telling us that we want the police doing more effective things—should pay some attention to this, because this is a case where it will simply make life more difficult for police. This whole series of amendments will mean that they will have to spend more time in court rather than out on the beat, which he is continually telling us in public is something that he does not want to happen.

You cannot have your cake and eat it, too. If you say that police need to be more effective, then you have to give them the tools to do it. Of course, the Law Society would not have a vested interest in trying to get more and more things before the court, would they? Of course they would. I just think members in this place should contemplate the father-son relationship that I was talking about, where the father was using the son as an excuse for having firearms that he might subsequently use on the property. We need to not just consider cases where people might be mentally ill or domestic situations; there are also other situations where people of a criminal nature may be living in the one area. Why should we have any concerns whatsoever about their inconvenience?

The Hon. S.G. WADE: I might just provide clarification. I suggest that the honourable member might like to look up the bill and the amendment. In no place do I talk about a father-son relationship. The point is that the current provision of the government provides no flexibility. You shall not reside, full stop. To be frank, in terms of the simplicity of police administration of this provision, I would not be surprised if, in issuing a weapons prohibition order, the default position of the police is that they would also give a direction that a person shall not reside at a residence; if you like, restate the original provision.

Why would the police object to having the flexibility to respond to individual circumstances? I believe that the parliament should trust the police to be flexible in the administration of these orders. The government does not want to give them that flexibility. The Law Society and the opposition believe that it would add to the effective implementation of this law.

The Hon. G.E. GAGO: Very briefly, I will just remind people that section 14 provides that the commissioner may exempt a person unconditionally, or subject to conditions, from a specific provision of this section, and may vary and revoke the exemption by a notice in writing, etc. So, there is flexibility within the bill to allow a person being exempt from that residence requirement.

The Hon. S.G. WADE: I presume that was in rebuttal to the comments of the Hon. Paul Holloway, that the conditions would undermine the effectiveness of police and distract them from their duties.

The Hon. R.I. Lucas: I think you just shafted the former minister.

The Hon. S.G. WADE: That is what it sounded like to me.

The Hon. D.G.E. HOOD: I think the Hon. Mr Wade makes a very good point. The truth is that there should be some flexibility, but in light of the minister's comments it would seem that that provision already exists, unless I am misunderstanding it. So, for that reason, we will oppose the amendment.

The CHAIR: I might get others to indicate what they are doing. The Hon. Mr Darley?

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

The Hon. A. BRESSINGTON: I will be opposing the amendment.

The Hon. M. PARNELL: I think I indicated that we will be supporting the amendment.

The Hon. K.L. VINCENT: I will be supporting the amendment.

The CHAIR: The honourable minister might move her amendment because it crosses over. You are both wanting to cut this out.

The Hon. G.E. GAGO: I move:

Page 10, lines 35 to 41 [clause 5, inserted section 21H(8)]—Delete subsection (8).

Pursuant to section 21H(8):

A person to whom a weapons prohibition order applies must inform each other person of or over the age of 18 years who resides or proposes to reside at the same premises as the person of the fact that a weapons prohibition order applies to the person...

The Law Society has submitted that this subsection is unnecessary, particularly given section 21H(6) which implies that a person will make due inquiry, and should be deleted. The government has accepted the Law Society's argument and subsection (8) has, therefore, been deleted.

The Hon. S.G. WADE: The minister has been at pains on a number of occasions tonight to draw parallels with the firearms prohibition orders. Could the minister advise whether this provision exists in the firearms legislation?

The Hon. G.E. GAGO: I have been advised that, yes, it is within the Firearms Act.

The Hon. S.G. WADE: That being the case, why is it necessary in firearms and not necessary here?

The Hon. G.E. GAGO: I have been advised, as we have stated, that this is largely in line with a request made by the Law Society. There are slight differences. With firearms you are required to have a licence, whereas with prohibited weapons it can be one of a number of things. We believe this more adequately reflects the provisions of this particular bill.

The Hon. S.G. WADE: With all due respect, the section makes no reference to licences. I would have thought it was directly analogous; you are asking a person with a firearms prohibition order to present themselves at the door of other people in the residence, advise them that they are subject to an order and ask them if they have a firearm. I cannot see the difference. It matters little whether you are licensed or not. Presumably it is the access to the weapon that is the issue, and I cannot see why a licence would differentiate.

The Hon. S.G. Wade's amendment carried; the Hon. G.E. Gago's amendment negatived.

The Hon. S.G. WADE: I have questions about why licences were differentiating. My questions are in relation to sections 21H(10) and (11), and the offences at the end of section 21H in relation to the offence of bringing in a weapon. Section 21H(10) provides that a person who has a prohibited weapon on or about their person, or in their immediate control, must not be in the company of a person with a weapons prohibition order. Section 21H(11) provides that a person who brings a prohibited weapon onto a premises where a person with a weapons prohibition order resides is guilty of an offence. I want to raise my concerns in relation to how these provisions could impact on three classes of person.

First, I will refer to police officers. New sections 21H(10) and (11) above, in my reading, would mean that a police officer who arrives at a premises carrying a prohibited weapon to meet with a person who has a weapons prohibition order applying to them would be guilty of an offence.

Capsicum spray and an ASP extendable baton are part of police standard issue, so the average police officer would have these things on them no matter what they were doing. Both these items are prohibited weapons. The only defence to these provisions is new subsection (12), that is, 'that the person did not know, and could not reasonably be expected to have known, that a weapons prohibition order applies to the person'.

This defence is not likely to be much help to our police officer. The police may well know that the person is subject to a weapons prohibition order. In fact, they may be attending on the person in the context of enforcing the weapons prohibition order, so I am not aware of any exemptions that would be available to police officers in such circumstances. In effect, an officer who is attempting to arrest a person with a WPO is committing an offence.

I ask the minister: would a police officer who has a prohibited weapon on or about their person, or in their immediate control, and who brought a weapon into premises where a person with a WPO resides be guilty of an offence? I also ask: would a security agent in possession of an extendable baton be in breach of new subsections (10) and (11) and be liable for an offence if they approached a person with a weapons prohibition order?

The Hon. G.E. GAGO: I have been advised that the answer to the honourable member's question is, technically, yes. However, new subsection (14), which I read out previously, provides, 'The commissioner may exempt a person, unconditionally or subject to conditions, from a specified provision of this section,' etc., which means that the commissioner could exempt a police officer or some other delegate or agent.

The Hon. S.G. WADE: Do I understand the minister's answer to the question to be that all police officers of South Australia Police would be exempt? Would all security agents who, in the normal course of their business, would be carrying an extendable baton be exempt? I would have thought that that is the sort of exemption that should be in the statute.

Personally, I think it is far too broad because a police officer would surely only need that power in the course of their duties. Perhaps I might ask another question because I think this would highlight the unworkability, but it looks as though the minister wants to get further advice so perhaps I might pause at this point.

The CHAIR: Only the minister knows what she wants to do. Minister.

The Hon. G.E. GAGO: In relation to the honourable member's assertion—it was not a question, but nevertheless I will comment on his assertion—that all police officers and other agents would be made exempt, I do not believe that assertion is correct. It would depend on the circumstances. It is not anticipated that there would be a large number of weapon prohibition orders; in fact, it is likely that it would be a very small number indeed and they would be readily identified, and that exemptions would be sought on a case-by-case basis.

The Hon. S.G. WADE: I actually think the minister is undermining my confidence on at least her first attempt at the reply, because what she is now suggesting to the council is that, no, she does not expect that police officers as a group and security agents as a group will be given these exemptions under 14; they will be given on a case-by-case basis. Do not ask me how a senior officer in the police decides which of their officers might ever be asked to enforce an order against a person holding a weapons prohibition order.

Let me remind the council that the section that the minister refers to (section 14) says the commissioner may exempt 'a person', consistent with other provisions in the act it is not a 'class of persons'. If the commissioner wanted to use the 'get out of gaol free card' that the minister is trying to offer the council now, he or she would have to list every officer in the South Australia Police and every security agent.

However, I do not think that is half the trouble the minister has got us into with this bill. Let us consider another application of subsections (10) and (11). I am also concerned about how those provisions might affect people involved in religious and cultural ceremonies. For example, it may mean that a person is not able to attend a cultural or religious ceremony such as a Sikh celebration or a Scottish association meeting. I remind members that the exemptions on prohibited weapons specifically allow for the interests of members of our Sikh community and members of Scottish associations.

My reading of subsections (10) and (11) is that a person involved in such a religious or cultural ceremony might be committing an offence. I understand that the relevant weapons are dirks and Sgian Dhus which are used in relevant ceremonies. If a person was to bring one of those weapons into a room where they knew that a person with a weapons prohibition order was present, they would commit an offence under (10) and (11).

I hope the minister is not going to suggest that under section 21H(14) we are going to identify anybody who might ever be carrying a religious object into a Sikh temple or a Scottish association, but I will give the minister the opportunity to explain whether the people in that context would be guilty of an offence.

The Hon. G.E. GAGO: I will seek clarification from the honourable member because I am not too sure what the question is. Is he asking: would it be an offence if there was a religious or cultural ceremony involving a prohibited weapon where there was a person attending that celebration who had a weapons prohibition order against them? Is that the question?

The Hon. S.G. WADE: The offence of (10) and (11) is not focused on the person who has the order on them, it is focused on the person who has a weapon and must not be in the company, or a person must not bring it into where a person is present.

So, we are asking: is it the person who is not the weapons prohibition order subject but the person who commits an offence potentially under (10) and (11)? On our reading a person in a religious ceremony would be committing an offence if they went into a premises with a person with a WPO on them.

The Hon. G.E. GAGO: I have been advised that they would be in breach if they, in fact, knew that there was a person present who had a WPO against them.

The Hon. S.G. WADE: But what if they knew? It is an offence under subsections (10) and (11) to prove that the person did not and could not be reasonably expected to know that a weapons prohibition applies to the person. That is in relation to subsections (10) and (11). So, you are suggesting that people in the religious and cultural ceremonies would not have access to any provision other than that defence?

The Hon. G.E. GAGO: I believe I have answered the question, unless I have misunderstood the question, and that is, it is an offence if a person participating in a religious or cultural ceremony has on them a prohibited weapon if they take it onto a premises or attend a function where a person is present where they knowingly know that person has a WPO against them.

The Hon. S.G. WADE: On behalf of the opposition I would indicate that we have grave concerns about the application of section 21H(10) and (11), first of all in relation to the functional impacts on members of our police force. We also have grave concerns in relation to religious and cultural ceremonies. In terms of the reintegration of a person with a weapons prohibition order into society, I see no benefit in doing a blanket exclusion from their religious communities by the effects of this, because what would effectively happen is the Sikhs would ask that person to withdraw from the religious life of the community, and I cannot see what benefit that is to the wider community.

In that context I would like the opportunity to consult my colleagues about further amendments. I move:

That progress be reported.

The committee divided on the motion:

AYES (14)
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. Stephens, T.J.
Vincent, K.L. Wade, S.G. (teller)
NOES (6)
Gago, G.E. (teller) Gazzola, J.M. Holloway, P.
Hunter, I.K. Wortley, R.P. Zollo, C.

Progress thus reported; committee to sit again.

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