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Legislative Council - Fifty-Third Parliament, Second Session (53-2)
2017-11-28 Daily Xml
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Statutes Amendment (Explosives) Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 November 2017.)

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (21:16): I thank honourable members who have contributed to the debate on this bill. As has been pointed out, the bill amends the Criminal Law Consolidation Act 1935 and the Summary Offences Act 1953 to ensure that the penalties for the possession and use of improvised explosive devices are commensurate with the seriousness of the risk posed by the reckless and malicious use of these devices.

In second reading contributions the honourable and gallant Andrew McLachlan asked why it was necessary in this bill to have a specific search and seizure power in relation to explosives, as opposed to being able to rely on existing powers that currently support police works in this field. My advice is that the new search powers were sought by SA Police after much consideration. They reflect the fact that explosives, like firearms, pose a very significant risk not just to public safety but to police, and that in order to investigate and manage these incidents safely police investigators require specific powers to enter, search and seize that can be exercised without delay.

The government acknowledges that there is some overlap with powers currently available to police, such as the use of general search warrants under section 67 of the Summary Offences Act, general powers to stop and search and detain, and common law powers to seize evidence. That said, the government is of the view that there is a justifiable need for these additional powers, particularly when urgent action is required.

General search warrants are not held by all police officers and are not always readily available. For example, a police officer in a country town may identify a situation requiring immediate attention rather than waiting several hours for a general search warrant. Alternatively, police may attend a domestic violence incident, where they may see evidence of an improvised explosive device but, unlike a situation with firearms, police cannot enter and deal with the explosives until the arrival of a general search warrant, which may be hours away. In the meantime, the offender may well be disposing of evidence or preparing more explosive devices to use against the victims or police.

Explosives are, by their very nature, unstable and can degrade very quickly. Delays in finding, treating and managing them can result in the substance degrading to such a state that it becomes far more unstable and much more dangerous to manage. The need to wait hours for a general search warrant puts both the investigating officers at the scene and the public in the vicinity at significant risk. We view that such risk is unacceptable.

The new search powers ensure that police can manage an incident involving explosives without delay and lessen the risk to police and to the public. Again, I thank honourable members for their contributions and look forward to the committee stage momentarily.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

The Hon. A.L. McLACHLAN: I flag to members that I will be moving amendments that will insert a review clause and requires the collection of data, and I will probably come to that a bit later. I would like to raise some questions regarding part 3, if I may, because I only have one section of the bill which interests me, and that is search provisions at 72D. I thank the minister and the staff who assisted him with the second reading summation, which answered many of my questions. I am seeking clarity around section 72D(2), which provides:

(2) The Commissioner may direct that property seized by a police officer exercising search powers under this section in relation to a suspected explosives offence (seized property) be destroyed, whether or not a person has been or is to be charged...

Subclause (8) provides that subsection (7), which relates to compensation in the event that property has been seized, does not apply. I would like some explanation as to the purpose of that clause. If my reading of that clause is correct then, if the commissioner directs seized property be destroyed, and the suspicion is later proven to be unfounded and there is no conviction, it seems to me—and I may have misunderstood it—there will not be the ability to receive compensation. What is the policy motivation around that?

The Hon. K.J. MAHER: I thank the honourable member for his question. I may not answer this in particularly elegant terms, but I am advised that the policy rationale behind that is, under subsection (2), that the property seized under this bill is thought to be dangerous material. If it is that dangerous that it cannot be reasonably removed and stored then it can be destroyed. If it is that dangerous that you cannot store it in order to possibly return it later, then that is the reason why compensation will not be payable: you have had something so dangerous that it has given rise to the need to destroy it, rather than to remove it and store it.

The Hon. A.L. McLACHLAN: I accept that scenario in those circumstances, but there could be a variety of other circumstances as to why the commissioner would make that order. For example, the commissioner could make the order under this, because it is not restricted in the discretion of the commissioner to order the destruction, so I am not challenging the nature of that clause.

For example, he could have considerable intelligence that there is a terrorist threat. This person is possibly held under suspicion, and a wise commissioner would order immediate destruction of the associated materials so that the threat is immediately extinguished. No-one would criticise the commissioner in those circumstances. But in the wash-up, if the suspicion proved unfounded, even in those circumstances I understand that they would not be entitled to compensation. As long as the commissioner makes this decision, regardless of their grounds, no compensation is payable. Is that correct?

The Hon. K.J. MAHER: As the honourable member has set out the circumstances, yes, that is correct.

The Hon. A.L. McLACHLAN: I am not seeking a response. I just make the comment that it is a very broad discretion and quite an arbitrary policy decision not to provide compensation than it could otherwise be, but that is probably a personal view since the Liberal Party is supporting the bill, and tonight I am voting with my tribe. I have no other questions in relation to the clauses. I will be seeking to move some amendments which, given the broadness of the discretions in relation to the search powers, require the collection of data and a review in three years ordered by the Attorney-General. I ask honourable members to give consideration to the merits of those proposed further amendments.

The Hon. K.J. MAHER: For the benefit of the chamber, to aid with the consideration of this, I can indicate that there are two amendments in relation to review clauses.

The Hon. A.L. McLACHLAN: Three.

The Hon. K.J. MAHER: Three amendments in relation to—

The Hon. A.L. McLACHLAN: One is about tabling the report. They are all related.

The Hon. K.J. MAHER: There are two amendments in relation to review clauses and one amendment in relation to tabling the report. It is the government's intention to support those three amendments.

Clause passed.

Clauses 2 to 5 passed.

New clause 5A.

The Hon. A.L. McLACHLAN: Since I have the government with me—I had to say that because it does not often happen—I move:

Amendment No 1 [McLachlan–1]—

Page 5, after line 20—After clause 5 insert:

5A—Review

(1) The Attorney-General must undertake a review of the operation and effectiveness of the amendments effected by this Part.

(2) The review required under this section must commence not later than 3 years after the commencement of this Part.

(3) The Attorney-General must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

The Hon. K.J. MAHER: These are good amendments. We love them. We will support them.

New clause inserted.

Clause 6.

The Hon. A.L. McLACHLAN: I move:

Amendment No 2 [McLachlan–1]—

Page 8, after line 4—After inserted section 72E insert:

72F—Annual report on explosives powers

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 occasions on which the search powers under section 72D were exercised during the period to which the report relates; and

(b) the number of occasions on which property was seized as a result of the exercise of those search powers and the nature of the property seized; and

(c) whether any persons were charged with explosives offences (within the meaning of section 72D) in connection with the exercise of those search powers; and

(d) any other information requested by the Minister.

Amendment carried; clause as amended passed.

New clause 6A.

The Hon. A.L. McLACHLAN: I move:

Amendment No 3 [McLachlan–1]—

Page 8, after clause 6—After clause 6 insert:

6A—Review

(1) The Attorney-General must undertake a review of the operation and effectiveness of the amendments effected by this Part.

(2) The review required under this section must commence not later than 3 years after the commencement of this Part.

(3) The Attorney-General must prepare a report based on the review and must, within 12 sitting days after the report is prepared, cause copies of the report to be laid before each House of Parliament.

New clause inserted.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. K.J. MAHER (Minister for Employment, Minister for Aboriginal Affairs and Reconciliation, Minister for Manufacturing and Innovation, Minister for Automotive Transformation, Minister for Science and Information Economy) (21:29): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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