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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-09 Daily Xml
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SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 8 June 2011.)

Clause 7.

The Hon. S.G. WADE: By way of reiteration, the opposition suggests this is an appropriate test clause for a range of provisions, particularly in this case [Wade-5] 1, [Wade-5] 2 and [Wade-10] 1. By way of preface, I apologise to members that, in responding to the discussions last evening, we have given you yet another set of amendments. Responding to issues as they arise is part of the legislative process and we humbly request that you give those amendments due consideration.

The proposed amendments to sections 72A and 72B of the bill require searches by police under the new powers to be undertaken by metal detectors in the first instance, and to prevent them from proceeding to a more invasive search, unless a person refuses or fails to produce the item detected by the metal detector. That was the cumulative effect of [Wade-5] 1 to [Wade-5] 3. As a result of concerns last night, there is a new [Wade-10] 1, which means that [Wade-5] 3 does not need to be moved.

Concerns were raised last night that both the bill and the amendment would work inappropriately in relation to people with metallic insertions—I suppose the amendments, in particular, because they were talking about producing an item. They would work inappropriately for people with metallic insertions and the police would be compelled to proceed to a full search based on the positive reading from the metal detector and because the subject would not be able to produce the item.

One response would be to allow a person to either produce the item or show reason why they cannot produce the item or similar, but I remind the house that, as the amendments stand, the police have the discretion at any time not to proceed with a search and may desist from undertaking a search for any relevant reason. Parliamentary counsel's advice in that context is that, if we were to insert reasonable explanation type provisions into the bill and therefore constrain the discretion, it may well have the unfortunate consequence that it limits the ability of the police to desist from a search in other circumstances which do not involve medical implants or disability.

Another option would be to require detailed procedures and regulations or police general orders. Police general orders are less attractive because they are not necessarily public, which means people are less likely to be aware of and be able to assert their rights. Secondly, they are not disallowable. I acknowledge that the government has, in section 72C(2) of the bill, a provision which says:

The Commissioner must establish procedures to be followed by police officers in the exercise of powers under section 72A or 72B, being procedures designed to prevent, as far as reasonably practicable, any undue delay, inconvenience or embarrassment to persons being subjected to the powers.

The opposition would expect such procedures to include provisions to protect the dignity of those with a disability or who carry metal as the result of a medical procedure that otherwise may result in further inconvenience or embarrassment.

Parliamentary counsel advises that section 72C(2) is modelled on section 52B(9)(a) of the Controlled Substances Act 1984. A key difference is that section 72C(2) seeks to avoid embarrassment, whereas section 52B(9)(a) does not, and I think that is an improvement. Having said that, the opposition still believes it is appropriate that these enhanced search powers be tempered so that people with disability, people who are carrying a metallic object as a result of medical procedures and other South Australians with reasons for setting off a metal detector should have the opportunity to have their rights respected and for those rights to be appropriately enshrined.

We are not suggesting that that sort of detail appropriately goes into the legislation, but we believe that the set of amendments that I have before you this afternoon puts an obligation on the government to put regulations in place that respect those values, particularly [Wade-10] 1, which talks about regulations and that the exercise of the powers could not be exercised without regulations which respect those interests.

In that context, we understand it is inappropriate for the parliament to direct the Governor to issue regulations, so they are not done in that form. What it does say is that, if the regulations are not in place, the powers cannot be exercised. So, that is the approach that is taken. This would mean that this parliament would have an opportunity—if you like, it puts another duty back on us—to consider these regulations when they are tabled to make sure that they appropriately balance the capacity for the police to conduct metal detector searches and for South Australians, who are subject to these enhanced search powers, to have their rights respected.

The Hon. Mark Parnell spoke of his partner who feels humiliated by continually being subjected to enhanced searches that are not imposed on other South Australians. That will increasingly become the case. As we become an ageing society, there will be more and more people carrying some sort of metallic insertion. For that matter, there will be more and more people who will be subject to the range of disabilities that might require supports. That is not, of course, always an implant, but it will often be so. The nature of modern medicine is that often an insertion response—a hip replacement, knee, or whatever it might be—is an increasingly prescribed response.

We are not telling the government or the police how to conduct the searches, but we believe it is appropriate that the police and the government are put on notice that this parliament takes seriously the rights of people with disability, in particular, and the rights of people who have undergone medical procedures which leaves them with a metallic object embedded in their body, and that we would like the opportunity to make sure those rights are appropriately balanced in the regulations. So, whilst I am moving [Wade-5] 1, I must admit that that also addresses issues that are raised in [Wade-5] 2 and [Wade-10] 1.

The Hon. G.E. GAGO: I rise to oppose the amendment before us and also this series of amendments that go to the same or similar issues. The current wording of the provision allows police officers to search persons with a metal detector if they are in certain areas, such as licensed premises. They can only proceed to a further search in accordance with regulations if there is a positive indication of metal.

The Hon. Mr Wade has argued that this should be set out in the act to ensure that the search powers are appropriate and do not go straight from a metal detector search to an invasive search. Given that this amendment reflects the wording used in the draft regulations provided by the government, it seems that he is genuinely happy with how the government proposes to deal with the conduct of further searches, so why is it necessary to go into the act?

I reiterate that this provision is still in draft form, and it needs further work and consultation. The proposed amendment tries to give some protection against further intrusive searches by saying, 'A metal detector search must be conducted in the first instance.' It is not clear from the proposed provision whether or not police would be able to do a second metal detector search if the person produces a metal item after the first search. So, that is not clear.

It is equally unclear whether the subject of the search will be protected from an unduly intrusive second or third search after metal has been discovered and obviously handed over. So, we should not be putting a provision into an act that is obviously flawed or unfinished. There are too many unknowns. This needs to be completed; the detail of this needs to be worked through. We are putting in a flawed proposal that still requires improvement, and what we are saying is that that should be done within a regulatory framework that gives us the time to deal with those elements that are, at this point, unknown.

The Hon. S.G. WADE: On behalf of the opposition, I indicate that we would be more than happy for progress to be reported for the government to undertake those consultations. The alternative that the government seems to be implying is 'Let through a wide berth, a wide pathway, and trust us.'

An honourable member: And we'll fix it later.

The Hon. S.G. WADE: Yes, we will fix it later. To me, this is reminiscent of the debate on South Australian public health. We raised concerns. The government said, 'Trust us.' We put up amendments; they said, 'These have not been consulted.' Remember we were told that we should have spoken to Health SA. The government was persistent right through that process, briefing after briefing, failing to bring alternative amendments. We seem to be facing the same, what I would call 'blackmail', today—it is legislative blackmail.

What we are being told is, 'You are just the simple opposition. You don't understand all the ramifications of this provision.' I humbly submit you may well be right, but you can be sure that just as we did with the South Australian public health act, we will say that we will not pass dodgy legislation just trusting the government. We would be more than happy, as I said, to report progress and to let the government continue the consultation. The other option would be for the council to insert this provision and for the government, through the Attorney in the other place, to suggest alternatives.

Let's not forget that this is not a particularly urgent bill. We did not even do any work on it last week. It has been in the lower house since September, so the sky is not going to fall in if we do not pass it this week. We believe it is more important to get it right than get it now. In relation to how important this is, we think that it is a balancing matter. We do not believe that everything should be in the act. That is why we are suggesting that there are important matters—such as how people with disabilities and people with mental implants are dealt with—that should not be in the act.

We respect the need for the government to be flexible with new technology in terms of electronic searches. It might well be very appropriate to change the regulations at relatively short notice, but it is appropriate that this parliament has the opportunity to say, 'When it comes to issues like human rights, we are not going to leave loopholes.' I believe that the bill as it stands is a loophole. You can almost ignore the results of a metal detector search and go to a more invasive search. It may not be that the opposition amendments are perfect, but I can assure you that the government bill is not either.

The CHAIR: It is a matter of trust. I understand that the Hon. Mr Wade has amended his amendments since yesterday.

The Hon. S.G. WADE: If I could respond to that, Mr President—and I do not know if the fact that you are asking me a question means that you will be voting on this bill, because that would be of interest.

The CHAIR: I understand that you have amended your amendments since yesterday. If the bill had gone through yesterday, and your amendments had been accepted, they would not have been any good you are saying, are you?

The Hon. S.G. WADE: Mr President, I will respond to that point personally. I will come back to my question. My response to your question is that we had the discussion in the council last night when Mr Parnell raised issues. I responded to those. The government is failing to respond to those. I reiterate my question to you, Mr President: considering you are questioning me on this amendment, could you indicate whether you will be voting on this bill?

The CHAIR: No, I did not ask you a question: I made a statement, if you remember. I said that the Hon. Mr Wade has amended his amendments since yesterday. Is that a fact?

The Hon. S.G. WADE: Well, I am responding to this council, and that is my duty to do so.

The CHAIR: Well, it is my duty.

The Hon. S.G. WADE: But could I clarify, Mr President: are you going to be voting on this matter? It does matter.

The CHAIR: If it is a tie, I certainly will be.

The Hon. S.G. WADE: So, you are not intending to use a deliberative vote.

The CHAIR: No. I will be voting if there is a tie, though.

The Hon. S.G. WADE: Okay. Well, that is interesting.

The CHAIR: I cannot use a deliberative vote. The Hon. Mr Parnell.

The Hon. G.E. Gago interjecting:

The Hon. S.G. Wade: He made a statement from the chair to say that he would vote when he wants to.

The CHAIR: Which is the chairman's right to make a statement.

The Hon. S.G. Wade: It is not the convention of this place.

The CHAIR: You don't have to get excited. You are not the only who can make statements in here, the Hon. Mr Wade. The Hon. Mr Parnell.

The Hon. M. PARNELL: I am keen not to get into trouble when I go home tonight, so I would just like to clarify a few of the things that the Hon. Stephen Wade said. To be fair, as I said yesterday, as I was reading through the honourable member's amendments and I was reading through the draft regulations that the government had put forward, it did occur to me very late in the piece—like, at that moment, yesterday—that there was a range of circumstances where the provisions as drafted, either by the Hon. Stephen Wade or in the regulations, were effectively unworkable. That was a situation where, if the metal detector showed the presence of metal, you needed to produce it.

What got me thinking was the situation of my wife who has a knife-sized piece of metal holding her leg together and, in order to produce that, a surgeon would need to be summoned at short notice and the leg opened up and the piece of metal produced. I just suggested that that was a problem and, in talking with the Hon. Kelly Vincent later on, there are other issues. There are people who have metal calipers. There is a whole range of metal items that are either on or in people to help them get through their lives.

It struck me that there was perhaps a little bit more work to do, and I acknowledge that the Hon. Stephen Wade has taken this up in good faith with parliamentary counsel, and they have suggested, rather than trying to identify the situations and list them in the legislation, putting in some more general criteria, which basically obliges the person undertaking the search to undertake it in accordance with certain procedures and identifying in the legislation that those procedures should seek to minimise, as far as reasonably practicable, any undue delay, inconvenience or embarrassment to persons being subject to a search under this section, and I think that is appropriate.

The honourable member used the word 'humiliated' and I do not remember whether I used that word. I may have said that word, but I want to have the record show that my wife is not claiming that she has been humiliated. What she said is that every time she goes to the airport and walks through the metal detector, she is sent back. She removes her shoes and walks through again. The metal detectors still goes off. She then needs to stand in a spread-eagled position in the airport while a female attendant is found. The female attendant then pats her down. We are hoping at this stage that the loudspeaker is not announcing the flight because it adds minutes.

As a community we put up with a level of inconvenience at airports in the security system because we want to be kept safe. We know the consequences are dire. Would we be prepared to put up with the same level of inconvenience and embarrassment at a pub or a restaurant? I doubt it very much. I do not think that anyone is really arguing at cross-purposes that we need a system that respects people's dignity, that gives adequate instructions to our law enforcement officers as to how they should exercise their powers. I have not heard a great deal of disagreement that that is what we are trying to achieve.

The question really before us is: do we put it in the act or do we leave it in the regulations? I am not inclined to just report progress because I would like to see the back of this bill, as I think other members would, so I am inclined to now support this series of amendments and then, if the government comes back with something that is even better, then we can look at fixing up the bill later on. In order to progress the debate, I think that these amendments, whilst filed late, have been done in the spirit of debate in this place, and I think they warrant support.

The Hon. D.G.E. HOOD: There is a whole range of issues here as, I think, members would agree. I think the primary issue that this has finally come down to, after what seems to be quite an evolution in the original amendments that have been moved, as the Hon. Mr Parnell just alluded to, is: should we put this in the act or is it a matter for regulation?

Generally speaking, I am someone who supports putting issues into legislation within reason but, generally speaking, that would be our position. When one reads this bill closely, however, I think there is enough protection as the bill stands to not warrant any particular insertion of other measures. For example just to refresh members' memory, new section 72C(2), provides:

The Commissioner must establish procedures to be followed by police officers in the exercise of powers under section 72A or 72B—

Those are the sections we are talking about—

being procedures designed to prevent, as far as reasonably practicable, any undue delay, inconvenience or embarrassment to persons being subjected to the powers.

So, there is a fairly substantial directive already in the bill which will make it clear that police need to make sure that they are not overstepping the mark, and that is very important. I think that is really the key concern the Hon. Mr Wade has raised with respect to all of these search powers.

The other thing I would like to say is that I think the government needs to be aware that it really should not be coming into this chamber every time and saying, 'Trust us, we'll get it right because we have more resources available to us.' That is true—no-one is disputing that—and, yes, there are some pretty bright people putting these things together; no-one is disputing that, either. But this chamber should have the right, under most circumstances, to be able to weigh up all of the possible alternatives and make a final decision; after all, that is what parliaments do.

Having said that, I also reflect on the advice I have received from the police I have consulted with extensively about these amendments and about the bill as it stands. They are of a very clear mind: they do not want the bill amended in this particular way; this is a very significant change, from their perspective.

Thus, on balance, we are inclined to oppose the amendments, but I must say with some sense of not being 100 per cent confident in doing so because we do not have the final version yet. The government is saying that these regulations are being drafted, but we would have to say, 'Well, okay, we've seen a draft, but why haven't we seen the final version?' On balance, we will not support these amendments.

The Hon. K.L. VINCENT: I will speak very briefly in support of these amendments. In fact, I would like to thank the Hon. Mr Parnell, as I must confess that the extent to which these amendments are relevant to people with medical conditions and disabilities did not occur to me prior to hearing him speak about his wife's experience.

As a person in a wheelchair and a person with a medical implant, whenever I visit an airport, I am required to do the old eagle spread. I obviously cannot go through the metal detector, so I am required to wait for the female attendant to come and pat me down, often in full view of everyone who is also boarding a plane. Whilst I understand it is necessary, it can be quite an embarrassing experience, particularly as I obviously require physical assistance to take off my shoes in order to be patted down.

I am often escorted, if that is the word for being pushed without my permission in my wheelchair to the female attendant, without being spoken to and without being asked permission to be pushed in my chair. Given that I stand for dignity for people with disabilities, I think these are a sensible set of amendments, and whether we have them in the act itself or in the regulations remains to be seen. So, I will be supporting them in good faith.

The Hon. A. BRESSINGTON: I will very briefly state my position that I will be supporting these amendments and supporting them in the legislation. The reason for this is that, on a number of occasions in here we have seen where regulations have been brought before the house to be disallowed, and we go through the whole process, and then the minister reinstates them the very next day. It is just a merry-go-round ride.

I believe, and we have heard it from someone who is directly affected by these sorts of procedures now, that it can be quite embarrassing and humiliating. I do not think it does any harm at all for it to be in the legislation and be enshrined in legislation rather than being in the regulations where, if we do not approve, we could mount a whole disallowance process and be successful, only to have them reinstated.

The Hon. S.G. WADE: I would like to briefly respond to a comment Mr Hood made. Mr Hood indicated that the police sources who have spoken to him do not support my amendments. I presume these are referring to the original [Wade-5] 3, because the C part only came in today. In that regard, I would suggest that that is a very strong point as to why it should be in the act, because, as the minister has indicated, my clauses are based on the regulations. So, if the police are saying that they oppose my clauses, they are saying they were going to try to wind back the draft regulations. To me, that is a very strong argument to do what we are doing today.

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

Amendment carried.

The Hon. D.G.E. HOOD: May I make a brief statement about process very quickly?

The CHAIR: The Hon. Mr Hood.

The Hon. D.G.E. HOOD: This is not a criticism of anyone. In fact, I think we have a million amendments here and everyone is doing the best they can, but I think crossbenchers would agree at the very least that it is very disjointed. You seem to be following a running sheet in terms of the order that these amendments are coming in, and that would be very useful for us.

The CHAIR: Ask the Hon. Mr Wade to give you one.

The Hon. D.G.E. HOOD: No, that is not a criticism of the Hon. Mr Wade. I think he has done a terrific job.

The CHAIR: Isn't it? Well, it could not be a criticism of the government.

The Hon. D.G.E. HOOD: It is not a criticism of anyone. I am just saying that it is very hard—

The CHAIR: Hon. Mr Wade might prepare a running sheet for you.

The Hon. D.G.E. HOOD: I don't think it is really up to the Hon. Mr Wade to do that.

The CHAIR: Do you want chamber staff to do it?

The Hon. D.G.E. HOOD: Well, somebody should do it.

The CHAIR: You can't do it.

The Hon. D.G.E. HOOD: Why not?

The CHAIR: Because you can't. I am happy to have the Hon. Mr Wade explain the amendments as we go through them.

The Hon. D.G.E. HOOD: That is helpful. I think the Hon. Mr Wade has done an outstanding job because there are a lot of amendments here, and the fact that he has them in order precisely says that he is on top of it, but it is not for him to prepare documents for us. It would be useful if we had a running sheet of the order of amendments.

The CHAIR: It would be useful if I had one, too, I suppose, but we do not have one up here. I am relying on the Hon. Mr Wade, as he is called and as he moves each amendment, to explain them to me as well as you.

The Hon. S.G. WADE: I agree with the Chair that it would be unreasonable for chamber staff to do a running sheet, and I would like to pay tribute to the assistance the chamber staff and parliamentary counsel have given me in managing this. I must admit that I might seem to have it under control, but wait for the first hiccup.

I appreciate that these are very complex amendments and, as we said earlier, we will need to show patience in working through them together. However, it is so dynamic that I think a standing running sheet would inevitably be fraught with errors. I think we need to persevere to do what we can to work together as a group and, if we do get to the point where members are not feeling that they are fully informed and fully aware of the amendments being moved, I think we need to face the issue of reporting progress. I certainly do not think we are in that position.

The Hon. G.E. Gago interjecting:

The Hon. S.G. WADE: Other members might be listening. I am saying that I think we are continuing to progress well, but I certainly respect the point Mr Hood has made. The fact that I have worked hard—

The Hon. G.E. Gago: Just sit down.

The Hon. S.G. WADE: I'm sorry; I will only be sat down by the Chair, and I am trying to assist the committee by indicating that it is up to crossbench MPs to indicate when they think they are not able to properly consider the amendments.

The CHAIR: I did not try to shut you down. What are you talking about?

The Hon. S.G. WADE: I said it is for you to shut me down, not for her; that is what I am saying.

The CHAIR: The committee has always operated by people getting up and moving their amendments. If people have amendments, sometimes they can run around and speak to people about their amendments or whatever. In this case, there are a number of amendments to this bill. Yes, they do get a bit confusing. That is why the Chair gives the opportunity for the mover of the amendments to explain the amendments to the committee, and the opposition to the amendments to explain their opposition to the committee. It happens in most debates, and if we cannot get that as members of parliament then perhaps we should not be here. The Hon. Mr Parnell, are you saying you should not be here or you should be here?

The Hon. M. PARNELL: No, my resignation is not forthcoming on this occasion. I want to endorse what the Hon. Dennis Hood has said. This is a debate that—

The CHAIR: It doesn't need endorsing because it's not going anywhere.

The Hon. M. PARNELL: I know it's not. It is a discussion that the crossbench has had and with some Liberal colleagues, as well. We will not resolve it now, but I will put it on the table though, because it has never been discussed in this chamber: as amendments are filed they are received by parliamentary staff electronically, and I maintain that, if a system whereby the filing of an amendment involves the emailing of that amendment to all members, it would at least assist us in putting running sheets together. I know that—

The Hon. J.M. GAZZOLA: On a point of order, Mr Chairman, why are we having this discussion?

The CHAIR: The Independents and the minor parties have more staff than most of us, so they could probably have a running sheet put together by their staff if they want one that badly.

The Hon. M. PARNELL: I do not propose to delay the chamber any longer. I am just saying that there are solutions that are easy to achieve that would actually assist the chamber, but I am disappointed that there is a reluctance to adopt them.

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

Page 14, line 5 [clause 7, inserted section 72A(1)]—Delete 'metal detector'.

This amendment I consider to be consequential on amendment [Wade-5] 1.

Amendment carried.

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

Page 14, 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;

(c) a search will not be taken to be lawfully carried out under this section unless it is carried out in accordance with procedures set out in the regulations (being procedures that seek to minimise, as far as reasonably practicable, any undue delay, inconvenience or embarrassment to persons being subjected to a search under this section).

This is the key provision. This is the provision that we debated as a set in [Wade-5] 1. This is [Wade-10] 1. It is basically the old [Wade-5] 3, plus paragraph (c), the very last paragraph, which is the response to the Parnell issues.

The Hon. G.E. GAGO: It is linked to the issues that have been discussed. The government opposes.

Amendment carried.

The Hon. A. BRESSINGTON: I move:

Page 14, after line 16 [clause 7, inserted section 72A(2)(a)]—Delete

'and the vicinity of licensed premises'.

I will speak to this amendment and to No.4 also as it is consequential. As I expressed previously, I would have preferred to move to delete new section 72A if I had been able to finish my speech on amendment No.1 of the Hon. Mr Wade's yesterday. However, being conscious of the numbers, and having pushed my luck in moving amendments in the alternative earlier in the bill, I instead propose to limit the power in section 72A to patrons of licensed venues, that is, those entering, exiting or within a hotel, pub, club or licensed restaurant or cafe.

The amendment does so by deleting 'and the vicinity of licensed premises' in section 72A(2)(a). Recognising, however, that hotel car parks are often the scene of violent incidents, I have also had an amendment drafted to include car parks specifically or primarily provided for the use of patrons of licensed venues or declared events. If these powers are left to extend to the loose term of 'vicinity', which I am led to believe could be as far as 500 metres, which was included in the discussion paper that went with this bill, or even a statutorily defined distance, then even those walking past a cafe, a restaurant, pub or club, whether it be in Hindley Street or in the main street of a country town, and whether it be on the same side of the street or the other, would inadvertently be captured and their otherwise right to freedom from an arbitrary search would be extinguished.

As I said earlier, I believe this is wrong and, in the very least, we should be focusing these powers on the intended target, and that is patrons of licensed premises. My staff and I did a quick scour and, under this currently, it could include the entire street of Gawler if the recommendations from the discussions paper are adopted in regulations, so there will be no safe zone in Gawler for anybody to go to be able to avoid an arbitrary search. Even in their Coles and Woolworths supermarkets, they could be hauled over for an arbitrary search, as it stands.

So, my amendments will at least give people the choice as to whether they forgo their freedom from arbitrary search, and ensure those simply walking down the street, or shopping in the local shopping centre, are not inadvertently caught by this parliament's over-action.

The Hon. G.E. GAGO: The government rises to not oppose—

The Hon. A. Bressington: Oh! Very good.

The Hon. G.E. GAGO: —which is not 'support'—don't let it be said! The effect of the Hon. Ms Bressington's amendment is to limit metal detector searches in relation to licensed premises to searches of a person who is in, or apparently attempting to enter or leave, licensed premises, or in the carpark. As indicated earlier, our response to the honourable member's amendment to the new section 21C of the bill, which was passed—the government has some concerns about the effect of this amendment, as it could produce anomalous results, however, we will not be opposing this at this point.

The Hon. S.G. WADE: I would indicate that, just as the opposition supported Bressington 3(1) on 6 April in relation to section 21C, 'in the vicinity of licensed premises', we will do so again in relation to this part. I just note that, if the government did have concerns, 6 April is over a month ago, and they could have perhaps looked at amendments for this clause.

Amendment carried.

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

Page 14, lines 29 and 30 [clause 7, inserted section 72A(5)]—Delete 'metal detector.'

I would suggest that this amendment is also consequential on Wade 5(1). It is part of the set which indicates that a search needs to be progressive.

Amendment carried.

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

Page 14, lines 33 to 35 [clause 7, inserted section 72A(6)]—Delete subsection (6).

Likewise, I submit to the committee that this is consequential.

Amendment carried.

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

Page 14, lines 36 to 41 and page 15, lines 1 to 12 [clause 7, inserted section 72A(7) and (8)]—

Section 72A(7) and (8)—delete the subsections and substitute:

(7) 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 declarations made under subsection (3);

(b) the number of metal detector searches carried out under this section;

(c) the number of occasions on which a metal detector search indicated the presence, or likely presence, of any metal;

(d) the number of occasions on which weapons or articles of a kind referred to in Part 3A were detected in the course of such searches and the types of weapons or articles so detected;

(e) any other information requested by the minister.

This amendment deletes the reporting requirements in subsections (7) and (8) of new section 72A and replaces them with a similar reporting regime that is proposed in amendment No. 1, so that the information required is included in the commissioner's annual report, rather than as a separate report to the minster. I think I have already talked about the information that has to be included in the annual report; I talked about that earlier on.

The Hon. S.G. WADE: Again, just as we did on an earlier matter, the opposition thanks the government for cooperating with enhancing the reporting requirements, and supports it being in the annual report, rather than a separate parliamentary report. I just have a clarification, Mr Chair. We have a number of amendments to this amendment. In terms of process, I am seeking clarification as to at what point I should be moving my amendments to this amendment.

The CHAIR: Well the minister has moved hers, so you can move all of those together, if you like.

The Hon. S.G. WADE: If the Chair is agreeable, I will move Wade 6(1), 6(2), 11(1) and 6(3) together, and then briefly give the reason for each of them. I will not be moving Wade 5(8). I will move Wade 5(9) separately, which relates to the sunset clause. It does not relate to the reporting, but, rather, it relates to the scheme. Accordingly, I move:

Amendment to Amendment No. 2 [MinRegDev-1]—Inserted section 72A(7)(b)—

After 'searches' insert:

, and the number of searches other than metal detector searches,

Amendment to Amendment No. 2 [MinRegDev-1]—Inserted section 72A(7)—

After paragraph (b) insert:

(ba) the locations at which those searches were carried out (for example, licensed premises, a public place holding an event or elsewhere);

(bb) in the case of a search carried out at a public place holding an event—the event and period specified in the relevant declaration and the date on which the notice of the declaration was published in the Gazette;

Amendment to Amendment No. 2 [MinRegDev-1]—Inserted section 72A(7)—

After paragraph (a) insert:

(ab) 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;

Amendment to Amendment No. 2 [MinRegDev-1]—Inserted section 72A(7)—

After paragraph (d) insert:

(da) the number of occasions on which other kinds of weapons or articles constituting evidence, or possible evidence, of the commission of an offence were detected in the course of such searches and the types of weapons or articles so detected;

The Hon. D.G.E. Hood interjecting:

The Hon. S.G. WADE: No, and I will explain why. If I could very briefly, for the benefit of honourable members, explain the purpose of each. I should, perhaps, preface this by saying that, as I said, the opposition welcomes the government's commitment to reporting on this. What you cannot report you cannot measure you cannot see outcomes for. However, we do think that there are opportunities to enhance the reporting, and the amendments are directed at that goal.

With respect to my amendment [Wade-6] 1, the government clause only provides for the number of metal detector searches to be reported. Amendment [Wade-6] 1 would require the report to also cover the number of other forms of search, in other words, whether it goes to a more invasive search. The [Wade-6] 2 amendment requires the report to deal with the locations at which the searches are carried out. That would be of use to us to know, in terms of: was it all in relation to licensed premise, was it all in relation to community events, or what was the mix?

Amendment [Wade-11] 1 dislodges [Wade-5] 8. This amendment requires the report to collate information in relation to declarations made, including the location and date, regardless of whether a search was undertaken. You might be asking yourselves, 'Why do we need this when we have got [Wade-6] 2?' I would just stress that [Wade-6] 2 only requires this information to be reported in the context of the number of searches undertaken at each declared event and, without [Wade-11] 1 (this amendment), we would not know which events were declared, just the total number of declared events and if no searches had been undertaken in relation to those events.

Amendment [Wade-6] 3 requires reporting on what was found. To properly consider the effectiveness of search provisions, we need to know whether material is being found. For example, we might find that there are lots of positive searches in relation to licensed premises but we are wasting resources on community events, so I think that it would be of interest to both the police and the parliament. We publish data of a similar nature in relation to random breath testing and drug testing, and I suggest that it would be of value, as I said, to both the police and the parliament.

The Hon. G.E. GAGO: I rise to oppose these amendments. The Hon. Mr Wade is seeking to impose further reporting obligations on the commissioner with his latest set of amendments. The government is opposed to these amendments as the additional reporting obligations are considered too onerous. Pursuant to new section 72A of the bill, police officers are authorised to carry out metal detector searches of persons in or near licensed premises or at gazetted public events.

In order to ensure that there is transparency and accountability in the use of these search powers, the commissioner is required to include certain information in his annual report, such as the number of metal detector searches carried out and the number of occasions on which the weapons or articles of a kind referenced to part 3A were detected, and also the types of weapons or articles so detected.

This amendment, and amendments Nos 2 and 3 of the honourable member's sixth set of amendments, and also amendment No. 1 of set 11, would require the commissioner to also report on a number of other things, including information about a declaration issued in relation to a public place holding an event and the number of occasions on which other kinds of weapons or articles constituting evidence or possible evidence of the commission of an offence were detected in the course of such searches and the types of weapons or articles so detected, including information about the declaration in the annual report as an unnecessary doubling-up of information that is already publicly available via the notice published in the government Gazette.

Proposed new paragraph (da) would require an officer, in addition to performing his many other duties, to record details about any articles found during the search that may afford possible evidence of a commission of an offence. This would be, as I said, a very onerous requirement for police officers out on the street.

Searches are conducted in a very dynamic environment, and the interpretation of this provision as to what would constitute evidence or possible evidence would depend on a number of factors, such as the individual assessment and discretion of the officer conducting the search and whether or not charges would actually be laid against a person being searched. That is just because of the diverse nature of what a weapon could be. In this place I gave the example of a stiletto heel for instance, which could be the heel of a shoe on one occasion or used as quite a nasty weapon on another.

The government believes that the current reporting obligations are sufficient to ensure appropriate oversight of how these powers are being used by police. Members should also note that if, after the section has been in operation the minister determines that the commissioner should include further information in his annual report on the use of this section, the minister would then have the power to require the inclusion of that particular information. For those reasons, the government opposes these amendments.

The Hon. S.G. WADE: I just want to provide a word of clarification in relation to the intended amendment when it may be necessary that it be amended between the houses. In relation to the section on evidence, it was only ever intended that it be recorded if the evidence was to be used in criminal prosecution. The Law Society was concerned that these powers should not be misused, shall we say, to look for other stuff. That was the purpose of that amendment. If it does not effectively target that purpose, we would certainly be open to further amendments.

The Hon. M. PARNELL: The Greens are supporting these amendments because we believe that they provide important additional information and we do not accept that they are too onerous.

The Hon. A. BRESSINGTON: I will be supporting these amendments as well.

The Hon. D.G.E. HOOD: Supporting.

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

Amendment to amendment carried; amendment as amended carried.

The Hon. S.G. WADE: I need to move [Wade-5] 9, which was the one I suggested was not in the nature of reporting. It is a sunset clause provision, so I needed to remove it separately. I have not moved it yet.

The CHAIR: So you are not moving [Wade-5] 6.

The Hon. S.G. WADE: I am not moving [Wade-5] 6 or [Wade-5] 8, but I will move [Wade-5] 9.

The CHAIR: What about [Wade-5] 7?

The Hon. S.G. WADE: No, I am not moving that either. They have been superseded. I move:

Page 15, after line 12 [clause 7, inserted section 72A]—After subsection (8) insert:

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

We have left the realm of reporting obligations. What I am asking in this amendment is: considering that we are talking about enhanced search powers, is it appropriate to look at this again in a period of time? We suggest that it is, and we suggest that three years should give both the police and the parliament the opportunity to assess the operation.

Let us remember, too, that these sunset clauses do not start ticking from today, the day we pass them; they start ticking from the day it is promulgated. As we saw with the government's approach with the intervention orders, it can be close enough to two years after a bill is passed that it is actually promulgated, and of course the regulations would be developed in that intervening period. With those few remarks, I suggest that there is value in a sunset clause, and that is what you get if you vote for [Wade-5] 9.

The Hon. G.E. GAGO: The government opposes this amendment. This amendment would pass new section 72A which would expire three years after it came into operation. The search powers are a preventative mechanism to enable police to search persons for weapons in or around licensed premises or at a public event, in order to prevent alcohol-fuelled violence. They do not apply to public places generally. There are also measures in place in the legislation to ensure that more intrusive searches are only carried out as a last resort.

Although it is not unheard of to have sunset clauses requiring expiry after 5 or 10 years, the government does not agree that the nature of these search powers would require their expiry, particularly after only three years of operation. If problems are identified in the operation of these search powers, then the government would bring a bill to amend the act. However, if the search powers proved to be a successful tool in the fight against weapons crime, which the government fully expects them to be, then this amendment would mean that the government would have to come back to the parliament after three years and deal with the issue over again. We do not believe that is an effective use of parliament's time.

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

The Hon. A. BRESSINGTON: Same.

The Hon. D.G.E. HOOD: Just for clarification, this would mean that the search powers of section 72A would expire automatically after three years?

The Hon. S.G. Wade: Yes.

The Hon. D.G.E. HOOD: Okay. Family First will oppose that amendment.

The Hon. J.A. DARLEY: Supporting.

Amendment carried.

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

Page 15, lines 30 to 34 [clause 7, inserted section 72A(9), definition of metal detector search]—

Delete the definition of metal detector search

I would like to indicate that I will not be moving [Wade-2] 32, which also relates to this section. This one, I believe, is consequential because it relates to the staged use of search powers. Also, could I mention that, perhaps, after we have determined this, it might be good to consult the government as to whether this might be an appropriate place to pause. This is, if you like, the end of section 72A and then we move to section 72B.

The Hon. G.E. GAGO: How many amendments to section 72B?

The Hon. S.G. WADE: They are actually quite contentious, too.

The Hon. G.E. GAGO: The government does not believe it is consequential and I will give my reasons why the government opposes this amendment. The amendment deletes the definition of metal detector search from section 72A of the bill. Although it appears a simple amendment, it is related to several other amendments that the honourable member will be moving to section 72B of the bill. So, the government is opposed to this amendment and to the related amendments to section 72B.

To assist police in the prevention of incidents of serious violence, section 72B of the bill gives police officers broad powers to search any person and any property in the possession of that person, if the person is within an area that is the subject of an authorisation. An authorisation can only be granted in relation to an area if there are reasonable grounds to believe that an incident involving serious violence will take place in an area, and such powers are necessary to prevent the incident. Obviously this will not be an everyday occurrence.

The honourable member proposes to move amendments that will limit the effectiveness of section 72B. A subsequent amendment to be moved by the Hon. Mr Wade will insert a new subsection (1)(a) into section 72B. The effect of this subsection will be to require police officers to conduct a metal detector search in the first instance of any person in the target area. The police officer would only be able to proceed to a broader search of the person, such as requesting that person to empty their pockets or their bag, if the metal detector gives a positive indication for metal.

That is fine if the person is carrying a weapon that contains metals, such as a knife. The problem with this amendment is that there are a number of weapons that do not contain metal and therefore will not be detected by a metal detector search; ceramic knives, fibreglass or wooden batons, for that matter even plastic knuckledusters, are a few examples. If a person does not give a positive indication for metal, then a police officer would not be entitled to proceed to a further search. This would not promote the purpose of the provision, which is to allow police to search for all weapons, not just metallic weapons such as metal knives, in order to prevent incidents of serious violence from occurring.

Section 72B is based on similar provisions in the United Kingdom which authorised the use of special powers to prevent and control incidents of serious violence in a public space. Section 60 of the UK Criminal Justice and Public Order Act 1994 authorises police to stop and search any pedestrian, and anything carried by him or her, for offensive weapons and dangerous instruments. Part 6A of the New South Wales Law Enforcement (Powers and Responsibilities) Act 2002 also gives police special powers to prevent public disorder. Under that part, police are authorised to stop and search persons, and anything in the possession of or under the control of a person, if the person is in an area that is the target of an authorisation or is in or on a vehicle on a road that is the target of an authorisation.

Both the UK and New South Wales acts give police broad powers of search in areas that are subject to an authorisation to ensure that all weapons, including non-metallic weapons, can be detected by police. The government believes that the broader police powers of search such as currently set out in section 72B are necessary for the effective operation of this section. So I urge honourable members to oppose this amendment and the subsequent amendments that will limit the effectiveness of section 72B.

The Hon. S.G. WADE: If I understand the minister correctly, she is suggesting that this amendment [Wade 3] 2 would impact on section 72B. I draw members' attention to the bill. This clause, 'metal detector search', is a definition which is part of section 72A(9), so my understanding is that the definition of 'metal detector search' impacts only in defining metal detector search in relation to that section, but I will seek leave to consult parliamentary counsel to confirm my understanding. The issues the minister raises are legitimate concerns which the opposition would be keen to investigate. We certainly do not want to undermine the whole schema, but if there is work to be done it might well need to be another amendment to section 72B. However, on my reading, the section I am trying to delete only works in relation to section 72A—

The CHAIR: It might shorten the issue if you consulted now, perhaps.

The Hon. S.G. WADE: That is what I meant; I was just seeking permission.

The CHAIR: Away you go.

The Hon. S.G. WADE: This is a good opportunity to demonstrate to the house how reliant I am on parliamentary counsel and to thank them again for their assistance. The answer to the issue is that, as a result of my amendments in toto, it was considered wise to put the definition of 'metal detector search' in new section 72C. Members will recall that section 72C is the normal repository for provisions that relate to both sections 72A and 72B. Amendment [Wade-2] 41, which obviously is much later and relates to section 72C, provides:

A metal detector search carried out under section 72A or 72B must be conducted—

(a) using only a metal detector of a kind approved by the Commissioner; and

(b) in accordance with any directions issued by the Commissioner.

That may not completely allay the minister's concerns, and I will be interested to hear the minister on that point but, whilst it deletes it from 72A, it is in anticipation of a 72C provision which covers both A and B.

The Hon. G.E. GAGO: We understand what the honourable member is trying to do, and I agree it is quite complicated, but the most simple way to explain this is that, if the Hon. Stephen Wade's amendment to 72B is not passed (which is what we are going to deal with later on), then the definition should remain in 72A, because that would be the only section left to deal with metal detectors, so we then create a problem is the advice I have received.

The CHAIR: You are still opposing this amendment?

The Hon. G.E. GAGO: We are opposing it.

The Hon. S.G. WADE: I seek the advice of whoever would like to give it, but is this a situation where we could seek an undertaking from the government to recommit if I do succeed on the 72B amendments?

The Hon. G.E. GAGO: Yes.

The Hon. S.G. WADE: So if the government is happy to take that amendment, I am happy to seek leave of the council to withdraw the amendment.

The CHAIR: You can put it and lose it.

The Hon. S.G. WADE: No. I am happy to have a commitment for recommittal; I am happy to trust the minister, even if the president is not.

The Hon. G.E. GAGO: I am happy to put on record that we would be prepared to recommit under those circumstances.

The CHAIR: So, you are withdrawing that amendment.

Amendment withdrawn.

The Hon. S.G. WADE: Could I seek leave to consult the government about its intentions?

The CHAIR: Yes. If you do things nicely through the chair your wishes will always be granted—most times.

Progress reported; committee to sit again.

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