Hansard debates

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:10): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Bill before the House introduces amendments to the Firearms Act 1996 to support Victoria Police to maintain community safety by expanding police powers in relation to serving firearm prohibition orders. The Bill also contains an amendment to the Control of Weapons Act 1990 to clarify that a machete is a knife and therefore a controlled weapon for the purposes of that Act.

Overview of firearm prohibition order amendments

The Bill expands police powers to serve a firearm prohibition order (FPO) on an individual after an FPO is made by the Chief Commissioner of Police. An FPO that applies to an individual is not enforceable until it is served on them under the Firearms Act 1996. Section 112I of the Firearms Act 1996 currently requires that an FPO must be served in person on the individual to whom it applies by a police officer. This strict requirement operates as a protection for an FPO subject by ensuring they have actual knowledge that the FPO has been made and applies to them before the further offences and enforcement provisions of the FPO scheme apply to that individual.

The FPO scheme is a civil prohibition scheme which empowers Victoria Police to proactively and quickly disrupt serious criminal activity associated with the illicit use of firearms. FPOs can be issued against an individual aged 14 years or more when the Chief Commissioner is reasonably satisfied that it is contrary to the public interest for the individual to have access to a firearm or firearm-related item. The Chief Commissioner may have regard to the criminal history of an individual, their behaviour or associates, and to criminal intelligence.

The impact of an FPO on an individual is significant. An effective FPO triggers prohibitions and extended police powers, including a prohibition on entering or remaining in a range of premises, a requirement to surrender any firearm or firearm-related item to police, and powers for police to enter and search premises and individuals and persons accompanying them without consent and without warrant. A person to whom an FPO applies is a prohibited person for the purposes of the Firearms Act 1996.

The Independent Broad-based Anti-Corruption Commission (IBAC) first Ministerial report pursuant to section 174B of the Firearms Act 1996 (2018 to 2020) was tabled in this House on 28 November 2023. In that Report, IBAC reported on factors identified by Victoria Police that may impact on the timely and efficient service of an FPO. Whilst IBAC accepted that the reasons for delay in service of an FPO are justified in certain circumstances, IBAC observed that service of an FPO must be given priority because an FPO is made on the basis of an affirmative conclusion by the Chief Commissioner that there is a risk that the FPO subject will come into possession of a firearm in circumstances where the firearm may be used to endanger the peace and safety of the public.

The government is today taking action to respond to the factors identified in the IBAC report, which reflect concerns that have also been identified by Victoria Police. The amendments in this Bill are designed to put Victoria Police in the best possible position to serve an FPO on an individual as soon as possible after it is made so that any risk to community safety can be actively managed through the FPO scheme under the Firearms Act 1996.

Victoria Police is concerned that certain individuals deliberately seek to avoid or delay the application of the FPO scheme, by refusing to cooperate with police or by actively avoiding service of the FPO. Victoria Police has identified three classes of individual on whom it has particular difficulty in serving an FPO. These are:

• individuals who actively avoid service of an FPO;

• individuals whose whereabouts are unknown; and

• prisoners in detention or individuals in immigration detention who refuse a visit from a police officer for the purpose of receiving service of an FPO, and in relation to whom it is important that the FPO is served and effective upon their release from detention.

Any delay in service and consequent commencement of an FPO also delays the community safety benefits that the FPO scheme is designed to assure. To address this risk the Bill provides for:

• the Chief Commissioner to make an FPO ‘service direction determination’ to enliven additional police powers to direct and if necessary detain a person to serve an FPO;

• the Chief Commissioner to apply to a magistrate to issue an FPO ‘service search warrant’ to enable police to break, enter, and search a premises, and if necessary to detain an individual, for the purposes of serving an FPO;

• additional options to serve an FPO by registered post on a person in detention or in immigration detention; and

• a police officer to serve an individual who refuses to accept an FPO by putting it down in the individual’s presence and telling them the nature of the order.

The Bill includes safeguards so that the additional powers to serve an FPO on an individual are exercised only when necessary, never as a first resort, and not merely because it is more convenient to police. Safeguards include stipulated criteria, procedural protections, court supervised search warrants, IBAC review of service direction determinations, improved record keeping requirements, and ongoing IBAC monitoring of the additional FPO service powers.

Once enacted, the operation of the new FPO service powers will be monitored for how they are being applied to persons under the age of 18, for consideration of whether further safeguards are required.

Service direction determination

Victoria Police reports that the service of an FPO may be delayed when an individual actively avoids service, or where the individual can’t be found after the police have made reasonable enquiries as to the individual’s whereabouts.

Every reasonable tool should be provided to Victoria Police to serve an FPO on an individual – including in circumstances where an individual’s whereabouts are unknown. In this case, a police officer may encounter an individual through an unplanned police interaction, such as at a traffic stop, and may be alerted to an unserved FPO by a flag on the LEAP database. In that circumstance, it is unlikely the police officer would have a copy of the FPO to hand in order to serve the FPO on the individual at that time.

An individual who is subject to an unserved FPO is typically unwilling to wait at a place or to go to a police station so that the police officer can serve an FPO on them. Such a missed opportunity extends the risk to community safety simply because paperwork couldn’t be served on the individual in that moment.

The Bill manages this risk by providing for the Chief Commissioner to make a service direction determination in relation to an individual who is avoiding service or who can’t be found.

A service direction determination authorises a police officer to stop and direct an individual who is in a public place to provide their name and address to confirm the individual’s identity. Except in limited circumstances an individual is not required to give their name and address to a police officer. Consequently, a police officer may exercise this power if reasonably satisfied that a service direction determination applies to the individual. After confirming the individual’s identity, the police officer may then direct the individual to remain at a place or to go to or accompany the police officer to the nearest police station or another safe place for the purposes of serving the FPO on the individual.

A police officer may use reasonable force to detain an individual for the purposes of serving an FPO if the individual unreasonably refuses or fails to comply with a direction given under authority of a service direction determination. At that point the individual is taken into lawful custody and commits an offence against section 49E of the Summary Offences Act 1966 if they escape or attempt to escape from lawful custody.

Service direction determination - protections and safeguards

Practical, procedural and legal protections apply to a service direction determination. The Bill is structured to separate strategic and tactical decision-making so that the decision-maker can consider whether making a service detention determination decision is demonstrably justifiable in the circumstances.

The decision to make a service direction determination must be made by the Chief Commissioner or a person who could make an FPO. The Bill limits the Chief Commissioner’s power to delegate, conferred by section 19 of the Victoria Police Act 2013, to the same class of delegates specified in section 112F of the Firearms Act 1996.

The Bill provides for the Chief Commissioner to make a service direction determination on application from a police officer supported by affidavit if reasonably satisfied that the public interest requires the FPO to be served within 28 days, that the individual is avoiding service or that police have made reasonable enquiries to ascertain the individual’s residential address and that Victoria Police doesn’t have a record of the individual’s current residential address and does not otherwise have information about the whereabouts of the individual. This approach enlivens these additional powers only when other reasonably available measures to serve the FPO on the individual have been exhausted.

The period of operation of a service direction determination is not open-ended and expires within 90 days after it is made, or an earlier day specified by the Chief Commissioner. Noting that a service direction determination may be made in relation to an individual whose whereabouts are unknown, a service direction determination may be remade if the FPO is not served on the individual before the service direction determination expires.

The Bill includes procedural protections for an individual so that a police officer must verify the identity of the individual before exercising the power to direct the individual to remain in place for the purposes of serving the FPO. The Bill also requires the police officer to explain the nature of the power being exercised and the consequences of unreasonably failing or refusing to comply, to explain when the individual is free to go, and prohibits the police officer from questioning the individual on a matter unrelated to the FPO. If the individual is transported to a police station or other safe place for the purposes of serving the FPO, the individual must be returned to the place from which they were taken.

The Bill protects an individual from unreasonable delay in serving the FPO paperwork, so that the individual must be released as soon as the FPO is served on them, and within 2 hours after the individual is first directed to stop, or later detained. A police officer bears a positive duty to serve the FPO as soon as practicable after directing the individual to stop. If the FPO is not served within 2 hours, the individual must be released and may not be subjected to a direction under a service direction determination within 24 hours after being released. The 24-hour limitation does not apply if a person escapes a direction or detention before the expiry of the specified time to serve the FPO has elapsed.

Additional protections apply in exceptional circumstances that justify the use of these additional service powers in relation to a child. The additional protections operate in addition to the child’s right to such protection as is in their best interests and is needed by them by reason of being a child, as protected by section 17(2) of the Charter of Human Rights and Responsibilities Act 2006.

If exceptional circumstances exist to justify a service direction determination in respect of a child, a police officer must, as soon as practicable after directing the child, reasonably attempt to contact the person with parental responsibility for the child to inform them that the child is being directed, detained or in custody. The police officer must, if practicable, provide the child a reasonable opportunity to communicate with the person with parental responsibility for the child, and with a lawyer from Victoria Legal Aid, or a lawyer from the Victorian Aboriginal Legal Service if the child is an Aboriginal person or Torres Strait Islander.

The Bill does not limit the duty of an investigating official under section 464FA of the Crimes Act 1958 to notify the Victorian Aboriginal Legal Service after an Aboriginal person or Torres Strait Islander is taken into custody.

Service search warrant

The Bill provides for the Chief Commissioner to apply to a magistrate for a warrant to search for an individual who is avoiding service of an FPO for the purposes of serving the FPO.

A magistrate may issue a warrant authorising a police officer to break, enter and search a specified premises for an individual, and if necessary to detain the individual, for the purposes of serving the FPO. The magistrate may only issue an FPO service search warrant if they reasonably believe that a police officer has reasonably attempted to serve the FPO on the individual, that the individual is avoiding service of the FPO, and that it is in the public interest to serve the FPO within 28 days.

To protect the interests of third parties who may be present at a premises at the time an FPO service search warrant is executed, the magistrate must believe that issuing a service search warrant is reasonable in the circumstances. In reaching this decision, the magistrate may consider the nature of the premises for which entry is being sought, whether the premises is a residence, whether a child or a person with another special vulnerability is likely to be at the premises at the time of the search, any prescribed matter, and any other matter the court considers relevant.

Service search warrant relating to a child

Section 112D of the Firearms Act 1996 provides for the Chief Commissioner to make an FPO that applies to a child aged 14 years or more. Consequently, exceptional circumstances may arise that justify the issue of a service search warrant relating to a child.

The Bill requires that the Chief Commissioner must apply to a magistrate of the Children’s Court of Victoria to determine an application for a service search warrant in respect of a child. The government recognises that a magistrate of the Children’s Court of Victoria is uniquely positioned to understand the particular vulnerabilities of a child and the measures necessary to protect the best interests of the child. They bring legal expertise and experience to the consideration of matters involving children, young people, and their families. There are four stand-alone specialist Children’s Courts located at Melbourne, Broadmeadows, Dandenong and Moorabbin. Magistrates from the Magistrates’ Court of Victoria also sit as Children’s Court magistrates in other metropolitan Magistrates’ Courts and all regional Magistrates’ Courts on nominated days.

When considering an application for a service search warrant applying to a child, a magistrate of the Children’s Court must be satisfied that exceptional circumstances exist. The magistrate may impose any additional conditions that they consider appropriate given the exceptional circumstances.

If it is necessary to detain a child under a service search warrant, the police officer who detains the child must, as soon as practicable after detaining the child, reasonably attempt to contact the person with parental responsibility for the child, to inform them that the child is being detained under a service search warrant. If practicable they must also provide the child a reasonable opportunity to communicate with the person with parental responsibility for the child, and with a lawyer from Victoria Legal Aid, or a lawyer from the Victorian Aboriginal Legal Service if the child is an Aboriginal person or Torres Strait Islander.

The Bill does not limit the duty of an investigating official under section 464FA of the Crimes Act 1958 to notify the Victorian Aboriginal Legal Service after an Aboriginal person or Torres Strait Islander is taken into custody.

Executing a service search warrant

The sole purpose of an FPO service search warrant is to enable a police officer to locate an individual who is avoiding service of an FPO and, if necessary to detain them, for the purpose of serving the FPO. Consistent with this purpose, a police officer who proposes to execute the warrant must reasonably believe that the individual to whom the FPO applies is present at the premises to be entered and searched. A police officer must be in possession of the FPO at the time of executing an entry under an FPO service search warrant and must comply with the usual procedural protections when executing a warrant, including the duty to announce their presence, and to provide the execution copy of the warrant to an occupier or the person named in the warrant.

An FPO service search warrant does not authorise a police officer to search the premises for any other person or unlawful thing. The police officer executing the warrant must leave the premises immediately after the search is completed if the individual cannot be found. If the individual is found, the police officer must leave the premises immediately after serving the FPO on the individual, subject to any other lawful basis to remain at the premises.

The Bill clarifies that the duty to leave the premises does not limit the operation of the search powers set out in Division 5 of Part 4A of the Firearms Act 1996. Those search powers are available immediately after the FPO is served on an individual but are subject to specified requirements. The net effect is that a police officer executing the search warrant must immediately leave the premises unless another lawful basis to remain at the premises exists, such as when authorised to conduct a search of the premises under Division 5 of Part 4A in relation to a person to whom an FPO applies.

Record keeping and extending existing monitoring and oversight measures

The Firearms Act 1996 currently includes safeguards to protect the rights of an individual subject to an FPO and to verify that Victoria Police is administering the FPO scheme appropriately. Existing safeguards include multiple rights to have the Victorian Civil and Administrative Tribunal review the decision to make an FPO, duties of the Chief Commissioner to report annually to the Minister and quarterly to IBAC, and IBAC monitoring of the exercise of the powers and the performance of the duties and functions of the Chief Commissioner under the FPO scheme.

The Bill extends these safeguards, imposing strict record-keeping requirements so that records detailing the reasons for making a service direction determination, and records of the exercise of police powers under a service direction determination or a service search warrant are kept and provided to IBAC, the Minister, and to affected parties. The Bill requires the Chief Commissioner to report as separate information any power or duty exercised against an individual under the age of 18 years – which is authorised only in exceptional circumstances. This additional reporting obligation will ensure the Government maintains appropriate and proportionate visibility over these powers and that safeguards are working as intended.

A three-tiered oversight and assurance system is in place for IBAC to ensure the proper administration of the FPO scheme and the exercise of powers. This system includes biennial ministerial reports, a standing power to monitor and report, and a requirement to complete a representative sample of case reviews. This oversight system operates in addition IBAC’s extensive powers to investigate and respond to police conduct under the Independent Broad-based Anti-corruption Commission Act 2011 and is designed to operate as an assurance process.

The Bill improves these monitoring and assurance powers so that IBAC may determine to review all cases in a particular reporting period and may review a decision taken or a matter arising in a previous reporting period that relates to a matter under review or being monitored in a current reporting period.

The Bill expressly provides for a person affected by the exercise of a service direction determination or a service search warrant to access records containing the prescribed particulars.

Clarifying the sunset date of the FPO scheme

The Bill clarifies the sunset date for the FPO scheme. Recognising that the FPO scheme was a response to a pressing threat to public safety and order, the Firearms Amendment Act 2018, an amending Act which introduced the FPO scheme into the Firearms Act 1996, provides for the sunset of the FPO scheme 10 years after coming into operation. The sunset allows for further consideration as to whether the FPO powers should continue in the future after 10 years of operation.

The FPO scheme came into operation on 9 May 2019 and will expire on the last moment of 8 May 2028. The Bill specifies the date on which the FPO scheme expires in the Firearms Act 1996 itself so that the expiry date can be easily ascertained in the Principal Act.

Other amendments to improve the operation of the Firearms Act

The Bill includes minor amendments to update language and modernise references throughout the Firearms Act 1996 to a child’s guardian. Consistent with the Children, Youth and Families Act 2005 and the plain English drafting style, references to a child’s guardian will be replaced with a reference to the person with parental responsibility for the child.

Amendment of the Control of Weapons Act 1990 – Machetes

The Bill amends the definition of controlled weapon in section 3 of the Control of Weapons Act 1990 by inserting an example stating that a machete is a type of knife. Section 3 of the Control of Weapons Act 1990 defines a controlled weapon as a knife, other than a knife that is a prohibited weapon, or an article prescribed by the regulations to be a controlled weapon. Schedule 1 to the Control of Weapons Regulations 2021 prescribes four additional articles as controlled weapons, being spear guns, batons or cudgels, bayonets and cattle prods.

The Control of Weapons Act 1990 also defines the term prohibited weapon as being an imitation firearm or an article that is prescribed by the regulations to be a prohibited weapon. Schedule 2 to the Control of Weapons Regulations 2021 prescribes 47 separate articles as prohibited weapons. Of those 47 articles, 11 are types of knife, being flick, knuckle, butterfly, double-end, concealed (including the “Black Eagle Knife”), push, trench and non-metal/ceramic knives.

Prohibited weapons are subject to more rigorous restriction than controlled weapons. To lawfully possess, carry or use a prohibited weapon, a person must be within a class of persons subject to a Governor in Council exemption under section 8B of the Control of Weapons Act 1990 or hold an individual approval granted by the Chief Commissioner under section 8C of that Act. Specific types of knife have been prescribed as prohibited weapons because of their concealability, association with criminal activity or lack of legitimate uses in society.

Machetes are knives and are therefore controlled weapons. However, there is a misconception by some people in the community, including by some market stall holders and other retailers as well as some members of the public, that machetes are tools and are therefore not weapons. The amendment, inserting an example in the definition of controlled weapon stating that a machete is a knife, makes the legal status of machetes very clear ‍– they are controlled weapons and, as such, may not be possessed, carried, or used without a lawful excuse. The amendment is purely to provide clarity and does not alter the existing legal status of machetes.

A lawful excuse for the possession, carriage or use of a controlled weapon is the pursuit of any lawful employment, duty or activity, participation in any lawful sport, recreation or entertainment or the legitimate collection, display or exhibition of weapons but does not include for the purpose of self-defence.

In relation to children, the Control of Weapons Act 1990 makes it an offence for a child to purchase a controlled weapon and for a person to sell a controlled weapon to another person knowing that the other person is a child. To operationalise these offences and mitigate their breach, many retailers have placed a flag in their barcode systems against every knife in stock requiring a member of staff to sight a purchaser’s proof of age and they must refuse to sell a knife to a child or any person whose status as an adult is unclear, otherwise they will risk breaking the law.

The Government is satisfied that machetes will continue to be appropriately classified as controlled weapons because machetes are used as tools for various legitimate purposes, including horticultural, agricultural, and general-purpose activities such as clearing brush and cutting and maintaining trails. They are common items in the community which, when used properly, have a considerable benefit. If used unlawfully, a person will be subject to prosecution as is currently the case.

I commend the Bill to the house.