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Legislative Council - Fifty-Fifth Parliament, First Session (55-1)
2024-02-22 Daily Xml
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Bills

Bail (Terror Suspects and Firearm Parts) Amendment Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:20): Obtained leave and introduced a bill for an act to amend the Bail Act 1985. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:20): I move:

That this bill be now read a second time.

The bill I introduce today is the Bail (Terror Suspects and Firearm Parts) Amendment Bill 2024. This bill contains two distinct parts, one dealing with the definition in the Bail Act 1985 of a 'terror suspect' and the other dealing with the use of the terminology 'any part of a firearm' in the Bail Act.

Both sets of amendments contained in the bill have arisen via submissions from SA Police, who have identified issues in relation to both the definition of 'terror suspect' and the use of 'any part of a firearm' during the course of their ordinary operations, and the government is grateful to SAPOL for bringing the issues to our attention.

In terms of the definition of 'terror suspect', the bill corrects a loophole in the way in which presumptions against bail applied to applicants who are terror suspects. The Bail Act was amended by the Statutes Amendment (Terror Suspect Detention) Act 2017 in response to a decision of First Ministers at the Council of Australian Governments meeting on 9 June 2017 that there should be a presumption against bail and parole for persons who have demonstrated support for or who have had links to terrorist activities. This amendment act commenced operation on 26 February 2018.

The presumption against bail for terror suspects operates as part of the prescribed applicant scheme inserted into the Bail Act by the amendment act. The definition of 'prescribed applicant' includes an applicant who is a terror suspect. In accordance with section 10A of the Bail Act, a 'prescribed applicant' is not to be granted bail unless they can demonstrate that there are special circumstances justifying their release on bail.

If an applicant has no past terrorist offence convictions or charges, but the current bail application follows an arrest for a state terrorist offence (that is not dealt with under the commonwealth Crimes Act), they are not a terror suspect pursuant to the Bail Act and will not fall into the prescribed applicant scheme, and the regular presumption in favour of bail being granted will apply. This will occur when an applicant has been charged with a state-based terror offence and there are no previous convictions, terror offences-related charges or terrorism notifications.

The proposed amendments will act to correct the anomaly in the way in which the provisions of the Bail Act apply to persons charged with state-based terrorist offences, and include them in the definition of 'terror suspect' such that they will be subject to the presumption against bail.

In relation to firearm parts, in the Bail Act the term 'firearm' and 'ammunition' are both defined by specifically referencing the definitions used in the Firearms Act 2015. However, the Firearms Act also contains a definition of 'firearm part' which is not picked up by the Bail Act. In the Firearms Act a 'firearm part' means a barrel, firing mechanism, magazine, cylinder, hammer, bolt breech block or slide designed as, or reasonably capable of, forming part of a firearm.

This definition is intended to cover those firearm parts that are essential to its function and that therefore can present a risk to public safety. Rather than using the term 'firearm part', the Bail Act instead uses the terminology 'part of a firearm'. The term used in the Bail Act, 'part of a firearm', is not specifically defined but has been interpreted more widely to include any part of a firearm, including non-operational or cosmetic parts.

The difficulty SA Police has encountered as a result of the use of 'part of a firearm' in the Bail Act relates to the automatic condition of every bail agreement, pursuant to section 11, that the applicant is prohibited from possessing a firearm, ammunition or any part of a firearm. Therefore, a person is required to surrender these items to avoid breaching the conditions of their bail. If a person breaches a bail condition, all items in their possession falling within the ambit of 'part of a firearm' are liable to be seized by police who are then required to store items. This presents a particular difficulty if the person in question is a firearms dealer, as this results in their entire stock being seized, including such items as pins and bolts.

Another example of the issues caused by the discrepancy between the Firearms Act and Bail Act relates to firearms prohibition orders pursuant to section 45(2) of the Firearms Act. Currently, a person who is on bail will be required to surrender all firearms, ammunition and 'any parts of a firearm'. If they were subsequently convicted and a firearms prohibition order imposed, they would be prohibited from possessing firearms, ammunition and 'firearm parts', requiring police to return to the person all items seized under the Bail Act that are 'parts of a firearm' but not a 'firearm part'.

This causes significant confusion. As the non-operational parts of a firearm do not present a public safety risk, there is little reason for them to be seized, therefore to address this issue the bill amends the Bail Act to replace the use of the terminology 'part of a firearm' with 'firearm part' and defines 'firearm part' in the same way as the Firearms Act. This will ensure the terminology is consistent between the Bail Act and the Firearms Act. I commend the bill to members and seek leave to insert the explanation of clauses in Hansard without my reading it.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clause are formal.

Part 2—Amendment of Bail Act 1985

3—Amendment of section 3—Interpretation

This clause inserts a definition of firearm part.

4—Amendment of section 3B—Terror suspects

This clause amends section 3B to apply to persons charged with a terrorist offence under State law.

5—Amendment of section 11—Conditions of bail

6—Amendment of section 11A—Bail authority may direct person to surrender firearm

These clauses are amended to refer to the new defined term of firearm part.

Schedule 1—Transitional provision

1—Transitional provision

The proposed amendments to section 3B of the Bail Act 1985 would only apply in relation to a person taken into custody on a charge of an offence allegedly committed after the commencement of that provision.

Debate adjourned on motion of Hon. L.A. Henderson.

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