Firearms Amendment (Good Behaviour Bonds) Bill

About this Item
SubjectsCrime; Sentencing and Parole; Firearms
SpeakersKelly The Hon Tony; Gallacher The Hon Michael; Nile Reverend the Hon Fred; Chesterfield-Evans The Hon Dr Arthur; Colless The Hon Rick; Rhiannon Ms Lee; Tingle The Hon John
BusinessBill, Division, First Reading, Second Reading, Motion

Page: 21342

    Second Reading

    Debate resumed from 2 March 2006.

    The Hon. TONY KELLY (Minister for Justice, Minister for Juvenile Justice, Minister for Emergency Services, Minister for Lands, and Minister for Rural Affairs) [2.36 p.m.]: The Firearms Act 1996 provides for certain mandatory disqualification offences that preclude the issue of a firearms licence. The mandatory disqualifications are prescribed in clause 5 of the Firearms General Regulation 1997 and include offences relating to firearms or weapons, prohibited drugs and violence. The Firearms Amendment (Trafficking) Act 2001 introduced additional restrictions on firearms licences into sections 11, 29, 44A of the Firearms Act 1996, prohibiting a person from obtaining a firearms licence or permit or a dealers licence if he or she is the subject of a good behaviour bond, whether entered into in New South Wales or elsewhere.

    In practice, if a person is convicted of one or more of the prescribed offences and receives a penalty other than a good behaviour bond that person is prevented from holding a licence for the prescribed 10 years disqualification period. However, in the case of a good behaviour bond the mandatory exclusions are not limited to those prescribed offences set out in clause 5 of the Firearms General Regulation 1997. A permit or licence must not be issued to a person who is the subject of a good behaviour bond, regardless of whether the good behaviour relates to an offence that would impact on the person's capacity to hold a firearms licence or permit. The Hon. John Tingle's bill seeks to amend sections 11 (5) (d), 29 (3) (d) and 44A (3) (e) of the Firearms Act 1996 to address this inconsistency by including the following words in each of the specified provisions:

    … as a result of being found guilty of an offence relating to the possession or use of a firearm, or any other weapon, an offence involving the infliction (or attempted infliction) of actual bodily harm on another person or a drug trafficking offence

    The Government has had limited time to consider this legislation. Therefore it will support the bill today but reserves the right to move appropriate amendments if considered necessary when the bill is considered in the Legislative Assembly.

    The Hon. MICHAEL GALLACHER (Leader of the Opposition) [2.38 p.m.]: In my view the Firearms Amendment (Good Behaviour Bonds) Bill is a significant step in the right direction and shows that, despite all the hype and misrepresentations about this issue, law-abiding owners of firearms are prepared to work with the Government to continually improve and finetune the legislation that affects their sport, pastime and passion. The bill deals with people who fail to be law-abiding citizens, are involved in a criminal act and are placed on a good behaviour bond. The Hon. John Tingle is providing some delineation and consideration for law-abiding citizens who were deemed by the Commissioner of Police to be suitable to possess firearms but who, because of circumstances within their control, appear before a court and are convicted and put on a good behaviour bond.

    A good behaviour bond is a determination made by a court having regard to an offender's antecedents and the proper application of sentencing policy, thus ensuring that the public expectation on sentencing is acknowledged and applied. The National Firearms Agreement of 1996 and the Commonwealth Heads of Government handgun reforms of 2002 advocate the revocation of licences on the following grounds: poor character, not a fit and proper person, not in the public interest, offences involving violence, offences involving assault with a weapon, aggravated assault, contravention of a firearm law, and the issuing of an apprehended violence order, domestic violence order or restraining order.

    By these amendments to New South Wales firearms legislation, the Hon. John Tingle seeks to specify that an offender who is given a good behaviour bond will be automatically disqualified from holding a firearms licence only when the offence committed involves a serious act of violence, which I understand would start from the level of "assault occasioning actual bodily harm". The honourable member may care to correct me if I am wrong. Therefore "common assault" as defined in section 61 would not lead to automatic disqualification from holding a firearms licence. Offences that will invoke the automatic disqualification provision include drug trafficking matters and firearms breaches—that is, where the person appearing before the court is given a good behaviour bond.

    I thank the Hon. John Tingle for allowing me the opportunity to speak with him about a couple of concerns I had about other offences in respect of which a court might determine that a good behaviour bond is a reasonable and appropriate sentence. The aim is to ensure that safeguards are in place to prevent persons whom perhaps even firearms owners believe should not continue to have access to firearms because they are unfit to have such access to firearms. However, not every person who receives a good behaviour bond would automatically lose their firearms licence. That is the aim of the Hon. John Tingle's amending bill. These amendments result from a long campaign waged by the honourable member for ongoing firearms reforms. Firearms owners are being well served by his mature appreciation of distinctions in the application of good behaviour bonds with regard to licensed firearms holders.

    I raised with the Hon. John Tingle a number of concerns, for example regarding persons convicted of breaking, entering and stealing. I think most people regard that as a fairly serious offence, especially if it is your home that has been broken into. God forbid that you are present when the offender who committed the break and enter offence is given a good behaviour bond. Should that offender retain his or her firearms licence? It falls to the Commissioner of Police to determine whether that offender is an unfit or improper person to hold such a licence.

    That is pretty much the status quo of the current legislation, ensuring that some people do not fall through the cracks in the system. I think it is fair to say that all honourable members would want to provide a consistent approach in applying the law, and certainty for those who have licensed firearms. The proposals that the honourable member has put forward in this bill, as I said, evolve from community expectation regarding those who are fortunate enough to hold firearms.

    The Minister has indicated that the Opposition too will follow the suggestion made by the Government: support the passage of the bill through the Legislative Council, whilst recognising the need to have a safety net in place to meet community expectations that some persons are not suitable to retain a firearms licence. We would like those concerns to exercise the mind of the Government when it is considering amendments. The Opposition will reserve its rights regarding any amendments to be moved in the Legislative Assembly until we see what amendments the Government proposes.

    Reverend the Hon. FRED NILE [2.45 p.m.]: The Christian Democratic Party supports the Firearms Amendment (Good Behaviour Bonds) Bill introduced by the Hon. John Tingle. The object of the bill is to limit the disqualification of persons subject to good behaviour bonds from holding firearms licences or permits or from dealing in firearms. At present, a person who is subject to a good behaviour bond entered into as a result of being found guilty of any offence is disqualified from holding a firearms licence or permit and prohibited from being involved in a licensed firearms dealing business. The bill has the effect that a person will be disqualified only if they have been convicted of an offence involving the possession or use of firearms or other weapons, an offence involving a serious assault, or a drug trafficking offence. Those offences are spelt out in schedule 1 to the bill.

    Consequently, under the bill, a person found guilty of a drug trafficking offence who is given only a good behaviour bond would be automatically disqualified from holding a firearms licence. That is so if the offence involved a trafficable quantity of drug, within the meaning of the Act, of a prohibited plant or a prohibited drug, the manufacture and production of prohibited drugs, the supply of prohibited drugs on an ongoing basis, or aiding, abetting, counselling or inciting or procuring the commission of a drug trafficking offence.

    The bill also makes it clear that the person found guilty of an offence relating to the possession or use of a firearm or any other weapon, or of an offence involving the infliction or attempted infliction of actual bodily harm on another person, or of a drug trafficking offence, will still be automatically disqualified from holding a firearms licence. Those protections and safeguards are set out in the legislation, and I believe they are adequate.

    In the case of a farmer found guilty of an offence but given a good behaviour bond because of a previously good record and behaviour, the existing legislation requires the automatic cancellation of his or her firearms licence. The farmer may need firearms for various activities on the property, such as putting down injured animals or, in times of drought, putting down a large numbers of stock, as we have seen happen regularly. We do not want that farmer's firearms licence to be automatically cancelled, and under this legislation it would not be.

    As the Leader of the Opposition said, restrictions regarding a person seeking a firearms licence, or wishing to renew such a licence, will still apply. Those persons will still have to meet the continuing conditions of good conduct and so on. The Christian Democratic Party supports removing the mandatory imposition of disqualification from holding a firearms licence in certain specified circumstances, and it therefore supports the bill.

    The Hon. Dr ARTHUR CHESTERFIELD-EVANS [2.50 p.m.]: The object of the bill is to limit the disqualification of persons subject to good behaviour bonds from holding firearms licences or permits, or from dealing in firearms. Currently a person who is subject to a good behaviour bond entered into as a result of being found guilty of an offence is disqualified from holding a firearms licence or permit and prohibited from being involved in a licensed firearms dealing business. The bill provides that a person will be disqualified only if the person has been convicted of an offence involving the possession or use of firearms or other weapons, an offence involving a serious assault, or a drug-trafficking offence.

    The introduction of this type of bill is extraordinary when we consider that for everything else we rack up penalties. We do not mitigate, we do not look on the good side and we do not say, "They have not been involved in this, that or the other. We will mitigate where we can." But when firearms are involved, unless it is an offence involving the possession or use of firearms or other weapons, an offence involving a serious assault, or a drug trafficking offence it is not serious and the person will not be disqualified from holding a firearms licence or permit, or dealing in firearms. It is anomalous and the bill should be opposed.

    It is interesting to note that the Legislation Review Committee did not identify any issues under section 8A (1) (b) of the Legislation Review Act 1987. The relationship between firearms ownership—the paper refers throughout to legal ownership—and violent death is of particular importance to Australia because 10 per cent to 15 per cent of Australians privately own between four million and six million firearms. Compare that to the 2.7 million domestic cats we own! The risk posed by an individual firearm is low—0.8 to 1.3 deaths per 10,000 firearms per annum compared with 1.9 road deaths per 10,000 motor vehicles, according to 1994 data from the Australian Bureau of Statistics. The debate continues over the cumulative risk. Relatively little research is available on firearm abuse, and existing work is largely inconclusive. Research from overseas cannot be applied directly to Australia because of cultural and social differences, and differences in demographics of firearms ownership.

    Nevertheless, overseas research is cited regularly in the Australian debate. In particular, American research is cited to argue that America's high rate of homicide is a result solely of its firearms laws. This simplistic view has been described as the argument that short-circuited the need for any other explanation. Since 1989 homicide rates of individual American States have ranged from 0.54 to 72.58 deaths per 100,000 per annum, which reflects the heterogeneous nature of interpersonal violence within American society and its multifactor problems with origins dating back over 200 years. Although it is true that the American situation is partly different to ours, many North American gun-control advocates seek a system of ownership and principles endorsed by the Australian gun lobby. Australian firearm controls are based broadly on four assertions about the relationship between firearm ownership and violent death, supported by varying degrees of evidence.

    First, a linear relationship exists between a number of illegally held firearms and the rate of shooting deaths in the community, that is, fewer legal guns equal fewer shootings. Second, a decline in shooting deaths will cause an overall reduction in violent death. Third, comprehensive registration will facilitate firearm tracking and make owners more responsible. Fourth, cooling-off periods will prevent the purchase of firearms for impulse shootings. Debate in Australia continues over psychiatric patients. Lay observers have suggested that a history of involuntary psychiatric admission should be an exclusion to firearm ownership. Currently it is difficult to verify licence applicants self-reporting of mental disorder, substance abuse and violent behaviour in New South Wales, the only State in which the validity of self-reporting has been studied. Up to 90 per cent of suicide victims suffered from some form of mental illness, usually depression, and up to 75 per cent of perpetrators of murder-suicides are depressed. Previously cited studies on suicide demonstrate a strong association between suicide and mental illness.

    The Australian Medical Association is unlikely to support legislation allowing doctors to report patients who are unfit to hold a firearm, which was seriously suggested a couple of years ago. I responded quite strongly, as did the Doctors Reform Society. Let us make no mistake: as doctors we are more than aware that if we try to tell people they cannot have a firearms licence or they cannot have a drivers licence we will be threatened. It is extremely dangerous. Doctors do not want to make such reports. There is little support in the medical community for tracking psychiatric admissions to prevent the mentally ill from obtaining firearms because most psychiatric patients are not violent and most perpetrators of homicide do not have a history of involuntary psychiatric admission.

    There are many precedents dealing with patient confidentiality in these matters. Although we as parliamentarians spend our lives putting people in gaol, reducing their bail conditions and reducing the discretion of magistrates it seems odd that we want to limit firearm ownership among people who have committed other crimes or antisocial acts, which may be indicators of risk factors for violence or increased antisocial behaviour. Therefore we should leave this matter to the discretion of the courts and not pass this type of legislation.

    The Hon. RICK COLLESS [2.56 p.m.]: I had not intended to speak in debate on this bill but, in light of the comments made by the Hon. Dr Arthur Chesterfield-Evans, I feel compelled to strongly refute some of his nonsense. The bill provides specifically that a person will be disqualified from holding a firearms licence or permit, or from dealing in firearms only if the person has been convicted of an offence involving the possession or use of firearms or other weapons, an offence involving a serious assault, or a drug-trafficking offence. We are not talking about other types of offences for which people can end up in court. In his contribution Reverend the Hon. Fred Nile referred to the potential impact of the bill on the farming community.
    As all honourable members know, the vast majority of landowners and farmers have firearms on their premises for very good reasons—controlling vermin and putting injured or sick stock out of their misery. A firearm is an essential tool on every rural property throughout Australia. Currently—and it has happened—people who have been convicted of relatively minor offences lose their firearms licences for something that was in no way, shape or form related to a firearms offence. The House must support the bill to ensure that those who need firearms in the course of their employment or career can retain their licences even though they may have a minor conviction for a completely unrelated offence.

    Ms LEE RHIANNON [2.58 p.m.]: The bill is irresponsible. If it were passed, public safety would be compromised. Unfortunately I missed the Minister's speech, and I apologise for that, so I am not sure of the Government's position. However, I cannot believe the Government would roll over to the Shooters Party and support this legislation. Research shows that access to a gun by someone who is feeling depressed, having difficulty getting to work or feeling anxious is dangerous. But that is the position people could find themselves in if the bill were passed, which is unacceptable.

    I also understand that the passing of the bill would be a breach of the Australasian Police Ministers agreement on firearms. The Greens believe that public safety must be prioritised above everything else but the bill does not reflect that principle. People who are placed on good behaviour bonds are usually already facing very stressful circumstances. Having access to a firearm could place the convicted person's life and the lives of their immediate family in danger. Often people are sentenced to a term of imprisonment for 18 months, for example, and are then placed on a good behaviour bond for 12 months.

    The Hon. John Tingle: They do not go to prison for good behaviour.

    Ms LEE RHIANNON: I did not say they would go to prison for good behaviour. I said sometimes people go to gaol for a period and then are put on a good behaviour bond for a certain period. Surely they should not have their firearm returned during such a period. But I think what really answers the question about whether this bill is needed is an examination of the list of convictions for offences to which this bill applies and would permit someone to possess and use a firearm: kidnapping a child, torture of animals, involvement in a racial riot, and robbery involving grabbing, for example, a 70-year-old woman's handbag from her while she was walking along the street. The list indicates the types of offenders who would be able to keep their firearms.

    The bill has been introduced by people who are always telling us about the need for more law and order in our society. If the bill is passed, that is the last thing people will have. Other offences that may entitle those convicted to keep their firearms include exposing one's person to young children, stealing a credit card and taking all the victim's money out of the bank, malicious damage of property, breaking, entering and stealing goods from a family home, fraud, car theft, stalking, smashing cars, breaking windows, and damaging property.

    The Hon. Rick Colless: Assuming people have a reason to have one in the first place.

    Ms LEE RHIANNON: I acknowledge the interjection from a member of The Nationals—they are so quick out of the blocks when it comes to law and order—but the bill certainly has nothing to do with making our community safer. The bill just puts certain people in a position of power, and power with a firearm, under certain circumstance, as we know, can be incredibly dangerous. The list also includes assault. That could involve beating up a person, grabbing a woman and dragging her into a car, getting into a fight at a nightclub, and spitting at a policeman. The relationship of the bill to the offences I have listed is very unclear. There is a real worry about the impact of the bill on public safety and I urge members not to support it.

    The Hon. JOHN TINGLE [3.02 p.m.], in reply: I thank all members who spoke during the debate: the Minister for Justice, the Leader of the Opposition, Reverend the Hon. Fred Nile, the Hon. Dr Arthur Chesterfield-Evans and Ms Lee Rhiannon. There is nothing sinister or hidden about the bill. It seeks to correct an obvious anomaly in the Firearms Act. The current Act provides that a licensed firearms owner, who has obeyed the law in every respect, loses his firearm licence and, by definition, his firearms if he is subject to a good behaviour bond. It does not matter what the bond is for, it does not matter how minor the offence is, and it does not matter whether the offence is connected in any way with firearms. The law is specific and the penalty is mandatory: people who are given a good behaviour bond lose their firearms.

    Very few people are aware of this provision of the Act, so firearm owners who have appeared before a court and been convicted of a minor offence have often gladly agreed to a good behaviour bond, thinking it was a desirable alternative to a tougher penalty. A day or so later they discover that, by having that bond imposed on them, they have forfeited their right to own a firearm. This is a selective and discriminatory form of double jeopardy, a second punishment for what might be a very minor transgression. No other group of citizens in the community is treated in this way. The only thing this bill does is remove that anomaly to ensure that a law-abiding firearms owner does not lose his right to have a licence and own and use firearms in a legal manner because of a minor offence not related to or involving firearms.

    The bill limits the revocation of a licence to offences involving firearms, offences of violence or offences involving drug trafficking. Having listened to the contributions to the debate, it became clear to me that what some members have failed to grasp is that the bill does not in any way damage, limit or remove the discretion of a court to order the revocation of a firearms licence, whether or not a good behaviour bond has been imposed. If the court thinks it should do so, it will so order. This law is triggered only when a good behaviour bond has been imposed on somebody. Until that happens, this law does not come into effect.

    The various offences mentioned by the Leader of the Opposition may or may not lead to a good behaviour bond, but, for a start, if the court convicts a person after hearing the matter, the court will, before it passes sentence, hear that person's record, which is presented to the court. The court decides the sentence on the basis of that record. In other words, if it is made clear that this is not a first offence or an only offence, the court has the right to decide that the person is a habitual offender and to order the revocation or his or her firearm licence.

    The operative word in the law as it is currently is the word "automatic". The operative term is "automatic revocation of a firearm licence". All this bill does is delete the word "automatic" so that the revocation is not automatic but, rather, is decided according to the level of seriousness of the offence. The Leader of the Opposition said the public requires a consistent approach with firearm laws. By supporting the bill and passing it into law we will be establishing a consistent approach that does not create a special category of citizen who is jeopardised by a law that applies to nobody else and produces a double jeopardy for nobody else.

    I listened to the Hon. Dr Arthur Chesterfield-Evans. I do not know what bill he was talking about, but he certainly was not talking about this one. He was talking about some bill that I have never heard of. He has no understanding of the legislation. He referred to the level of ownership of firearms in this country, which is totally irrelevant. The bill has no effect on that whatever. He said there has been little research on firearm abuse. The bill is not about firearm abuse; it is about taking away a double jeopardy from one group of citizens in this community who are affected as no others are.

    The Hon. Dr Arthur Chesterfield-Evans also referred to suicide. There is no way we are ever going to be able to stop people committing suicide if they are so determined. If he wants to ban guns to stop suicide, we will also have to ban high buildings, ropes, razor blades, car exhausts, and all the other methods that people use to commit suicide. He also spoke about homicide. The bill is not about homicide. In the case of homicide, no good behaviour bond would be issued and therefore the legislation would not apply. It seems to me that the Hon. Dr Arthur Chesterfield-Evans was talking about things that are already in place. The bill does not challenge or change any of those things.

    Ms Lee Rhiannon spoke about rolling over to shooters. The bill does not reflect the Government or anybody else rolling over to shooters. It reflects a rolling over to a bit of commonsense and logical law instead of an anomaly that should never have been included in the Firearms Act in the first place. Ms Lee Rhiannon said it is bad that a depressed person could possess firearms. She said that people who have their firearm licences taken away might be depressed. They would be much more depressed having had their firearm licence taken away than they would be if they had been treated as the bill provides.

    By virtue of the provisions of the bill, these people would be able to acknowledge that, having done something bad and having been convicted, they may be dealt with in a way that recognises that the offence they committed does not justify the revocation of their firearms licence. It is not a matter of public safety. Let me say here and now that the Council of Australian Governments agreement to which Ms Lee Rhiannon referred, which was the catalyst for the introduction of our current firearms law, has not made this community one whit safer. In fact, throughout the operation of the firearms law there has been an unprecedented increase in crime involving the illegal use of firearms by criminals.

    The position is much worse now than it ever was. John Howard said when he introduced the current laws, "They will make our communities safer, but I cannot promise that they will stop another massacre." He was quite right. They have not made the community safer. In the end, the bill simply provides that when somebody has been convicted of a minor offence and when a court has decided that a good behaviour bond is the appropriate penalty, that person should not be deprived of their firearms if the offence is only minor. I reiterate that the bill does not prevent a court from ordering a firearms licence revocation if it wishes to do so. The bill is merely an attempt to remove an anomaly from the law—an injustice, a double jeopardy—that is applied selectively and in a discriminatory manner to a very small number of citizens. The bill rights an injustice. I commend it to the House.

    Question—That this bill be now read a second time—put.

    The House divided.
    Ayes, 2

    Mr Breen
    Ms Burnswoods
    Mr Catanzariti
    Mr Clarke
    Mr Donnelly
    Mr Gallacher
    Mr Gay
    Ms Griffin
    Mr Jenkins
    Mr Kelly
    Mr Lynn
    Mr Macdonald
    Reverend Dr Moyes
    Reverend Nile
    Mr Obeid
    Mr Oldfield
    Ms Parker
    Mrs Pavey
    Mr Pearce
    Ms Robertson
    Mr Ryan
    Ms Sharpe
    Mr Tingle
    Mr Tsang
    Mr West
    Dr Wong
      Mr Colless
      Mr Primrose
      Noes, 4
              Dr Chesterfield-Evans
              Ms Hale
              Mr Cohen
              Ms Rhiannon
      Question resolved in the affirmative.

      Motion agreed to.

      Bill read a second time and passed through remaining stages.