Thursday 23 April 2015

Hansard of the Legislative Council

Second Reading

[11.49 a.m.]
Mr FINCH (Rosevears) - Mr President, the main intentions of this bill are to be supported.  However, I, and others I have sought advice from, have concerns about parts of it.  I cannot and will not support mandatory sentencing.

We have had this argument before, and I strongly support the stand of the Law Society and the Tasmanian Bar.  The Government, in the second reading speech, argues the deterrence factor of mandatory sentencing.  The better deterrent is that the perpetrator of any criminal act has a strong likelihood of being caught.  I have seen no evidence that mandatory sentencing has reduced crime.  Let us have strong penalties and a judiciary which can use them according to each case.  I will quote an email from Richard Sheriff who contacted me, and the member for Western Tiers, after the front page in The Examiner today.  Richard Sheriff wanted to join in the debate with me:

In our democracy every citizen deserves their day in court with the confidence that they will be given a fair hearing and if guilty also a fair and reasonable penalty based on the degree to which the law has been breached, and taking into account previous behaviour.  There are real dangers of miscarriage of justice being done with mandatory sentencing.  We need laws framed and legislated by wise people, policed accordingly, and dealt with in our courts on a case by case basis.

Evidence given to us from the Tasmanian Bar suggests that mandatory sentencing in this bill could lead to unjust outcomes.  The case of Victoria was brought up where it was suggested that some courts have become almost unworkable.  We want fewer people in prison, not more.  There are plenty of alternative penalties for most crimes including electronic monitoring and large fines.

The Bar representatives, Chris Gunson and Bruce McTaggart, told us there are always unintended consequences.

Mr Dean - I wish you all the best with electronic monitoring, I have been trying to push electronic monitoring for the last 20 years and have not succeeded.

Mr FINCH - We might go in tandem on that and develop a private member's bill.  The unintended consequences that come with mandatory sentences are a concern.  They also had reservations about what they describe as the 'too broad' definition of possession and that the subject of possession has been a worry throughout our debate.  I appreciate the Government setting up an opportunity for us to be briefed so strongly yesterday, over that long journey from 9 a.m. to 6 p.m., but very worthwhile.  Because of the complexity of this bill, when we first started I could only see we needed more investigation.

I understand the frustration of the people who have been behind this, in wanting to get this before us and some resolution, although we heard evidence that there is no need to rush this.  Again, I express my appreciation to the Government for providing us with the opportunity to flesh out a lot of those issues and it was worthwhile by the look of the amendments we have.

In my experience in Parliament over 13 years this is the first time we have had a special meeting to make sure that all the amendments could be collated and put in order to keep us more organised than we normally are.  Such is the number of the amendments.  On some of the clauses it was good to have the opportunity to flesh out the meaning of where we were going with a lot of these things.  Clause 5 in effect states that a person is prima facie in possession if she or he is in, on, or in occupation of premises where firearms are found.  It is then up to the defendant to satisfy the court that not only did he or she not know, but also could not be reasonably expected to know, of the presence of firearms.

The defendant has the onus of proof of his or her innocence.  I have always thought that the Crown has to prove guilt beyond reasonable doubt and that people are innocent until proven guilty, so surely possession is not the principal target but those who steal firearms.  I did have some legal advice about the new section 36(c) in clause 20 which gives the commissioner power to alter or vary conditions of a licence without giving the licence holder notice of his intention to do so.  It appears that licence holders' only recourse would be to apply to a magistrate, but there is a belief that the magistrate would not overrule the general discretion of the commissioner.  I could go on but let me move to other areas of the bill.  I appreciated members' opportunity to flesh out many of the issues and concerns and have good questioning. 

As you are no doubt aware, the findings of a recent Senate inquiry into illegal firearms in Australia were inconclusive, to say the least.  One of the things that concerned me in the evidence given in that inquiry was that people who are in pistol clubs or who are antique gun collectors who are not involved in this type of activity feel demonised in the way they are being treated by police.  Generally, we are dealing with citizens who want to abide by the law, who want to be part of the process, who do go through the licensing and who do register their guns.  Those people are trying to be part of that process, but they get the sense that they are being demonised.  I do not think that is good for law-abiding citizens.  Whilst I am saying that as a criticism of the way they are treated, I am sure we are trying to find that balance between their activity and the objectives of the police in trying to restrain the stealing of firearms.

It would appear to me that here we are examining legislation to reduce the number of illegal firearms in our community, yet we have no idea of the extent of the problem.  One loose estimate suggests there a more that a quarter of a million illegal firearms in Australia.  I heard somebody say on radio this morning there are 8 million.  No-one seems to have any idea what the accurate number is, how many illegal firearms there are in Tasmania or indeed how many of the illegal firearms in Tasmania were stolen, so I suspect not many of them, but I understand it would be quite difficult to keep a register of what is not registered. 

A senior research fellow in the violence research and prevention program at Griffith University, Dr Samara McPhedran, recently published some results of her studies in the online journal The Conversation.  She says the number of fatal of shootings in Australia has been falling for 30 years and continues to do so.  There is a similar situation in New Zealand and Canada, despite those countries having very different approaches to gun control. 

I quote Samara McPhedran:

Unfortunately, Australian firearms policy is seldom scrutinised in the way that other policies routinely are.  Ideology - both pro- and anti-gun - often trumps facts. 

This stifles debate and prevents us from thinking about how other countries have tackled gun violence. 

For example, both Canada and New Zealand abandoned universal longarm (rifle and shotgun) registration.  Instead, they redirected their resources into high‑risk populations and situations, such as disadvantaged young men involved in the illicit drug trade. 

Those two countries also strengthened social services and worked hard to build relationships between police and communities most at risk of gun violence.

The question we should be asking ourselves is, are we heading the right way in controlling firearms?  Other jurisdictions do it differently, and with success, it seems. 

One of the main thrusts of this bill is to make it harder for firearms to be stolen in Tasmania.  Gun storage is the key.  Ironically, putting guns into clearly identifiable cabinets then allows thieves to know exactly where to look.  Portable angle grinders are readily available and relatively cheap for thieves to be able to get at what they are after.  I hope we get it right this time and that firearm owners will not have to upgrade their gun cabinets in the future.  The process that they are going through must be very frustrating for them, and very costly as well.

This is going to be a very costly exercise for some gun owners, and I share the thoughts of good law-abiding citizens who are concerned about opportunities to encourage others into their sport being lost, because of the cost.  What some thought was a perfectly adequate storage system may have to be scrapped and replaced.  Firearm owners have no idea how they will have to comply, as to the storage and safe keeping of firearms.  It is to be removed from the act and placed in regulations, which we are told will take up to 12 months to draft.  We heard criticism in the briefings about the lack of preparation in regard to the regulations.  The Government is looking for our support for this bill, but the regulations are not ready.

I considered an adjournment or delay in what we are doing until those regulations are further advanced, to link up with the bill, but through the briefing process I changed my thinking on that.  I am comforted by some of the things we heard about the introduction of the regulations into the Subordinate Legislation Committee which, I am sure, will give them proper scrutiny.  I have every faith in that process.

Ms Rattray - The issue is that those regulations are often already in force before the committee has had an opportunity to go through any disallowance process.

Mr FINCH - That will unfold.  You make me feel even more uncertain now.  Maybe I should go back to my original thinking.  At least we are aware of the need for proper scrutiny of the regulations and the possibility of disallowance, if that is what we need to do.  I hope the regulatory impact statement covers all issues satisfactorily for the committee members.

Some of those who were consulted before this bill was drafted are concerned that at no time were they told about the minister's intention to remove the storage and safekeeping requirements from the act.

Among those with concerns about this bill is the Arms Collectors Guild of Tasmania.  I believe the secretary, Andrew Harvey, may have contacted all members.  He expressed particular concern about the addition of ex-military firearms to the prohibited list.  He said -

The assistant to Rene Hidding stated that this is aimed at those firearms not captured under current legislation

However the inclusion of 'any' in the clause appears to open this to a broader interpretation.  The definition of ex-military firearms in Section 3 of the act - Interpretation - would include all current registered items whether modified for sporting use, original condition, rifle, pistol or shotgun.

Rene Hidding refers to military assault rifles in his second reading speech, as to what they want to capture via this amendment.  However semi-automatic centre -fire rifles and fully automatic firearms are already covered in Schedule 1 ‑ Prohibited Firearms - of the act, and therefore this would not be necessary, and is concerning to us that it brings all ex-military firearms under the prohibited list.

The point I make in reading that quote is that here is an organisation of people who are law‑abiding citizens - who want to abide by the law.  It is incumbent on their business - being arms dealers and being involved in the sport.  They want to be part of any solution to the problems, but they have not felt included in the process.  They might have brought certain points to the attention of the minister, or the investigative committee, but they did not feel included in the process.  That is what we heard from quite a few organisations - sporting shooters and others.

I am worried about the expertise behind the drafting of this bill.  The present act needs reviewing with input from people who know firearms, not by a government policy unit.  The vast amount of knowledge out there about the technicalities of guns did not seem to be drawn on in some of the evidence we heard.  For example, what use is a magazine or a replacement spring to a gun thief - which is where we are centring our thoughts?

Ms Forrest - One of the witnesses, who was a reservist, explained that there are some guns you can pull apart and put together again and interchange the parts, so it could well be relevant.

Mr FINCH - Okay.  And we fleshed that out.  But there are people out there who disagree.  That is what we heard, and people who are at odds with what has been developed here will, of course, be in disagreement with it.  So it is a conundrum - I can understand that.  This has turned out to be very complex legislation because of the twists and turns and the fact that some people agree and some disagree.

Ms Rattray - One of the issues I found was the extent of the disagreement.  It was not just in one area of the legislation, it was up to 10 areas of the legislation for any given section of the community.  Usually there are only one or two areas of disagreement.

Mr FINCH - This is where I get worried about government consultation.  It makes you wonder about the process that goes on if the Government is trying to achieve a certain end.  I remember, when I was on the Subordinate Legislation Committee, we heard all the assurances under the sun that there had been consultation.  Then if you go to disallow something and you draw people in who were supposed to have been consulted, and who supposedly agreed, they stand back and say they knew nothing about it and they were not consulted.  That was always one of my frustrations with the previous government, particularly - that iteration of Labor and the Greens.

We have it now as well.  We get the assurance that consultation has taken place, but if you think back to the TFGA, from our briefings - they had doubts about the consultation with the Tasmanian Firearms Consultative Committee.  Probably the most prominent firearm owning group in Tasmania is our primary producers.  Firearms are a necessary tool on farming properties for vermin control, and the humane treatment of sick and injured animals.  But we were told that farmers have not been considered in the drafting of this bill, and we got that message pretty strongly.  It was suggested, too, that we are getting things wrong.

Imagine the thief I talked about earlier using an angle grinder to get into a safe containing ammunition.  You do not need much imagination to visualise what might happen when an angle grinder hits a case of shotgun cartridges.  The Sporting Shooters Association says there is no need to change the present storage arrangements, but let us see how that unfolds in the debate.

Representatives told us in the briefing that they would prefer more examination of this bill, which they described as clumsy.  I might have agreed with them early in the piece, but we have had extensive briefings, and being able to draw on the advice of members - particularly those experienced in policing, like the member for Windermere and the member for Rumney - and to be given a raft of amendments that are meant to enhance the bill, will make it a better bill.  I have gone from agreeing that it may be clumsy to believing we have been given that opportunity to help make it a better bill.  That is our job.

Ms Forrest - Mr President, often amendment bills appear clumsy.  We have a marked-up copy and I thank the Leader for arranging that.  The general public do not have access to that, so they are trying to fit amendments into a bill.  It does appear clumsy because of that very nature.  A clean bill is much easier to deal with.

Mr FINCH - Yes, and of course they did not see any urgency with this bill because of their concerns about the regulatory process.  They had a lot of concerns about that.  I may take some comfort from the fact that, because of it being highlighted, there will be close scrutiny of the regulations when they do come before the Subordinate Legislation Committee.  I tend to agree with the sporting shooters, however, with the collation of the clauses and the strong consideration of ways to strengthen this bill, I am happy to progress the bill into our normal committee process.  I support the bill.