Firearms Amendment Bill 2017 | Sue Pennicuik

Firearms Amendment Bill 2017

The Greens are broadly supportive of the bill. I have had some research done with regard to the existence or not of similar schemes in other states, and as has been mentioned already by other speakers, there is a scheme of firearm prohibition orders in place in New South Wales. But it is also in place in South Australia and Tasmania and will be introduced into Western Australia shortly as well. We can say that the bill before us and the proposed scheme in Victoria is modelled on the New South Wales scheme and takes into account the recommendations of the review and report of the New South Wales FPO search powers by the New South Wales Ombudsman last year.
Thursday, November 30, 2017 - 12:45pm
Sue Pennicuik

Ms PENNICUIK (Southern Metropolitan) (10:49:33) — I am pleased to speak on the Firearms Amendment Bill 2017 today. This bill creates a firearm prohibition order (FPO) scheme to sit alongside the already existing prohibited person scheme with regard to possession of firearms. It creates an offence for possessing, carrying and using firearms in public places and private property; provides for firearm prohibition orders and, further, provides for the Victorian Civil and Administrative Tribunal to review certain chief commissioner firearm licensing decisions under the act; provides for trafficable quantities of unregistered firearms and reduces the quantity from 10 to two; creates offences for possession of parts and equipment for the purposes of manufacturing firearms; provides police with certain search and seizure powers; and provides for independent oversight of the FPO regime by IBAC. It also provides for a new offence of discharging a firearm at a premises or vehicle with a maximum penalty of 15 years, and the Greens are pleased to see no mandatory minimum penalty attached to that offence.

The Greens are broadly supportive of the bill. I have had some research done with regard to the existence or not of similar schemes in other states, and as has been mentioned already by other speakers, there is a scheme of firearm prohibition orders in place in New South Wales. But it is also in place in South Australia and Tasmania and will be introduced into Western Australia shortly as well. I asked the library to have a look into these schemes in the other states for me because I thought they were very apposite to the bill being put forward by the government for a similar scheme in Victoria, and I thank the library staff for preparing that brief for me. We can say that the bill before us and the proposed scheme in Victoria is modelled on the New South Wales scheme and takes into account the recommendations of the review and report of the New South Wales FPO search powers by the New South Wales Ombudsman last year.

It is worth saying that the New South Wales FPO scheme, according to the New South Wales police, has had significant impacts on firearm crime in New South Wales.

Police advise that shooting incidents across the New South Wales metropolitan and regional areas have decreased by 45 per cent since the introduction of the scheme in 2013. It is worth also pointing out that the Commissioner of the New South Wales Police has had the power to apply an FPO on a person since 1973. The bill that was introduced in 2013 added several provisions to prohibit persons subject to FPOs.

A New South Wales Ombudsman report, which was mentioned by Mr O'Donohue earlier, found that the police used the FPO search powers extensively during the period of the review. There were approximately 1500 interactions where police used the search powers. During those interactions the police conducted over 2500 separate searches, sometimes of the person as well as of their property. Police found firearms, ammunition and firearm parts in a small number — 2 per cent — of those interactions, and seized 35 firearms, 26 lots of ammunition and nine firearm parts. The Ombudsman found — and this is slightly different to what was said before — that the searches conducted on these people appeared to be generally consistent with the intention of the Parliament in New South Wales.

However, the report found that police conducted searches on more than 200 people who were not subject to an FPO at the time of the search, conducted those searches on what appeared to be an erroneous application of the FPO search powers in New South Wales and that those searches may in fact have been unlawful. The New South Wales Ombudsman found a lack of clarity and police understanding of when they may conduct an FPO search on an FPO subject. In 14 per cent of those events police conducted a search on the basis of their apparent understanding that a search can be conducted for the reason alone that the person is an FPO subject. The Ombudsman did not view that as being correct but that the intention of the act was that a search can be conducted only when reasonably required to determine if an FPO offence has been committed. It is not a roving search power to be used randomly on FPO subjects but a power to be used in a targeted way to examine if firearms control legislation is being properly observed.

In looking at the bill I understand that the Victorian bill picks up that gap in the New South Wales legislation, such that in terms of the search power a police officer may conduct a search if they believe that it is reasonably required to ascertain whether a person who is the subject of a firearm protection order is in fact carrying a firearm or part of a firearm. The New South Wales Ombudsman also said that the fact that the FPO searches have enabled police to confiscate illicit firearms during the review period was a positive outcome. The report made 15 recommendations to the government of New South Wales regarding the scheme.

South Australia has a similar system in place, which shares some similarities with the Firearms Amendment Bill 2017. However, there are several key provisions which provide South Australian police with potentially broader scope to act in relation to firearm protection orders. For example, their act outlines wide powers in which a police officer can issue an FPO to a person who is part of or used to be part of a criminal organisation and provides that a person is assumed unless there is evidence to the contrary to be part of a criminal organisation if the person wears or displays the insignia of that organisation. It appears that in South Australia an ordinary police officer can apply an FPO, and that will be interesting in terms of the discussion with regard to Mr O'Donohue's amendments limiting the rank of police who can apply an FPO. In the South Australian regime there are wide powers to forbid a person issued with a prohibition order from possessing or being near to those possessing firearms, including paintball guns and equipment, and severe penalties apply to those people.

Tasmania also has a legal mechanism for the issue of prohibition orders. It is a pretty straightforward regime It allows for the commissioner to issue FPOs to a person who is unfit in the public interest to possess or use a firearm, and the commissioner may revoke that prohibition order at any time. The person issued with an FPO must not possess or use a firearm in contravention of the order et cetera. The penalties under the Tasmanian regime are similar to those in the Victorian bill, but are less severe than those under the South Australian regime. There does not appear to be any provision in the Tasmanian scheme for police officers to conduct warrantless searches of people who have been issued or who officers reasonably believe have been issued with prohibition orders.

Western Australia has a different scheme, which applies under particular acts: the Prohibited Behaviour Orders Act 2010, Criminal Organisations Control Act 2012 and the review of the Firearms Act 1973 in that state. Again, that is a bit different to the other states.

The reason for looking into what applies in other states is that I think this is quite a significant power to give to police. I wanted to know the regimes around the country and how they may differ or be similar. One of the issues to raise here in terms of national consistency with firearm regulations is that with regard to this particular part of firearm regulation — that is, the issuing of firearm prohibition orders — it is not consistent around the country.

I think that will be an issue for people who cross state borders and may be subject to different regimes in different states and territories. So it is another example of firearm legislation not being consistent across Australia, and really all efforts should be made to make it so. Even though the differences between the states with regard to firearm protection orders are not that great, they still do differ, and they do differ in terms of the penalties that are attached to them. This bill is modelled on the New South Wales FPO powers and has been developed in consultation with Victoria Police. As I mentioned, the New South Wales police advise that their scheme has resulted in a reduction in shootings across New South Wales metropolitan areas by 45 per cent from 2011 to 2016. They have advised Victoria Police that FPOs have been successfully issued in counterterrorism cases and against outlaw motorcycle gangs and other high-risk individuals.

Currently in Victoria under the prohibited person scheme a person is prohibited from having or using a firearm because of their criminal conviction or imprisonment for a serious crime or because they are subject to an intervention order. However, the existing scheme does not address individuals who are not prohibited but are still a significant concern to police in relation to the risk of firearms. So this bill inserts new part 4A into the Firearms Act 1996 to create the FPO scheme. This allows the chief commissioner or delegates of the chief commissioner, down to the level of superintendent and including some executive civilian members of the police, to issue FPO orders. I know Mr O'Donohue has an amendment to restrict that to the assistant and deputy commissioner level. I am certainly interested in the arguments for that restriction, notwithstanding that I noticed the differences in other jurisdictions with regard to which police can actually issue FPOs.

The new scheme that will be introduced in this bill allows, as I said, the chief commissioner or delegates to make an FPO, meaning prohibiting an individual from acquiring any firearm or firearm-related item or possessing, carrying or using any firearm or firearm-related item. That is if the commissioner or delegate is satisfied that it is in the public interest to do so because of any one of the following: the criminal history of the individual, the behaviour of the individual, the people with whom the individual associates and information that the individual may pose a threat or risk to safety. This is quite a strong power to give to the police, who already have a lot of powers, so it is important that we look at who issues those orders and what safeguards there are with regard to the issuing of them.

People who are subject to an FPO will be restricted from entering or remaining on certain premises where firearms are available. These premises will include shooting ranges, shooting clubs, premises where firearms are kept and paintball locations. The Scrutiny of Acts and Regulations Committee did raise the issue of a person who is subject to an FPO being restricted from being in a house or living in a premises where a firearm is located or where another person who is not the subject of an FPO or a prohibition order does carry a firearm. The chief commissioner cannot make an FPO in relation to a person who is under 14 years of age. The FPO will remain in force for 10 years from the day served on the individual, and it may be revoked at any point by the chief commissioner. I note that in New South Wales FPOs are in place for an indefinite period of time; there is no time limit on them. Significant penalties apply for an offence where a person who is subject to an FPO acquires, possesses or carries a firearm or a firearm-related item. It is a maximum of 10 years imprisonment.

Mr Bourman raised the issue of firearm-related items or parts of firearms being included in this regime. I make the point that I think it is very important that they are, because earlier in another piece of legislation I raised the issue of customs inadvertently coming across boxes of different parts of firearms being illegally imported into Australia. Several of those boxes had eluded customs. As I understand it, they were in fact still in circulation in the Australian community before customs were actually alerted to this way of importing illegal firearms in pieces into the country. So it is not just full firearms but also parts of firearms in different boxes that are coming into the country. So in fact I think it is really important that this covers parts of firearms.

The appeal rights under the bill are such that after being served with an FPO an individual may apply within 28 days to VCAT for a merits review of a decision. Mr O'Donohue has circulated amendments with regard to whether VCAT is the appropriate place for the merits review or the appeal mechanism and whether this should not in fact be made to a higher court, such as the Magistrates Court. I have some sympathy for that argument, and I will be interested in the government's views on that, because as I say, it is a very strong power that will be given to the police here, notwithstanding those that exist in other jurisdictions.

I think it would be preferable if a court oversees the application of this power.

As I said, the Victorian scheme takes into account the New South Wales Ombudsman's review in giving police search and seizure powers without consent or warrant in relation to persons subject to FPOs and also any persons who accompany a person who is subject to an FPO such that the police may enter and search any premises occupied or under the control of that individual, search any vehicle, vessel or aircraft that is in the charge of the individual or passenger, including to stop and detain any vehicle as long as it is reasonably necessary to conduct the search, and search the individual and seize any firearm or related item that is found. However, these powers may only be exercised if the power is reasonably required to determine whether an individual has acquired, possesses or is carrying or using a firearm or related item in contravention of the act. I think that does take into account the concern that was raised by the overuse of powers, which seemed to be a misunderstanding of the powers by New South Wales police.

This scheme will be overseen by IBAC, and IBAC is to report biannually to the minister on the administration of FPOs and the exercise of the powers, and the report is to be tabled in Parliament. IBAC will also have standing powers to monitor the exercise of the powers under part 4A of the bill and will have all the necessary powers to discharge this function, including powers of entry of Victoria Police premises, full and free access to all relevant Victoria Police records and documents, and powers to direct police officers to give IBAC any relevant information or document or answer any relevant questions, which I think is a good mechanism of oversight of this scheme.

As I mentioned, the bill also introduces the offence of discharging a firearm into a building or vehicle, otherwise known as a drive-by offence, and while the Greens are usually very reluctant to add new offences to the statute book which are already offences — it is already an offence to shoot at a building or vehicle or discharge a firearm in a public place, so it is not that hitherto it has been legal to discharge a firearm in a public place — given the fact that this new provision will not carry a mandatory minimum sentence, the Greens in this instance will not oppose it, although we do find it an unnecessary new offence duplicating something that is already an offence.

The Greens are not disposed to support the amendments put forward by Mr Bourman with regard to advertising of firearms. In fact I am not sure that there is any prohibition under the act for advertising of firearms online. I have had a look at that provision, and it does not say that the advertising must be in printed material. It just talks about publishing and it does not actually restrict publishing to printed publications, but I will be interested in pursuing that during the committee.

With those comments on this important piece of legislation, the Greens will support the bill. We reserve our rights on the amendments as put forward by Mr O'Donohue, by the government and by Mr Bourman.

In committee on 6 February 2018:

Ms PENNICUIK — The Greens will not be supporting the amendment put forward by Mr Bourman for the reasons we have articulated before. We do not want to see the sale of firearms being more widely publicised. I know the police have talked about the concern they have about Mr Bourman's amendments, with the addition of addresses where firearms are kept, given the problem with the theft of firearms from premises where they are kept. I also note this bill clarifies the point I have made before — that it has never said a publication has to be a printed publication. This bill actually clarifies that publication includes publication on the internet by a registered firearm dealer.

To read more of the debate in committee click here.