12 March 1991 - Current
Firearms Amendment Bill 2017
21 September 2017
|ASSEMBLY||Statement of compatibility||LISA NEVILLE|
Ms NEVILLE (Minister for Police) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the 'charter'), I make this statement of compatibility with respect to the Firearms Amendment Bill 2017 (the bill).
In my opinion, the bill, as introduced to the Legislative Assembly, is partially incompatible with the right to privacy, and the right of children to such protection as is in his or her best interests as set out in the charter. Nevertheless, I consider that it is appropriate to proceed with these amendments in order to protect the community from the risk of harm associated with firearm-related offending. I base my opinion on the reasons outlined in this statement.
Overview of the bill
The bill relevantly amends the Firearms Act 1996 (the act) to provide for a new firearm prohibition order (FPO) scheme. It also creates offences for possessing, carrying and using firearms in public places and other places, and for possession of parts and equipment for the purpose of manufacturing firearms. Further, it provides for trafficable quantities of unregistered firearms and other minor and related matters.
A FPO is a discretionary order made by the Chief Commissioner of Police prohibiting an individual from acquiring, possessing, carrying or using any firearm or related item. The chief commissioner may make an order only if satisfied that it is in the public interest that the person who will be subject to the FPO not acquire, possess, carry or use a firearm or firearm-related item.
After a FPO has been made, a person subject to a FPO will then be subject to various powers and offence provisions under the act for the period of the order. The search powers associated with a FPO allow a police officer to, without warrant or consent, enter and search the premises of the person subject to the FPO and to search any vehicle, vessel or aircraft that is in the charge of the person subject to the FPO or where they are a passenger thereof. A person subject to a FPO can also be searched by a police officer, and can be detained as long as necessary in order for the search to be conducted. Persons accompanying the person subject to the FPO can also be searched, in line with the act's existing warrantless search powers.
Children aged over 14 years of age can be subject to a FPO.
The current powers in the act and the necessity for the FPO Scheme
Currently, the act provides for a number of mechanisms to prevent firearm-related crime, including a 'prohibited persons' scheme, which can be summarised as applying to a class of persons with either a history of conviction and imprisonment for serious crime, or who are the subject of an intervention order. The act prohibits a 'prohibited person' from possessing, carrying or using a firearm, and subjects a prohibited person to higher penalties (as compared to non-prohibited persons committing similar firearm-related offences) for contravention of this prohibition.
Firearms crime, particularly in the context of serious and organised crime groups, represents a serious threat to community safety. There is clear evidence of an increase in firearm-related violence across Victoria, with crime statistics illustrating a significant rise in various offending that involves the use of firearms. Of significant concern is the level of 'drive-by' shootings, referring to the discharge of firearms in public places frequented by the public (such as shopping centres, parks and residential streets) and non-fatal shootings, often linked to these organised crime groups, with Victoria Police data indicating that drive-by shootings have risen from 27 non-fatal shootings in 2014, to 67 in 2016 and already 47 to date in 2017. Additionally, I am advised that at-risk persons in the counter terrorism context have been actively seeking firearms to execute their criminal activities.
Further, recent seizures of illicit firearms in Victoria also reveal an increase in the proliferation of illicit firearms in Victoria. The Australian Criminal Intelligence Commission reported that there has been a rise in illegal importation of undeclared firearms and particularly firearms parts into Australia. Offenders are developing more sophisticated methods of obtaining or creating firearms, using new technology and the mail system to import illegal firearm parts and accessories.
Consequently, based on advice from Victoria Police, in my opinion, the existing mechanisms and powers in the act do not provide Victoria Police with sufficient powers to protect the community from the risk of harm associated with this type of firearm-related offending. The 'prohibited person' scheme operates 'after the event' and relies on a person's criminal convictions or an intervention order against them. It does not address individuals who are not 'prohibited', but are still of significant concern to police in relation to their risk of firearms related offending.
The new FPO scheme introduced by the bill, will operate in tandem with the current 'prohibited person' scheme. It creates a new mechanism and increased police powers for proactively responding to and preventing this type of firearm-related crime. FPOs are intended to be used by Victoria Police in relation to persons where sufficient intelligence or information holdings exist to indicate that it is contrary to the public interest for that person to possess a firearm. This includes those engaged in serious criminal activities, such as organised crime members and their associates, anyone charged with a prohibited firearms-related offence, or people on bail for a firearms offence.
Other jurisdictions, such as New South Wales and South Australia, have implemented similar schemes to target firearm violence in those states. These schemes have proven successful, with their operation credited with reductions in organised crime related shootings and firearm-related violence.
Human rights issues
Clause 22 of the bill inserts the new FPO scheme into the act, which raises a number of human rights issues.
Nature of FPO orders
New division 3 provides for the making of FPOs. New section 112D provides that the chief commissioner may make an order prohibiting an individual from acquiring, possessing, carrying or using any firearm or related item. New section 112E provides that the chief commissioner may make a FPO in respect of an individual only if the chief commissioner is satisfied that it is in the public interest to do so because of any one or more of the following:
the criminal history of the individual;
the behaviour of the individual;
the people with whom the individual associates;
that the individual may pose a threat or risk to public safety.
The chief commissioner cannot make a FPO in relation to a person who is under 14 years of age. The power to make a FPO may be delegated to Deputy and Assistant commissioners, persons employed by the chief commissioner at an executive level in the Victorian public service, commanders, chief superintendents and select superintendents.
A FPO remains in force for 10 years from the day on which it is served on the individual (or, if the individual is under the age of 18 years when served with the FPO, remains in force for five years from the day on which it is served). A FPO may be revoked at any point by the chief commissioner.
New division 2 of part 4A provides for the key FPO offences, which make it an offence, after being personally served with the order, to acquire, possess, carry or use a firearm or firearm-related item, or enable or permit another person to do so. These offences carry significant maximum penalties of imprisonment. New division 5 provides for further offences, including an offence for a person subject to a FPO to enter or remain on certain premises, or to fail to surrender firearms or firearm-related items when served with a FPO.
New division 5 also provides for new search powers in relation to premises, vehicles, persons subject to a FPO and accompanying persons, and resulting seizure powers relating to firearms or firearm-related items discovered under the powers.
Clause 30 inserts new part 10A into the act, which provides for oversight arrangements in relation to reporting and monitoring on the use of FPOs.
The making of FPOs
A FPO is made by the chief commissioner or delegate (as identified above) at their own discretion, subject the chief commissioner being satisfied that the making of the order is in the public interest in accordance with new s 112E. The bill does not require that a person be given advance notice of the decision or an opportunity to be heard prior to the FPO being made. A FPO must be personally served on the individual to whom it applies, and it then has immediate effect upon service.
Upon being served with a FPO, an individual may apply within 28 days to the Victorian Civil and Administrative Tribunal (VCAT) for a merits review of the chief commissioner's decision to make the order, to be conducted under the Victorian Civil and Administrative Tribunal Act 1998 (VCAT act). In making a decision on review, VCAT will require access to all information and material on which the decision to make the FPO was based, and other relevant information and material. New section 112M provides an individual subject to a FPO an additional right to apply for review of the FPO at the point in time where more than half the duration of the order has expired (which is after five years have elapsed in respect of an adult subject to a FPO, or after two and a half years in respect of a child subject to a FPO). This right to further review may only be exercised once in respect of an order (regardless of whether an individual exercised their initial right to seek review within 28 days).
New s 112N also clarifies the interaction between the FPO scheme and VCAT's procedural provisions relating to matters of Crown privilege. In relation to material on which a decision to make a FPO is before VCAT on review, the Attorney-General may issue a Crown privilege certificate over that material if its disclosure would be contrary to the public interest. The grounds for giving a certificate are the same as public interest immunity. The effect of such a certificate includes:
preventing such information from being provided in any statement of reasons given by the chief commissioner (s 46(4)(b) of the VCAT act);
preventing such information from being disclosed by VCAT to any person other than the member presiding over the review (s 53(2)(a) of the VCAT act); and
excusing any witness giving evidence at review from answering any question that would involve disclosure of that information unless ordered to do so by the president of VCAT if the president considers that it would not be contrary to the public interests for the witness to answer the question (s 55 of the VCAT act).
The practical effect of the above procedural framework is that where the material upon which a decision to make a FPO is based on confidential police intelligence information, it is likely that Crown privilege will be relied on in relation to that information, limiting the amount of information that can be disclosed to a person as to why they have been made subject to a FPO. Alternatively, the chief commissioner will be able to seek orders from VCAT to maintain the confidentiality of the information.
The right to fair hearing (s 24)
Section 24 of the charter provides that a party to a civil proceeding has the right to have the proceeding decided by a competent, independent and impartial tribunal after a fair and public hearing.
The right to a fair hearing is an overarching concept that encompasses a bundle of diverse rights. This includes the right to natural justice, which requires that, prior to a decision being made that will affect a person's rights or interests, that the person be informed of the case against them and be given an opportunity to be heard (also known as the 'hearing rule'). The right also encompasses the related principle of equality of arms, which means the right of a party to know the case against it, to have access to documents or information that are necessary for a fair hearing, and to have a reasonable opportunity to put its case under conditions which do not place that party at a substantial disadvantage in relation to their opponent.
The decision of the chief commissioner
While the authorities have interpreted 'civil proceeding' in section 24(1) broadly, it does not extend to the kind of administrative decision-making that will be undertaken by the chief commissioner. Accordingly, I do not consider that the fair hearing right will be limited by the chief commissioner's (or delegate's) making of a FPO. However, not affording a fair hearing at the initial stage of making a FPO may have implications for other rights protected by the charter, such as the right to protection against arbitrary interferences with privacy. I note that the chief commissioner and any delegates, who are public authorities under the charter, will be required under s 38 of the charter to give proper consideration to relevant rights when making decisions, and to act compatibly with human rights.
The review of the making of a FPO by VCAT
Section 24(1) will apply to the review of a FPO before VCAT, and the right will likely be limited by the potential for a FPO review to be heard and determined on information that is subject to Crown privilege and not disclosed to the applicant. The nature of the limitation extends to preventing full disclosure to a party of all relevant and admissible evidence necessary to defend their own interests in a hearing, preventing the release of adequate and transparent reasons, providing for the hearing to be conducted in closed sessions in the absence of the party, limiting the ability to cross-examine certain witnesses and precluding the power of VCAT to stay the operation of a FPO pending a review.
The need to protect police investigative techniques and intelligence has been accepted by courts as a legitimate and necessary objective justifying limits on the right to a fair hearing. The limitation is rationally connected to achieving the purpose of maintaining the confidentiality of criminal intelligence, which is essential to the proper discharge of police functions.
The High Court has allowed the judicial use of criminal intelligence not disclosed to an affected party or their legal representative, as long as the court or tribunal retain discretion to independently assess classified information, determine whether it should be admitted in secret and how much weight to afford it in terms of fairness to the parties. I note that VCAT retains this independent discretion, including the power (with consent of the president of the VCAT) to grant access to any information subject to a Crown privilege certificate on any conditions the tribunal thinks fit (s 54(3) of the VCAT act), or direct a witness to answer a question that would disclose information subject to a Crown privilege certificate if the tribunal considers it would not be contrary to the public interest to do so (s 55(2) of the VCAT act). The High Court has considered such arrangements to be an appropriate balance between the conclusive nature of a Crown certificate and the rights of the parties in a proceeding, allowing the tribunal to weigh the potential harm of disclosing privileged information against any frustration or impairment to the administration of justice should the information be withheld.
I note that a number of schemes in Victoria provide for the appointment of special counsel to represent an applicant's interests at a closed hearing, which may constitute a less restrictive means. However, where this is the case, information could only be released to persons with an appropriate security vetting, which necessarily involves an intensive process that can take many months before sufficient clearance is gained. This may introduce unacceptable delays in the scheme resulting from the appointment of appropriate special counsel, given there will be a limited pool of available counsel with the requisite security clearance.
I note also that comparative jurisdictions provide for additional means to disclose protected information to an affected party without prejudicing confidentiality, such as providing the gist, or a summary, of credible, relevant and significant information to the affected person.
In my view, such a measure is not reasonably available in these circumstances to achieve the purpose of the limitation. There is a complexity to police intelligence which makes it difficult to release details or provide summaries to affected parties without compromising the intelligence. Information can come from a variety of agencies (including federal or international sources) and have varying levels of classification and protection requirements regarding access and disclosure. A limited pool of special counsel may also impede the efficient and timely hearing and determination of reviews by VCAT, especially as an order cannot be stayed while a review is underway or if there is a high volume of reviews at a given time. Any inappropriate release of such information may place the community at imminent risk of danger or impair Victoria Police's ability to obtain similar intelligence in the future. Relevantly, the Victorian Court of Appeal has held that there may be circumstances where even the 'gist' of such information may be withheld from a party if the disclosure of such information is not in the public interest.
Accordingly, while reviews of a FPO before VCAT may contain an element of unfairness which constitute a limit on the right to fair hearing, I am satisfied that any such limits will be reasonably justified under section 7(2) of the charter and that VCAT retains sufficient discretion and powers to alleviate any such unfairness.
Right to freedom of association (s 16)
Section 16 provides that every person has the right to freedom of association with others. One of the specified considerations in new section 112E in determining whether it is in the public interest to make a FPO is on the basis of a person's associates. As a person's associations may render the person eligible to be made subject to an order affecting their rights and interests, this may limit a person's freedom to associate by having of a 'chilling effect' on a person's enjoyment of the right. For example, a person may be discouraged or inhibited from exercising a legitimate right to associate with others for fear of the legal repercussions associated with a FPO.
I consider, however, that any resulting limit would be reasonably justified under s 7(2) of the charter. The scope of the right is primarily concerned with protecting freedom of association to pursue lawful interests in formal groups, and its scope does not extend to restrictions on associations between private individuals. The scheme is intended to target criminal groups, and Victoria Police are particularly concerned with firearm possession and use amongst organised crime groups and persons considered a risk in the counter-terrorism context. An individual's associations with known offenders and persons of concern to police are directly relevant to evaluating a person's level of access to firearms and risk of committing firearm-related offending. As discussed above, given the limitations with the current powers in the act to protect the community from firearm-related offending, basing a decision to make a FPO on associations relating to criminal groups is reasonably justified.
Additionally, the chief commissioner will be obliged by s 38 of the charter to have regard to a person's freedom to associate when considering relevant countervailing considerations against the making of a FPO in a given circumstance. Further, as outlined above, the making of a FPO is subject to the right to apply for merits review of the order, where a tribunal has the power to revoke the order if not satisfied that it is in the public interest for the FPO to have been made.
Search and seizure powers
Clause 22 inserts new part 4A into the act which provides for new police search and seizure powers without consent or warrant in relation to persons subject to FPOs, and also persons accompanying persons subject to FPOs.
The powers permit a police officer to do any of the following in relation to an individual subject to a FPO:
enter and search any premises occupied by, or under the control or management of the individual (new section 112Q(2)(a));
search any vehicle, vessel or aircraft that is in the charge of the individual or passenger thereof, including the power to stop and detain any vehicle, vessel or aircraft for so long as is reasonably necessary to conduct the search (new section 112Q(2)(b) and (4)(a));
search the individual and any item in their possession, including the power to stop and detain that person for so long as is reasonably necessary to conduct the search (new section 112R); and
seize any firearm or firearm-related item (new sections 122Q(4)(b) and 112R(3)(b)).
The above powers may be exercised by a police officer without warrant or consent if the exercise of 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.
The above powers may also be exercised in relation to children aged between 14 and 17 years inclusive who are subject to FPOs.
New section 112S clarifies the power of search without warrant or consent of a person who is in the company of an individual to whom the FPO applies, if the police officer reasonably suspects that person is committing or is about to commit an offence against the act, and has a firearm or related item in their possession. The power also permits a police officer to stop and detain the person being searched for so long as is reasonably necessary to conduct the search.
These provisions are relevant to the rights to privacy (s 13), children to protection (s 17), property (s 20), freedom of association (s 16), which will be discussed in turn.
Right to privacy (s 13)
Section 13 of the charter provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13 contains internal limitations which affect the scope of the right, meaning that lawful and non-arbitrary interferences with a person's privacy will not limit this right. Relevant case law indicates that a search power will generally be arbitrary if it is considered to be unreasonable in the sense of not being proportionate to the legitimate aim sought to be achieved.
Unlike other comparable human rights charters, the charter does not contain an express protection against 'search and seizure'; however, it is accepted that comparative approaches regarding police searches are relevant to determining the scope of the charter's right to privacy. As a starting point, for a police search to be compatible with the right to privacy, jurisdictions such as Canada, United States and New Zealand have held that there must be reasonable grounds to believe an offence has been committed, and the search must be authorised by an impartial judicial officer (usually in the form of a warrant).
These jurisdictions recognise that there are exceptions to the requirement to seek a warrant, which are based on scenarios where it is impractical to seek a warrant and a search is considered reasonable in the circumstances.
As outlined above, the purpose behind these new powers relates to pressing and substantial social concerns arising from offending involving the use of firearms and the threat this poses to public safety and wellbeing. However, I acknowledge that the privacy of an individual subject to a FPO may be significantly interfered with due to the person being subject to discretionary search powers. A FPO is a discretionary order made by the chief commissioner, and an order may be made on the grounds of very broad criteria, including on the basis of 'the behaviour of the individual'. Following the making of an order, an individual can then be subject to the exercise of search powers that may result in frequent and intrusive searches of persons subject to FPOs (but not including strip searches), in circumstances where there would ordinarily be a high expectation of privacy, such as searches of their person, home or vehicle.
The bill does provide for a number of limits and safeguards to reduce the potential for these interferences to be arbitrary in nature. The powers are subject to a threshold test of 'if reasonably required' to determine whether the individual has committed offences in contravention of the FPO. While this standard is lower than comparative thresholds commonly provided for in the Victorian statute book and overseas, such as 'reasonable grounds to believe' or 'reasonable grounds to suspect', it does impose a requirement of 'reasonableness'.
The bill also provides that the search of an individual does not include a strip search.
The new search powers are rationally connected to, and carefully designed to achieve, the purpose of reducing the threat of firearm-related offending and unlawful access to firearms. As I have set out in the opening paragraphs to this statement, the existing protections and measures in the act are not sufficient to protect the community from the risk of harm associated with firearm-related offending. Police are currently limited in their capacity to proactively respond to situations where sufficient intelligence exists to indicate that it is contrary to the public interest for an individual to possess a firearm. While the act provides for existing search powers with a warrant, this does not provide a timely solution to address a threat that intelligence suggests is imminent, but does not enliven existing powers to search without a warrant.
The evidence of comparative FPO schemes in New South Wales and South Australia does suggest that the bill's search powers can have a significant effect on reducing firearm-related crime. I note that the New South Wales Ombudsman, in its 2016 review of police use of FPO powers in New South Wales, found that these powers provided a benefit to police which enabled them to respond in circumstances where their existing powers to search individuals for firearms and firearm parts could not be used. This was where police did not have sufficient information to obtain a search warrant or use their general powers, but nevertheless had sufficient information to form the view that a search was 'reasonably required'.
The New South Wales Ombudsman did identify three factors in the structure of the New South Wales scheme that gave rise to a risk of the search powers being used arbitrarily and unreasonably, including that New South Wales FPOs did not contain an expiry date, there was inconsistency regarding police interpretation of the 'reasonably required' test, and there was no regulation regarding searches of third parties accompanying an individual subject to a FPO.
The bill has adopted a range of measures to address such concerns arising in Victoria. Unlike the NSW scheme, the bill specifies a maximum duration of 10 years for a FPO (or five years for children), with a right to apply for periodic review of the order after the half-way mark of the order. This enhances VCAT oversight of the scheme and allows for more scrutiny of FPOs to ensure that an initial or ongoing FPO is appropriate and based on valid and current circumstances. The bill carefully regulates the searches of third parties, requiring that an applicable threshold of 'reasonable suspicion' be satisfied before a search can be exercised. In relation to the test 'if reasonably required', while the bill intends to retain this threshold to enable police flexibility to search in circumstances where they previously could not, police officers will be subject to robust policies and procedures to ensure there is a methodical approach to searches. Additionally, a police officer must also comply with s 38(1) when exercising or not exercising, or deciding to exercise or not exercise, a search power under this bill, which will include giving consideration to a person's right to privacy when determining if a search is 'reasonably required' in a given circumstance.
I accept that the powers given to police officers to search persons, premises and vehicles, without prior judicial authorisation and in circumstances where the search is 'reasonably required' to determine whether an individual is contravening a FPO, constitutes a departure from the existing and generally accepted position on the minimum requirements for a search power to be regarded as not arbitrary and consequently compatible with the right to privacy. In my view, the discretionary nature of the powers is essential to providing the operational flexibility to reduce firearm-related offending. However, I acknowledge that searches may occur under these powers in circumstances that could constitute an arbitrary interference with privacy, particularly in light of the broad grounds on which an order may be made, the long duration of FPOs, the orders immediate effect upon service and the limited rights to seek review 'after the fact'.
Additionally, the fact that the powers apply to children aged between 14 and 17 years inclusive increases the significance of any interference with the right to privacy, so far as it applies to a child, due to the inherent vulnerability of children.
While it is my view that these amendments are necessary in order to address a pressing and substantial social concern relating to community protection, I acknowledge the significant interference these powers have on the privacy of individuals who would be subject to FPOs, and the particular effect of the powers on children subject to FPOs. Given this significant interference, coupled with the discretionary nature of the power to order an FPO, and the fact that an FPO may be made on the grounds of very broad criteria, including on the basis of 'the behaviour of the individual', in my view there are likely less restrictive measures that could arguably be adopted. Consequently, I conclude that these powers are incompatible with the right to privacy in the charter.
However, I am also of the view that, notwithstanding this incompatibility, it is appropriate to proceed with these amendments in order to address an increase in firearm-related offending, where existing law enforcement powers have proven inadequate and where similar measures have proven effective in other jurisdictions.
Further, in recognition of the fact that these powers are a significant expansion on current arrangements, the bill provides for a robust reporting and oversight regime of FPOs. The chief commissioner will be required to report annually on the FPO scheme to the minister. The Independent Broad-based Anti-corruption Commission (IBAC) will also be required to report biennially to the minister on the administration of FPOs and the exercise of FPO search powers, with the report to be tabled in Parliament. Additionally, IBAC will have standing powers to monitor the exercise of powers under part 4A of the bill, and will have all necessary powers to discharge this function, including powers of entry of Victoria Police premises, full and free access to all relevant Victoria Police records or documents, powers to direct police officers to give IBAC any relevant information or document, or answer any relevant questions. These extensive and independent oversight powers protect against inappropriate use of such powers and allow for continued evaluation of the effectiveness of the scheme in Victoria. The FPO scheme will also sunset 10 years after commencement, recognising that these powers are a response to a current pressing threat to public safety and order, and will provide for further parliamentary review as to whether such powers should continue in the future.
Right to privacy (s 13) — individuals not subject to FPOs
A person who is in the company of an individual to whom the FPO applies can also be searched, if a police officer 'reasonably suspects' that person is committing or is about to commit an offence against the act, and has a firearm or related item in their possession. The power also permits a police officer to stop and detain the person being searched for so long as is reasonably necessary to conduct the search.
In my view, it is necessary for accompanying persons to also be subject to search powers as, without this power, an individual subject to a FPO would be able to frustrate the purpose of the scheme by using third parties in their presence to conceal firearms or render police searches unworkable. This concern would be heightened in relation to the intended class of persons to be targeted by this power, such as organised crime groups. The provisions clarify that the existing higher threshold for exercising the search powers under section 149 of the act apply to accompanying persons, requiring a police officer to have a reasonable suspicion that they are committing or about to commit offences against the act and has a firearm or related item in their possession. The same oversight and reporting arrangements apply as above. Additionally, this provision reflects a recommendation by the New South Wales Ombudsman that a similar power be codified in the New South Wales scheme to provide certainty to police on the scope of permissible searches of persons accompanying a FPO subject who are suspected of committing firearm-related offences.
For these reasons, in my view, the search of accompanying persons does not constitute an arbitrary or unlawful interference with the privacy of such persons.
Right to protection of children (s 17)
Section 17(2) provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child. The right recognises the special vulnerability of children. The charter defines children as a person under the age of 18.
The bill's potential application to children as young as 14 years of age is a limit on this right. I note that the bill modifies the scheme's application to children in a few areas. The maximum duration of a FPO is limited to five years in relation to a child, and there is a further right to apply for review (after the initial right at the making of the FPO) after two and a half years. Importantly, as mentioned, a FPO cannot be made in relation to a child under 14 years of age.
However, as I have already determined that the police powers of search are incompatible with the right to privacy, and as such powers are able to be exercised in the same manner against children made subject to a FPO with minor modifications, I must also by extension determine that these powers are incompatible with the right to protection of children.
Additionally, the fact that an order can apply to a child for a period of five years constitutes a limit to s 17(2), as it is most likely not in the best interests of a child to be subject to such an order for an extended period of time with minimal rights of review.
However, it is my view that, for this new scheme to achieve its aim to reduce firearm-related offending and violence, it is necessary and appropriate that the scheme apply equally to children. Victoria Police hold concerns about offending involving a small cohort of young people (which can sometimes involve individuals with no prior criminal convictions) that can rapidly escalate from a relatively 'low level' to serious offending involving firearms. Recent crime statistics research shows that a small group of high-frequency young offenders account for a disproportionate amount of offending, Moreover there is a small high-offending group whose offending increases rapidly from a young age with a significant proportion of this group recording at least one crime against the person. The resulting risk to community safety posed by young people using firearms is as serious as that posed by adult offending. The government is of the view that illicit firearm possession and use by these young people should be deterred and prevented to the same extent as adults. While the scheme is likely to impact only a small cohort of young people, limiting how FPOs apply to even this group would inhibit the police's ability to quickly respond to this type of serious offending. Further, by moving to proactively address the firearm threat posed by children, the government is also enhancing the rights of other children and families in the community to protection.
Therefore, although the bill's application to children is incompatible with the charter, I am of the view that it is both essential and appropriate to provide police with these powers to address the community's concerns and the impact of firearm-related offending.
Right to property (s 20)
Section 20 provides that a person must not be deprived of his her property other than in accordance with law.
Although this bill provides for the seizure of firearms or firearm-related items discovered during the exercise of the above search powers, I am of the view that these provisions do not limit this right. New section 112T regulates how items seized or surrendered under this scheme are dealt with, with any seized firearm that lawfully belongs to another person being required to be returned to that person. Firearms or firearm-related items are only forfeit to the Crown if no other person is lawfully entitled to possess them or have been gained through a contravention of the act by the individual who surrendered it or from whom it was seized and are then dealt with under part 8 of the act. I am satisfied that any deprivation for property will occur in accordance with law.
Right to freedom of association (s 16(2))
New section 112S, which provides power to search persons in the company of a person subject to a FPO, which may have a chilling effect on a person's freedom of association, particularly if being in the presence of a person may enliven a police power of search.
However, I am satisfied that any resulting limitations will be reasonably justified under section 7(2) of the charter. As discussed above, the search power is necessary in order to prevent the purpose of the scheme being frustrated by persons subject to FPOs using third parties in their presence to conceal firearms or render police searches unworkable. The person can only be searched if a police officer 'reasonably suspects' the person is committing or is about to commit an offence against the act and has a firearm or related item in their possession. A search cannot be solely based on the fact that the individual is accompanying a person subject to a FPO. As discussed above, this power draws on the existing warrantless search power under section 149 of the act and clarifies its operation with respect to an accompanying person.
Consequently, in my view, any resulting limitation to the right to freedom of association is justified within the meaning of section 7(2) of the charter.
Offence for person to whom a FPO applies to enter or remain on certain premises
New section 112O prohibits a person subject to a FPO from entering or remaining in:
a premises on which a person carries on the business of being a firearms dealer;
a shooting range;
a handgun target shooting club;
a firearms collectors' club;
a shooting club;
a handgun target shooting match;
a paintball range or place at which paintball activities are carried out;
a premises where firearms are stored (such as a premises where a licensed firearm owner normally stores their firearms); or
a prescribed premises, which can only include those premises where the presence of the FPO subject is a risk to public safety and order.
Rights to freedom of movement (s 12), privacy (s 13) and freedom of association (s 16)
This offence is relevant to a person's rights to freedom of movement (s 12), privacy (s 13) and freedom of association (s 16). It may have the effect of interfering with an individual's capacity to move through certain public premises or properties, engage in lawful sporting and community activities, undertake employment in the firearm industry or maintain relationships with persons who frequent these types of premises. However, I am satisfied that any resulting limitations on these rights will be reasonably justified on the grounds of upholding the effectiveness of the FPO scheme and protecting the community from harm. The offence relates to places which provide access to firearms or are highly likely to have firearms stored on the premises. So the offence is focused on the risks of the particular place, not the association of the person subject to a FPO and other persons that may be on those premises. The offence only applies to persons who are subject to a FPO, meaning it has been determined (with a right to VCAT review) that it is in the public interest that such a person not acquire, possess, carry or use any firearm or related items. In order to effectively limit such person's access to firearms, it is essential that such individuals be excluded from places that are likely to store firearms or related items or provide access to firearms or related items. For these reasons, I consider that the rights to freedom of movement, privacy and freedom of association are not limited by the offence. In the event that a different view is taken, I consider that these rights would be demonstrably justifiable under section 7(2) of the charter, and no less restrictive options are available.
Offence to fail to surrender firearms or firearm-related items on service of orders
New section 112P provides for an offence to fail to surrender a firearm or firearm-related item upon being served with a FPO. In summary, once a person is personally served with a FPO, they are immediately obliged to surrender any firearm or related item in their possession, and if they are able to do so, they must surrender any item in the manner directed by the police officer who served the order and no later than 24 hours after the order is served. Failure to do so is punishable by a maximum penalty of five years imprisonment. While a person who surrenders a firearm or related item in accordance with this provision will not be liable for a FPO related-offence, surrendering their firearms may expose themselves to liability for existing offences under the act, such as unlawful possession, carriage or use of firearms and related items.
This is relevant to the charter's protection against self-incrimination.
Right to protection against self-incrimination (s 25(2)(k))
Section 25(2)(k) provides that a person must not be compelled to testify against himself or herself or to confess guilt. This right is primarily concerned with testimony or compulsory questioning. However, it may also be considered limited in circumstances where a person is being compelled to undertake an action that may expose them to later prosecution.
I am satisfied that any such limits to the right would be reasonably justified in these circumstances. The provision is intended to provide fairness to persons served with a FPO, who, if not for the FPO, may otherwise have lawfully possessed firearms or related items, by providing such persons with an opportunity to immediately surrender firearms without attracting liability for a FPO-related offence. The provision also provides a degree of fairness to persons who may unlawfully possess firearms or related items, by providing them with an opportunity to avoid liability for a FPO offence at the commencement of the order, which would attract significantly increased maximum penalties compared to a non-FPO offence prohibiting similar conduct.
While surrendering unlawful firearms or related items in these circumstances may expose a person to liability for a non-FPO offence, the intent of the legislation would be thwarted if a person served with a FPO in these circumstances was able to derive immunity from prosecution for any offences under the act that they were presently committing. In my view, there are no less restrictive means reasonably available to ensure that the law does not operate unfairly to persons who abide by the law, while not creating an opportunity for persons in contravention of the law to escape liability. I note that this provision is based on recommendations by the New South Wales Ombudsman for a similar provision to be inserted into the New South Wales scheme.
Reviews of decision to refuse licence applications, cancel licences and decisions not to renew a licence on criminal activities grounds
Clause 9 of the bill amends section 34 of the act to provide that a 'non-prohibited person' may apply to VCAT for a review of a decision to refuse a licence application on the basis of information known to the chief commissioner as to the criminal activities of the individual (criminal activities ground). Clause 12 of the bill amends section 44 of the act, to provide that a 'non-prohibited person' may apply to VCAT for review of a decision not to renew a licence on the criminal activities ground. Clause 14 of the bill amends section 50 of the act, to provide that a 'non-prohibited person' may apply to VCAT for review of a decision to cancel a licence on the criminal activities ground.
The term 'prohibited person' is defined in the act to include a person who is serving a term of imprisonment for specified offences, or where not more than 15 years have expired since the person finished serving a term of imprisonment of five years or more for such an offence or not more than five years have expired since the person finished serving a term of imprisonment of less than five years for such an offence. Under the act, a person can apply to the court for a declaration that the person is deemed not to be a prohibited person, in very limited circumstances. Also, clause 22 will amend the act to provide that references to 'prohibited persons' in the act with respect to the review of licensing decisions of the chief commissioner, are taken to include an individual subject to a FPO. Similarly, a reference to a 'non-prohibited person' does not include a reference to a FPO subject. So a FPO subject will be treated in most instances as a 'prohibited person' for the purpose of the licensing system.
Right to a fair hearing (24(1))
As clauses 9, 12 and 14 limit the circumstances in which persons can seek review by VCAT, the right to a fair hearing is relevant to these sections. However, while prohibited persons are prevented from seeking merits review of the relevant decisions at VCAT, such persons are not prevented from seeking judicial review of the decisions, or from seeking a declaration from the court that they are deemed not to be a prohibited person, in limited circumstances. Also, persons subject to a FPO will have merit review rights to VCAT with respect to the decision to make the FPO, as well as being able to seek judicial review of the decision. Given this, in my view, the right to a fair hearing is not limited by these clauses of the bill.
Hon. Lisa Neville, MP
Minister for Police