South Australian Numbered Acts South Australian Numbered ActsAfter section 21 insert:
Part 3A—Weapons etc
21A—Interpretation
(1) In this Part—
"body armour" means a protective jacket, vest or other article of apparel designed to resist the penetration of a projectile discharged from a firearm;
"criminal intelligence" means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety;
"dangerous article" means an article or thing declared by regulation to be a dangerous article for the purposes of this Part;
"District Court" means the Administrative and Disciplinary Division of the District Court;
"implement of housebreaking" includes a picklock key, crowbar, jack, bit or other implement of housebreaking;
"knife" includes a blade (for example a knife blade or razor blade);
"licensed premises" means premises licensed under the Liquor Licensing Act 1997 ;
"night" means the interval between 9 pm on one day and 6 am on the next day;
"offence of violence" means an offence where the offender—
(a) uses a weapon, or threatens to use a weapon, against another; or
(b) inflicts serious harm on another, or threatens to inflict serious harm on another,
for the purpose of committing the offence, or escaping from the scene of the offence;
"offensive weapon" includes a rifle, gun, pistol, knife, sword, club, bludgeon, truncheon or other offensive or lethal weapon or instrument but does not include a prohibited weapon;
"prohibited weapon" means an article or thing declared by regulation to be a prohibited weapon for the purposes of this Part;
"school" means a primary or secondary school;
"suitable for combat", in relation to a knife, means suitable for use as a weapon for inflicting injury on a person or causing a person to fear injury;
"violent behaviour" means an unlawful act inflicting injury on a person or causing a person to fear injury.
(2) For the purposes of this Part, a person will be taken to be "carrying" a weapon or article if he or she has the weapon or article on or about his or her person or if it is under his or her immediate control.
21B—Body armour
(1) A person who, without the approval in writing of the Commissioner—
(a) manufactures, sells, distributes, supplies or otherwise deals in, body armour; or
(b) uses or has possession of body armour,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(2) The Commissioner may, subject to such conditions and limitations as the Commissioner thinks fit, give an approval to a person or a class of persons for the purposes of subsection (1) and may revoke an approval or revoke or vary the conditions or limitations under which an approval operates.
(3) The giving or a variation or revocation of an approval that applies to a class of persons must be notified in the Gazette.
21C—Offensive weapons and dangerous articles etc
(1) A person who, without lawful excuse—
(a) carries an offensive weapon or an article of disguise; or
(b) has possession of an implement of housebreaking,
is guilty of an offence.
Maximum penalty: $2 500 or imprisonment for 6 months.
(2) A person who, without lawful excuse—
(a) manufactures, sells, distributes, supplies, or otherwise deals in, dangerous articles; or
(b) uses or has possession of a dangerous article,
is guilty of an offence.
Maximum penalty: $7 500 or imprisonment for 18 months.
(3) A person who, without lawful excuse, carries an offensive weapon or dangerous article at night while in, or while apparently attempting to enter or leave—
(a) licensed premises; or
(b) a carparking area specifically or primarily provided for the use of patrons of the licensed premises,
is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(4) It is a defence to prosecution for an offence against subsection (3) to prove that—
(a) if the charge relates to the defendant's being in, or apparently attempting to enter or leave, licensed premises—the defendant did not know and had no reason to believe that the premises were premises of a kind where liquor was sold or supplied; or
(b) if the charge relates to the defendant's being in, or apparently attempting to enter or leave, a carparking area specifically or primarily provided for the use of patrons of the licensed premises—the defendant did not know and had no reason to believe that the area was such a carparking area.
(5) If on the trial of a person for an offence against subsection (3) the court is not satisfied that the person is guilty of the offence charged, but is satisfied that the person is guilty of an offence against subsection (1) or (2), the court may find the person guilty of the offence against subsection (1) or (2).
(6) A person (being a person who is otherwise entitled to do so) must not use or have possession of a dangerous article unless he or she does so in a safe and secure manner.
Maximum penalty: $1 250 or imprisonment for 3 months.
(7) A person who, without lawful excuse—
(a) uses an offensive weapon; or
(b) carries an offensive weapon that is visible,
in the presence of any person in a school or public place in a manner that would be likely to cause a person of reasonable firmness present at the scene to fear for his or her personal safety, is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 2 years.
(8) For the purposes of an offence against subsection (7), no person of reasonable firmness need actually be, or be likely to be, present at the scene.
(9) If on the trial of a person for an offence against subsection (7), the court is not satisfied that the person is guilty of the offence charged, but is satisfied that the person is guilty of an offence against subsection (1)(a), the court may find the person guilty of the offence against subsection (1)(a).
21D—Unlawful selling or marketing of knives
(1) A person who sells a knife to a minor who is under the age of 16 years is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(2) It is a defence to prosecution for an offence against subsection (1) to prove that—
(a) the seller requested the minor to produce evidence of age of a kind prescribed by regulation; and
(b) the minor made a false statement or produced false evidence in response to that request; and
(c) in consequence, the seller reasonably assumed that the minor was of or above the age of 16 years.
(3) A person who makes a false statement or produces false evidence in response to a request by a seller made in accordance with subsection (2)(a) is guilty of an offence.
Maximum penalty: $1 250.
(4) A person who markets a knife in a way that—
(a) indicates, or suggests, that the knife is suitable for combat; or
(b) is otherwise likely to stimulate or encourage violent behaviour involving the use of the knife as a weapon,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(5) For the purposes of this section, an indication or suggestion that a knife is suitable for combat may (without limitation) be given or made by a name or description—
(a) applied to the knife; or
(b) on the knife or on any packaging in which it is contained; or
(c) included in any advertisement which, expressly or by implication, relates to the knife.
(6) For the purposes of this section, a person "markets" a knife if the person—
(a) sells or hires the knife; or
(b) offers, or exposes, the knife for sale or hire; or
(c) has possession of the knife for the purpose of sale or hire.
21E—Knives in schools and public places
A person who, without lawful excuse, has possession of a knife in a school or public place is guilty of an offence.
Maximum penalty:
(a) for a first offence—$2 500 or imprisonment for 6 months;
(b) for a subsequent offence—$5 000 or imprisonment for 12 months.
21F—Prohibited weapons
(a) manufactures, sells, distributes, supplies or otherwise deals in, prohibited weapons; or
(b) uses or has possession of a prohibited weapon,
is guilty of an offence.
Maximum penalty: $20 000 or imprisonment for 2 years.
(2) It is a defence to prosecution for an offence against subsection (1) to prove that the defendant was, in accordance with—
(a) Schedule 2; or
(b) a declaration made by the Minister under subsection (3),
an exempt person in the circumstances of the alleged offence.
(a) may declare a person to be exempt from subsection (1) in the circumstances specified in the declaration; and
(b) may, on the Minister's own initiative, vary or revoke such a declaration (provided that such variation or revocation is of no effect unless the person has been given notice of the variation or revocation).
(4) The declaration by the Minister under subsection (3) may be conditional or unconditional.
(5) An application to the Minister for a declaration must be—
(a) in a form approved by the Minister; and
(b) accompanied by the fee prescribed by regulation.
(6) The Minister must not make a decision on an application for a declaration unless he or she has consulted with the Commissioner.
(7) A person aggrieved by a decision of the Minister to vary or revoke a declaration may appeal against the variation or revocation to the District Court.
(8) The Minister may delegate his or her powers under this section to any person or body.
(9) A delegation under subsection (8)—
(a) must be in writing; and
(b) may be conditional or unconditional; and
(c) does not derogate from the Minister's ability to exercise the power under this section; and
(d) is revocable at will by the Minister.
(10) If the Minister has not given the person reasons in writing for making the decision appealed against, the Minister must do so on request made within 28 days after the person received notice of the decision.
(11) If a decision was made because of information that is classified by the Commissioner as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.
(12) An appeal under this section must be made—
(a) within 28 days after the person received notice of the decision appealed against; or
(b) if a request for reasons in writing is made under subsection (10)—within 28 days after the person received the reasons in writing.
(13) On an appeal under this section, the Court—
(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of Superintendent.
(14) A person (being a person who is otherwise entitled to do so) must not use or have possession of a prohibited weapon unless he or she does so in a safe and secure manner.
Maximum penalty: $1 250 or imprisonment for 3 months.
21G—Information relating to knife related injuries
(1) If a medical practitioner or a registered or enrolled nurse has reasonable cause to suspect in relation to a person who he or she has seen in his or her professional capacity that the person is suffering from a wound inflicted by a knife, the medical practitioner or nurse must, as soon as practicable after forming the suspicion, make a report to the prescribed person or body containing—
(a) details of the wound; and
(b) any information provided to the practitioner or nurse about the circumstances leading to the infliction of the wound (other than information tending to identify the person).
(2) Subsection (1) does not apply if, in the opinion of the medical practitioner or the nurse, the injuries are not serious and the medical practitioner or nurse believes on reasonable grounds that the injuries were accidental.
(3) A person incurs no civil or criminal liability in taking action in good faith in compliance, or purported compliance, with this section.
(4) In this section—
"enrolled nurse" means a person registered under the Health Practitioner Regulation National Law —
(a) to practise in the nursing and midwifery profession as a nurse (other than as a student); and
(b) in the enrolled nurses division of that profession;
"medical practitioner" means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
"registered nurse" means a person registered under the Health Practitioner Regulation National Law —
(a) to practise in the nursing and midwifery profession as a nurse (other than as a student); and
(b) in the registered nurses division of that profession.
21H—Weapons prohibition order issued by Commissioner
(1) The Commissioner may issue a weapons prohibition order against a person if satisfied that—
(a) the person has (whether before or after the commencement of this section)—
(i) been found guilty of an offence of violence; or
(ii) been declared liable to supervision under Part 8A of the Criminal Law Consolidation Act 1935 by a court dealing with a charge of an offence of violence; and
(b) possession of a prohibited weapon by the person would be likely to result in undue danger to life or property; and
(c) it is in the public interest to prohibit the person from possessing and using a prohibited weapon.
(2) A weapons prohibition order must be served on the person personally and is not binding on the person until it has been so served.
(3) If the Commissioner proposes to issue a weapons prohibition order against a person, a police officer may—
(a) require the person to remain at a particular place while the order is prepared and issued so that the order may be served on the person; and
(b) if the person refuses or fails to comply with the requirement or the officer has reasonable grounds to believe that the requirement will not be complied with, arrest and detain the person in custody (without warrant) for—
(i) so long as may be necessary for the order to be served on the person; or
(ii) 2 hours,
whichever is the lesser.
(4) A weapons prohibition order served on a person must be accompanied by a notice—
(a) setting out the Commissioner's reasons for issuing the order; and
(b) setting out the terms and the effect of the order; and
(c) stating that the person may, within 28 days, appeal to the District Court against the order.
(5) If the decision to issue the order was made because of information that is classified by the Commissioner as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.
(6) Subject to subsection (7), a weapons prohibition order issued against a person remains in force for a period of 3 years from the date on which it was served on the person or for such lesser period as may be specified in the order.
(7) The Commissioner may, on his or her own initiative or on application, by notice in writing served personally or by post on a person, revoke a weapons prohibition order issued against the person.
(8) For the avoidance of doubt, the fact that a weapons prohibition order issued against a person has ceased to be in force in accordance with subsection (6), or has been revoked in accordance with subsection (7), does not prevent the Commissioner from issuing a subsequent weapons prohibition order against the person in accordance with this section.
21I—Effect of weapons prohibition order
(1) A person to whom a weapons prohibition order applies is disqualified from obtaining an exemption under section 21F.
(2) While a weapons prohibition order applies to a person—
(a) any exemption under Schedule 2 does not apply in relation to the person unless the Schedule expressly provides that it will apply to such a person; and
(b) any exemption held by the person under section 21F is suspended.
(3) A person to whom a weapons prohibition order applies must not manufacture, sell, distribute, supply, deal with, use or possess a prohibited weapon.
Maximum penalty: $35 000 or imprisonment for 4 years.
(4) A person to whom a weapons prohibition order applies—
(i) a place at which a person carries on the business of manufacturing, repairing, modifying or testing prohibited weapons or buying, selling or hiring out, prohibited weapons; or
(ii) any other place of a kind prescribed by regulation; and
(b) must not be in the company of a person who has a prohibited weapon on or about his or her person or under his or her immediate physical control.
Maximum penalty: $10 000 or imprisonment for 2 years.
(5) It is a defence to prosecution for an offence against subsection (4)(a) to prove that the person did not know, and could not reasonably be expected to have known, that the place was a place of a kind referred to in that paragraph.
(6) It is a defence to prosecution for an offence against subsection (4)(b) to prove that the person did not know, and could not reasonably be expected to have known, that the other person had a prohibited weapon on or about his or her person or under his or her immediate physical control.
(7) A person to whom a weapons prohibition order applies must—
(a) as soon as reasonably practicable after becoming aware of the presence of a prohibited weapon on premises at which the person resides, notify the Commissioner of that fact in the manner (if any) prescribed by the regulations; and
(b) comply with—
(i) a direction of the Commissioner, given in response to that notification, that the person must not reside at the premises; or
(ii) any other direction of the Commissioner, given in response to that notification, in relation to the weapon.
Maximum penalty: $10 000 or imprisonment for 2 years.
(8) A person must not supply a prohibited weapon to a person to whom a weapons prohibition order applies or permit such a person to gain possession of a prohibited weapon.
Maximum penalty: $35 000 or imprisonment for 4 years.
(9) It is a defence to prosecution for an offence against subsection (8) to prove that the person did not know, and could not reasonably be expected to have known, that a weapons prohibition order applies to the person.
(10) For the purposes of this section, if a person to whom a weapons prohibition order applies is on or in premises or a vehicle, vessel or aircraft (other than any premises, vehicle, vessel or aircraft to which the public are admitted) when a prohibited weapon is found on or in the premises, vehicle, vessel or aircraft, the person will be taken to possess the weapon unless it is proved that—
(a) the person has notified the Commissioner of the presence of the weapon in accordance with subsection (7); or
(b) the person did not know, and could not reasonably be expected to have known, that the weapon was on or in the premises, vehicle, vessel or aircraft.
(11) The Commissioner may exempt a person, unconditionally or subject to conditions, from a specified provision of this section and may vary or revoke an exemption by notice in writing served personally or by registered post on the holder of the exemption.
21J—Right of appeal to District Court
(1) A person aggrieved by a decision of the Commissioner—
(a) to issue a weapons prohibition order under section 21H; or
(b) to vary or revoke an exemption under section21I(11),
may appeal against the decision to the District Court.
(2) If the Commissioner has not given the person reasons in writing for making the decision appealed against, the Commissioner must do so on request made within 28 days after the person received notice of the decision.
(3) If a decision was made because of information that is classified by the Commissioner as criminal intelligence, the only reason required to be given is that the decision was made on public interest grounds.
(4) An appeal under this section must be made—
(a) within 28 days after the person received notice of the decision appealed against; or
(b) if a request for reasons in writing is made under subsection (2)—within 28 days after the person received the reasons in writing.
(5) On an appeal under this section, the Court—
(a) must, on the application of the Commissioner, take steps to maintain the confidentiality of information classified by the Commissioner as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner by way of affidavit of a police officer of or above the rank of Superintendent.
21K—Reports relating to weapons prohibition orders
The following information must be included in the annual report of the Commissioner under section 75 of the Police Act 1998 (other than in the year in which this section comes into operation):
(a) the number of weapons prohibition orders issued under section 21H;
(b) the number of weapons prohibition orders revoked under section 21H;
(c) the number of appeals under section 21J and the outcome of each appeal that has been completed or finally determined;
(d) any other information requested by the Minister.
21L—Power to search for prohibited weapons
(1) A police officer may, as reasonably required for the purpose of ensuring compliance with a weapons prohibition order issued by the Commissioner—
(a) detain a person to whom this subsection applies and search the person for prohibited weapons; and
(b) stop and detain a vehicle, vessel or aircraft to which this subsection applies and search the vehicle, vessel or aircraft for prohibited weapons; and
(c) enter premises to which this subsection applies and search the premises for prohibited weapons.
(2) Subsection (1) applies—
(a) to a person to whom a weapons prohibition order issued by the Commissioner applies; and
(b) to a vehicle, vessel or aircraft that a police officer suspects on reasonable grounds is in the charge of a person to whom the subsection applies; and
(c) to premises that a police officer suspects on reasonable grounds are occupied by, or under the care, control or management of, a person—
(i) who the police officer suspects on reasonable grounds of contravening a weapons prohibition order; or
(ii) who has previously contravened a weapons prohibition order.
(3) If a prohibited weapon is delivered or seized under this section, it must be forwarded immediately to the Commissioner.
21M—Forfeiture
A court that has convicted a person of an offence against this Part may order that the weapon, implement or article in relation to which the offence was committed be forfeited to the Crown.
21N—General amnesty
(1) The Commissioner may, with the approval of the Minister, from time to time declare a general amnesty from 1 or more of the provisions of this Part.
(2) An amnesty—
(a) must be declared by notice in the Gazette and in a newspaper circulating generally throughout the State; and
(b) applies in relation to the provision or provisions of this Part specified in the notice, either generally or subject to limitations specified in the notice (the "relevant provisions"); and
(c) applies for the period specified in the notice; and
(d) applies for the benefit of all members of the class or classes of persons affected by the relevant provisions; and
(e) is subject to the terms and conditions (if any) set out in the notice.
(3) The Commissioner may, with the approval of the Minister, vary or revoke the declaration of an amnesty under subsection (1) by notice in the Gazette and in a newspaper circulating generally throughout the State.
21O—Regulations
Regulations made for the purposes of this Part may, without limitation—
(a) prescribe circumstances in which a person will be taken to have a lawful excuse in relation to an act or omission referred to in section 21C or 21E; and
(b) provide that this Part or specified provisions of this Part do not apply to a specified class of persons; and
(c) provide that this Part or specified provisions of this Part do not apply to a specified class of weapon, implement or article; and
(d) prescribe evidentiary provisions to facilitate proof of an offence against this Part.