Firearms Amendment Bill 2017


RICH-PHILLIPS (South Eastern Metropolitan) (11:25:19) — I am pleased to make some remarks on the Firearms Amendment Bill 2017 this morning. There are a number of elements to the bill which have been explained at some length, discrete provisions which have been brought forward. The first element that Mr O'Donohue outlined is the provisions which relate to drive-by shootings, to use the vernacular. Obviously the coalition came forward with a very strong policy on drive-by shootings in a private members bill earlier this year, which the government failed to carry through to introduction in this place or the other, and we are now seeing a watered-down framework being brought forward by the government. Having argued against Mr O'Donohue's policy position earlier in the year, the government now recognises that it needs to adopt it, so we have in this bill this morning a weakened version of the drive-by shooting provisions, but nonetheless it is better than nothing. We are pleased that the government is finally getting on board on the issue of drive-by shootings.

The second aspect to touch on briefly is the changes related to licensing and registration, particularly around the use of handguns and the number of attendances required under the ownership regime for handguns, the various requirements set down for participation in competition and the clarification and coordination of some of those requirements, which we think are useful changes being proposed through this bill. One of the things that is evident from the Firearms Act 1996 is that many of the provisions in it are cumbersome, bureaucratic and complicated, so provisions which clarify and simplify those provisions are useful. Many of those provisions do not make any contribution to public safety; they are simply bureaucratic mechanisms, and having those tidied up is a useful approach, which we are seeing in elements of this bill.

The third area that I would like to touch on at more length is the issue of firearm prohibition orders (FPOs), which has been the subject of most of the debate today. The rationale that has been given by the government for the introduction of FPOs was set out in the minister's second-reading speech, where the minister stated:

Victoria Police has told the government that, operationally, the current tools that exist to address firearm-related offending are no longer sufficient to prevent emerging kinds of firearm crime.

That is a very bold statement. As members will be aware, the current Firearms Act gives the Chief Commissioner of Police very broad discretion with respect to firearm licensing matters and the issuing of permits to acquire, so obviously when this bill gets to committee the minister will need to be able to explain the inadequacies of the current Firearms Act and what the government means by the limitations of those current provisions that obviously justify the introduction of the FPO framework. The second-reading speech then goes on to say:

FPOs will be used in scenarios where no other appropriate mechanism exists to prevent a person from obtaining a firearm, but sufficient intelligence exists to indicate that it is contrary to the public interest for that person to possess a firearm.

That is also a very strong statement, and it introduces a number of elements that are not reflected in the bill. The second-reading speech talks about preventing a person obtaining a firearm, so obviously that suggests there is an intention to obtain a firearm, which is not an element of the bill. It also talks about sufficient intelligence to indicate that it is contrary to the public interest for a person to possess a firearm, which also is an element broader than what is contained in the bill. Those are matters that we will expect the minister to be able to address in relation to the FPO framework when we get into committee.

I would now like to jump to what the bill actually says with respect to firearm prohibition orders, in contrast to what was set out as a rationale in the minister's second-reading speech, which essentially indicates that the FPO framework is to address concerns at the margin, to address what you might describe as exceptional circumstances where the current framework does not work and there is a need for a type of intervention — that it would be an extreme intervention. We have heard through the debate that the powers created under FPOs are very substantial to give the police a lot of discretion around interventions, and we therefore need to reconcile the statement about the use in the second-reading speech with the practicalities of the bill.

The bill seeks through part 4A to be inserted into the Firearms Act to create the framework for FPOs. The key elements that come into play are the factors that the chief commissioner must take into account in issuing an FPO. Just to refer to proposed section 112E, in summary:

The Chief Commissioner may make a firearm prohibition order only if the Chief Commissioner is satisfied —

the first element is the chief commissioner's satisfaction as to the circumstances, so it comes down to what the chief determines in his view is satisfactory, which is obviously an element that goes to the chief commissioner's judgement —

that it is in the public interest —

which again is obviously largely up to the discretion of the chief commissioner as to what is the public interest in the circumstances —

to do so …

It then sets down some criteria. The first is:

(a) because of the criminal history of the individual …

That is pretty straightforward. If a person has a criminal history, that is obviously on the record. The second element, though, is where the FPO framework becomes very broad, because the second element is:

(b) because of the behaviour of the individual …

and the third element is:

(c) because of the people with whom the individual associates …

Putting that section together, it states that the chief commissioner may make an FPO if they are satisfied that it is in the public interest because of the behaviour of the individual or because of the people with whom the individual associates. That is very broad. There is no requirement under those criteria for the chief commissioner to believe the person is seeking access to a firearm or has had access to a firearm or wants access to a firearm. Indeed those criteria could be applied to any person, including someone who has never had any association with a firearm, who may never in their life have possessed, owned or fired a firearm and who may have no intention of possessing, owning or firing a firearm. Looking around the chamber, somebody like Ms Pennicuik could, if the chief commissioner deemed it to be in the public interest because of the behaviour of the individual or because of the people with whom the individual associates, be made subject to an FPO. If a person is merely associated with people who have been involved with a political activity that the chief commissioner deemed to their own satisfaction raised some public interest element, the chief commissioner could issue an FPO.

I use Ms Pennicuik as an example because I suspect Ms Pennicuik has never owned or fired a firearm and is not likely to do so, yet she could by virtue of the people with whom she associates be subject to an FPO, if the chief commissioner deems it should be so, even though she would never have any intention of owning a firearm. Yesterday we had some nut job hanging off the roof of Parliament protesting against logging. Arguably the nut job hanging off the roof of Parliament yesterday could be someone associated with the Greens party and potentially could be brought into play in respect of the types of people that an individual associates with.

It is a serious point that an FPO could be applied to somebody who has had no association with firearms and no intention of any association with firearms. A relationship with firearms is not necessary for the chief commissioner to issue an FPO, provided they are satisfied that it is in the public interest on the grounds of the people the individual associates with or the conduct of the individual, which may have absolutely nothing to do with firearms. Once an FPO is in place it then triggers the framework around preventing a person from being in premises where there are firearms. Of course in Parliament House there are firearms — all the protective services officers (PSOs) carry firearms — and on that basis arguably a person with an FPO could not enter Parliament House or enter the courts, where there are PSOs with firearms. The example of police stations has also been raised.

No individual is going to know which private homes or private buildings hold firearms, so there is potentially a significant restriction on the movement of a person who is subject to an FPO, even though that person may never have had a firearm, been associated with a firearm or wanted a firearm, because a relationship with a firearm is not necessary for the imposition of an FPO. Likewise a person who is subject to an FPO is then subject to the warrantless stop-and-search provisions, which are contained in new sections 112Q and 112R to be inserted by the bill.

I know Ms Pennicuik spoke about the circumstances which have pertained in New South Wales and have been reported on in the New South Wales Ombudsman's report. What is worthy to note with this bill is that the stop-and-search provisions for premises and individuals do not require reasonable suspicion. They merely provide that:

A police officer, without warrant or consent, may exercise any of the powers under subsection (2) —

which are the search powers —

if the exercise of the power is reasonably required to determine whether an individual …

is breaching an FPO — whether they possess a firearm et cetera. There is no requirement for reasonable suspicion that they are breaching, merely that the search is reasonably required to determine whether they are breaching. Arguably, if you want to determine if someone possesses a firearm part, you need to search them; it is reasonably required to search them to determine whether they possess the part of a firearm. You do not need any reasonable suspicion that they do; you just need it to be reasonably required to search them to actually determine that they do not. That means these provisions can be applied very broadly. The fact that there is no requirement for reasonable suspicion and the fact that these orders can be applied to any person, including a person who has never had any association with firearms, means these powers are very, very significant. We believe that it is appropriate that their application be available on a narrow basis.

The bill proposes that police officers down to the rank of superintendent be able to issue FPOs. That means there would be 122 sworn officers who could potentially issue FPOs based on the data from this year's Victoria Police annual report — obviously one chief commissioner, three deputy commissioners, 15 assistant commissioners, 11 commanders and 92 superintendents. The bill also allows certain executive officers who work for the chief commissioner under the Public Administration Act 2004 to issue them, and there are some 21 executive officers employed by the chief commissioner under that act. So there are 143 people that currently would be able to issue these FPOs, which provide incredibly broad stop-and-search powers which are not necessarily related to a person ever wanting a firearm. We believe that provision should be narrowed to only assistant commissioner and above.

Likewise we believe that the review of the issuing of FPOs should not be undertaken by VCAT but should be actually lifted to the Magistrates Court — to a higher level of jurisdiction — because of the very broad application that is potentially available with these orders. Likewise the application of this order, which is currently proposed to be 10 years, should be limited to five years. The potential for these orders to impact on the movement of individuals and to provide capacity for them to be stopped and searched randomly is very, very significant. It is not unreasonable that that order apply for five years and then, if the circumstances still pertain, for a new order to be issued, but we believe to issue orders for 10 years initially is a step too far.

For that reason Mr O'Donohue has circulated amendments to require that reviews of FPOs be undertaken by the Magistrates Court rather than VCAT, to limit the delegation powers available to the chief commissioner down to the rank of assistant commissioner only and to limit the application period of FPOs to five years rather than 10. None of these provisions impede the use of FPOs, but they do provide a higher level of rigour, a higher level of oversight, for a mechanism which the minister in the second-reading speech indicated is meant to be used in exceptional circumstances where other laws are not providing sufficient safeguards. We accept that there is a need for FPOs, but we recognise that the legislation as drafted allows them to be applied on a very, very wide basis and with insufficient safeguards to protect the civil liberties of Victorian citizens. We believe those amendments are important. We would urge all members of the house to support those amendments in the consideration of this bill.

In the time remaining, Mr Bourman has introduced amendments which reflect the private member's bill he brought to this house some months ago. As members will recall, that private member's bill was supported by the Legislative Council and has languished in the other place. His amendments reflect that private member's bill. For that reason the coalition will support Mr Bourman's amendments so that private member's bill, which was supported by this chamber, can be given effect by way of amendments to the bill today.

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