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Control of Weapons and Firearms Acts (Search
Powers) Bill
Circulation Print
EXPLANATORY MEMORANDUM
General
The purpose of this Bill is to amend the Control of Weapons Act 1990 and
the Firearms Act 1996 to--
· lower the standard of conviction required by a police member
(and an authorised Natural Resources and Environment officer
under section 153A of the Firearms Act 1996) to justify a
search without warrant;
· provide additional safeguards against the potential abuse of
increased search powers; and
· require annual reports to the Minister on the exercise of those
powers; and
· make other miscellaneous amendments.
Clause 1 sets out the purpose of the Bill.
Clause 2 provides for Part 1 of the Bill to come into operation on the day
after the day on which the Bill receives Royal Assent and the
remainder of the Bill to come into operation upon proclamation.
Any provision not proclaimed before 1 January 2004 will come
into operation on that day.
Clause 3 inserts a definition of "non-government school" in section 3 of
the Control of Weapons Act 1990. It defines non-government
schools as those listed on the register kept under section 37(1) of
the Education Act 1958 or schools granted approval to open
under section 42 of that Act or the land or premises connected
with those schools.
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Clause 4 amends section 7 of the Control of Weapons Act 1990 to
provide that it is an offence to carry a dangerous article without a
lawful excuse in a non-government school as well as in a public
place. State schools are already included in the definition of
public place.
Clause 5 inserts new section 8G in the Control of Weapons Act 1990.
It gives a member of the police force, who has reasonable
grounds for suspecting that a person has contravened section 5 or
is carrying a prohibited weapon the power to demand that the
person produce an approval, granted under section 8C of the Act,
to carry the weapon. It also states that section 8G does not apply
to a person who is exempted under section 8B of the Act from the
prohibition on carrying a prohibited weapon. The member of the
police force making the demand must produce identification for
inspection by the person.
Clause 6 substitutes section 10 of the Control of Weapons Act 1990.
It enables a police member to conduct a search without warrant
for a prohibited weapon, a controlled weapon or certain
dangerous articles in a public place or a non-government school
in certain circumstances. It differs from the existing section 10 in
that it--
· requires the police member to have reasonable grounds
for suspecting, rather than believing, a person has a
prohibited, controlled weapon or dangerous article;
· provides that the fact the person is in a location with a
high incidence of violent crime is a relevant
consideration in forming the reasonable grounds for
suspicion;
· requires the police member, before conducting the
search, to inform the person of the member's name, rank
and place of duty and, if not in uniform, produce his or
her police identification;
· allows the police member to demand production of a
suspected weapon or dangerous article detected or seen
during the search;
· makes it an offence punishable by a fine of up to $3000
for a person to refuse or fail to produce the detected
thing upon demand without reasonable excuse; and
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· applies not only to prohibited weapons and controlled
weapons but also to articles which have been adopted or
modified so as to be capable of being used as weapons.
Clause 6 also inserts new sections 10A and 10B in the Control of
Weapons Act 1990, which--
· require members of the police force to make records
concerning such searches;
· provide a right for those searched to obtain a copy of the
record of the search; and
· require the Chief Commissioner of Police to provide an
annual report to the Minister on the details of searches
without warrant conducted under the Control of
Weapons Act 1990.
Clause 7 extends the regulation-making power in section 12 of the
Control of Weapons Act 1990 to enable the prescription of the
manner in which searches are to be conducted and the particulars
to be included in records of searches.
Clause 8 inserts new section 14 in the Control of Weapons Act 1990
which provides that the existing section 10 continues to apply to
searches (and alleged offences related to searches) conducted
before the commencement of the new section 10.
Clause 9 substitutes section 149 of the Firearms Act 1996. It provides a
member of the police force with the power to search without
warrant if the member has reasonable grounds for suspecting a
person is committing or is about to commit an offence against the
Firearms Act 1996 and the person has a firearm or cartridge
ammunition in their possession. It differs from the existing
section 149 in that it--
· requires the police member to have reasonable grounds
for suspecting, rather than believing, that a person is
committing an offence against the Firearms Act 1996
and has a firearm or cartridge ammunition;
· provides that the fact the person is in a location with a
high incidence of violent crime is a relevant
consideration in forming the reasonable grounds for
suspicion;
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· requires the police member, before conducting the
search, to inform the person of the member's name, rank
and place of duty and, if not in uniform, produce his or
her police identification;
· allows the police member to demand production of a
suspected firearm detected or seen during the search;
and
· makes it an offence punishable by a fine of up to $3000
for a person to refuse or fail to produce the detected
thing upon demand without reasonable excuse.
Clause 9 also inserts new section 149A in the Firearms Act 1996
requiring a member of the police force to make records
concerning such searches and provides a right for those searched
to obtain a copy of the record of the search.
Clause 10 amends section 150(1)(a) of the Firearms Act 1996 to allow a
member of the police force to require production of a firearms
licence or permit if the member has reasonable grounds to
suspect (rather than reasonable grounds to believe) that a person
has committed or is about to commit an offence against that Act
or is in possession of a firearm.
Clause 11 amends section 153A of the Firearms Act 1996 to amend the
power of authorised officers appointed under the Conservation,
Forests and Lands Act 1987 to search without warrant if the
officer has reasonable grounds for suspecting that a person has a
firearm or cartridge ammunition in their possession and is
committing or is about to commit an offence on land
administered by the Minister administering the Conservation,
Forests and Lands Act 1987 or if the authorised officer is acting
in accordance with his or her duties under the Wildlife Act 1975
or the Fisheries Act 1995. It differs from the existing
section 153A in that it--
· requires the authorised officer to have reasonable
grounds for suspecting, rather than believing, that a
person is committing an offence and has a firearm or
cartridge ammunition;
· requires the authorised officer, before conducting the
search, to inform the person of the authorised officer's
name, title, employing agency and place of employment
and to produce his or her identification;
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· allows the authorised officer to demand production of a
suspected firearm or cartridge ammunition detected or
seen during the search; and
· makes it an offence punishable by a fine of up to $3000
for a person to refuse or fail to produce the detected
thing upon demand without reasonable excuse.
Clause 11 also amends section 153A of the Firearms Act 1996
to allow an authorised officer to require production of a firearms
licence or permit if the authorised officer has reasonable grounds
to suspect (rather than reasonable grounds to believe) that a
person is in possession of a firearm or is committing or is about
to commit an offence against the Act on land administered by the
Minister administering the Conservation, Forests and Lands
Act 1987 or if the authorised officer is acting in accordance with
his or her duties under the Wildlife Act 1975 or the Fisheries
Act 1995.
Clause 11 also inserts a new sub-section (5A) in section 153A of
the Firearms Act 1996 which provides that, if an authorised
officer institutes a prosecution for a breach of section 153A,
another authorised officer may appear in the proceeding for the
instituting officer.
Clause 12 inserts new sections 153B and 153C in the Firearms Act 1996
which--
· require an authorised officer to make records
concerning searches under section 153A(1);
· provides a right for those searched to obtain a copy of
the record of the search;
· requires the Chief Commissioner of Police to report
annually to the Minister the details of searches without
warrant conducted by police members under section 149
of the Firearms Act 1996; and
· requires the Secretary of the Department of
Sustainability and Environment to report annually to the
Minister the details of searches conducted by authorised
officers under section 153A(1) of the Firearms Act
1996.
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Clause 13 amends section 176 of the Firearms Act 1996 to ensure that the
Chief Commissioner of Police's obligation to provide an annual
report on searches to the Minister under the new section 153C of
that Act cannot be delegated.
Clause 14 extends the regulation-making power of section 191(1) of the
Firearms Act 1996 to include the prescription of the manner in
which searches are to be conducted and the particulars to be
included in records of searches under the Firearms Act 1996.
Clause 15 inserts a new section 209 in the Firearms Act 1996 which
provides that the existing provisions in sections 149, 150,
153A(1) and 153A(2) continue to apply to searches and demands
for production of a licence or permit occurring before the
commencement of the new provisions.
Clause 16 amends section 60A(1)(a) of the Wildlife Act 1975, which
provides an authorised officer with the power to require the
production of a firearms licence, by replacing "believing" with
"suspecting". This amendment will bring that section into line
with the revised standard of conviction required by an authorised
officer under section 153A of the Firearms Act 1996 to demand
production of a firearms licence.
Clause 17 inserts a new section 92 in the Wildlife Act 1975 which provides
that the existing section 60A of the Wildlife Act 1975 continues
to apply to a demand to produce a licence prior to the
commencement of the amended section 60A.
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