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Legislative Council - Fifty-Second Parliament, First Session (52-1)
2011-06-21 Daily Xml
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SUMMARY OFFENCES (WEAPONS) AMENDMENT BILL

Committee Stage

In committee.

(Continued from 9 June 2011.)

Clause 7.

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

Page 15, line 36 [clause 7, inserted section 72B(1)]—Delete 'A police' and substitute:

Subject to this section, a police

To avoid possible confusion, could I indicate to honourable members that I do not intend to move [Wade-2] 33. This is one of a series of amendments. We have already considered a range of similar amendments relating to section 72A. I suggest that this is—conceptually, at least—consequential on [Wade-5] 1 but I will re-argue it, the reason being because the minister in her comments at the conclusion of our consideration of section 72A basically started arguing the case again.

I think I should remind the council of why the opposition suggests this approach. Let us remember that the Summary Offences (Weapons) Amendment Bill steps away from the traditional common law presumption that a police officer would need to have reasonable suspicion before undertaking a search. What this bill does in sections 72A and 72B is to say that in certain circumstances a reasonable suspicion is not required, the mere presence of a person in one of the two areas specified in sections 72A and 72B will justify a metal detector search.

In consideration of section 72A, the council was persuaded, by argument, that it was appropriate that the initial search should be by metal detector and that a more invasive search should not be progressed to unless the metal detector search either returned a negative or was able to be resolved through the removal of items—presentation of items.

Section 72B is dealing with a different sort of area. Section 72A is dealing with licensed premises and community areas, community events. Section 72B is dealing with declared areas, but we cannot see a fundamental difference between the two provisions in relation to the appropriateness, if you like, of a stepped search process.

We are saying that, in relation to both areas, they are particularly areas where we do not want weapons to be; and, that being the case, why would we not take a similar stepped approach? In relation to a stepped approach, I would stress that my amendment [Wade-5] 1 and, shall we say, the other clauses in this set (this is a section 72B set of metal detector amendments, if you like) are modelled on the draft regulations.

The minister has pointed out that they were draft regulations and still subject to consultation. I do not dispute that. What I think they do indicate is that the police, or whoever drafted the draft regulations, anticipated that we would have a stepped approach, and the fact that the government is now indicating (in response to our amendments in 72A and in indicating that it is resisting a stepped approach in relation to 72B) that those draft regulations were overly reassuring.

The government actually indicated the stepped approach where the government tells us it is now not going to. So, for the reasons that the council found persuasive in relation to 72A, I would urge the council to maintain a similar position here. A metal detector search does give the police an opportunity. The fact that they do not need to have a reasonable suspicion to undertake a metal detector search is an enhancement of their search powers in these particular circumstances.

We think that is appropriate, and that is why we are supporting these clauses. However, we do believe that it needs to be measured and considered. There is no reason why a person should go beyond a metal detector search unless there is a reason to do so. We would urge the council to support us on my amendment [Wade-5] 10.

The Hon. G.E. GAGO: The government opposes this amendment. The amendment relates to the honourable member's next amendment, which inserts a new subsection (1a) into section 72B of the bill. 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 that area and such powers are necessary to prevent the incident.

This is not going to be an everyday occurrence. The effect of the Hon. Mr Wade's amendment is to limit the search powers given to police to searches with a metal detector in the first instance, that is, if the person is carrying a weapon that contains metal. However, as I have already said in this place, there are a number of weapons, such as ceramic knives, plastic knuckledusters, etc., that do not contain metal and therefore will not be detected by a metal detector search.

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 defeats the intent of the section, which is to allow police to search persons in a target area for weapons of any kind in order to prevent incidents of serious violence from occurring in that area.

Section 72B is based on a similar provision in section 60 of the United Kingdom's Criminal Justice and Public Order Act 1994, which authorises police to stop and search any pedestrian for offensive weapons and dangerous instruments in order to prevent and control incidents of serious violence in a public place. In New South Wales, pursuant to part 6A of the New South Wales' Law Enforcement (Powers and Responsibilities) Act 2002, police can stop and search persons and anything in the possession of or under the control of the person if the person is in an area that is the target of authorisation or is in or on a vehicle on a road that is a target of an authorisation.

Both the UK and the 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 are necessary for the effective operation of the section. This amendment is therefore opposed.

The Hon. S.G. WADE: I just briefly indicate that I propose not to engage the minister's argument in relation to serious violence because I will be doing that under [Wade-2] 35. By not challenging this point, I am not agreeing with them. I want to focus on the appropriateness of a staged metal detector search. We supported it in 72A. This amendment brings the same principle into 72B.

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

The Hon. A. BRESSINGTON: I will be supporting this amendment. I would just like to indulge for one second. I note that the minister uses all of the examples where police have these powers of search in Great Britain and New South Wales, so for some reason we should be changing our laws to fit with them. Some weeks ago I introduced a bill to reduce the amount of cannabis on a person for personal use. We are the only state that is out of line with that and, for some reason, it did not count in those situations. This government is very selective in circumstances of where we should fit in and where we should not.

The Hon. D.G.E. HOOD: We will not be supporting this amendment primarily because I think the minister's point about some weapons not being metal is in fact valid. When I took this amendment to senior police for their view, I was told of a scenario where a gentleman—if it is right to call him a gentleman—had glass concealed in his inside jacket pocket. He explained to me that that would not be picked up by a metal detector, as one would assume it would not be. So, I think the motivation is right but the execution may not be what is intended.

Amendment carried.

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

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 personal 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).

I suggest that this is consequential. It is identical to the subsection that was inserted into 72A and reflects the stepped search approach that we have just discussed.

Amendment carried.

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

Page 16, line 8 [clause 7, inserted section 72B(3)(a)]—Delete 'serious violence' and substitute:

large scale public disorder

This is a key clause and, by way of preface, I remind members of the committee why it is important. It is important because this section requires an authorisation to be issued for the powers to be exercised. For an authorisation to be able to be issued under this section, a police officer of or above the rank of superintendent needs to have reasonable grounds to believe that an incident involving serious violence may take place in the area. So, if you like, it is the key threshold of this whole section 72B.

What I find extremely disturbing is that serious violence is not defined in the bill. In those circumstances, I ask myself: what is serious violence? For me at least, serious violence includes an assault. An assault might be one-on-one but it may be quite vicious. It could be sufficient to induce a significant brain injury, so I have no reason to think that a one-on-one assault would not be encompassed by serious violence. Certainly the government has not given us any reassurance in this bill.

If assaults are serious enough to invoke these powers, one has to ask: what is wrong with normal policing powers? Assaults happen throughout South Australia every day, and a superintendent merely needs to have reasonable grounds to believe that a serious assault might occur in an area. I suspect that there would be very few parts of South Australia that would not meet that criteria. Certainly, I do not believe there would be any part of any day, any time of the year, when Hindley Street would not meet this criterion, so this would basically mean you could do a 52-week-a-year authorisation for Hindley Street. I believe this threshold is far too low.

The opposition considers that these extraordinary police search powers should only be available when the violence anticipated is at a high level. We use the logic that enhanced police powers are appropriate when the risk is enhanced. A serious assault is not enough. We suggest that we should be guided by the phrase in the New South Wales Law Enforcement (Powers and Responsibilities) Act 2002.

I expect the government will support this amendment because, as the Hon. Ann Bressington highlighted, the Hon. Gail Gago has told us how virtuous the provisions are in the United Kingdom and New South Wales so, of course, they will support the New South Wales lead. Amendment [Wade-2] 40 again follows New South Wales and limits the opportunity to apply an authorisation to events of large scale public disorder.

The New South Wales legislation defines public disorder in terms of riot or disturbance and, for a simple common law bush lawyer, that makes sense. At the common law, a riot has a meaning of a disturbance involving 12 or more people. I should say that this act does not define that so a court would still have to decide what a large scale public disorder, a riot or a civil disturbance meant, but one would not be surprised if the courts suggested a group had to be involved.

I would say that, if you are talking about group violence, it is sensible to talk about enhanced police powers and, in that context, we would be happy to provide enhanced police powers. We suggest that for up to 12 people police should not need to go beyond normal policing powers and, as it stands, the prospect of even two people being involved in violence justifying enhanced powers is not acceptable.

I know that members are doing the house a great service by engaging in this bill, but I want to stress this point. The discussion paper that the government sent out for consultation on this bill actually talked about large scale public disorder: it did not talk about serious violence. So, when the police, the Scouts, the Housing Industry Association, etc., were asked to comment on this bill, they were being asked to talk about a bill that they thought was going to deal with large scale public disorder. Now it has turned up in this place, we are apparently talking about serious violence. Why the shift? As far as I am aware, there was no consultation input that recommended this change.

As I foreshadowed in my earlier remarks, I would like to pick up comments that the minister made in relation to a previous amendment. The minister said that these powers would not be an everyday occurrence, that we should not be concerned about any misuse of powers because it could only be used to prevent serious violence. As I have said, there is no definition of serious violence and that is a vague notion, so we have no guarantee. Any night of any week the police could reasonably expect there would be at least one-on-one violence and, therefore, they would be able to issue an authorisation.

As the minister said, anyone can be searched for anything at any time if they are in an area of authorisation. The minister complained in relation to the constraints that we were suggesting in relation to the metal detectors. As I said, that was based on the government's own regulations. The government has also been arguing, as we have heard, that these provisions would put us at odds with the UK and New South Wales in that both these jurisdictions have provisions such as this and allow for an invasive search for any weapon.

Similar to the argument of the Hon. Ann Bressington, I would say it depends on which way you look at it. We might be the odd man or odd person out vis-a-vis UK or New South Wales. The other way of looking at it is that UK and New South Wales are the odd man out for every other common law jurisdiction around the world.

We as a South Australian opposition are happy to look at our South Australian circumstances and develop South Australian laws, otherwise we would not bother having a parliament in South Australia. We believe that the focus on large-scale public disorder is appropriate in New South Wales, a state which is four times our size. We cannot see why we need to have a far narrower provision. So that we do not get another lecture on who is tougher than tough, I just remind the—

The ACTING CHAIR (Hon. I.K. Hunter): Is the Hon. Mr Wade coming to the end of his second reading speech in relation to this amendment? We are having a very long discussion.

The Hon. S.G. WADE: I am sorry; there is no time limit in this place.

The ACTING CHAIR: No, there is not, Mr Wade, but—

The Hon. S.G. WADE: I have every right to address each point.

The ACTING CHAIR: You have every right to take all the time you like. However, you should be addressing the thrust of this amendment, not the generality of the bill.

The Hon. S.G. WADE: If I can go back, then, and highlight in which way each of the points I have made on this clause relate to the provision 'serious violence'. In my introductory remarks, I was making the point that the New South Wales law enforcement bill, a very similar bill to this one, has exactly the same provision we are currently discussing: it provides for large scale public disorder.

The ACTING CHAIR: I heard you say that.

The Hon. S.G. WADE: And I appreciate your not calling me out of order on that. So, that is good; we agree that that was appropriate. I then made the point that the discussion paper the government distributed provided for large scale public disorder.

The ACTING CHAIR: I heard you say that, and that is twice now.

An honourable member: Why are you repeating it?

The Hon. S.G. WADE: I am just trying to see why I am being constrained. I am actually allowed—

The ACTING CHAIR: Order! I was very clear, the Hon. Mr Wade: I will not have a general discussion about the generalities of the bill. You are allowed to discuss to your heart's content this amendment. Please stick to the amendment.

The Hon. S.G. WADE: With all due respect, Mr Acting Chair, I have more than one point on this amendment, and I intend to make each of the points.

The ACTING CHAIR: You are free to do so, as long as you stick to the amendment.

The Hon. S.G. WADE: If I can move to my next point.

The ACTING CHAIR: Thank you.

The Hon. S.G. WADE: My next point is that, in relation to areas of serious violence, and this amendment relates to serious violence, I would stress that this provision is more invasive than the common law. The point I was making before I was interrupted is that the government is prone to accusing the opposition of not being as tough as it is. We as an opposition make the point that we are willing to accept an enhancement of the common law, to move away from reasonable suspicion alone, to allow more enhanced provisions for search powers, but we will do so only in a stepped approach.

I wanted to highlight the extent to which this is more invasive than the common law. Even with this amendment (just to remind the Acting Chair, the one that I am moving now is Wade 2, amendment No. 35), these powers are far more invasive than the common law. After all, engaging a person for a metal detector search provides closer observation of a person. Okay, the amendments we have already moved and this one do require a stepped approach, but they also provide an opportunity for a closer observation of the person, which gives the officer involved an increased opportunity to observe the subject and form a reasonable suspicion.

So, we are argue that, whilst it does not change the legal threshold for reasonable suspicion for non-metallic objects, it significantly increases the opportunity for non-metallic objects to be observed, for the police officer to form a reasonable suspicion, and therefore for the police officer to respond. We will not brook an argument that, even in relation to areas of serious violence, we are not providing additional support for the police. We are providing additional support—additional support which is stepped and appropriate.

The Hon. G.E. GAGO: The government opposes this amendment. As already discussed, an authorisation can be granted under new section 72B of the bill only if there are reasonable grounds to believe that an incident involving serious violence can take place in an area and such powers are necessary to prevent the incident from occurring.

This amendment would remove the requirement of serious violence and replace it with the requirement that police be satisfied that an incident involving large-scale public disorder will take place before an authorisation can be made. 'Public disorder' is defined, in a further amendment to be moved by the Hon. Mr Wade, as:

...a riot or other civil disturbance that gives rise to a serious risk of public safety, whether at a single location or resulting from a series of incidents in the same or different locations.

The discussion paper that was released for public consultation referred to provisions in two jurisdictions that give police similar power, such as section 60 of the UK Criminal Justice and Public Order Act, and part 6A of the New South Wales Law Enforcement (Powers and Responsibilities) Act. There were mixed reactions to the proposal. Some argued against the powers, while other submissions supported a range of possible thresholds.

On balance, the government decided to base the section on section 60 of the UK Criminal Justice and Public Order Act, which allows an authorisation to be made if there is a reasonable belief that incidents involving serious violence may take place in an area. This was considered more appropriate for South Australia than part 6A of the New South Wales Law Enforcement (Powers and Responsibilities) Act, which was enacted in response to the Cronulla riots. Pursuant to section 87D of the Act, an authorisation can be made if an officer:

(a) has reasonable grounds for believing that there is a large-scale public disorder occurring, or threat of such disorder occurring in the near future, and

(b) is satisfied that the exercise of the special powers is necessary to prevent or control the public disorder.

The definition of 'public disorder' is the same as that proposed by the Hon. Mr Wade. Limiting the exercise of these provisions or preventing incidents of large-scale public disorder would severely curtail the usefulness of the provision, as it would be a rare occurrence for South Australia to have the kinds of riots or civil disturbance that occurred with the Cronulla incident.

The government believes that serious violence is an appropriate threshold for the exercise of these powers. Incidents of serious violence can impact not only on the people actually involved, but also on anyone in the surrounding area. In appropriate circumstances, police should be able to search persons in these areas for weapons in order to stop that violence before it occurs. It is for those reasons that we oppose the amendment.

The Hon. M. PARNELL: The Greens have supported almost all of the amendments that the Hon. Stephen Wade has put forward, but we are not proposing to support this one, and I will just briefly outline why. It might perhaps be unfortunate for the Hon. Stephen Wade that this amendment is followed by one which is not consequential to it but which, to a certain extent, colours this amendment. The following amendment removes the exemption for advocacy protests, dissent and industrial action.

Now, I know the honourable member, in relation to the amendment currently before us, would say that this does not catch those forms of protest, yet it seems to me that, given that the opposition is proposing to remove that important exemption that the government has written in there, there will potentially be some overlap.

The amendment before us proposes to replace the test of serious violence with the test of large-scale public disorder and, in a consequential amendment—[Wade-2] 40, which we will get to—'public disorder' is defined as being:

...a riot or other civil disturbance that gives rise to a serious risk to public safety...

Now, that might not sound like a typical Adelaide street protest yet, on one interpretation, a lot of people blocking the street and marching, and holding banners with—

The Hon. G.E. Gago: Pointy ends.

The Hon. M. PARNELL: I will just say 'pointy ends'—could that be a serious risk to public safety? Well, maybe not, maybe yes. So, it seems to me that if there is a potential for this amendment to catch what I do not doubt is an unintended group of people, then the Greens are more comfortable with the government's existing test, which is one of serious violence.

Now, I certainly appreciate what the Hon. Stephen Wade said, which is that it does leave itself open to the whole of Hindley Street being declared a potential location for serious violence every single night of the week. I do not see it being used like that, so we will be opposing this current amendment, the consequential amendment [Wade-2] 40, and I will perhaps rise again to oppose [Wade-2] 36 when we get to that next.

The Hon. S.G. WADE: I will just briefly make the point that I must admit I am bemused by the Greens' response. The government is offering you a scope which includes everything from one-on-one violence to, shall we say, the London May Day marches and what we are saying is that we only want to cover from 12 up to the London May Day marches. I do not think either of the major parties are offering you a freedom for a large mass violent rally. We are just saying that enhanced powers should not be needed when normal policing powers would do.

The Hon. D.G.E. HOOD: Family First will not be supporting this amendment. We are, however, attracted to the next one when we get there, but we will deal with that when we do. The reason we will not support this amendment is that it is a matter of judgement, is it not, where the threshold should be? The other thing that is worth noting in the bill is that no-one, unless I missed it, has actually mentioned yet that subsection (3) actually requires that the superintendent may have reasonable grounds to believe, as we have talked about:

(a) that an incident involving serious violence may take place in the area; and—

It is not 'or': it is 'and'—

(b) such powers are actually necessary to prevent the incident.

I think paragraph (b) is actually very crucial there. There is an onus on the superintendent not to use these powers if both those criteria are not met, and the second one clearly states that they are 'necessary to prevent the incident' which in itself is a pretty high bar, I would argue.

Amendment negatived.

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

Page 16, lines 11 to 13 [clause 7, inserted section 72B(4)]—Delete subsection (4)

The opposition believes that this exemption for protests, which is provided in current subsection (4) is inappropriate. If a group is threatening serious violence, the opposition sees no reason why they should not be subject to enhanced search powers whatever the purpose for which they are deploying the violence.

It matters naught that they want to shroud their violence in advocacy, protest, dissent or industrial action, and we do not believe the law should promote violence even in otherwise virtuous causes, if they may be virtuous. There is no value judgement given on the particular use of advocacy, protest, dissent or industrial action. We believe it is right that the state should expect these activities to be peaceful.

After all, my reading of this section is that the exemption would cover a Free Australia rally or perhaps the Finks' poker run. Let us remember that the Finks took the opportunity to advocate against the government's anti-association laws and one wonders whether the police would actually find it difficult to use these enhanced powers because the Finks have taken an opportunity to have a press conference about how unfair the government's anti-association laws are. We want to help the government out. We think it would be in their interest to remove this subsection.

To assist honourable members and to reassure them that the opposition has not given up on democratic rights, I do foreshadow that I will be moving amendment [Wade-4] 1 which would put a positive duty on police officers to exercise the powers in this act in a way that does not unreasonably interfere with lawful advocacy, protest, dissent or industrial action. We are not providing a carte blanche exemption, but of course we expect the police to respect those democratic values of our society, as I am sure they will.

The Hon. G.E. GAGO: The government will not be opposing this amendment. The exemption for persons participating in advocacy, protest, dissent or industrial action was included because of concerns that a person participating in these demonstrations could be unfairly targeted as a result of an authorisation. However, as I said, the government will not be opposing this amendment.

The Hon. D.G.E. HOOD: For the record, Family First supports the amendment, simply because it is applying the same law to all regardless of the circumstances, and I think that is fundamental to how people should be treated. Violence is wrong in virtually all circumstances regardless of the form or the banner under which it takes place and this amendment will make that plain.

The Hon. M. PARNELL: Notwithstanding the contributions of other members to date, I want to put on the record that the Greens oppose this amendment. We support the protection that the government has in the bill and we do not want to see it removed. For the record, non-violence is an absolute core Green principle, so under no circumstances do we condone violence, but we do believe that removing this clause would enable the police to unreasonably shut down non-violent protest. Just to give you an example, if there was a protest happening that you did not want to go ahead for your own political reasons, you would ring the police and say, 'I am going to be there with some mates and we've all got knives.'

That would give the superintendent reasonable grounds to believe that a violent incident might occur, and suddenly the protest gets shut down, everyone gets metal detected, the rally down King William Street cannot go ahead. It is just fraught with danger. I think we need this protection in here, but I acknowledge that the Hon. Stephen Wade has an alternative positive duty which he wants to impose on police, which is better than nothing, but our preference is for subclause (4) to remain.

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

Amendment carried.

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

Page 16, line 17 [clause 7, inserted section 72B(5)(b)]—After 'relates' insert:

(which must not be larger than is reasonably necessary for the purposes of the authorisation)

To remind members, what this amendment would do is to require that any authorisation given under section 72B was no larger than is reasonably necessary for the purposes of the authorisation. I suggest that that may well be implicit in what the government was intending, but I think it would be good to make it explicit. After all, at the current writing of the bill, you could say that you fear there is going to be an assault in Hindley Street on Saturday night, so I am going to declare the whole of South Australia enhanced search powers. We would suggest that, if you are concerned about an assault in Hindley Street, then perhaps an authorisation for Hindley Street would be a good idea.

The Hon. G.E. GAGO: The government rises to support this amendment. At present, an authorisation must specify the area to which an authorisation relates. The amendment qualifies this by adding a requirement that the declared area must not be larger than is reasonably necessary for the purposes of the authorisation. Although the government believes that this is already implicit in the section, we do not believe that there is any harm in making it absolutely clear and, therefore, we are happy to support the amendment.

The Hon. D.G.E. HOOD: I will not speak when the government and the opposition agree every time, but it is important to put on record that we do certainly support this. These powers are vast powers that are being issued under this bill, and I want to make it clear to members and to those reading Hansard that Family First is not supporting carte blanche here. There are limits, and I think this amendment puts in place a reasonable limit on the jurisdiction.

Amendment carried.

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

Page 17, lines 4 to 23 [clause 7, inserted section 72B(10) and (11)]—

Section 72B(10) and (11)—delete the subsections and substitute:

(10) 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 authorisations granted under subsection (3) and the nature of the incidents in relation to which such authorisations were granted;

(b) the number of occasions on which persons were searched in the exercise of powers under this section;

(c) 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;

(d) the number of occasions on which the Commissioner gave consent under subsection (9);

(e) any other information requested by the Minister.

This amendment deletes the current reporting requirements in new subsection 72B(10) and (11) and replaces them with a similar reporting requirement or regime as proposed in amendments Nos 1 and 2 so that the information required is included in the commissioner's annual report rather than as a separate report to the minister.

The information that must be included is the number of authorisations granted under subsection (3) and the nature of the incidents in relation to which such authorisations were granted; secondly, the number of occasions on which persons were searched in the exercise of powers under this section; thirdly, the number of occasions on which a weapon 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; fourthly, the number of occasions on which the commissioner gave consent under subsection (9); and, fifthly, any other information requested by the minister. The amendment provides a consistent reporting regime in the bill and ensures appropriate scrutiny of the exercise of these new powers.

The CHAIR: The Hon. Mr Wade has two amendments, I understand, to the minister's amendment.

The Hon. S.G. WADE: Yes. First of all, if I could welcome the government's amendment. If my memory serves me correctly, this was an issue that was raised in the House of Assembly, and that the government then undertook to consider between the houses, and we welcome both the enhancement of the reporting requirements and also the placing in the annual report rather than in a separate report to parliament.

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

Amendment to Amendment No 3 [MinRegDev-1]—Inserted section 72B(10)—Delete paragraph (b) and substitute:

(b) the number of metal detector searches, and the number of searches other than metal detector searches, carried out under this section, and information identifying the authorisation pursuant to which those searches were carried out;

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

Amendment to Amendment No 3 [MinRegDev-1]—Inserted section 72B(10)—After paragraph (c) insert:

(ca) 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;

For the benefit of honourable members who have trouble hearing me under the pile of amendments I have filed, I will not be moving [Wade-2] 38 and [Wade-2] 39 in relation to this clause.

[Wade-6] 4 and [Wade-6] 5 are merely to enhance the provisions that the government has provided so that we can be clear about where the searches were done and what were the outcomes of them. We believe they are consistent with the direction of annual reporting and provide enhancements to it.

The Hon. G.E. GAGO: The government opposes both of these amendments for the same reasons that we have raised previously but, for the purposes of the record, this amendment would require the commissioner to include in his annual report information about metal detector searches conducted under the new section 72B. The government considers this amendment, particularly new paragraph (b), to be unnecessary, as the commissioner is already required to report the number of occasions on which persons were searched in the exercise of powers under section 72B and the number and nature of authorisations granted under subsection (3) and section 72B. In addition, if the minister determines that further information should be included in the commissioner's annual report, he can request that the commissioner include that information.

In relation to the second component, amendment No. 5, as already explained in relation to similar amendments moved by the honourable member to the reporting obligations under new section 72A, the proposed new paragraph would require a police officer, in addition to performing his many other duties, to record details about any articles found during a search that may afford possible evidence of the commission of an offence. This would be a very onerous requirement for the 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 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 the person being searched. The government believes that the current reporting obligations are enough to ensure appropriate oversight of how these powers are being exercised by police.

The Hon. S.G. WADE: I could sum up the minister's comments in relation to amendment No. 4 as, 'If the minister wants it, the minister can ask for it.' I do not think it is enough for the level of public accountability we want, and I also remind members that we have endorsed the concept of a sunset clause in relation to this bill. These powers are significant, and I believe that it is incumbent on us as lawmakers not to just give them the third reading and never think of them again but to maintain active oversight to make sure that they are an appropriate balance.

In relation to amendment No. 5, it may well be that in the inevitable dialogue between the houses on amendments this amendment could be further clarified, but certainly in commissioning this amendment with parliamentary counsel we understood that in using the word 'evidence' we were talking about material that the police were retaining as evidence. In other words, they have a charge in mind and they are holding it as evidence for that charge.

It must be considered that, if police are retaining material for a possible charge, they would need to record it or else they are in serious jeopardy of having an abortive prosecution and perhaps, under the current law at least, the possibility of costs being awarded against them. We do not think this involves any additional record keeping. The notes have already been taken for evidentiary purposes; it merely requires the database to be consolidated and find its way into the annual report, as well.

The Hon. D.G.E. HOOD: Family First supports the amendment. The Hon. Mr Wade's logic is compelling. That is how I read the amendment, as well. If these items are to be taken as evidence then surely they need to be recorded and recorded appropriately.

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

The Hon. A. BRESSINGTON: I am supporting the amendment.

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

Amendments to amendment carried; amendment as amended carried.

The Hon. S.G. WADE: I regard amendment [Wade-2] 40 as consequential on [Wade-2] 35 which did not receive the support of the council, so I will not be moving that amendment. I move amendment No. 41:

Page 17, after line 25 [clause 7, inserted section 72C]—Before subsection (1) insert:

(a1) 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.

This requires that a metal detector search carried out under 72A or 72B must be conducted using only a metal detector of a kind approved by the commissioner and in accordance with any directions issued by the commissioner. We believe that this is good practice.

The Hon. G.E. GAGO: This is basically consequential. The government opposed the substantive amendment and we oppose this.

The Hon. S.G. WADE: I feel a bit like an ANZAC being told to go out of the trenches and the officers behind me will back me up if they agree with me. I would like to suggest to the council why, I believe, it is appropriate to move this amendment. The council has previously given me leave to withdraw an amendment, which was [Wade-3] 2, which was deleting the definition of metal detector search at the end of section 72A.

The reason why the government suggested, and I agreed to, the withdrawal was that it, to a certain extent, foreshadowed the substantive debate that we have just had in relation to section 72B. So, I agreed to withdraw it, on the understanding that the government would agree to recommit it, if what I would call the stepped metal detector search was agreed to, in the context of section 72B.

So, what we did not know when we considered that amendment, we now know. Whilst we are finished with section 72B and we are now into section 72C, the amendment that I have currently got before the house is a section 72C amendment, which relates to the authorisation of metal detectors. In other words, it is part of that stepped metal detector search issue.

It is not part of section 72B, but we actually now know what we think about section 72B. So, I would humbly submit to the council that it is appropriate for us to consider this amendment now, in the context of what we know about section 72B and that, at the appropriate stage for the recommittal, I would also hope to receive the support of the council for the set-aside motion, which is [Wade-3] 2. I look forward to any advice from my officers as to whether I have misled the house.

The Hon. D.G.E. HOOD: That actually made sense to me, so I think I am following this. I have just a quick question for the Hon. Mr Wade: you were successful in moving your amendments on 72B?

The Hon. S.G. WADE: Yes.

The Hon. D.G.E. HOOD: Then I do not see this as being consequential. To me, the 72B discussion was about the order of searching, and the Hon. Mr Wade was successful in that amendment. To me, this is a different matter; it is about what the commissioner can approve as a metal detector or not.

The Hon. S.G. WADE: It is a good point the honourable member makes. It reminds me of the terminology the minister used; I think she described it as linked rather than consequential. I think the point the Hon. Mr Hood makes is true but, as I understand it, while the minister does not see it as inherently consequential, it is linked and tolerable.

The Hon. G.E. GAGO: The honourable member is quite right. The government is not opposed to this, as indicated previously, for the reasons we outlined. It is not consequential: it is linked; therefore, the government will not oppose it.

Amendment carried.

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

Page 17, lines 28 to 32 [clause 7, inserted section 72C(2)]—Delete subsection (2)

Again, as we move to the next stage I thank the chair and the committee for their patience. I regard this as consequential. The current section 72C(2) puts a duty on the commissioner to put in place procedures which avoid undue delay, inconvenience, etc. What the committee did earlier by inserting amendments Nos 1 and 2 [Wade-10] was ensure that procedures are put in place in regulations which take account of all those values. It is a bit like the protest situation, where we take it out of this section but make sure it is in another. So I stress—particularly to the Hon. Kelly Vincent, as an advocate for people with a disability—that the values are not lost in the act; they just appear somewhere else.

The Hon. G.E. GAGO: The government opposes this amendment. It deletes subsection (2), and the government believes that operational procedures should be left to the determination of the Commissioner for Police, as subsection (2) currently provides.

The Hon. M. PARNELL: The Greens will support this amendment.

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

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

Amendment carried.

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

Page 17, after line 32 [clause 7, inserted section 72C]—After subsection (2) insert:

(2a) A police officer must ensure that any exercise of powers under section 72A or 72B does not unreasonably interfere with a person's right to participate in lawful advocacy, protest, dissent or industrial action.

If I can use the minister's terminology, I would describe this as linked rather than as consequential. It is linked to the previous discussion about protests and so forth. Whilst we wanted to remove, and had the support of the committee for removing, the exemption for people involved in advocacy processes, etc., the committee considered my amendment in the context of a subsequent amendment—which is this one—to ensure that the police are under a positive duty to respect those values. I have no doubt that our police force is one of the best in Australia and does respect those values, but for the sorts of issues that the Hon. Mark Parnell raised it does not hurt to state it as a positive duty.

The Hon. G.E. GAGO: The government does not oppose this amendment. Section 72C in the bill sets out the general provisions relating to the exercise of powers under new sections 72A and 72B of the bill. This amendment inserts a new subclause(2)(a) into section 72C with the effect that if a police officer is exercising his or her powers to search a person pursuant to section 72A or 72B he or she must ensure that the exercise of those powers does not unreasonably interfere with a person's right to participate in lawful advocacy, protest, dissent or industrial action. Therefore, the government will not be opposing this amendment.

Amendment carried.

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

Page 17, lines 33 to 35 [clause 7, inserted section 72C(3)]—Delete subsection (3)

This amendment I regard as extremely important. The government is suggesting that the police should be able to engage a civilian to assist them with the searches. Section 72C(3) provides:

A police officer may, in exercising powers under section 72A or 72B, be assisted by such persons as the officer considers necessary or desirable in the circumstances.

The amendment deletes the reference to a person accompanying a police officer.

We will also move a subsequent amendment ([Wade-2] 43), which will delete a reference in section 72C(6) to 'a person accompanying a police officer'. We just consider this puts members of the public at extreme risk. I am sure that logically the police are telling themselves that they would envisage using a security officer, a bouncer, at a licensed premises to engage in these searches. However, there is no such limitation in this provision.

We may well find that police in a busy situation might be inclined to engage a civilian who is not trained, is not clothed, not identified in any particular way, and that that would be extremely risky, not only because they would not have the skills to properly manage the stepped searches we are envisaging. These police procedures are not liked. They are substantive and structured for a purpose. However, I think the more worrying scenario is a person who has not been authorised by the police. You are in a nightclub—I must admit I cannot remember ever being in a nightclub, but I understand they exist and have seen an ad that purports to relate to a nightclub—

The Hon. K.L. Vincent interjecting:

The Hon. S.G. WADE: Great, Kelly's just invited me out—great. I can imagine a circumstance where, shall we say, undesirables notice police arriving at a venue, undertaking searches around the licensed premises, and they think, 'Here's my chance. I'll tell this unsuspecting person that I've been authorised by the police as a civilian under section 72C(3) and I want to undertake a search.'

Not only am I at risk of inappropriate invasion of my privacy, let alone the risk of more serious offences, but I will be liable to an offence under section 72C(6) if I resist. I am faced with an incredibly difficult dilemma: do I believe this person and see them as an authorised civilian and risk an appropriate invasion of my privacy or worse, or do I risk committing an offence under section 72C(6)?

We believe that this is a reckless expansion of the resources available to police. We see it as a duty on the government to provide the police with the resources they need. If the police do not have enough people to undertake the search, call in more reinforcements, summon more police officers. Alternatively, it is going to be slow; but I would much rather, if I ever imagine being a young person in a nightclub, a slow methodical search by properly trained, properly authorised officers than this keystone cops provision that is being inserted by the government.

The Hon. G.E. GAGO: The government opposes this amendment. Section 72C of the bill sets out the general provisions relating to the exercise of powers under new sections 72A and 72B. Subsection (3) authorises a police officer to be assisted in the exercise of their powers by such persons as the officer considers necessary or desirable in the circumstances. This power is consistent with section 67 of the Criminal Offences Act and section 72D of the Controlled Substances Act which allow police to be assisted by such persons as they consider necessary in the circumstances.

The honourable member's amendment would mean that police would not be able to request assistance from anyone other than a police officer and, although it would not be a common occurrence, there would be instances when the police officer would need to request assistance from another person such as a protective security officer, a police cadet or even a bouncer at a nightclub who may be needed to hold onto items being removed from a person during a search, for instance. The honourable member's amendment would cause practical difficulties for the police in the exercise of powers under these sections and is therefore opposed.

The Hon. M. PARNELL: I have a question for the minister: if the police already have the power to co-opt civilians to help them under section 67 why could they not use that power notwithstanding the honourable member's amendment to delete it from this specific clause? In other words, does section 67 cover a wide range of circumstances where the police might need help, and could they use that power if this power is removed?

The Hon. G.E. GAGO: I am advised that the answer is no; section 67 is about a general search warrant and therefore it is not applicable to this.

The Hon. S.G. WADE: The minister's comments about the other act are by way of analogy: we have it in another act so it should be allowed here. I remind the house that I am grateful for what they have done to section 21F of this act. At a quick count there are about 13 amendments to that clause. The relevance of that is that that clause is almost a photocopy of the Firearms Act. In putting forward prohibited weapons provisions for this act, the government thought, 'The house agreed to it in relation to firearms; they should agree to it in relation to prohibited weapons.'

The fact that the council did not see merit, or perhaps did not even turn its mind to the issues in considering one piece of legislation, does not preclude the council turning its mind to the same issues in relation to another piece of legislation. In that context I put to the house that the key issue for us is not whether there are similar provisions in other acts: it is simply whether this is a good provision for this act. I would argue that I cannot see that the risks involved in this provision vastly exceed the benefits that the police might accrue.

In relation to the police cadets point, I agree with the minister. It makes sense to allow police cadets to assist, and I am amazed that the government is suggesting that 'police officers' would not cover police cadets. Again, between the houses we would be very happy to clarify the situation. As I said in my initial comments—I hope the council got the gist of my remarks—we are happy for properly authorised, properly trained people to undertake searches, not just civilians pulled off the street.

The Hon. A. BRESSINGTON: I rise to indicate that I will be supporting the Hon. Stephen Wade's amendment. I ask honourable members to cast their minds back to 2008, I think, when we sat in this place and debated the security agents legislation. According to the government at that time, bouncers and so on were unsavoury types and could not be trusted and had to have all of these regulations put on them, and all of these requirements for them to get their licence and hold their licence, because some people in that industry were bad boys. Now we are saying that the police can call on those very same people to assist them in a search and to hold on to the belongings of other people, because for some reason now the world spins in a different direction.

I also remind honourable members that I tried to have amendments made to the security agents act to allow static guards to have a little bit more authority. They actually do not have authority to be laying hands on anybody and can be subject to civil lawsuit if they do that. I think the government's presumption of this section of the bill that it has put forward is fraught with danger for not only the people who are being searched but also the people who could be required to assist in the search because, as far as I understand it, there is conflicting legislation in other acts that could leave them wide open to civil suits.

The Hon. S.G. WADE: I endorse all the remarks of the Hon. Ann Bressington, but particularly the final ones. In that regard, it reminds me of the report of the Police Complaints Authority that highlighted that DNA tests that were not properly authorised laid the police officer open to an assault charge and civil action. So, I think the Hon. Ann Bressington has the Police Complaints Authority on her side.

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

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

Amendment carried.

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

Page 18, lines 9 and 10 [clause 7, inserted section 72C(6)(a)]—Delete

', or a person accompanying a police officer,'

I suggest this amendment is consequential on the amendment we have just considered.

Amendment carried.

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

Page 18, line 36 [clause 9(1)]—Delete subclause (1) and substitute:

(1) Section 85(2)(a) and (b)—delete paragraphs (a) and (b) and substitute:

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

I suggest that this amendment is effectively consequential. It allows the list of dangerous articles, the list of prohibited weapons and the exemptions to prohibited weapons without significant conditions to be varied by regulation. That is related to previous amendments. It is an unusual approach but, in the context of the mix between the act and the regulations, it actually slightly raises the proportion of exemptions that cannot be amended by regulation. The council supported the use of the schedule in this way in [Wade-2] and, in that context, Amendment No. 2 and Amendment No. 13.

Amendment carried; clause as amended passed.

Clauses 8 and 9 passed.

New clause 10.

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

Page 19, after line 3—After clause 9 insert: 10—Insertion of Schedule 2

After Schedule 1 insert:

Schedule 2—Weapons etc

Part 1—Interpretation

1—Interpretation

(1) In this Schedule, unless the contrary intention appears—

catapult includes a shanghai and a slingshot;

designed includes adapted;

extendable baton of a prescribed kind means an extendable baton that can only be extended by means of gravity or centrifugal force;

number, in relation to the identification of a weapon, means an identifying mark comprised of either numbers or letters or a combination of both numbers and letters;

official ceremony means a ceremony conducted—

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

(b) by or under the auspices of—

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

(ii) South Australia Police; or

(iii) the armed forces;

prescribed Masonic organisation means—

(a) the Ancient, Free And Accepted Masons Of South Australia and the Northern Territory Incorporated; or

(b) a Lodge or Order of Freemasons warranted and recognised by the association referred to in paragraph (a); or

(c) the Lodge of Freemasons named 'The Duke of Leinster Lodge';

prescribed services organisation means—

(a) The Returned and Services League of Australia (S.A. Branch) Incorporated or any of its sub-branches; or

(b) an association or other body (whether or not incorporated) that is a member of the Consultative Council of Ex-Service Organisations (S.A.).

(2) For the purposes of this Schedule—

(b) a reference to a particular class of dangerous article is a reference to the class of dangerous article as declared and described in Part 2; and

(c) a reference to a particular class of prohibited weapon is a reference to the class of prohibited weapon as declared and described in Part 3; and

(d) if an article could, but for this paragraph, be declared by this Schedule to be both a dangerous article and a prohibited weapon, it will be taken, unless the contrary intention appears, to be declared to be a prohibited weapon and not a dangerous article.

Part 2—Dangerous articles

2—Dangerous articles

Each of the following is declared to be a dangerous article for the purposes of Part 3A of this Act:

(a) anti-theft case—a case, satchel or similar article designed to administer an electric shock to a person who handles or interferes with the case, satchel or article or its contents;

(b) bayonet—a stabbing weapon designed to be attached to or at the muzzle of a rifle;

(c) blow gun—a blow-pipe or similar device or instrument designed to propel an arrow, dart or similar projectile by air expelled from the mouth;

(d) cross-bow—a cross-bow, other than a pistol cross-bow as described in Part 3 clause 3(s) of this Schedule;

(e) dart projector—a device (for example, a Darchery Dart Slinger) designed to propel a dart by means of elastic material;

(f) gas injector device—a device (for example, a Farallon Shark Dart or a WASP Injector Knife) designed to kill or injure an animal by injecting a gas or other substance into the body of the animal;

(g) plain catapult—a catapult made for commercial distribution, other than a brace catapult as described in Part 3 clause 3(b) of this Schedule;

(h) self-protecting spray—a device or instrument designed to temporarily or permanently immobilise, incapacitate or injure a person by the emission or discharge of an offensive, noxious or irritant liquid, powder, gas or chemical;

(i) self-protection device—a hand held device or instrument designed to temporarily or permanently immobilise, incapacitate or injure a person by the emission or discharge of an electric current, sound waves or electromagnetic energy.

Part 3—Prohibited weapons

3—Prohibited weapons

Each of the following is declared to be a prohibited weapon for the purposes of Part 3A of this Act:

(a) ballistic knife—a device or instrument (other than a dart projector) designed to fire or discharge a knife, dagger or similar instrument by mechanical, percussive or explosive means;

(b) brace catapult—a catapult (for example, a Saunders Falcon Hunting Sling) that includes or is designed to be used with a brace fitted or resting on the forearm or another part of the body in order to support the forearm or wrist when the catapult is activated;

(c) butterfly knife—a knife comprised of a blade or spike and a handle, in respect of which—

(i) the handle is in 2 sections that fold so as to wholly or partially cover the blade or spike when the knife is not in use; and

(ii) the blade or spike can be exposed by gravity or centrifugal force;

(d) chloroacetophenone—chloroacetophenone (known as CN) in all its forms;

(e) concealed weapon—an article that appears to be harmless but that conceals a knife, spike or other weapon;

(f) dagger—a sharp, pointed stabbing weapon (other than a bayonet or sword), ordinarily capable of being concealed on the person and having—

(i) a flat blade with cutting edges on both sides; or

(ii) a needle-like blade that has a round or elliptical cross section or that has three or more sides;

(g) dirk or sgian dhu—a ceremonial weapon associated with traditional Scottish culture;

(h) dypenylaminechloroarsone—dypenylaminechloroarsone (known as DM or adamsite) in all its forms;

(i) extendable baton—a baton designed for use as a weapon that can be extended in length by gravity or centrifugal force or by a release button or other device;

(j) fighting knife—a knife (other than a bayonet or sword) designed for hand to hand fighting, for example, a butterfly knife, dagger, flick knife, push knife or trench knife;

(k) flick-knife—a knife in respect of which—

(i) the blade is concealed when folded or recessed into the handle and springs or is released into the extended position by the operation of a button or other device on the handle; or

(ii) the blade is wholly or partially concealed by a sheath that can be withdrawn into the handle of the knife by gravity, centrifugal force or by the operation of a button or other device;

(l) hand or foot claw—an article designed as a weapon consisting of prongs or other projections worn on the hands or feet (for example, the martial arts weapons known as ninja hand claws, ninja foot claws or ninja claws);

(m) knife belt—a belt or similar article (for example, a Bowen Knife Belt) designed to hold a knife, dagger or similar instrument so that the presence of the knife, dagger or instrument is concealed or disguised when the belt or article is worn;

(n) knuckle duster—a device or instrument designed to be worn across the knuckles of a hand so as to—

(i) increase the force or impact of a punch or blow when striking another with the hand; and

(ii) protect the knuckles from injury,

including a weighted or studded glove, but not including a boxing glove;

(o) laser pointer—a hand held device, commonly known as a laser pointer, designed to emit a laser beam with an accessible emission level of greater than 1 milliwatt;

(p) morning star—an article designed as a weapon consisting of a weight (whether or not with spikes or blades) attached to a chain, rope or a length of other flexible material;

(q) nunchakus—a device comprised of 2 or more bars joined by a chain, rope or other flexible material so that the bars can swing independently of each other;

(r) orthochlorobenzalmalononitrile—orthochlorobenzalmalononitrile (known as CS) in all its forms;

(s) pistol cross-bow—a cross-bow designed for aiming and discharging an arrow, dart, bolt or similar projectile when held in one hand;

(t) poniard—a ceremonial weapon associated with the traditions of a prescribed Masonic organisation;

(u) push knife—a knife (for example, an Urban Pal Knife) comprised of a blade or spike with a transverse handle that is designed—

(i) to be held between the fingers or the forefinger and thumb with the handle supported by the palm of the hand; and

(ii) to inflict injury by a punching or pushing movement;

(v) star knife—a device comprised of a number of points, blades or spikes pointing outwardly from a central axis and designed to spin around that axis, and capable of causing serious injury, when thrown;

(w) throwing knife—a knife that is designed to cause serious injury when thrown;

(x) trench knife—a knife comprised of a blade or spike attached to one end of a handle that is designed to be held in the closed fist with the fingers through the handle which serves as a knuckle duster;

(y) undetectable knife—a knife that—

(i) is made wholly or partly of a material that prevents the knife from being detected, or being detected as a knife, by either a metal detector or by a method using X-rays; and

(ii) is capable of causing serious injury or death.

Part 4—Exempt persons—prohibited weapons

4—Application of Part

(2) If—

(a) in this Part, a person is expressed to be an exempt person for the purposes of 1 or more offences against section 21F(1) of this Act in relation to a particular class of prohibited weapon; and

(b) the weapon is included in 1 or more of the other classes of prohibited weapon,

the person is an exempt person in relation to that weapon for the purposes of the offences even though he or she is not an exempt person in relation to a prohibited weapon of the other class or classes referred to in paragraph (b).

(3) The provisions of this Part (other than clauses 5, 6, 7 and 8) do not apply to a person who has, whether before or after the commencement of this Part, been found guilty by a court of—

(a) an offence involving violence for which the maximum term of imprisonment is 5 years or more; or

(b) an equivalent offence involving violence under the law of another State or Territory of the Commonwealth or of another country.

(4) If a person is an exempt person in relation to a weapon under a clause in this Part other than under clauses 5, 6, 7 or 8) and a court finds the person guilty of using the weapon to threaten or injure another person, he or she ceases to be an exempt person in relation to that or any other weapon under that clause and can never again become an exempt person under that clause.

(5) A person who, prior to the commencement of this Part, ceased, in accordance with regulation 7(4) of the Summary Offences (Dangerous Articles and Prohibited Weapons) Regulations 2000, to be an exempt person under a particular regulation is taken not to be exempt under any corresponding provision of this Part.

5—Police officers

A police officer is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act if the officer uses or has possession of a prohibited weapon for the purpose or in the course of his or her duties as a police officer.

6—Delivery to police

A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act if the person has possession of a prohibited weapon for the purpose of delivering it as soon as reasonably practicable to a police officer.

7—Emergencies

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act if the person uses or has possession of a prohibited weapon for the purpose, and in the course, of dealing with an emergency (whether as a volunteer or in the course of paid employment), provided that the person does not use the weapon to threaten or injure another person.

8—Executors etc

(1) A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act if the person has possession of a prohibited weapon in the course of his or her duties—

(a) as the executor, administrator or other representative of—

(i) the estate of a deceased person or a bankrupt; or

(ii) a person who is legally incompetent; or

(b) as receiver or liquidator of a body corporate.

(2) A person is an exempt person for the purposes of an offence of sale or supply of a prohibited weapon under section 21F(1)(a) of this Act, if the person sells or supplies a prohibited weapon in the course of his or her duties—

(a) as the executor, administrator or other representative of—

(i) the estate of a deceased person or a bankrupt; or

(ii) a person who is legally incompetent; or

(b) as receiver or liquidator of a body corporate,

provided that the sale or supply is to a person who is entitled to possession of the weapon under section 21F of this Act.

9—Heirlooms

A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act if the person has possession of a prohibited weapon that is of sentimental value to him or her as an heirloom and that was previously in the possession of 1 or more of his or her relatives provided that the person keeps the weapon in a safe and secure manner at his or her place of residence and does not remove it except for the purpose of—

(a) display by a person who is entitled under section 21F of this Act to have possession of it for that purpose; or

(b) repair or restoration by a person who carries on a business that includes the repair or restoration of articles of that kind; or

(c) valuation by a person who carries on a business that includes the valuing of articles of that kind; or

(d) secure storage by a person who carries on the business of storing valuable property on behalf of other persons; or

(e) permanently transferring possession of the weapon to another person (being a person who is entitled under section 21F of this Act to have possession of it).

10—Collectors

(1) A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act if the person has possession of a prohibited weapon as part of a collection of weapons or other artefacts or memorabilia (comprised of at least 3 weapons, whether or not prohibited weapons) that has a particular theme, or that the person maintains for its historical interest or as an investment, provided that—

(a) the person keeps the following records in a legible manner in a bound book at his or her place of residence for a period that expires at the end of 5 years after he or she ceases to be in possession of the collection:

(i) a record describing and identifying the weapon;

(ii) a record of the date of each occasion on which he or she obtains or re-obtains possession of the weapon and the identity and address of the person from whom he or she obtains or re-obtains possession;

(iii) the date of each occasion on which he or she parts with possession of the weapon to another person and the identity and address of that person; and

(b) the person keeps the weapon in a safe and secure manner at his or her place of residence and does not remove it except for the purpose of—

(i) display by a person who is entitled under section 21F of this Act to have possession of it for that purpose; or

(ii) repair or restoration by a person who carries on a business that includes the repair or restoration of articles of that kind; or

(iii) valuation by a person who carries on a business that includes the valuing of articles of that kind; or

(iv) repair, restoration or valuation—

(A) by another collector who is, under this clause, an exempt person in relation to a prohibited weapon; or

(B) by a person who is, under clause 13, an exempt person in relation to a prohibited weapon; or

(v) secure storage by a person who carries on the business of storing valuable property on behalf of other persons; or

(vi) storage by another collector who is, under this clause, an exempt person in relation to a prohibited weapon; or

(vii) returning it to—

(A) another collector who is, under this clause, an exempt person in relation to a prohibited weapon; or

(B) a prescribed services organisation that is, under clause 11, an exempt person in relation to a prohibited weapon,

on whose behalf he or she has repaired, restored, valued or stored the weapon; or

(viii) taking it to a meeting but only if the majority of persons at the meeting are collectors who are, under this clause, exempt persons in relation to prohibited weapons; or

(ix) its sale or supply to another person in accordance with subclause (2); and

(c) the person permits a police officer at any reasonable time to enter his or her residential premises to inspect the collection and the records kept under paragraph (a).

(2) A person who is an exempt person under subclause (1) will also be an exempt person for the purposes of an offence of sale or supply of such a weapon under section 21F(1)(a) of this Act if the person sells or supplies the weapon in the normal course of maintaining the collection, to a person who is entitled to possession of a prohibited weapon under section 21F of this Act.

(3) A reference in subclause (1) to the place of residence of a person will be taken, in the case of a body corporate, to be a reference to the registered office of the body corporate.

11—Prescribed services organisations (RSL etc)

(1) A prescribed services organisation is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act if it has possession of a prohibited weapon of a kind acquired or used by one of its members (or by a person that it represents) while on active war service as a member of Australia's armed forces, provided that—

(a) the organisation keeps the following records in a legible manner in a bound book at its premises for a period that expires at the end of 5 years after it last ceased to be in possession of the weapon:

(i) a record describing and identifying the weapon;

(ii) a record of the date of each occasion on which the organisation obtains or re-obtains possession of the weapon and the identity and address of the person from whom the organisation obtains or re-obtains possession;

(iii) the date of each occasion on which the organisation parts with possession of the weapon to another person and the identity and address of that person; and

(b) the organisation keeps the weapon in a safe and secure manner at its premises and does not remove the weapon except for the purpose of—

(i) display by a person who is entitled under section 21F of this Act to have possession of it for that purpose; or

(ii) repair or restoration by a person who carries on a business that includes the repair or restoration of articles of that kind; or

(iii) valuation by a person who carries on a business that includes the valuing of articles of that kind; or

(iv) repair, restoration or valuation—

(A) by a collector who is, under clause 10, an exempt person in relation to a prohibited weapon; or

(B) by a person who is, under clause 13, an exempt person in relation to a prohibited weapon; or

(v) secure storage by a person who carries on the business of storing valuable property on behalf of other persons; or

(vi) its sale or supply to another person in accordance with subclause (2); and

(c) the organisation permits a police officer at any reasonable time to enter the premises of the organisation to inspect the weapon and the records kept under paragraph (a).

(2) A person who is an exempt person in relation to a prohibited weapon under subclause (1) will also be an exempt person for the purposes of an offence of sale or supply of such a weapon under section 21F(1)(a) of this Act if the person sells or supplies the weapon in the normal course of maintaining the collection, to a person who is entitled to possession of a prohibited weapon under section 21F of this Act.

12—Possession by collector on behalf of prescribed services organisation or another collector

A person who is, under clause 10, an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act (the first collector) will also be an exempt person for the purposes of such an offence in relation to a prohibited weapon that is owned by another collector or a prescribed services organisation if—

(a) possession of the weapon by the first collector is solely for the purpose of repairing, restoring, valuing or storing it on behalf of the prescribed services organisation or the other collector; and

(b) the other collector is, under clause 10, or the prescribed services organisation is, under clause 11, an exempt person in relation to the weapon; and

(c) while the weapon is in the possession of the first collector, the first collector complies with the conditions in clause 10(1)(a) to (c) in relation to the weapon as though it were part of the first collector's collection.

13—Manufacturers etc

A person is an exempt person for the purposes of an offence of manufacture, sale, distribution, supply of, or other dealing in, possession or use of a prohibited weapon under section 21F(1) of this Act if—

(a) the person—

(i) has not been found guilty by a court of an offence involving the use, or the threat of using, a weapon; and

(ii) has notified the Commissioner in writing that he or she is, or intends, manufacturing, selling, distributing, supplying or otherwise dealing in prohibited weapons and of—

(A) the person's full name; and

(B) the address of the place or places at which the person is, or intends, conducting those activities; and

(C) the person's residential address; and

(D) in the case of a body corporate—the full name and residential address of each of its directors; and

(iii) the possession and use is, or is to be, only to the extent reasonably necessary for the purpose of manufacturing, selling, distributing, supplying or otherwise dealing in the weapons (as the case requires); and

(b) the weapons are kept in a safe and secure manner; and

(c) in the case of the sale, distribution or supply of, or other dealing in, a prohibited weapon—the weapon is not sold, distributed or supplied to, or dealt in with, a person who is under the age of 18 years; and

(d) a prohibited weapon is not marketed (within the meaning of section 21D of this Act) by the person in a way that—

(i) indicates, or suggests, that the weapon is suitable for combat; or

(ii) is otherwise likely to stimulate or encourage violent behaviour involving the use of the knife as a weapon; and

(e) in the case of the manufacture of prohibited weapons, each weapon manufactured is marked with an identifying brand and number in a manner that ensures that the brand and number cannot be removed easily and will not wear off in the normal course of use of the weapon; and

(f) the person keeps the following records in a legible manner (and in a form that is reasonably accessible to a police officer inspecting the records under paragraph (i)) at his or her business premises for a period of at least five years:

(i) a description of each prohibited weapon that is, or has been, in his or her possession;

(ii) the identifying brand and number (if any) that is marked on each of those weapons;

(iii) the name and address of the person to whom he or she sells, distributes, supplies, or with whom he or she otherwise deals in, each of those weapons;

(iv) the date of each transaction; and

(g) the person permits a police officer at any reasonable time to enter his or her premises or a vehicle in which prohibited weapons are carried to inspect the premises or vehicle, the weapons on the premises or in the vehicle or records kept by the exempt person under paragraph (f); and

(h) the person notifies the Commissioner in writing of a change in any of the information referred to in paragraph (a)(i) and (ii) within 7 days after the change occurs.

14—Possession by manufacturer etc on behalf of prescribed services organisation or another collector

A person who is, under clause 13, an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act (the manufacturer) will also be an exempt person for the purposes of such an offence in relation to a prohibited weapon that is owned by a collector or a prescribed services organisation if—

(a) possession of the weapon by the manufacturer is solely for the purpose of repairing or restoring the weapon or valuing or storing it on behalf of the collector or prescribed services organisation; and

(b) the collector is, under clause 10, or the prescribed services organisation is, under clause 11, an exempt person in relation to the weapon.

15—Extendable batons—security agents

(1) A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the use or possession of an extendable baton of a prescribed kind if—

(a) the person is—

(i) authorised by a licence granted under the Security and Investigation Agents Act 1995 to carry on the business of protecting or guarding property as a security agent; and

(ii) the holder of a firearms licence under the Firearms Act 1977 authorising the possession and use of a handgun in the course of carrying on the business of guarding property; and

(b) the baton is kept in a safe and secure manner at the person's business premises when not being used; and

(c) the baton is marked with a number for identification and with the name of the person in a manner that ensures that the number and name cannot be removed easily and will not wear off in the normal course of use of the baton; and

(d) the baton is not issued to another person unless the other person is—

(i) an employee in the business; and

(ii) an exempt person under subclause (2); and

(e) the person keeps the following records in a legible manner (and in a form that is reasonably accessible to a police officer inspecting the records under paragraph (f)) at his or her business premises for a period of at least 5 years:

(i) the make and model of the baton and the identifying number marked on the baton under paragraph (c);

(ii) the date and time of every issue of the baton to an employee, the identification number of the baton, the identity of the employee to whom the baton is issued and the date and time when the baton is returned by the employee;

(iii) the date or dates (if any) on which a person to whom the baton has been issued uses the baton (as opposed to carrying the baton) in the course of his or her duties and the reason for that use of the baton; and

(f) the person permits a police officer at any reasonable time to enter his or her business premises to inspect the baton, the manner in which the baton is kept and the records kept under paragraph (e); and

(g) in the case of a natural person—

(i) the person has completed a course of instruction approved by the Commissioner in the proper use of extendable batons and has been awarded a certificate of competency by the person conducting the course; and

(ii) the person does not carry the baton while engaged in crowd control.

(2) A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the use or possession of an extendable baton of a prescribed kind if the person—

(a) is employed to protect or guard property by a person who carries on the business of protecting or guarding property; and

(b) is authorised by a licence granted under the Security and Investigation Agents Act 1995 to protect or guard property as a security agent; and

(c) is the holder of a firearms licence under the Firearms Act 1977 authorising the possession and use of a handgun in the course of employment by a person who carries on the business of guarding property; and

(d) reasonably requires the possession of an extendable baton for the purposes of carrying out the duties of his or her employment; and

(e) has completed a course of instruction approved by the Commissioner of Police in the proper use of extendable batons and has been awarded a certificate of competency by the person conducting the course; and

(f) has not been found guilty by a court of an offence involving the illegal possession or use of an extendable baton, a firearm or any other weapon; and

(g) does not carry the baton while engaged in crowd control; and

(h) as soon as reasonably practicable after using the baton in the course of his or her duties, provides his or her employer with a written report setting out the date on which, and the circumstances in which, he or she used the baton.

16—Dirks and sgian dhus—members of Scottish associations

A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the possession of a dirk or sgian dhu (alternative spelling 'skean dhu') if—

(a) —

(i) the person is a member of an incorporated association that has as its sole or a principal purpose the fostering and preservation of Scottish culture or the playing or singing of Scottish music; or

(ii) the person is a member of a society, body or other group (whether or not incorporated) that is affiliated with an incorporated association and both the society, body or group and the incorporated association with which it is affiliated have as their sole or a principal purpose the fostering and preservation of Scottish culture or the playing or singing of Scottish music; and

(b) the person has possession of all of the clothes and other accoutrements traditionally worn with the dirk or sgian dhu (or, if the dirk or sgian dhu is traditionally worn with different clothes on different occasions, he or she has possession of the clothes and accoutrements for at least 1 of those occasions); and

(c) the person has possession of the dirk or sgian dhu solely for the purpose of wearing it with that clothing and, in the case of a dirk, for the purpose of using it in traditional Scottish ceremonies; and

(d) in the case of a dirk—the person only uses the dirk for the purposes of traditional Scottish ceremonies; and

(e) the person keeps the dirk or sgian dhu in a safe and secure manner at his or her place of residence and does not remove it except—

(i) for the purpose of wearing it with that clothing; or

(ii) for the purpose of lending it to a person who is entitled under section 21F of this Act to have possession of it; or

(iii) for the purpose of permanently transferring possession of the dirk or sgian dhu to another person (being a person who is entitled under section 21F of this Act to have possession of it).

17—Poniards—lodges of Freemasons etc

A prescribed Masonic organisation is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the use or possession of a poniard if—

(a) the poniard is kept at the premises of the association, Lodge or Order concerned in a safe and secure manner and is not removed from the premises except for the purpose of—

(i) repair or restoration by a person who carries on a business that includes the repair or restoration of articles of that kind; or

(ii) valuation by a person who carries on a business that includes valuing articles of that kind; or

(iii) permanently transferring possession of the poniard to another person (being a person who is entitled under section 21F of this Act to have possession of it); and

(b) the poniard is only used at the premises of the association, Lodge or Order concerned for traditional ceremonial purposes.

18—Laser pointers for astronomical use

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the use or possession of a laser pointer if—

(a) the person is using or has possession of the laser pointer for the purpose or in the course of participating in astronomy; and

(b) the person—

(i) is a member of—

(A) the Astronomical Society of South Australia Incorporated; or

(B) the Mars Society Australia Incorporated; or

(ii) participates in astronomy under the supervision of a member of a body referred to in subparagraph (i); or

(iii) participates in astronomy at an observatory; or

(iv) participates in astronomy as part of a course of study conducted by an educational institution.

19—Undetectable knives used in food preparation

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the use or possession of an undetectable knife if the use or possession is solely for the preparation of food or drink for human consumption.

20—Business purposes

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act if the person uses or has possession of a prohibited weapon in the course of conducting his or her business or in the course of his or her employment, provided that—

(a) the use or possession of the weapon is reasonably required for that purpose; and

(b) the use or possession of the weapon is not in the course or for the purpose of manufacturing, selling, distributing, supplying or otherwise dealing in the weapon.

21—Religious purposes

A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act in relation to the possession of a knife (other than a butterfly knife, flick knife, push knife or trench knife) or dagger if—

(a) the person is a member of a religious group; and

(b) the person possesses, wears or carries the knife or dagger for the purpose of complying with the requirements of that religion.

22—Entertainment

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act if the person uses or has possession of a prohibited weapon in the course of providing a lawful and recognised form of entertainment of other persons that reasonably requires the use or possession of the weapon.

23—Sport and recreation

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act if the person uses or has possession of a prohibited weapon in the course of participating in a lawful and recognised form of recreation or sport that reasonably requires the use or possession of the weapon.

24—Ceremonies

A person is an exempt person for the purposes of an offence of use or possession of a prohibited weapon under section 21F(1)(b) of this Act if the person uses or has possession of a prohibited weapon in the course of an official ceremony that reasonably requires the use or possession of the weapon.

25—Museums and art galleries

A person is an exempt person for the purposes of an offence of possession of a prohibited weapon under section 21F(1)(b) of this Act if the person has possession of a prohibited weapon for the purposes of a museum or art gallery.

As I understand it, this provision inserts schedule 2, parts 1 to 3, which are a transfer of the regulations, and part 4 brings together the current act's provisions and regulation provisions. In that sense, it is similarly consequentially linked, as was [Wade-2] 44.

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

New clause inserted.

Schedule 1.

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

Page 19, line 29 [Schedule 1, clause 4]—Delete 'Commissioner of Police' and substitute:

Minister

I would suggest to the council that this amendment is consequential on [Wade-2] 14. It is a transitional provision amended to reflect the minister's role.

The Hon. G.E. GAGO: Consequential.

Amendment carried; schedule as amended passed.

Title passed.

Bill reported with amendment.

Bill recommitted.

Clause 7.

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 thank the minister for facilitating the recommittal. Honourable members will remember the discussion about this clause and the amendment [Wade-2] 41 being, shall we say, beyond section 72B but dependent on 72B. So, having decided beyond 72B it is appropriate to recommit this and I would submit that in the context of what the council considered in relation to 72B this should be regarded as consequential and supported by the council.

The Hon. G.E. GAGO: The government is not opposing this amendment.

Amendment carried; clause as further amended passed.

Bill reported with amendment.


At 21:51 the council adjourned until Wednesday 22 June 2011 at 11:00.


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