Legislative Council
The Hon. IAN GILFILLAN: I seek leave to make an explanation before asking the Attorney-General a question about police powers and the acquisition of knives.
Leave granted. The Hon. IAN GILFILLAN: This morning on Radio National the Director of the Institute of Criminology stated that the percentage of knives involved in homicide has increased dramatically in Australia in the past five years. Last year this Parliament passed the Summary Offences (Offensive and Other Weapons) Act, which amended section 15 of the Summary Offences Act, which dealt mainly with persons carrying knives and other dangerous articles. As a result of the publicity this Act attracted, I received correspondence from persons who wish to see police given the power to take knives off the streets. I was not sure whether the new legislation would have that effect, so I requested an interpretation of the new provisions from the Attorney-General's Department and received a prompt reply from the Senior Legal Officer, Dianne Gray. Ms Gray assured me that under section 68 of the Summary Offences Act a police officer already had the power to: `stop, search and detain. . . a person reasonably suspected of having on or about his or person,. . . an object, possession of which constitutes an offence. I passed on this information to the Area Coordinator of Neighbourhood Watch for the Torrens Park-Lynton area, Mr Ron O'Brien, who had contacted me. In turn I received a reply from Tony Madigan of the Malvern Community Police Station. Mr Madigan informs me that Ms Gray's comments were tabled at the 16 February meeting of the local Neighbourhood Watch and that he had been asked to respond. In essence, Mr Madigan states that section 68 of the Summary Offences Act does not give police the authority to search anyone suspected of carrying an ordinary knife. Carrying a knife is not unlawful if you have a lawful excuse. As Mr Madigan points out, the excuse does not have to be believable, just lawful. In other words, carrying a knife in a dark city alley at 3 a.m. is lawful if you say you have it in your possession to peel an apple and, if a knife carrier offers that excuse, apparently police are powerless to even search for a knife, let alone confiscate it. Under section 15 the excuse is what makes carrying the knife lawful. This is a bizarre Catch-22 for both police and law-abiding South Australians. The police cannot search a person if the weapon carrying is lawful. They cannot tell whether it is lawful unless they ask the person whether they have an excuse, and there is not much point in asking a person whether they have an excuse for carrying a knife if you cannot first search them to find out whether they are carrying one. If a person is waving a knife around, obviously it will not be necessary to search them, but as Mr Madigan points out `the onus is on the police to disprove the excuse'. So, if police cannot disprove the excuse, the knife carrying is lawful.Admittedly the amendments carried last year set up a different regime with respect to special types of knives—those that are designated as either prohibited weapons or dangerous articles. Articles so classified may be confiscated because of what they are. However, this was already the case in respect of many such things, for example, flick knives and knuckle dusters. The 1998 amendments create an additional new offence—that of carrying a firearm, a `dangerous article' or a `prohibited weapon' if it is not done in a `safe and secure manner'. However, this is another subsection that does not apply to ordinary knives.
According to the Act, ordinary knives are not classified as dangerous articles or prohibited weapons so, presumably, as long as the holder has a lawful excuse, most knives do not even need to be carried in a safe and secure manner. Despite the 1998 amendments, ordinary knives still may be carried in public with impunity. Police are powerless to search for and confiscate them because such a police search is likely to be beyond the authority of section 68. If a person carrying a knife has a fanciful though lawful excuse they may not even be searched and, of course, the knife therefore cannot be confiscated. Does the Attorney agree with my interpretation of how the law regarding knives currently applies? Does he consider the situation satisfactory in terms of keeping knives off the streets? Would he consider legislation to give police the authority to confiscate knives whenever police suspect ill intent and putting the onus upon the knife carrier to justify getting the weapon back?The Hon. K.T. GRIFFIN: The way in which the honourable member raced through that did not give me an opportunity to think about all the issues he raised, so I am not prepared to answer the question at length on the run. I will need to look at it and analyse it, because a couple of the names that were mentioned are names of persons who have been fairly well-known for their promotion of incorrect views about the legislation relating to the possession of weapons, and Mr O'Brien is one of those.
The Hon. Ian Gilfillan: It was a police officer I quoted, not Mr O'Brien.
The Hon. K.T. GRIFFIN: Some of the police have a view that they do not have enough powers, but most of them believe that they do have enough power. As I said when we talked about the legislation last year, it is a matter of trying to find a balance. I must say that what the honourable member seems to be suggesting is a very surprising extension for an Australian Democrat; he seems to wish for an extension of police powers to enable them to stop at random and to search and confiscate. If the honourable member is suggesting that, then he ought to say so, but certainly that is my interpretation from his explanation and his questions as to what he might be leading to.
Certainly not many others in the Parliament would advocate that course of action. That means that the police make the decisions about what is a reasonable excuse and not the courts. The whole object of the way in which section 15 of the Summary Offences Act is drafted is to ensure that ultimately whether or not an excuse is lawful is a matter to be determined by the courts.
There is this nonsense being promulgated from time to time that someone who is out at midnight has a knife on them and, when the police ask, `What do you have that for?', they reply, `I'm going to peel an apple,' and there is no sign of an apple, the possession without lawful excuse therefore cannot be established. That is a nonsense. It is a very trite way of trying to undermine the operation of the current law.
If the honourable member wants to move to possession of a knife without reasonable excuse so that he puts the onus on the individual and the decision making power with police, let him say so, but I do not support that, and I do not think many would support it. If you use the concept of lawful excuse, you ultimately go to court. That is the place where the decision is taken about what is or is not a lawful excuse. I can tell you that, although this nonsense is being peddled that someone can change their excuses to satisfy the court and get off; someone can give a fanciful excuse and get off; or the police say, `It's not worth prosecuting,' it is not true. That, too, is nonsense; it is absolute nonsense. It really denies the reality, because people are convicted of possession of weapons without lawful excuse where they give fanciful excuses, because the court takes into account what was or was not said at the time. The court also weighs up any change from the excuse which was given when the person might have been questioned to the point when that person gets to court.
The police certainly already have very wide powers. Our loitering legislation which gives wide-ranging powers to police to move on is the widest power of any in Australia. Recently, the New South Wales Parliament has enacted legislation which is similar, but South Australia's was until then the widest power given to police in Australia. We have wide-ranging powers to require people to give name and address, particularly in the circumstances where there is a reasonable suspicion that they may have committed an offence, be about to commit an offence or be committing an offence. If the honourable member wants a situation where anybody can be stopped in the street regardless of their age or appearance and be asked their name and address and to turn out their pockets, let him say so. I do not agree with it. I would hope that there are not very many, if any, people in this Chamber who would agree with that, because it would tip the balance very much against the sort of balance we have at present, which carefully balances the public interest, the rights of the citizen and the powers of police. I suppose this will be a constant debate. We have been fortunate in South Australia to avoid most of the unfortunate public debate that occurs in other jurisdictions about more police, more penalties, more people in gaol—tough, tough, tough. That was really established a number of years ago. The Hon. T. Crothers: It almost smells of zero tolerance. It is as though someone has taken a leaf out of the New York book. The Hon. K.T. GRIFFIN: We will not get onto talking about zero tolerance today; that might be for another day. In essence, I am saying that there has to be a balance. I am all in favour of giving police adequate powers. The fact that we have a Listening Devices Act Amendment Bill before us at present indicates that we are trying to do what is reasonable and sensible to give the police the necessary power to catch crooks and to bring them to justice but also to have safeguards in there against abuse, recognising that everybody is human and that people do err. It is important to try to ensure that we maintain that balance between the individual's interests and rights, the police powers and the obligations we place on our police to enforce the law and to behave in a way which is appropriate in a civilised and democratic society and in the public interest.