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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-11-14 Daily Xml
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FIREARMS (MISCELLANEOUS) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. G.E. GAGO (Minister for Agriculture, Food and Fisheries, Minister for Forests, Minister for Regional Development, Minister for the Status of Women, Minister for State/Local Government Relations) (15:57): I move:

That this bill be now read a second time.

I seek leave to have the detailed explanation of the bill inserted in Hansard without my reading it.

Leave granted.

Possession and use of illicit firearms are significant elements of criminal activity in South Australia. Trafficking of firearms, including the movement of firearms across borders, is an ongoing concern for police jurisdictions, as are the links to organised crime. Entrepreneurial criminals also exploit emerging technologies to support their activity.

The social ramifications of organised crime and illicit firearm activity on the community are serious and inconsistent with government, police and community expectations of safety and reasonable behaviour.

The amendments contained with the Firearms Amendment (Miscellaneous) Bill 2013 create new criminal offences and enhanced powers to support police. Many are stringent provisions but all have a strong focus on criminal activity involving firearms by those who access, possess and utilise firearms for criminal enterprises. They are intended to directly assist police in the challenge of disrupting and preventing this type of illegal and socially unacceptable activity. Several amendments will also bring South Australia into line with other jurisdictions, establishing consistency and supporting the need for a national approach to preventing and reducing firearm crimes and harms.

New Offences

Trafficking in firearms

This amendment creates an indictable offence of trafficking in firearms. Any person who acquires or supplies a firearm, or takes part in any step in the process of acquisition or supply of a firearm, where the acquisition or supply of that firearm is illegal, will be dealt with by this new trafficking offence. The offence would apply to the storage, concealment or transportation of a firearm in relation to the illegal acquisition or supply. It would also apply to a person who arranges finance or allows premises to be used for the purpose of the supply. The maximum penalty for the offence is 20 years imprisonment. This would apply where the offence is a first offence involving more than one firearm or where the offence is a subsequent offence. As with the current offences, there is a discretion for a prosecutor to prosecute a first offence as a summary offence.

Possession of a loaded firearm

The measure amends the current offence of an unlicensed person possessing a loaded firearm. A possession offence will now be aggravated if the firearm is simply loaded, or in the immediate vicinity of a loaded magazine that could be attached to and used in conjunction with the firearm, irrespective of whether or not the firearm was being physically carried at the time. It is considered to reflect community expectations that possession of a loaded firearm in any unlawful circumstances is so grave as to warrant an aggravated offence.

Possess detachable magazines with a capacity of more than 10 rounds

This is a new offence to South Australia. Other jurisdictions have a similar offence. It will affect people acquiring, owning or possessing a detachable magazine with a capacity of more than 10 rounds. It is a stringent provision but does not impact people who hold a firearms licence that authorises possession of a category D firearm or whose possession is authorised in writing by the Registrar of Firearms. Transitional provisions will allow a person to obtain the written approval of the Registrar of Firearms to possess a detachable magazine with a capacity of more than 10 rounds, or surrender the magazine, within six months from the commencement of these provisions. The maximum penalty for the offence is a fine of $10,000 or imprisonment for 2 years.

Possession of a silencer, mechanism or fitting found together with a firearm

Possession of silencers is already strictly prohibited. Possession of other mechanisms or fittings to convert a firearm to an automatic firearm or enabling a firearm to fire grenades or explosive projectiles is also prohibited unless that possession is authorised by a firearms licence. This provision creates a new aggravated offence proscribing the possession of a silencer, mechanism or fitting when that silencer, mechanism or fitting is possessed together with a firearm. The provision applies whether the silencer, mechanism or fitting is attached to the firearm or not. The indictable nature of this offence and higher penalty reflects that possession is more serious when the item is found together with or attached to a firearm. The maximum penalty for the offence is a fine of $75,000 or imprisonment for 15 years.

Manufacture of a silencer

Use of silencers is prominent in organised crime activity. This new offence prohibits manufacture of a silencer. The maximum penalty for the offence is a fine of $35,000 or imprisonment for 7 years.

Reactivating a deactivated firearm

A deactivated firearm is one which has been rendered unusable in a manner stipulated by the Registrar of Firearms. This provision creates a new offence that proscribes a person from reactivating a deactivated firearm so that the deactivated firearm becomes capable of being used as a firearm. This will align South Australia with other similar laws in some other jurisdictions and will deter people intent on making firearms operable for supply to the illicit firearms market. The maximum penalty for the offence is a fine of $75,000 or imprisonment for 15 years.

Alterations changing the category of a firearm

This strengthens existing legislation by creating an indictable offence where a person alters a firearm in a way that changes the class of the firearm if the alteration is not authorised in writing by the Registrar of Firearms. This offence will capture persons who reduce the length of rifles and shotguns with the intent of making them more readily concealable and suited for criminal use. The maximum penalty for the offence is a fine of $75,000 or imprisonment for 15 years.

Attempting to reactivate or change the category of a firearm

It will be an indictable offence to attempt to alter a firearm so as to reactivate or change the class of the firearm. It applies to people who alter firearms in stages, where the full alteration and firing capability or change of class has not yet been obtained. The provision will also apply to people who attempt to alter a firearm but whose lack of technical skill prevents completion of the process. The maximum penalty for the offence is a fine of $15,000 or imprisonment for 4 years.

Possession of a prohibited accessory

This new provision makes it an offence to possess an accessory that can be attached to or be used in conjunction with a firearm so as to affect the appearance or operation of the firearm. These will be prescribed by regulation and it is intended that the offence will apply to items such as kits that attach to handguns to give them the appearance of military type firearms. The offence will be aggravated when the accessory is fitted to a firearm or when an offender has physical possession or control of the accessory together with a firearm. This new law is proposed to meet and 'step ahead' of emerging technology and trends. The maximum penalty for the offence is a fine of $75,000 or imprisonment for 15 years.

New Powers

Police power to stop, search and detain vessel and aircraft

This provision enhances current authority and will provide police with the power to stop, search and detain vessels and aircraft on suspicion that there is a firearm or other item liable to seizure. The current provisions are limited to searches of people and vehicles. The new provisions will expand this power to stopping, searching and detaining vessels and aircraft.

Police power to stop, search and detain to ensure compliance with Court issued firearms prohibition orders

The existing police power to stop, search and detain persons, vehicles, vessels, aircraft and premises to ensure compliance with a firearms prohibition order applies only to firearms prohibition orders issued by the Registrar of Firearms (the Commissioner of Police). This amendment clarifies that the provision applies to firearms prohibition orders issued by a court of South Australia and that court issued orders have the same effect as those issued by the Registrar of Firearms.

Police power to break to conduct searches

The authority to break for the purpose of conducting a search for a firearm or other item liable to seizure is currently limited to searches of premises. This provision amends and expands this power to make it applicable to searches of vehicles, vessels and aircraft, inclusive of searches to ensure compliance with Registrar of Firearms and court issued firearms prohibition orders.

Power to stop and detain in order to serve Firearms Prohibition Order

Firearms Prohibition Orders do not come into effect until served. This provision authorises police to require a person to remain at a particular place for a period of up to 2 hours to facilitate the service of an order. The provision also allows for arrest if the person refuses or fails to comply.

Power to seize manufacturing and alteration equipment

It is already an offence to unlawfully manufacture firearms. This Bill proposes to also make it an offence to alter an unusable firearm in such a way that it becomes operable or to alter a firearm to change the firearm's class. This new provision supports the intention to remove opportunities for criminals to possess tools for the unlawful purpose of manufacturing or altering firearms, silencers or firearm parts. It will provide police with the power to seize equipment e.g. machinery, lathes and instruction manuals used for, or suspected of being used for, the unlawful manufacture or alteration of firearms and firearm parts. Opportunity will now be provided to seize equipment also used to manufacture silencers. It will also encompass emerging technologies such as 3D printed firearms. This new provision provides for forfeiture proceedings to be instituted before a court in relation to seized items.

Power to seize firearms not surrendered under a grant of Bail

Sections 11(1)(a) and 11A(1) of the Bail Act 1985 provide that a bail authority may direct a person who is granted bail to forthwith surrender at a police station a firearm, firearm part or ammunition owned or possessed by the person. However, police cannot seize those items if they are not surrendered in compliance with a bail authority's direction. There are similar provisions in a number of other Acts. This provision will assist police by providing a police officer with a power to seize a firearm, ammunition or part of a firearm if it is suspected on reasonable grounds that a person has possession of the firearm, ammunition or part of a firearm in contravention of a direction to surrender such an item made under the Bail Act 1985 or any other Act including the Intervention Orders (Prevention of Abuse) Act 2009.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Firearms Act 1977

4—Amendment of section 5—Interpretation

A new definition of prohibited firearm accessory is inserted. The definition provides for the regulations to prescribe such items for the purposes of the new offence in section 29B.

The definition of silencer is amended so that the term includes items adapted as well as designed and clarifies the sorts of objects that would comprise a silencer.

5—Amendment of section 10B—Firearms prohibition order issued by Registrar

This amendment inserts a new provision that mirrors the provision in section 10A in relation to interim firearm prohibition orders and provides that a police officer who has a reasonable belief that a firearm prohibition order applies to a person but has not yet been served, may require the person to remain at a particular place for up to two hours in order to effect service. If the person fails to comply with the requirement of the officer, he or she may be arrested and detained without warrant for up to 2 hours.

6—Substitution of heading to Part 3

This amendment is consequential on the amendment in clause 9 in relation to trafficking.

7—Amendment of section 11—Possession and use of firearms

Section 11 makes it an offence for a person to possess a firearm without holding a licence authorising that possession. It is also an offence to possess a firearm for a purpose that is not authorised by a firearms licence held by the person. Currently, the offences are aggravated if it is proved that the offender was carrying a loaded firearm or a firearm and a loaded magazine that can be attached to and used in conjunction with the firearm. The offences are also aggravated if the offender had a firearm concealed about the person. This clause amends the section to change the aggravating factors so that an offence against the section is aggravated if—

the firearm to which the offence relates was loaded or in the immediate vicinity of a loaded magazine that could be attached to and used in conjunction with the firearm; or

the offender had the firearm concealed about the person.

8—Substitution of heading to Part 3 Division 2

This amendment is consequential on the amendment in clause 9 in relation to trafficking.

9—Substitution of sections 14 and 14A

This clause repeals sections 14 and 14A and substitutes a new section that deals with trafficking in firearms by significantly increasing the penalties for unlawful acquisition or supply of firearms where the offence involves more than 1 firearm or is a subsequent offence. The maximum penalties for a first offence that involves only one firearm have not changed, but the penalty for the more serious offences is imprisonment for 20 years. As with the previous sections, a person commits an offence if he or she illegally acquires or supplies a firearm or takes part in any step in the process of acquisition or supply. The offence would also apply to a person who arranges finance or provides premises in which a step in the process of the illegal acquisition or supply of firearms is taken. The defences currently provided for in sections 14 and 14A are maintained. A person who has not previously been charged with an offence against the section may be prosecuted for a summary offence. If convicted, the maximum penalty is $10,000 or imprisonment for 2 years.

10—Insertion of heading to Part 3 Division 2AA

This amendment is consequential.

11—Amendment of section 27—Manufacture of firearms, firearm parts or silencers

This clause amends section 27 to make it an offence for a person to manufacture a silencer. Subsection (5) is recast to incorporate a penalty for manufacture of silencers.

12—Insertion of sections 27AA and 27AAB

This clause inserts 2 new sections.

27AA—Alteration of firearms

Proposed section 27AA establishes a new offence of reactivating a deactivated firearm or altering a firearm so as to change the class of firearm without the written approval of the Registrar. It is also a separate offence for a person to attempt to commit the main offence. Although an attempt would ordinarily be covered by the Criminal Law Consolidation Act 1935, the penalty provided by that Act could not apply to this offence because the maximum penalty depends on the type of firearm involved. If the offence is not complete it may not be clear what type of firearm is involved.

27AAB—Seizure and forfeiture of equipment etc

Proposed section 27AAB provides police officers with a power to seize any equipment, device, object or document reasonably suspected of being used, or intended for use, in connection with the commission of an offence against section 27 or 27AA (Manufacture of firearms, firearm parts or silencers and Alteration of firearms). The section includes procedures for instituting proceedings for forfeiture of seized items and also deals with disposal of forfeited items.

13—Amendment of section 29A—Possession etc of silencer and certain parts of firearms

It is currently an offence to possess a silencer or certain types of mechanisms or fittings. This clause makes the offence an aggravated offence in circumstances where the offender possesses such items and they are fitted to a firearm or the item is in the physical possession or control of the offender together with a firearm to which it can be fitted.

14—Insertion of sections 29B and 29BA

This clause inserts 2 new sections.

29B—Possession etc of prohibited firearm accessory

This proposed section makes possession of a prohibited firearm accessory an offence. The offence is an aggravated offence if the accessory is fitted to a firearm or in the possession of the offender together with a firearm to which the accessory can be fitted or in relation to which it can be used. These items will be prescribed by the regulations.

29BA—Restriction on possession etc of certain magazines

This proposed section prohibits the possession, acquisition or ownership of a detachable magazine with a capacity of more than 10 rounds without the written approval of the Registrar unless the person holds a class D firearms licence or a dealers licence authorising dealing in class D firearms. The offence does not apply in relation to a magazine of a prescribed kind.

15—Amendment of section 32—Power to inspect or seize firearms etc

Section 32(1aa) is amended to extend the police power of seizure to include silencers, firearm parts and prohibited firearm accessories. A similar amendment is made to section 32(2) and (3)(a). The power under subsection (2) to stop and search vehicles is being extended to vessels and aircraft. This provides consistency with subsection (3a), which already provides a power for stopping and detaining vessels and aircraft in addition to vehicles for the purposes of ensuring compliance with firearms prohibition orders. New subsection (1ac) authorises police officers to seize firearms, firearm parts and ammunition if there is a suspicion that the person has possession of the item in contravention of one of the specified Acts. Amendments are made to subsection (3a) to make it consistent with the firearm prohibition order provisions in section 10C, which refers to firearm parts rather than mechanisms or fittings.

Subsection (3c) is inserted to extend the existing power to break into premises for the purposes of a police search to vehicles, vessels and aircraft. It also clarifies that the existing power to search premises would include the ability to break into or open anything in or on the premises (which will now include vehicles, vessels and aircraft).

16—Amendment of section 34—Forfeiture of firearms etc

This amendment includes firearm parts in the existing provisions that enable the Registrar to institute proceedings for forfeiture of seized items.

17—Amendment of section 34A—Powers of court on finding person guilty of firearms offence

The amendments made by this clause extend the existing powers of a court to make orders on finding a person guilty of an offence so that orders can be made in relation to firearm parts. An amendment is also made to clarify the operation of firearms prohibition orders made by a court so that they operate as a firearms prohibition order under Part 2A, which provides for the making of such orders by the Registrar.

18—Amendment of section 35—Disposal of forfeited or surrendered firearms etc

This amendment to the existing disposal provision will enable the Registrar to sell or otherwise dispose of forfeited firearm parts.

19—Amendment of Schedule 1—Transitional provisions and compensation

The transitional provision in relation to possession of magazines with a capacity of more than 10 rounds gives a person who owns or has possession of such a magazine before the commencement of section 29BA 6 months to obtain the written approval of the Registrar.

Debate adjourned on motion of Hon. D.W. Ridgway.

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