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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-08 Daily Xml
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SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 4 May 2011.)

Clause 5.

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

Page 11—

lines 5 to 13 [clause 5, inserted section 21H(10) and (11)]—Delete subsections (10) and (11)

line 15, [clause 5, inserted section 21H(12)]—Delete ', (10) or (11)'

Under new section 21H(10) of the bill, a person commits an offence if they bring a prohibited weapon onto the premises where a person with a weapons prohibition order presides. Under new section 21H(11) of the bill, a person commits an offence if they are in the company of a person who has a prohibited weapon while they have a prohibited weapon in their immediate physical control. Under new section 21H(12) of the bill, a defence is provided to section 21H(10) and (11); that is, a person has a defence if the person did not know or could not reasonably be expected to know that a person was subject to a weapons prohibition order.

As honourable members will recall, on 4 May, during the Legislative Council committee stage consideration of the bill, the opposition queried whether the offences could apply to a police officer trying to monitor a question or arrest a person subject to a weapons prohibition order. Police officers, as we know, carry two prohibited weapons as part of their standard issue: capsicum spray and an extendable baton. The officer may not be able to utilise the defence, that is, the defence in section 21H(12), because they may well not only be aware that a person is subject to a weapons prohibition order, but they may actually be attending to deal with a person in relation to that order.

The custodian of a prohibited weapon may not be taking any risk of a person with a weapons prohibition order taking possession of the prohibited weapon, yet would still be committing an offence. The government responded to the opposition's concerns by saying that while an officer would technically be committing an offence in these circumstances, they would not be prosecuted and there are provisions in section 21H(14) for the police commissioner to exempt a person from that section. However, the section does not allow for exemptions by class.

Following discussions in this chamber, these matters were a matter for public comment. On Leon Byner's program, radio FIVEaa—always worth a listen—on 5 May 2011, the Attorney-General said:

Well look this is just another example of the opposition setting up straw men to knock them [down]. The fact is that under this legislation there is an opportunity for an exemption to be granted...there's something that's being left out of the discussion...that is common sense. It's illegal for a person to drive a motor vehicle in a 60 zone at greater than 60 kilometres an hour but the police from time to time in the pursuit of people do this all the time. Do they wind up being prosecuted? I don't think so.

Mr Byner asked another question. The Attorney-General responded, 'who is actually going to be prosecuting them'. I find that interchange quite disturbing because really the chief law officer of the state is suggesting that the police are not subject to the rule of law. Of course he is wrong. The law does actually allow our police to abide by the road rules and still discharge their responsibilities. The road rules regulation 20, as we all know, requires us to observe the speed limit:

A driver must not drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving.

However, the Australian Road Rules, section 305 also provides that:

(1) A provision of the Australian Road Rules does not apply to the driver of a police vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care; and

(ii) it is reasonable that the provision should not apply; and

(b) if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

Contrary to the implication of the Attorney-General, when police officers need to exceed the speed limit, they are not just relying on the goodwill of their fellow officers not to prosecute them, they are staying inside the law. We believe it is important that we do not just turn a blind eye whenever our police need to break the law. In fact, I am reminded of laws that we passed only a year or two ago which allowed undercover operations. We do not just say, 'That is fine. Nobody will prosecute you.' We say all of us live under the law—and, in fact, members of this chamber in particular are very well aware that we all live under the law—and the rule of law applies to the police as much as anybody else.

Following the debate, the Attorney-General committed to expanding section 21H(14) to include provisions for exemption of classes of persons, and that amendment will be considered shortly. While this may partly address the issue, it is a bureaucratic response and relies on the group of people being readily identifiable. The Attorney-General has been focusing on the police. I understand that the Attorney-General, in the discussions I have had with him, was less concerned about security guards and other officers.

I would stress that these offences are almost proximity offences, and they apply not just to police. They would apply to security agents; they would apply to people involved in religious ceremonies such as the Sikh community; they would apply to people in cultural organisations such as the Scottish community. It would apply to people in the normal course of their business—executors, collectors, people who might be involved in scientific education using lasers. It would also apply to a museum. Under the current bill, as drafted, you would presume that the South Australian Museum would have to be asking people as they entered, 'Are you subject to a weapons prohibition order?'

Having consulted with parliamentary counsel, the Liberal opposition has taken the view that the most workable solution would be to delete sections 21H(10) and (11), what I will call for shorthand 'the proximity offences' and, instead, to rely on the enhanced duty imposed on custodians of weapons through a previous opposition amendment to section 21F(12), which this council has agreed to, which places an active duty on the holder of a prohibited weapon to keep prohibited weapons away from a person subject to a weapons prohibition order.

The amendment to section 21F(12) means that a person who is entitled to hold a prohibited weapon not only must keep them in a safe and secure manner but must take all reasonable steps to prevent access to the weapon by a person who is not entitled to such use or possession. The opposition amendment focuses the clauses on access to prohibited weapons rather than proximity to prohibited weapons.

If our amendment were passed, a person who possesses a prohibited weapon without an exemption would have committed an offence under section 21F(1), whether or not they take it into the presence of a person with a weapons prohibition order. A person who is entitled to possess a prohibited weapon with an exemption, and they do not take all reasonable steps to prevent access to the weapon by persons who are not entitled to such use or possession, would have committed an offence under section 21F(12), which I should say is an amendment moved by the opposition, accepted by the crossbenches. We will see what the government does with it in the other place.

In relation to this class, we are talking about people who the government is saying already have an exemption, so the government is already saying that they trust them to have a prohibited weapon. Also under section 21H(9) I would remind honourable members that any 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. So, we would argue that with the joint effect of section 21H(9) together with the earlier amendments to section 21F(12), we provide adequate duties on people possessing a prohibited weapon to ensure that a person with a weapons prohibition order does not get access to them. I commend the motions to the house.

The Hon. G.E. GAGO: The government will not be opposing these amendments.

Amendments carried.

The Hon. S.G. WADE: I am being heckled by my honourable colleagues suggesting that this is consequential. I am more than happy to regard it as so, and I move:

Page 11—Lines 18 to 25 [clause 5, inserted section 21H(13)]—Delete subsection (13) and substitute:

(13) For the purposes of this section, if a person to whom a weapons prohibition order applies is on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) when a prohibited weapon is found on or in the premises, vehicle, vessel or aircraft, the person will be taken to possess the weapon unless it is proved that—

(a) the person has notified the Commissioner of the presence of the weapon in accordance with subsection (6); or

(b) the person did not know, and could not reasonably be expected to have known, that the weapon was on or in the premises, vehicle, vessel or aircraft.

Amendment carried.

The Hon. G.E. GAGO: I withdraw the amendment standing in my name, because the Hon. Stephen Wade's amendments that we have just supported make this unnecessary.

The Hon. S.G. WADE: With all due respect—

The CHAIR: You are not happy with the minister withdrawing it?

The Hon. S.G. WADE: No, indeed, I am not. The reason why we are not happy with that is that by removing (10) and (11) we have indeed removed the most onerous elements of that clause but there are other duties on people, and those duties may need to be exempted by class. I see no harm in the government having the capacity to exempt people by class to the other duties in that section. In that context I would urge the government to move the amendment. In fact, if it does not I propose to take it over.

The Hon. G.E. GAGO: I have checked and the advice I have received from the Attorney is that we are seeking to withdraw this amendment because of the agreement to the last two amendments subsections (10) and (11) of section 21H. These subsections have been deleted and therefore I have been advised this amendment is not necessary and it would be highly unlikely that we would need it in terms of exempting by class.

The Hon. S.G. WADE: I propose to move the Minister for Regional Development (3) amendment No. 1 standing in the minister's name. I have consulted the Clerk and I can do it. I move:

Page 11, after line 29 [clause 5, inserted section 21H]—After subsection (14) insert:

(15) The Commissioner may, by notice in the Gazette—

(a) exempt a class of persons, unconditionally or subject to conditions specified in the notice, from a specified provision of this section; and

(b) vary or revoke such an exemption.

I remind the minister who the active officer here is. It is not the opposition; it is not some lawyer for the bikies: it is the commissioner. This might be a redundant clause, but I do not think it is. Let us look at some of the other duties in this clause. What about No. 3: a person to whom weapons prohibition order applies must not manufacture, sell, distribute, supply, deal with, possess, use or possess a prohibited weapon. What happens if the commissioner thinks it is appropriate to exempt a class of people—let us say, all workers for a particular manufacturing facility, for example, Holden's. Holden's certainly would not have prohibited weapons on its property, I would have thought—some of these devices are irrelevant. However, I would have thought it does not hurt to have the commissioner having a capacity to provide an exemption by class.

The government managed to give us a bill which did not foresee that police officers might need to be exempted from (10) and (11) by class, and I am not confident that they have foreseen all circumstances in relation to the other duties under this clause. If I am wrong and there is no need to exempt anybody by class then, fortunately, the commissioner will have better things to do with his or her time. In the meantime, I see no harm in providing the commissioner with this capacity, and I urge the council to support what is now my amendment.

The Hon. M. PARNELL: Having listened to the debate, the Greens are persuaded by the arguments of the shadow attorney-general. There may indeed be classes of persons that we have not thought of that might require exemption. If the minister is right, and we have thought of everyone, this section will have no work to do, but if the shadow attorney-general is right, and there is a group out there that could unreasonably be caught up in a criminal law that should not really apply to them, this at least gives the commissioner the ability to exempt them by notice in the Gazette. That seems to be a preferable course of action than having to come back to the parliament to give special consideration to a class of persons that we just have not thought of at the moment.

The Hon. G.E. GAGO: As I have already put on the record, we believe that these amendments are now unnecessary. Our view is that they will not create any harm by being present in the bill, but they are completely unnecessary and superfluous. So, we will not be supporting them, but we will not be dividing on it.

Amendment carried.

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

Page 11, lines 31 to 33 [clause 5, inserted section 21I(1)]—Delete subsection (1) and substitute:

(1) A person aggrieved by a decision of the Commissioner—

(a) to issue a weapons prohibition order under section 21G; or

(b) to vary or revoke an exemption under section 21H(14),

may appeal against the decision to the District Court.

This matter relates to clause 5, new section 21I which relates to a person's right of appeal to the District Court. Under new section 21I, a person aggrieved by a decision of the commissioner to issue a weapons prohibition order may appeal against the decision to the District Court. The opposition considers that this appeal should not be simply on the issuing of an order. A person, for example, may not object to an order in the light of exemptions granted to them under new section 21H(14) and not take their opportunity to object to their order before their appeal rights lapse.

Under the bill, if the order is then varied, there is no appeal. The opposition does not consider that that is appropriate. It may well be that they find the varied conditions intolerable, when they found the original conditions tolerable. We consider that a person should be able to appeal against both the original order and any variation to that order.

The Hon. G.E. GAGO: I rise to support this amendment. The effect of the amendment is to expand new subsection (1) so that a person can not only appeal against the decision of the commissioner to issue a weapons prohibition order but they can also appeal against a decision of the commissioner to vary or revoke an exemption given by the commissioner under new section 21H(14). That subclause empowers the commissioner to exempt a person from a specified condition of a weapons prohibition order and to vary or revoke such an exemption by notice in writing. The amendment allows this decision to be appealed against.

The Hon. D.G.E. HOOD: I wish to very briefly place on the record that Family First also supports the amendment. It is appropriate for people to have appeal rights in these circumstances. Whilst they are not required on many occasions, there are some decisions that are made which can be unfair, and for that reason appeals are important.

Amendment carried.

The Hon. S.G. WADE: I can be corrected, but I wonder if this might be a point to ask a question of the minister. This arises out of advice to the opposition from the Australian Lawyers Alliance. They highlight the fact that new section 21I(5) provides that the court is required to do things on the use of the word 'must'. The ALA's objection is that it should be 'may', with the discretion to take whatever steps the court sees fit—possibly none at all—depending on the circumstances. The power of the court should not be fettered in this way. As I understand it, the concern relates to the government's obligations to respect the separation of powers, as reflected in the K-Generation case.

The Hon. G.E. GAGO: What is the question?

The Hon. S.G. WADE: The question is: does section 21I(5) offend the K-Generation principles?

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 certainly accept that response, but can I also have an undertaking from the government that, subject to the response, the government will be willing to recommit that clause?

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

Page 12, after line 13—After section 21I insert:

21IA—Reports relating to weapons prohibition orders

The following information must be included in the annual report of the commissioner under section 75 of the Police Act 1998 (other than in the year in which this section comes into operation):

(a) the number of weapons prohibition orders issued under section 21G;

(b) the number of weapons prohibition orders revoked under section 21G;

(c) the number of appeals under section 21I and the outcome of each appeal that has been completed or finally determined;

(d) any other information requested by the minister.

Amendments Nos 1, 2 and 3 of the government's first set of amendments all deal with reporting obligations under the bill. The bill currently requires the Commissioner of Police to report annually to the minister on metal detector searches conducted under new section 72A and the use of special powers to prevent serious violence under new section 72B.

The member for Bragg moved an amendment in the other place to create further reporting obligations for the Commissioner of Police in relation to weapons prohibition orders. This amendment proposed that the further information in relation to weapons prohibition orders be included in the annual report of the commissioner, under section 75 of the Police Act 1998. The government agreed that there should be appropriate reporting but noted that the member for Bragg's amendment took a slightly different approach from that used in sections 72A and 72B, as it requires the commissioner to include the information in his annual report.

The government indicated that it would draft an amendment between houses that would create a consistent reporting regime. The amendment to section 21L of the bill is very similar to that in the other place. This amendment requires the Commissioner of Police to include the following information in his annual report: the number of weapons prohibition orders issued under section 21G; the number of weapons prohibition orders revoked under section 21G; the number of appeals under section 21I and the outcome of each appeal that has been completed or finally determined; and, finally, any other information requested by the minister.

This approach was adopted in the end so that, rather than require the commissioner to provide three separate reports to the minister on the operation of weapons prohibition orders, metal detector searches and special powers to prevent serious violence provisions, the required information could simply be included in the commissioner's annual report. As the annual report is tabled in parliament, this ensures appropriate scrutiny of the use of these new powers. A similar amendment is proposed in sections 72A and 72B so that the reporting obligations under the bill are consistent.

The Hon. S.G. WADE: The opposition thanks the government for the work done between the houses. We certainly are quite happy with the alternative approach proposed by the government and support the amendment.

Amendment carried.

The ACTING CHAIR (Hon. J.S.L. Dawkins): We now move to amendment No. 2, Bressington 1, which is clause 5, page 12, lines 16 and 17. I call the Hon. Ann Bressington.

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

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

Page 12, lines 26 and 27 [clause 5, inserted section 21J(2)(a)]—

Delete 'who a police officer suspects on reasonable grounds is a person'

This clause relates to searching for prohibited weapons. The opposition seeks to amend section 21J(2)(a) so the police would be required to know that a person is on a weapons prohibition order before applying a higher level of search provisions to them. To have a reasonable suspicion is the normal threshold under English and Australian law for intrusions into the rights of a citizen. To highlight this point, I will quote from correspondence from the Law Society, which says, in relation to these clauses:

In relation to the search provisions, section 21J and 72A, we express considerable concern that section 21J search powers, which are significant, may be exercised on someone who is not the subject of weapons prohibition order (refer section 21J(a)). We do not support section 21J(a) and suggest it be deleted. A search under section 21J(1) is a major trespass on the rights of a citizen. The qualifying criteria before the search is authorised should not involve guesswork. The police should be required to be satisfied that the person the subject of a search is in fact subject to a weapons prohibition order in the same way the police must be so satisfied before executing outstanding warrants. The test of suspicion on reasonable grounds is wholly inappropriate for this type of scenario where certainty can be achieved.

I put the views of the Law Society on record. We have not adopted exactly their approach, but we do share their concerns and believe that this insertion is a better balancing of the rights of people in relation to search powers and the rights of the community to be protected through their police.

The Hon. G.E. GAGO: The government will not oppose this amendment. At present, new section 21J of the bill empowers a police officer to detain a person and search them for prohibited weapons if the officer suspects on reasonable grounds that the person is a person to whom a weapons prohibition order applies. The effect of this amendment is to require police to be satisfied that a person be subject to a weapons prohibition order before they can proceed with the search.

The amendment will, in some cases, limit the exercise of the search powers by police. However, if these orders are issued by the commissioner it should be a relatively simple matter for a police officer to check the database to see if a person is in fact subject to a weapons prohibition order. If the orders were issued by a court, that would be obviously another matter entirely. It is for these reasons that the government will not oppose this amendment.

Amendment carried.

The Hon. A. BRESSINGTON: Thank you, Mr Acting Chair, and the chamber for your patience. I am not proceeding with my next amendment.

The ACTING CHAIR: Thank you. That is amendment no. 3, Bressington 1?

The Hon. A. BRESSINGTON: Yes.

The ACTING CHAIR: You are moving that?

The Hon. A. BRESSINGTON: No.

The ACTING CHAIR: So the next one we move to is amendment no. 31, Wade 2, Clause 5, page 13, lines 28 to 30.

The Hon. S.G. WADE: As I turn to that amendment, I would thank you and other members for their forbearance as we sorted out that issue. I prophesy that there will be similar instances coming up, because when we get into section 72A it is very complex. We have a series of amendments which interrelate and we will need to work through that together. I move:

Page 13, lines 28 to 30 [clause 5, inserted section 21M(a)]—

Delete paragraph (a) and substitute:

(a) provide that this Part or specified provisions of this Part do not apply to a specified class of persons; and

The amendment has two effects. First of all, the amendment deletes the current proposed section 21M(a), which would have authorised the government to amend the act to issue regulations to limit lawful excuse. We had that discussion earlier on, how important it is to maintain lawful excuse, to give—I should stress this—law-abiding citizens some reassurance that what they are doing is a lawful excuse. This council saw the wisdom of that in relation to earlier clauses in relation to lawful excuse. We believe that this amendment is valuable because it removes the government's capacity to fiddle with a lawful excuse by way of regulation. We say if we did not want to stay silent on the scope of lawful excuse in the act, why would we let the government limit it by regulation?

Secondly, this amendment proposes to allow the government to exempt people by regulation. For example, it might be section 21D(1) and it might be in the context of young apprentice chefs, butchers, etc. All these people require knives. In that context, in support of my case, I would refer to responses that the government received in relation to the consultation on the knives discussion paper of 2009. In response to that discussion paper, the South Australia Police said:

SAPOL acknowledges there are many lawful reasons for youths to purchase and possess knives, for example in lawful employment as an apprentice chef, butcher, carpenter or any other trade or profession which uses knives as a tool of trade. SAPOL supports the inclusion of provisions to permit certain classes of persons or individuals to be exempt from this section with the person having to prove their employment prior to purchasing the knife.

Under the heading 'Cultural and Religious exemptions' it states:

SAPOL supports the concept of cultural and religious exemptions but suggests that those exemptions should have the same level of requirement and assessment attached to them as an exemption related to employment.

Under the heading 'Other exemptions' it goes on:

SAPOL supports the position that razor blades enclosed in cartridges and plastic take away style knives should be exempt. SAPOL proposes no further exemptions.

In relation to the response received from the Housing Industry Association, the Housing Industry Association said:

Whilst HIA applauds the initiative shown by the government to ensure a safe community there are a couple of comments which we would wish to make, hopefully in order to make the proposed legislation more effective. You are no doubt aware that many of our members are subcontractors and are engaged extensively in the residential construction industry. Almost inevitably, our members working as carpenters, bricklayers, painters, tilers, etc. carry Stanley knives for the purpose of their day-to-day activities.

While very few of our apprentices would be under 16 years of age there are a significant number of school-based apprentices within the construction industry. We would be pleased if you could note these circumstances and ensure that any legislation put forward protects the right of our members to carry Stanley knives in the lawful pursuit of their trade or occupation. Equally we would ask that the drafting of the legislation so far as the purchase of knives protects the right of school-based apprentices 16 years and under to be able to acquire Stanley knives.

In similar terms, the Scout Association responded to the knives discussion paper by saying:

Perhaps consideration could be given to prescribing particular organisations where it may be possible, given a membership card or ID, for a young person below the age of 16 to buy a knife, fork and spoon set. In this way, the intent of the legislation remains, but it may still be workable for youth organisations such as Scouts and Guides in South Australia. Perhaps the seller could ask for this membership identification card which could provide the authority to sell.

Honourable members would be aware that we have made changes to the legislation in earlier provisions to make the legislation more workable, so some of those aspects could be ameliorated by the changes to the legislation. Similar to our argument in relation to exemption of classes and to section 21H, I put to the committee that it is quite conceivable that there may well need to be further exemptions in relation to classes of persons—for example, scouts buying a knife, fork and spoon set, or whatever it might be.

We are not telling the government what we think the exemptions should be, but we believe that it is foolhardy for the government not to give itself the capacity to grant exemptions. We propose to expand the regulation-making power to include exemptions, as this amendment provides.

The Hon. G.E. GAGO: The government opposes this amendment. We did not support the honourable member's earlier amendment to insert a definition of lawful excuse into the bill, as we believe that this level of detail is best left to regulations. This amendment, which deletes the power to prescribe in regulations what may constitute a lawful excuse, is also opposed.

The Hon. M. PARNELL: As I understand the amendment, the status quo is that it would be up to the court to determine, having taken all the circumstances into account, what is a lawful excuse. Under the government's proposed regulation, by executive action, through regulations, a list could be provided of what is and is not a lawful excuse, thereby taking away from the judiciary the ability to weigh up all the circumstances for itself. I am reluctant to support constraining the judiciary in such a way, so I support the amendment.

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

The Hon. D.G.E. HOOD: I see no real need to place these matters in the act rather in regulation, but I see no harm in doing it either. For that reason, Family First will support the amendment.

Amendment carried; clause as amended passed.

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

That progress be reported.

The Hon. G.E. GAGO: Why?

The Hon. S.G. WADE: I tried to consult the minister, but I was not allowed to.

The committee divided on the motion:

AYES (6)
Dawkins, J.S.L. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Stephens, T.J. Wade, S.G. (teller)
NOES (12)
Bressington, A. Darley, J.A. Franks, T.A.
Gago, G.E. (teller) Gazzola, J.M. Holloway, P.
Hood, D.G.E. Hunter, I.K. Parnell, M.
Vincent, K.L. Wortley, R.P. Zollo, C.

Majority of 6 for the noes.

Motion thus negatived.

Clause 6.

The Hon. M. PARNELL: In making a brief contribution on clause 6, I would like to echo the words of the Hon. Stephen Wade in relation to the complexity of this bill. My call will be for restraint on all sides and for some latitude to be given for consultation, because it is going to take us a while to get through it. It was unfortunate that we needed to divide on a motion to report progress in order to draw breath to properly consider where this bill is going next. I did not support it then, but I have every sympathy for the Hon. Stephen Wade, who wanted to consult the minister and to assist the committee in advancing the debate on this bill. So, my contribution to clause 6 is to say that, while the Greens did not support reporting progress then, we will be inclined to support further report progress motions if we feel that members are not being given an opportunity to deal in a responsible and professional way with a very complex piece of legislation.

Members interjecting:

The CHAIR: Order! I take offence to that because the simple thing is that there was a vote about to be taken on the voices, and the Hon. Stephen Wade walked across the floor during the vote and was not in his place. I remind honourable members they should be in their place when a vote is taken. There is plenty of time given for consultation in between discussions when other people are on their feet or whatever; they can walk across here and talk to the minister, if they like, or talk to parliamentary counsel. I think you are totally out of line and out of order, and I do not think people should be spitting the dummy just because the Chair tells them to take their seat. The honourable minister.

The Hon. G.E. GAGO: I take this opportunity to answer a question that was put on notice by the Hon. Stephen Wade in relation to section 21I(5). I have been advised that it has been drafted in such a way that it does not offend against the ruling of the K-Generation case. I understand that 'take steps' has been ruled to mean 'steps that the court thinks fit'.

The CHAIR: I also remind honourable members that they can indicate to the Chair out of courtesy that they would like a moment to consult.

Clause passed.

Clause 7.

The Hon. S.G. WADE: I would like to reiterate remarks I made probably half an hour ago in relation to the problem we had in relation to working out amendments that were under possible moving by the Hon. Ann Bressington. I foreshadowed that later in the debate we might find ourselves even at greater risk of needing to clarify. This is that place. Section 72A has a large number of amendments. As I understand it, they are particularly in my name, the name of the Hon. Ann Bressington and the government. They are complex, they are interrelated, and we may well need to consult. I would hope that the council will facilitate that.

By way of context setting, I thought it might be appropriate to quote from a letter from the Law Society, but considering the government's eagerness to hear the opposition's views I choose to read the whole letter. This is a letter to the Hon. Ann Bressington and, with her leave, I have the permission to read the whole letter. I am disappointed that the government does not want to hear the quote in context, but nonetheless they will. It reads:

Dear Ms Bressington

Summary Offences (Weapons) Bill 2010

I refer to my letter to you of 18 November 2011—

The Hon. G.E. Gago interjecting:

The CHAIR: Order! We will get on with this bill if everybody comes to order.

The Hon. S.G. WADE: For the benefit of Hansard, I will start at the beginning:

Dear Ms Bressington

Summary Offences (Weapons) Bill 2010

I refer to my letter to you of 18 November 2011, providing comments in relation to the above Bill. The Society makes the following additional comments in relation to Sections 21J and 72A.

Section 72A

Generally, a search of a person or a person's property may only be conducted with a warrant or if there is otherwise reasonable cause to suspect that it would uncover evidence of an offence.

The proposed s72A is, in effect, a without cause provision. That is, it empowers the police to search, necessarily invasively, a person and the person's property without cause. The only limitations are that the search must take place in respect of people who are in an area to which s72A applies. The powers may otherwise be exercised arbitrarily. The places to which s72A apply include licensed premises (and an area in 'the vicinity' of licensed premises) and any public place holding an event, including community, cultural, arts and entertainment events.

There does not appear to be any proper basis to empower the police with the right to commit a trespass against the person as outlined in s72A. Whilst members of the community will, from time to time, offend by carrying or using offensive weapons that, in itself, should not justify the creation of laws permitting police to search wide groups of people without cause. We accordingly do not support the section.

We note that a metal detector search will, in most cases, detect some metal, given that people generally carry items which will trigger the detector, such as keys and coins. This will then lead to a more invasive search as s72A(6) contemplates, providing the police with powers well beyond those they are currently vested with without justification.

Under subheading 'Section 72C', the letter continues:

The problem with s72A is compounded when the implications of s72C(6) are considered. Section 72(6) creates the offences of hinder or obstruct police and refuse or fail to comply with a police direction. The maximum penalty is imprisonment. In the context of s72A, an otherwise law abiding citizen is at jeopardy of imprisonment for failing to comply with what would appear to be an unreasonable request to search.

We understand and accept random breath testing because of the ever present danger drink driving has been shown to cause. Drinking, and driving, are very prevalent in our society. The chances, therefore, that a person may drink (at least to some degree) and drive are high. Statistics will establish that this is so.

The same relevance cannot be found for carrying offensive weapons, particularly for the vast majority of the areas and times that s72A applies to and, therefore the breadth of the proposed power does not appear justified.

Perhaps I could spare the committee the remainder because it is not relevant to this part. That was the considered opinion of the Law Society, through the Hon. Ann Bressington, and I will acknowledge and take this opportunity to thank the Hon. Ann Bressington for her work in highlighting the issues in relation to this clause. It was only through her consultation with the Law Society that the opposition felt it necessary to move this set of amendments standing in my name.

The opposition respects the concerns of the Law Society and, while we do not support deleting the clauses, we think they make a number of valid points, and there is an opportunity to improve the process. This amendment winds back the search without cause nature of the provisions by requiring that the initial search of a person be by metal detector and any more of an invasive search only proceed on the basis of the outcomes of a metal detector search. I indicate that the opposition proposes that this amendment would be an appropriate test clause for amendments [Wade-5] 2 through to [Wade-5] 5. I move:

Page 14—

Line 4 [clause 7, inserted section 72A(1)]—Delete 'A police' and substitute:

Subject to this section, a police

Line 5 [clause 7, inserted section 72A(1)]—Delete 'metal detector'

After line 9 [clause 7, inserted section 72A]—After subsection (1) insert:

(1a) A search referred to in subsection (1) in relation to a person or property must be carried out as follows:

(a) the search must, in the first instance, be a metal detector search and must not proceed to a further search unless the metal detector search indicates the presence or likely presence of metal;

(b) if the metal detector search indicates the presence or likely presence of metal, a police officer may—

(i) require the person to produce the item detected by the metal detector; and

(ii) if the person refuses or fails to produce such item—conduct a search of the person for the purpose of identifying the item as if it were a search of a person who is reasonably suspected of having, on or about his or her person—

(A) stolen goods; or

(B) an object, possession of which constitutes an offence; or

(C) evidence of the commission of an indictable offence.

Lines 29 and 30 [clause 7, inserted section 72A(5)]—Delete 'metal detector'

Lines 33 to 35 [clause 7, inserted section 72A(6)]—Delete subsection (6)

Page 15—

Line 2 [clause 7, inserted section 72A(7)(b)]—After 'section' insert:

at licensed premises or the vicinity of licensed premises;

After line 2 [clause 7, inserted section 72A(7)]—After paragraph (b) insert:

(ba) the number of metal detector searches carried out under this section at a public place holding an event;

After line 8 [clause 7, inserted section 72A(7)]—After paragraph (d) insert:

(da) the following details about each declaration made under subsection (3):

(i) the name and date of the event;

(ii) the location of the public place;

After line 12 [clause 7, inserted section 72A]—After subsection (8) insert:

(8a) This section will expire 3 years after it comes into operation.

Line 36 [clause 7, inserted section 72B(1)]—Delete 'A police' and substitute:

Subject to this section, a police

Page 16, after line 1 [clause 7, inserted section 72B]—After subsection (1) insert:

(1a) A search referred to in subsection (1) in relation to a person or property must be carried out as follows:

(a) the search must, in the first instance, be a metal detector search and must not proceed to a further search unless the metal detector search indicates the presence or likely presence of metal;

(b) if the metal detector search indicates the presence or likely presence of metal, a police officer may—

(i) require the person to produce the item detected by the metal detector; and

(ii) if the person refuses or fails to produce such item—conduct a search of the person for the purpose of identifying the item as if it were a search of a person who is reasonably suspected of having, on or about his or her person—

(A) stolen goods; or

(B) an object, possession of which constitutes an offence; or

(C) evidence of the commission of an indictable offence.

The Hon. G.E. GAGO: The government rises to oppose this amendment. The carriage of weapons in the community is obviously of great concern to the government, particularly in places where alcohol is consumed as the combination of alcohol-fuelled violence and the carriage of a weapon can lead to serious injuries and even death. The enhanced police powers of search, in new section 72A in relation to licensed premises and gazetted public events, are a preventive measure. They allow police to search with metal detectors any person who is in or is apparently attempting to enter or leave one of those places and any property in the possession of such a person.

If a metal detector search indicates the presence or likely presence of any metal, a police officer may proceed to conduct a search in accordance with the procedures prescribed by regulation. Draft search procedures were set out in the draft regulations that were circulated to the opposition and other members. This amendment is related to further amendments proposed by the Hon. Mr Wade.

Amendment No. 3 in particular inserts a new subsection (1)(a) into section 72(A) of the bill. The purpose of this new subsection provides that a search carried out under section 72(A) must, in the first instance, be a metal detector search and must not proceed to a further search unless there is a positive indication for metal. If there is a positive indication for metal, the officer may require the person to produce the item detected. If the person refuses or fails to produce the item, the officer can then proceed to a further search.

It seems that, once again, the government and the opposition differ on what should be in the act and what should be in the regulations. The honourable members seem to want to put almost everything related to weapons from the daft regulations provided by the government into this act.

The honourable member's arguments for moving the exemptions for prohibited weapons from the regulations to the act were that parliament should maintain adequate oversight in the development of this law and that putting this detail into the act would improve the clarity and accessibility of the law. The government disagrees with this. Regulations offer legislative flexibility, so that the government does not have to go back to parliament every time some minor change occurs in the criminal justice process.

I would also like to point out that, just because the government can amend regulations by executive action, it does not mean that there is no parliamentary oversight. We know obviously that that is the case. Regulations must be laid before each house of parliament within six sitting days of being made. If the parliament thinks that regulations are not appropriate it can disallow, and we have had plenty of examples in this place before.

It is noted that the honourable member's third amendment reflects the wording used in the government's draft regulations, the operative word being 'draft'. The regulations provided to the opposition are in good faith and were a preliminary draft only, provided for the benefit of the opposition so that it could see that the exemptions for prohibited weapons from the act would be appropriately covered by regulation. The wording of the provisions in the draft regulations is something that is still being worked on by the government. There are some issues that still obviously need to be ironed out.

The search procedure provision is one of the provisions that require further clarification, as questions have been raised about how this provision would work in practice for police and whether the subject of the search will be protected from any unduly intrusive second or third search after the metal has been discovered and handed over.

If honourable members were to agree to these amendments, it would put into the act a provision which, from the government's perspective, is still in draft form and which requires further clarification in consultation with SAPOL and, obviously, across government as well. This is precisely why this issue should be left to regulations. It is for those reasons the government opposes this amendment.

The Hon. S.G. WADE: I acknowledge that the regulations were provided by the government in good faith, and I appreciate that; however, I would challenge minister's assertion that this matter is not an appropriate matter to go into the act. If you do not have this provision in the act, what you are saying is that this parliament considers it appropriate that an officer does a metal detector search, and without taking, if you like, incremental steps can respond to a metal detector search by going to an invasive approach.

It may well be that these words could be improved; but I think today we have the opportunity to really vote on the in-principle point of whether we as a parliament want to respond to the concerns of Law Society and, if I may say so, the Hon. Ann Bressington, and make sure that we are being appropriate and are not going over the top in giving these incremental search powers.

In relation to the minister's initial remarks, for example, the opposition has crossed the Rubicon in the sense of supporting enhanced search powers in the context of sections 72A and 72B. We are accepting that, in the context envisaged by those two sections, it is appropriate for police to have enhanced powers. In that context, are we happy for those processes to be left to regulation? On the whole, yes; but, on that fundamental point about, if you like, the staged nature of a search, we believe it is appropriate to have this in the legislation.

I appreciate the minister's comments about the fact that the operative words were part of a draft. But can I again, for the second time today, prophesy to the committee that I expect that not all the amendments we have put into this bill will be acceptable to the House of Assembly. If that is the case, and I hope you will not stone me if I am wrong, this bill will be back again and perhaps the government would have had the opportunity to have further consideration. However, I think that today is the opportunity to say that we do expect more clarity in terms of search process. They may not be perfect words, but I think that, if we do not support these amendments today, we will have a situation where the government will say, 'Great; we'll leave it to the regulations.'

I find the minister's remarks chilling because, by implication, they are saying that the government could foresee the possibility that it may want to allow a very expeditious process from metal detector to invasive search. We as an opposition do not accept that. We are not willing to rely on the diligence of the Legislative Review Committee, with all due respect to myself and other members of that committee. We believe this is an appropriate quality standard that should apply in the act.

The Hon. M. PARNELL: The Greens generally support the position that was outlined by the Law Society and the Hon. Stephen Wade that these powers are of a magnitude of importance that we need to spell them out in the act rather than in the regulations. I note the honourable member has a further amendment, which, in fact, mirrors the words in the draft regulations which were provided by the government. However, I also agree with the minister that the draft regulations are just that.

There is one glaring hole in here already, which I have only just noticed, and that is the case of the husband of a person with a large piece of metal embedded in her leg, held together with nine titanium screws; her ability to produce the item detected by the metal detector or otherwise be the subject of a very intrusive search is just appalling—and I can tell you that it is happening at airports very regularly.

Whether that means that I need to move an amendment to the Hon. Stephen Wade's amendment, when we get to his amendment No. 3, that would be one way around it. The dilemma for the Greens at present is that we support putting these important powers in a higher level document than regulations, but we also see that the regulations are, in fact, draft and have not been completed. I think what that means is that we can support this amendment now, but we might need to have a good look at the honourable member's amendment No. 3 when we get to that this afternoon.

The Hon. A. BRESSINGTON: One of the more insidious features of the Summary Offences (Weapons) Amendment Bill is the suspension of the requirement for police to have reasonable suspicion before conducting a metal detector search and then, given the fact that we all carry car keys, have coins in our pocket or have a metal belt buckle, a more thorough frisking, where we will have to turn out our pockets and hand any property in our position over to the police for a more thorough inspection.

This power is limited to certain situations: first, under section 72A, to licensed premises or public places holding a declared event; or, secondly, under section 72B, to areas declared by a police officer of or above the rank of superintendent, who reasonably believes that an incident involving serious violence may take place.

The freedom from arbitrary search has long been a fundamental element of our liberty, along with the freedom from arbitrary arrest, detention and punishment, and the freedom from arbitrary interference in our privacy and lawful belongings—that is, arbitrary search—has, for centuries, been considered sacrosanct. This, however, is clearly no longer the case. In my office, I have a brilliant cartoon by the Australian cartoonist Eric Loebbeck, in which a stereotypical-looking male police officer has a Statue of Liberty pressed against the wall. While the image may have more relevance to an American audience, its message is nonetheless clear.

The liberties we have come to expect are being eroded. Law abiding citizens who do nothing to give rise to a reasonable suspicion should have a right to go about their lives without interference by the police. However, this is no longer the case. In my years here I have witnessed our rights under law being eroded with each incremental step. It is clear that this government is by no means done yet, and this should worry us all.

The freedom from arbitrary search also prevents profiling, especially racial profiling, which I know has been an issue in the United Kingdom and elsewhere where they have done what is being proposed here. This makes sense. Police will hardly frisk a little old lady over a middle-aged male, or a middle-aged male over a 20-year-old, or a 20-year-old over 20-year-old with tattoos and wearing a hoodie, or a 20-year-old with tattoos and wearing a hoodie over a 20-year-old Sudanese male. Let us not forget that that is how this particular bill came into being in the first place. Whether they are targeted because of their race, religion, gender, age, choice of clothes or lifestyle, I have no doubt that it will be minorities—

The CHAIRMAN: Order! How much longer?

The Hon. A. BRESSINGTON: Not long.

The CHAIR: Well, it is just in the lunch break. I thought that you can finish after lunch if you are going to be much longer.

The Hon. A. BRESSINGTON: Well, I will seek leave to conclude.

Leave granted.

Progress reported; committee to sit again.


[Sitting suspended from 13:07 to 14:20]


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