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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
FIREARMS (MISCELLANEOUS) AMENDMENT BILL |
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Legislative Council |
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| Ian Gilfillan Australian Democrats Member of the Legislative Council |
FIREARMS (MISCELLANEOUS) AMENDMENT BILL |
Parliament Index |
The Hon. K.T. GRIFFIN (Attorney-General): From the outset I should say that, from the point of view of the Government, our legislation complies with the resolutions of the Australian Police Ministers' Council of 10 May 1996 after the Port Arthur massacre. The honourable member seeks to make some changes to legislation, and I will deal with each proposal separately. The legislation is designed to achieve six objectives:
1. To require the Registrar of Firearms to refuse a licence to all applicants who have been convicted of an offence involving an intentional act of violence within five years preceding the application. 2. To cancel automatically the firearms licence of any person convicted of an offence involving an intentional act of violence within five years preceding the application and to empower police to search for and confiscate their firearm or firearms.527 3. To state in legislation that a licence cannot be issued where the sole reason given for possession of a firearm is personal protection.
4. To provide that the Registrar cannot issue a firearms licence or renew a licence unless the applicant's means of storage of the firearm has been inspected.5. To provide that a person under the age of 18 cannot have a firearms licence.
6. To prohibit the practice or game of paintball.
I deal, first, with the intentional act of violence objective. The current position under the Firearms Act is that an application must be made to the Registrar of Firearms who may refuse the application only on certain grounds and only if the Firearms Consultative Committee agrees. A significant ground for refusal is that the applicant is not a fit and proper person to hold the licence applied for. One of the defining characteristics of not being a fit and proper person is that the person has been convicted of an offence involving actual violence or threatened violence in South Australia or anywhere else. It should be noted that the power of refusal is discretionary.
The amendment would have the effect of removing the discretion where the applicant has been convicted of an offence involving an intentional act of violence within five years preceding the application. The grounds stated by the Hon. Mr Gilfillan for this measure are, in essence, conformity with the resolutions for gun control passed after the Port Arthur massacre. The police advised that the resolutions of the Australasian Police Ministers Council of 10 May 1996, after the Port Arthur massacre, referred to disqualification after conviction for an offence involving violence within the past five years and conviction for assault with a weapon or aggravated assault within the past five years.
South Australia's legislation appears to comply with the resolutions. The key problem with the Hon. Mr Gilfillan's amendment is his deployment of the word `intentional'. Most offences of violence, such as, for example, assault, can be committed both recklessly as well as intentionally. While the line separating intention from recklessness is not well defined it is quite clear that recklessness is a less rigorous standard than intention, for the latter refers at least to meaning to do something, while the former can be satisfied by awareness that the harm will occur whether it is meant or not. These terms have been and can be defined legislatively.
The point for present purposes is, however, that the result of the proposed amendment would be that disqualification for intentional acts of violence within five years preceding the application would be mandatory and disqualification for any reckless acts of violence would remain discretionary. This would require the officers and the committee concerned to make the decisions with quite difficult and sometimes impossible determinations to make. If, for example, applicant X had been convicted of assault, it will not be possible to tell from the face of the record whether the assault was intentional or reckless.
While, therefore, this proposal would tighten eligibility for a licence in a way designed to keep firearms out of the legitimate possession of those with criminal records for offences of violence, it does not of course address the alternative issue, and for that reason, and because the element of discretion is removed, the Government is unable to support that proposition.
The second objective relates to licence cancellation. The second proposal follows on from the first. Under current law, disqualifications from holding a licence under the Firearms Act are dealt with by section 34A of the Act which provides:
(1) Where a court convicts a person of an offence against this or any other Act and the court finds that a firearm, receiver, mechanism, fitting or ammunition was involved in the commission of the offence the court must make one or more of the following orders:(a) where the firearm, receiver, mechanism, fitting or ammunition was owned by the convicted person that the firearm, receiver, mechanism, fitting or ammunition be forfeited to the Crown or be disposed of in such other manner as the court directs; (b) that a licence held by the convicted person is subject to specified conditions; (c) that a licence held by the convicted person is suspended for a specified period or until further order; (d) that a licence held by the convicted person is cancelled; (e) that the convicted person is disqualified from holding or obtaining a licence for a specified period or until further order. (2) Where, in the course of proceedings before a court, the court forms the view that a party to the proceedings who has possession of a firearm, receiver, mechanism, fitting or ammunition is not a fit and proper person to have possession of the firearm, receiver, mechanism, fitting or ammunition, the court must make one or more of the following orders:
(a) that the firearm, receiver, mechanism, fitting or ammunition be disposed of in such manner as the courts directs; (b) that a licence held by the party is subject to specified conditions; (c) that the licence held by the party is suspended for a specified period or until further order; (d) that a licence held by the party is cancelled; (e) that the party is disqualified from holding or obtaining a licence for a specified period or until further order.
It can be seen that the power under subsection (2) is tied to a finding that the offender is not a fit and proper person and hence may be directed towards the criterion that the person has been convicted of an offence involving actual violence or threatened violence in South Australia or anywhere else. Both this and the power under subsection (1) is framed in terms of the court being obliged to make the order. It should further be noted that the police are then given statutory power to enforce the order. Section 32 of the Act provides:
(1) If a member of the police force suspects upon reasonable grounds that. . .(ba) a firearm has been forfeited to the Crown by order of the court. . . the member may seize that firearm. . . (3) The member of the police force may break into, enter and search any premises in which the member suspects on reasonable grounds—
(a) there is a firearm, receiver, mechanism, fitting or ammunition liable to seizure under this section; It is not clear that the proposed section 34B sought to be inserted into the Act by the Hon. Mr Gilfillan adds anything to these powers. The police are of the view that it does not. The third objective is personal protection. The police advise that the relevant APMC resolutions included a resolution that personal protection not be regarded as a genuine reason for owning, possessing or using a firearm. Of course, the use of a firearm in self-defence or lawful defence of property may be lawful pursuant to sections 15 and 15A of the Criminal Law Consolidation Act and it is incapable of credit that Police Ministers intended that position to be altered. Currently, section 13 of the Act requires the Registrar to endorse the firearms licence with the purpose or purposes for which the firearm or firearms of that class may be used by the holder of the licence. Section 13(2) provides that a licence can only be endorsed for the purpose or purposes prescribed by regulation or approved by the Registrar pursuant to the regulations. The Hon. Mr Gilfillan's Bill seeks to amend the Act to provide that personal protection cannot be one of those purposes. Police advise that it is current policy that personal protection is not a purpose approved by the Registrar. However, personal protection is not mentioned in the Act or the regulations. If this is the current policy of the Registrar it might be supposed that it is better in the interests of public openness that the policy be spelled out rather than hidden in the interstices of administrative practice. On the other hand, it could be argued that to do so would be to focus public attention on the issue and hence foster division of public opinion on a contentious issue which has been operating to the satisfaction of the Registrar and the police hitherto. There is, I suppose, something to be said in principle for the amendment, but in practice it would be inadvisable to raise, yet again, the vexed question of appearing to restrict the right of self-defence with which the Parliament has struggled over the past few years. The fourth objective is the inspection of storage facilities. The practical effect of the amendments proposed is that the Registrar cannot grant any firearms licence or renew any such licence unless the applicant's means of storage for the firearm has been inspected, except where those means have been subject to a previous satisfactory inspection. The current position is that under section 12(6) of the Act the Registrar may, with the consent of the consultative committee, refuse to issue a licence or a renewal of a licence if not satisfied that the applicant will keep firearms in his or her possession secured in accordance with the Act.
Further, under section 32(2a), if police suspect on reasonable grounds that a person who has possession of a firearm has failed to keep the firearm secured as required by the Act, the member of the police force may inspect the firearm and the means by which it is secured. Such an unsecured firearm could be seized under section 32(1) of the Act. The APMC resolutions in question state that it should be a precondition to the issuing of a new firearms licence and any renewal of such a licence that the licensing authority be satisfied as to the proposed storage and security arrangements. They do not require actual inspection in so many words.
It can be argued that, at least technically, the current Act complies with the letter of the APMC resolutions. The resolutions do not specifically require actual inspection of each and every applicant's facilities. On the other hand, it can also be argued that actual inspection was the intention or spirit of the resolutions, and while current legislation leaves it up to the applicant to satisfy the Registrar of the security of his or her facilities there is nothing which requires the Registrar to demand proof of secure facilities in each case.
Police advise that there are about 75 000 firearms licence holders in this State and that about 200 new applications are made each month. They advise that, on this basis, they do not have the resources to carry out actual inspections in each case. Therefore, while there are arguments both ways, I am of the view that the amendments should be opposed on the basis that there is insufficient reason to change the existing scheme and that it would place an intolerable burden on the police, to no significant practical benefit to the community.
The fifth objective is to limit a firearms licence to those who are of or over the age of 18 years. Currently the Act allows for a licence to be granted to a person between the age of 15 and the age of 18 on certain conditions and only when the purpose is related to primary production. Sections 12(4) and 12(4a) provide:
(4) An application for a firearms permit may be made by a person who has reached the age of 15 years but who has not reached the age of 18 years if that person is the spouse, child, brother, sister or employee of a person who holds a firearms licence and who carries on the business of primary production. (4a) A firearms permit may only authorise the possession and use of class A or B firearms registered in the name of the spouse, parent, brother, sister or employer of a licence holder and may only authorise use of the firearm for the purposes of the business of primary production carried on by that person. Simply put, the amendments proposed by the Hon. Mr Gilfillan delete these subsections, which constitute a very limited exception enacted in 1996. Police advise that they have encountered no difficulty with these provisions. The sixth and final objective is to ban paintball games. Paintball `games' were made legal and regulated under the Firearms Act by amendments which came into operation in 1993. They are `games' of simulated combat using firearms which discharge paintballs to designate `hits'. At the time police and some shooting organisations opposed the legalisation of paintball on the ground that it amounted to the condoning of the deliberate aiming and firing of a firearm at another person and was contrary to the rules of firearm safety and desirable attitudes to the use of firearms in this community. Those views were not accepted in 1993. The Hon. Mr Gilfillan's amendments are simple. They seek to repeal the legalising sections and render paintball an illegal activity. Police advise that there are currently eight paintball proprietors operating legally in South Australia using nine approved grounds. The Hon. Mr Gilfillan does not oppose paintball on the ground that it is contrary to the 1996 APMC resolutions because paintball was not mentioned in those resolutions. His argument is straightforwardly based on its reflection and encouragement of the gun culture and all that that implies. Interested members can do no better than refer to his speeches in the Parliament on the subject. This is a subject on which opposing arguments can be strongly and genuinely held. It is the Government's view that the matter was decided by Parliament in 1993 and should not now be revisited.It is on those bases that the Government indicates that it is not prepared to support the second reading of this Bill, believing that the current regime which we have in place is working satisfactorily, and the Government sees no reason now to re-enter the public debate and controversy over what should or should not be the law in relation to the Firearms Act.
See Ian Gilfillan's News Release on this issue: 16 July 1999
Liberal and Labor combined to defeat the Bill on 4 August 1999
