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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2012-09-18 Daily Xml
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STATUTES AMENDMENT (SERIOUS FIREARM OFFENCES) BILL

Committee Stage

In committee.

Clause 1.

The Hon. G.E. GAGO: I want to take this opportunity to put on the record that there is an issue with the figures that were used in the second reading speech. This is my fault, apparently, because I added the court bail and police bail figures together to create one bail figure.

The PRESIDENT: You didn't have on the wrong glasses?

The Hon. G.E. GAGO: I probably did have on the wrong glasses, too, which never helps. This font, which I am sure is size 2, does not help either. The second reading reply will need to include the following text:

The Attorney-General has asked me to clarify the number of individuals who were on bail at the time of committing a firearms offence between 2007 and 2011. During this period, there were 276 offenders on court bail and 221 offenders on police bail who were recorded as committing a firearms offence whilst on bail. The total of these two figures is 497, but the real total is 442 because some of these offenders were on court bail at the same time as being on police bail. The second reading speech in the other place referred to the 497 figure when the 442 figure should have been used.

The Hon. S.G. WADE: In relation to the same set of data the minister just referred to, the Attorney-General wrote to me on 8 August and gave some additional information. I propose to put that on the record, too. As the Hon. Mark Parnell and I have discussions in the chamber about the value of putting on the record information that is shared with members, I thought I would also put this on the record. The minister has already given an indication about 270 individuals on court bail and the 221 offenders on police bail. In the Attorney-General's letter, he advises:

I am advised 85 per cent of such individuals were convicted of an offence against section 11(1) of the Firearms Act 1977.

He goes on in his letter to say:

For your further information, I am advised that approximately 64 per cent of cases regarding an offence of possessing or using a firearm that are listed as finalised cases between 2006 and 2010 were cases involving an offence against section 11(1) of the Firearms Act 1977.

I wonder whether this might be an appropriate point, considering that we are not proposing further amendments to the offence in relation to shooting against a law enforcement officer, where the minister might inform the committee of the government's position on the suggestions of the Police Association for further amendments in that regard.

The Hon. G.E. GAGO: I have been advised that we do indeed regard this as an extremely serious offence, because it is actually shooting at a police officer whilst they are on duty. That is a position that needs to be protected publicly so that officers can go out and perform their function of protecting the public. So it is not just shooting at anyone; it is actually shooting at a police officer. We consider it a very serious offence. In saying that, the person has to know that the person they are actually shooting at is a police officer; whether that police officer is in uniform or out of uniform, the offence requires that they actually know that it is a police officer.

The Hon. S.G. WADE: In summary, the government prefers the amendments that were moved in the House of Assembly than those suggested by the Police Association. I have no further questions on clause 1.

Clause passed.

Clauses 2 to 8 passed.

Clause 9.

The Hon. S.G. WADE: Can the minister explain why we are using the term 'any part of a firearm'? I understand that the Firearms Act uses the term 'firearm part' and I notice that earlier in proposed section 37A(3)(ca) it refers to both the firearm and ammunition as defined in the Firearms Act. I wondered why we did not have all three elements of that provision as defined in the Firearms Act. I would be interested to know why that choice was made, and, secondly, if there is a significant difference in the two.

The reason I ask that is that I presume there are some parts of a firearm—for example, a screw or a bolt or a pin or a spring—that might well be able to be used for other purposes and therefore are not a firearm part in terms of the Firearms Act. I wonder if this will end up being more expansive and perhaps problematic.

The Hon. G.E. GAGO: I thank the Hon. Mr Wade for his questions. In terms of the first part of the question, we would need to obtain parliamentary counsel advice, which we will do now. We would need to take the second part of the question on notice, because it would involve specific information that we could only gain from the police. We are happy to do that but it would take some time to do so, so I will take it on notice. I have been advised, in terms of the reference to the word 'part', that it is not defined by the Firearms Act. Therefore, it is not correct to say 'within the meaning of'.

The Hon. S.G. WADE: With all due respect, the Firearms Act 1997 provides:

firearm part for a firearm means a barrel, trigger mechanism, magazine, cylinder, hammer, bolt, breech block or slide designed as, or reasonably capable of forming, part of the firearm;

It is defined by the Firearms Act, so I reiterate my question: why are we choosing to use the term 'any part of a firearm' rather than 'a firearm part'?

The Hon. G.E. GAGO: I am advised that it was a drafting decision to use the ordinary meaning of part of a firearm.

The Hon. S.G. WADE: I suppose it goes back to my second question, which was: is there a significant difference between the two? It links to the third question. The minister seemed to think that my third question was unrelated. It is not unrelated because, if I am correct in saying that any part of a firearm could be read to mean screws, bolts, pins or springs that might have a general use other than in the use of a firearm, whereas a 'firearm part' in the Firearms Act is a firearms dedicated part, I would be concerned if the numerous references to 'any part of a firearm' through the legislation were to have unintended consequences. I suspect that rather than hold up progress it might be that we go to the end of the committee stage and the government might think about that more.

The Hon. G.E. GAGO: We will check on that.

The Hon. S.G. WADE: That would be great.

The Hon. G.E. GAGO: I am advised that the reason that we needed the wider definition is that under the definition a 'firearm part' means:

...a barrel, trigger mechanism, magazine, cylinder, hammer, bolt, breech block or slide designed as, or reasonably capable of forming, part of the firearm;

It does not, for instance, include a stock. It is a technical definition that refers to the operative parts of a weapon. However, we know that, unfortunately, there is a great deal of innovation that goes into the crafting of illegal weapons, such as the use, for instance, of a piece of piping as a barrel, so a definition was used that would be able to capture these wider applications and include them.

The Hon. S.G. WADE: I thank the minister for her answer.

Clause passed.

Clauses 10 to 26 passed.

Clause 27.

The Hon. S.G. WADE: I raise this question specifically at the request of a constituent. By way of preface to the query, I just draw the minister's attention to the fact that, in proposed section 32AA, the offence involves discharging a firearm 'intending to injure, annoy', etc. Likewise, for subsection (2), an intention is required. In subsection (3), it is discharging a firearm and being reckless as to whether that act injures, annoys or frightens somebody. So, in other words, you do not need to intend to annoy: you can be reckless. The concern of my constituent relates to use of firearms on properties, particularly in rural areas. I might just quote their statement and let them speak for themselves. They say:

There have been cases, mostly in rural areas, in the past of a person making a complaint under the Summary Offences Act S51 against a neighbour where the two have been in dispute over non-firearms related matters. Defending this has apparently been difficult.

This is of course an issue for law abiding firearms owners who might be hunting with permission on a property and a neighbouring property owner makes a [lawful] complaint about being 'annoyed'!

My constituent asks me specifically to ask what may constitute a lawful excuse to be used in this context; in other words, in subsection (3), where it states 'where a person who, without lawful excuse'. I suppose implicit in my constituent's query is: would recreational shooting be a lawful excuse such that a person discharging a firearm on a property would not be taken to have committed the offence by annoying a neighbour?

The Hon. G.E. GAGO: I have been advised that, in terms of that subsection (3), intention was not included in that section because that was specifically designed to capture those instances where gunshots were made into people's homes or into a shop or other building and the excuse was, 'We did not believe there was anyone in there, so we did not intend to hurt anyone.' So, it was to capture those types of offences.

In terms of lawful excuse, I am advised that there are hundreds of those types of offences throughout our statute books. It is a standard defence for, I am advised, hundreds of criminal matters. There is no specific definition for it. It has been dealt with historically on a case by case basis, but I am advised that there is plenty of guidance and direction in judgements that provide a solid framework for determining what is a lawful excuse.

The Hon. S.G. WADE: Is the minister not able to advise whether this statutory provision would capture recreational shooters?

The Hon. G.E. GAGO: I am advised no, because each case would have to be dealt with on a case by case basis. For instance, what is the definition of a recreational shooter? It might be people who like to go and ping signs on the sides of roads; they consider that a legitimate recreation.

Clause passed.

Remaining clauses (28 to 37) and title passed.

Bill reported without amendment.

Third Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for Tourism, Minister for the Status of Women) (16:41): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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