This speech was delivered on 15/10/2013 in the NSW Upper House. You can read the full debate online here.
Mr DAVID SHOEBRIDGE [3.21 p.m.]: The Greens support substantial elements of the Firearms and Criminal Groups Legislation Amendment Bill 2013. However, we have some significant concerns about the lack of checks and balances, which I will address now and during the Committee stage. The object of the bill is to:
- (a) … empower police officers without warrant to enter premises or a vehicle occupied by a person who is subject to a firearms prohibition order, and to conduct searches for firearms, firearm parts and ammunition, for the purposes of determining whether the person is complying with the order …
That power is codified in proposed section 74A, which provides:
Powers of police to search for firearms in possession of person subject to firearms prohibition order
- (1) The powers of a police officer under this section may be exercised as reasonably required for the purposes of determining whether a person who is subject to a firearms prohibition order has committed an offence under section 74 (1), (2) or (3).
The key search power is provided in proposed new subsection (2), which states:
- (2) A police officer may:
- (a) detain a person who is subject to a firearms prohibition order, or
- (b) enter any premises occupied by or under the control or management of such a person, or
- (c) stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person, and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearms, firearm parts or ammunition.
Proposed subsection (3) provides:
- In this section, premises includes any place, whether built on or not.
This is the key power in this legislation; in effect, it provides police officers with the power to conduct random searches of people who are the subject of a firearms prohibition order. It is therefore not a power that can be exercised at large; it can be exercised only with regard to persons who have been issued with a firearms prohibition order by the Commissioner of Police. The very real concern is that this legislation gives police officers a warrantless search power. There is an argument that police officers should be able to conduct random searches of persons who are the subject of a firearms prohibition order to ensure that they do not have a firearm in their possession, that they are not attending a gun club, that they do not have ammunition in their possession, and that they are not staying at a premises at which someone has a firearm or ammunition.Indeed, The Greens support the extended scope of firearms orders as proposed in this legislation to the extent that it extends the effect of an order. However, we are extremely concerned that these powers are being provided without any checks and balances. As it stands, a person who has been the subject of a series of random searches at their workplace, their home or while driving a car cannot request a review of the exercise of those powers. The Greens are proposing an important and essential amendment that would allow such persons to lodge an application with the Local Court to declare a search to have been unlawful on the basis that it was unreasonable, unjust, oppressive or otherwise an abuse of power.It also proposes to allow such persons to seek remedies, including an order about the inadmissibility of the evidence gained and a form of modest relief if the police have been found to have conducted one or a series of searches that were found to be unreasonable, unjust, oppressive or otherwise an abuse of power. An order could then be issued that the police are not entitled to conduct a further search under proposed section 74A for a period not exceeding three months. Of course, that would not prevent the police, if they had criminal intelligence, from obtaining a search warrant. The amendment will provide an important check on what would otherwise be a warrantless search power. I say that in the context of the understanding that, provided there are sufficient checks and balances, it is not entirely inappropriate for the police to have the ability to conduct random searches of people who are the subject of a firearms prohibition order.In addition to the existing prohibition on possessing or using a firearm, the bill proposes to prohibit a person who is the subject of a firearms prohibition order from acquiring or possessing firearm parts or ammunition, from residing at premises where there are firearms, and from attending certain other places such as gun shops and shooting ranges. The Greens support that aspect of the bill. People are the subject of firearms prohibition orders for a variety of reasons. Briefings provided by the Government indicated that a number of people have been the subject of a firearms prohibition order because they have been involved in domestic violence or have significant mental health issues, which means that they would be a substantial threat to people known to them or to the community at large if they were allowed to get their hands on a firearm.The police also want to be able to issue orders against people who they have good reason to believe are members of organised criminal groups and thereby have access to firearms. It is important in those circumstances that the police have the capacity to check whether the order is being observed. Indeed, it is only rational that those who are the subject of firearms prohibition orders not only be prevented from owning a firearm but also that that prohibition include acquiring or possessing firearm parts or ammunition, going to gun shops and shooting ranges, or residing with people who own firearms. The Greens support that aspect of the legislation.
The bill also proposes to modify the existing offences relating to the sale and purchase of firearms, firearms parts and ammunition so that they apply instead to the supply or the transfer of ownership, by sale, gift or otherwise, and acquisition—that is, accepting or receiving those things. The broadening of those offences is consistent with the 1996 National Firearms Agreement. The bill also includes a new offence of giving possession, which includes lending a firearm or firearm part to a person who is not authorised to possess it. I am surprised that that is not already an offence and The Greens support that provision. It also provides that any person who attempts to commit an offence under the principal Act is liable to the penalty for that offence. Again, that is a necessary clarification of the existing law, and particularly the Firearms Act.
The bill amends the Restricted Premises Act 1943 to increase penalties under that Act for offences relating to reputed criminals attending premises declared by the Supreme Court or District Court under that Act, and to empower police officers without warrant to enter such premises and conduct searches for firearms. That updates the penalties in an Act that has been on the statute books for 70 years. The updating of the penalties, which is all that part of the amending bill relates to, appears to be consistent with penalties for similar offences in other parts of the New South Wales statutes.There has been some vociferous opposition to this legislation from what I would call the firearms lobby. That lobby group has attacked the Government’s moves on the basis that they infringe people’s rights to have firearms, people’s rights to have a firearms licence and to be free from police oversight if they have a firearms licence. That is an analysis that The Greens comprehensively reject. There is no right to have a firearm in New South Wales under New South Wales statute law. There is no right to bear arms in this State. In fact, there is no right to bear arms in any of Australia’s States or Territories. The attempt by the firearms lobby to convince the Australian people they ought to have a right to bear arms—a right that has led the United States down a deeply troubling and violence-filled path—needs to be rejected by all political parties in this Chamber.
The Greens reject the argument that a curtailment of people’s rights as firearms owners is somehow a fundamental curtailment of their civil rights. It is not. However, the one aspect of this bill that greatly troubles The Greens is the lack of oversight and the lack of review of those warrantless searches by the New South Wales police. It is a matter about which we have been involved in some dialogue with the Government over previous days. I hope that the Government and other members will support The Greens amendment to give reasonable oversight of warrantless searches in this bill. I will save the balance of my contribution in relation to the warrantless searches aspect of the bill until the Committee consideration.