Thursday, 8 February 2024

Bills

Firearms and Control of Weapons (Machetes) Amendment Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:10): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Firearms and Control of Weapons (Machetes) Amendment Bill 2024:

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 and Control of Weapons (Machetes) Amendment Bill 2024.

In my opinion, the Firearms and Control of Weapons (Machetes) Amendment Bill 2024, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill amends the Firearms Act 1996 (the Act) to expand police powers to serve firearm prohibition orders. Specifically, the Bill will empower Victoria Police officers to:

• direct or detain an individual for the purposes of serving a firearm prohibition order;

• enter premises without consent for the purposes of serving a firearm prohibition order on an individual, subject to a service search warrant; and

• serve a firearm prohibition order on a person in detention by registered post.

The above powers can only be used by police officers in circumstances where Victoria Police have exhausted all reasonable attempts to serve an individual with a firearm prohibition order personally.

The Bill also amends the Firearms Act 1996 to:

• allow police officers to serve a firearm prohibition order by putting a copy down in the presence of the individual and telling them the nature of the order;

• make minor unrelated amendments to certain definitions in the Act.

The Bill also amends the Control of Weapons Act 1990 to insert an example in the definition of controlled weapon to state that a machete is a type of knife. This is a purely clarificatory amendment to confirm the existing legal position whereby a machete is a knife and all knives are controlled weapons unless they are specified in the Control of Weapons Regulations 2021 as being prohibited weapons.

Current operation of the firearm prohibition order scheme

A firearm prohibition order 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 individual who will be subject to the firearm prohibition order must not acquire, possess, carry or use a firearm or firearm-related item.

The firearm prohibition order scheme, which was introduced in 2018, operates in tandem with the ‘prohibited person’ scheme. It provides additional police powers to proactively respond to and prevent serious firearm-related crime. Firearm prohibition orders 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, and anyone charged with a firearms-related offence.

To ensure an individual has actual knowledge that a firearm prohibition order applies to them, a firearm prohibition order must be served on an individual in person by a police officer before it is enforceable. An individual served with a firearm prohibition order must immediately comply with additional duties under the Firearms Act 1996, which are enforceable by significant penalties. Additional duties include the requirement to immediately surrender any firearm or firearm related item in the individual’s possession to a police officer, and the duty not to enter or remain on a premises at which a firearm is used or stored.

Further existing police powers to search an individual apply immediately after a firearm prohibition order is served on the individual. The existing firearm prohibition order search powers allow a police officer to, without warrant or consent, enter and search a premises that is occupied by, in the care of or under the control or management of the individual, and to search any vehicle, vessel or aircraft that is in the charge of the individual or in which the individual is a passenger. The existing firearm prohibition order search powers also allow a police officer to search the individual and to detain them for as long as is necessary to conduct the search. A police officer may exercise these search powers if reasonably required to determine whether the individual has a firearm or firearm related item or is contravening the Firearms Act 1996.

Existing warrantless search powers in the Firearms Act 1996 also provide for a police officer to search a person accompanying an individual subject to a firearm prohibition order if the police officer reasonably suspects that the person is committing or about to commit an offence against the Firearms Act 1996 or has a firearm or firearm related item in their possession.

Children aged 14 years of age or more can be subject to a firearm prohibition order.

Amendments to facilitate service of firearm prohibition orders

A firearm prohibition order must be served on an individual before it is enforceable. Since the introduction of the firearm prohibition order scheme in 2018, a small number of individuals have actively avoided service of a firearm prohibition order to avoid enforcement of the firearm prohibition order scheme.

To ensure that Victoria Police can serve firearm prohibition orders on the few individuals who are avoiding service, the Bill introduces additional measures to facilitate service on those people that engage and limit human rights under the Charter. These measures include:

• a power for the Chief Commissioner to apply to a magistrate for a service search warrant, which authorises a police officer to search a premises for a person for the purpose of serving a firearm prohibition order; and

• a power for a police officer to apply to the Chief Commissioner to make a service direction determination, which authorises a police officer to stop an individual in a public place and direct them to remain at the place or to go to a police station or other safe place for the purposes of serving the firearm prohibition order. If a person unreasonably refuses to follow a direction, a police officer may detain the person in order to serve the firearm prohibition order.

The Bill includes safeguards so that the additional service powers may only be exercised where necessary. The Bill ensures that these additional service powers are only to be used as a last resort and not merely because they are more convenient to police. An individual may easily avoid being subject to these additional service powers by receiving the firearm prohibition order when the police officer attempts to serve it. The Bill only authorises the use of additional powers to effect service of a firearm prohibition order on an individual after the reasonably available less restrictive means have been exhausted.

Firearm prohibition orders are targeted at the most serious criminals who pose a significant threat to community safety. These individuals should not be allowed to avoid or delay the application of a firearm prohibition order by exploiting procedural safeguards. Such a delay, which is generally initiated by the individual, unreasonably limits the effectiveness of the firearm prohibition order scheme, which is designed to support police to proactively respond to and disrupt firearm related crime in Victoria.

The Bill also provides administrative improvements to facilitate service of a firearm prohibition order that do not engage or limit a human right under the Charter. These measures include providing for a police officer to serve a person in detention (including immigration detention) by registered post in certain circumstances; and providing for a police officer to put a copy of the firearm prohibition order down in the presence of the individual and telling the individual the nature of the order.

Human Rights Issues

Certain Firearms Act amendments in the Bill engage the following human rights under the Charter:

• the right to freedom of movement (section 12)

• the right to privacy and reputation (section 13)

• protection of children (section 17(2))

• property rights (section 20)

• the right to liberty and security of the person (section 21)

• the right to humane treatment when deprived of liberty (section 22).

For the reasons outlined below, I am of the view that the Bill is compatible with each of these human rights where they are limited.

Overall purposes of the amendments

The purpose of all of the limitations discussed below is to prevent firearm crime, which represents a serious threat to community safety in the context of an increase in the proliferation of illicit firearms in Victoria. There can be no doubt that preventing firearm crime is a very important public purpose in a free and democratic society that is based on human dignity, equality and freedom. The fact that it is likely to be necessary in order to fulfill the State’s obligation to protect the right to life insofar as the right to life may include such an obligation (Osman v United Kingdom (1998) 29 EHRR 245, [115]–[116]), means this purpose should be given significant weight under section 7(2) of the Charter. Under human rights law the State is entitled, and in some circumstances may be obliged, to take appropriate steps to protect the lives of those within its jurisdiction (Veness v Medical Board of Australia [2011] ACAT 55, [35]).

Safeguards

The significant safeguards introduced by this Bill will ensure that any limitations on these Charter rights, discussed below, are justified and proportionate. The Bill inserts new Divisions 8 and 9 into Part 4A of the Firearms Act 1996 which include protections for individuals whose rights have been limited, and record keeping, reporting and monitoring requirements to provide for the ongoing monitoring and oversight of the additional service powers by the Parliament, the Minister and IBAC.

The general safeguards provided in Division 8 include a new section 112ZU which limits the detention period for people detained under Divisions 6 or 7 to a maximum of 2 hours (or when the order is served if that occurs first). New section 112ZV provides that an individual must not be questioned on a matter that does not relate to the firearm prohibition order. If an individual is not served within the specified time, new section 112ZW prevents the powers being used again on the same individual until 24 hours later. When taken together, these measures prevent a person being unreasonably detained for an extended period. New section 112ZX requires that a person who has been moved by police be transported back to that place or another safe place, to minimise the disruption to them.

New section 112ZZC requires the Chief Commissioner to report on a quarterly basis to IBAC with the prescribed particulars of the records that are required to be kept under the new provisions, and substituted section 174E(1) requires the Chief Commissioner to report to IBAC quarterly on specified information. The substituted section 174F requires IBAC to review the making of firearm prohibition orders and the making of service detention determinations for each three-month period of every year. Section 174H(3) will provide that IBAC must review whether or not each determination for a service detention determination should have been made by the Chief Commissioner. This is a remarkable level of oversight and comprehensive assurance, which, coupled with the record keeping requirements such as the need to record the use of powers against children, and particulars of service search warrants for people with a special vulnerability, will ensure that any adverse trends in the operation of the scheme can be picked up very quickly. This promotes the right to equal protection from discrimination in section 8(3) of the Charter and ensures the powers are being used in a proportionate manner as required by section 7(2) of the Charter.

The right to freedom of movement (section 12)

The right to freedom of movement in section 12 of the Charter protects three separate rights: the right to move freely within Victoria, the right to enter and leave Victoria, and the right to choose where to live in Victoria. It provides that every person lawfully within Victoria has the right to move freely within Victoria. It provides protection from unnecessary restrictions upon a person’s freedom of movement and extends, generally, to movement without impediment throughout the State and a right of access to places and services used by members of the public, subject to compliance with regulations legitimately made in the public interest (DPP v Kaba (2014) 44 VR 526 at [100]). The right is directed at restrictions that fall short of physical detention coming within the right to liberty under section 21 (Kracke v Mental Health Review Board (2009) 29 VAR 1 at [588]). The right to freedom of movement is one of the most commonly qualified rights that may be reasonably limited under section 7(2) of the Charter (DPP v Kaba (2014) 44 VR 526 at [117]).

Clause 14 inserts new Divisions 6, 7, 8 and 9 in Part 4A of the Firearms Act 1996.

Division 6 authorises limits on the right to freedom of movement when an individual is directed by a police officer to stop and remain at a place or to go to a police station or other safe place for the purposes of being served with a firearm prohibition order. Division 7 authorises limits on the right to freedom of movement when a person is held in custody at the premises that are the subject of a service search warrant, or potentially taken to a police station or other safe place, for the purposes of being served with a firearm prohibition order.

Before a police officer may exercise the power to direct an individual under Division 6, the Chief Commissioner must make a service direction determination under new section 112V. In making this determination, new section 112W requires that the Chief Commissioner must first be reasonably satisfied based on affidavit material that the public interest requires that the firearm prohibition order must be served within 28 days; that a police officer has reasonably attempted to serve the firearm prohibition order; and that the individual is avoiding service of the firearm prohibition order, or that a police officer has made reasonable enquiries and Victoria Police cannot identify the individual’s current address or their whereabouts for the purposes of service. If the individual is a child, the Chief Commissioner must be reasonably satisfied that the circumstances are exceptional.

The phrase “reasonably satisfied” is used in various Acts and has been found to be “designed to set up an objective criterion to be determined by reference to the external evidence or indicia” (R v LR [2006] 1 Qd R 435 at [5]). Although the test is objective, there will not be a single acceptable outcome, however “there must have been evidence available to him or her which can objectively be seen to support the decision that has been reached” (R v LR [2006] 1 Qd R 435 at [44]). This test satisfies the “under law” requirement for reasonable limits in section 7(2) of the Charter.

Before a police officer may break and enter premises to search for an individual named in the warrant and detain them for the purposes of serving the order under Division 7, a magistrate must issue a service search warrant under new section 112ZG. Before doing so new section 112ZH will require the magistrate to be satisfied that there are reasonable grounds to believe that a police officer has made reasonable attempts to serve the order; it is in the public interest for it to be served within 28 days; issuing the warrant is reasonable in the circumstances and if the individual is a child the circumstances are exceptional. Before issuing a warrant, the magistrate may have regard to the nature of the premises for which entry is being sought; whether it is a residence; and whether a person with a special vulnerability (including a child) are likely to be at the premises, any other prescribed matter, and any other matter the magistrate considers relevant. Consideration of these matters will ensure that the human rights impacts on other people in the premises are anticipated and balanced before a warrant is issued.

In my opinion, these limitations are not incompatible with the right to freedom of movement under the Charter. Any limit on an individual’s freedom of movement is authorised by law after less restrictive means reasonably available to serve the firearm prohibition order on the individual have been exhausted. This amendment only limits freedom of movement reasonably in accordance with section 7(2) of the Charter.

The right to privacy and reputation (section 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Section 13(b) states that a person has the right not to have their reputation unlawfully attacked. A number of amendments in the Bill may engage this right.

This right is a very broad right concerned with physical and psychological autonomy (Kracke v Mental Health Review Board (2009) 29 VAR 1, [619]–[620]). A person’s name is an aspect of their right to privacy, and where a police officer demands that a person reveal their name and address, the right is engaged (DPP v Kaba (2014) 44 VR 526, [132]–[134], [447], [463]).

Although the right is broad, it also contains internal limitations which have been interpreted as confining the scope of the right: the current authority on section 13(a) is that an interference with the right to privacy and reputation does not amount to a limitation on that right if the interference is lawful and is not arbitrary (Thompson v Minogue [2021] VSCA 358, [44]). The adjective ‘arbitrary’ is wider than the adjective ‘unlawful’ in that an interference with a person’s privacy may be arbitrary even if it is not unlawful (HJ [2021] VSCA 200, [152]). An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The provisions of new Division 6 engages the right to privacy in a variety of ways including when a police officer requires an individual to give their name and address to verify their identity under new section 112ZA(1)(b) and when a police officer directs an individual to surrender their personal autonomy to receive service of a firearm prohibition order under new section 112ZC.

The power to require an individual to give their name and address under new section 112ZA is not arbitrary because the police officer must first be reasonably satisfied that a service direction determination applies to the individual, and the purpose is to verify their identity before exercising the power to direct an individual to stay in a place or to go to a police station or other safe place to receive service of the firearm prohibition order. Similarly, the power to direct an individual to remain in a place or to go to a police station or other safe place to receive service of a firearm prohibition order arises only after the police officer has verified the individual’s identity and is reasonably satisfied that a service direction determination applies to the individual. It is not arbitrary.

The phrase “reasonably satisfied” has been found to be “designed to set up an objective criterion to be determined by reference to the external evidence or indicia” (R v LR [2005] LR QCA 368, [5]). Although the test is objective, there will not necessarily be a single acceptable outcome, however “there must have been evidence available to [the decision maker] which can objectively be seen to support the decision that has been reached” (R v LR [2005] LR QCA 368, [44]). In my opinion, this requirement ensures that the use of the power is not arbitrary and is sufficiently predictable to satisfy the requirement of lawfulness, so that the internal limits within the right are not breached.

New Division 7 provides for a magistrate to issue a service search warrant that authorises a police officer to search a specified premises for the named individual for the purposes of serving a firearm prohibition order. New section 112ZG engages the right to privacy if a court issues a service search warrant authorising a police officer to enter an individual’s premises, including their home.

However, I consider that a search for an individual who is avoiding service of a firearm prohibition order authorised by a service search warrant issued under new Division 7 of Part 4A of the Firearms Act 1996 does not limit the right to privacy protected by section 13(a) of the Charter for the following reasons. A service search warrant authorises a search for an individual according to law. The search may only be carried out after a magistrate has been satisfied that the specific statutory preconditions have been met. A police officer’s authority to search is appropriately constrained so that the police officer is solely authorised to search for the individual named in the firearm prohibition order, at the premises specified in the warrant, for the purposes of serving the firearm prohibition order on the individual. The police officer is not authorised to search for any other thing.

The power conferred on a magistrate to issue a service search warrant protects against the arbitrary exercise of power. The magistrate must be satisfied that police have reasonably attempted to serve the firearm prohibition order, that the individual is avoiding service, and that the service search warrant is reasonable in the circumstances. The magistrate may have regard to the nature of the premises for which entry is being sought, whether the premises is a residence, whether a person with a special vulnerability (including a child) is likely to be at the premises at the time of the search, any other prescribed matter, and any other matter the court considers relevant. In the event that the Chief Commissioner applies to a magistrate of the Children’s Court of Victoria for a warrant to search for a child aged 14 years or more, the magistrate must be satisfied that exceptional circumstances exist to justify the issue of the service search warrant. Exceptional circumstances means something unusual, or out of the ordinary that in the circumstances justifies the issue of the warrant despite the inherent vulnerability of a child.

A service search warrant will, by definition, be issued only in circumstances where there is no other less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. A service search warrant can only be issued after a police officer has reasonably attempted to serve the firearm prohibition order and established that the individual is avoiding service of the firearm prohibition order. Avoiding service goes beyond a mere failure to cooperate with police in a particular circumstance. Avoiding service is established by a course of action that demonstrates that the individual is taking positive steps to avoid the service of the firearm prohibition order.

An individual may avoid the interference with their privacy under a service search warrant simply by accepting the firearm prohibition order from the police officer when the police officer reasonably attempts to serve the firearm prohibition order on the individual.

For these reasons I am of the opinion that the Bill does not limit and is not incompatible with the right to privacy and reputation protected by section 13 of the Charter.

Protection of children (section 17(2))

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. Section 17(2) recognises the particular vulnerability of children due to their age and confers additional rights on them. Its scope is informed by the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child shall be the primary consideration. However, it is worth noting that courts in the United Kingdom construe the best interests of the child as “a” primary consideration rather than “the” primary consideration (ZH (Tanzania) v Home Secretary [2011] UKSC 4, [25]–[26]).

Currently, a firearm prohibition order can apply to a child aged 14 years or more and must be served before the firearm prohibition order is enforceable. In recognition of the particular vulnerability of children, the Bill provides that the Chief Commissioner must not make a service direction determination in respect of a child unless exceptional circumstances exist, and new section 112ZK(2) requires the Chief Commissioner to apply to a magistrate of the Children’s Court of Victoria for a service search warrant. A magistrate must not issue a service search warrant in respect of a child unless exceptional circumstances exist.

Further, before issuing a service search warrant new section 112ZH provides that the magistrate may have regard to whether a person with a special vulnerability is likely to be at the premises at the time of the search. The Bill defines special vulnerability in relation to a person to include a person under the age of 18 years.

It is a well-accepted principle in determining exceptional circumstances that the hurdle is a high one, but not so high that it is impossible to ever achieve. Further, unusual or uncommon circumstances are not necessarily solely required (Director of Public Prosecutions (Vic) v Cozzi [2005] VSC 195). In the context of bail applications it has been said that a general definition of “exceptional circumstances” is not possible and that exceptional circumstances might come about as a “result of the interaction of a variety of factors which of themselves might not be regarded as exceptional. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that … the making of an order … would be justified” (Application for Bail by Moloney, Re Supreme Court of Victoria, unreported 31/10/1990] BC9003878). I consider this to be a sufficiently high threshold for allowing these powers to be used against children.

In recognition of the particular vulnerability of children, new sections 112ZF and 112ZT specify additional measures for the protection of a child when a police officer exercises a power in relation to a child. These include requirements to contact a person with parental responsibility for the child, to tell a person with parental responsibility for the child that the child is being directed, detained or placed in custody, to explain the process, and to give the child a reasonable opportunity to communicate with a person with parental responsibility for the child. In addition, a police officer must give the child a reasonable opportunity to communicate with a legal practitioner from Victoria Legal Aid (or the Victorian Aboriginal Legal Service) as soon as practicable.

Although these amendments will apply to children who are aged 14 years or more, and may therefore limit their Charter rights, they will only be used in exceptional circumstances. I consider that in those exceptional circumstances the limits on the rights of children in section 17(2) will be justified for the reasons outlined in this statement in the discussion of those rights.

The right to property (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with the law. The right to property under section 20 of the Charter will be limited when all three of the following criteria are met: the interest interfered with is ‘property’, the interference amounts to a ‘deprivation’, and the deprivation other than ‘in accordance with law’. This right does not provide a right to compensation and the High Court has confirmed that the requirement under section 51 (xxxi) of the Federal Constitution that the Commonwealth Parliament cannot pass a law that acquires property without compensation on just terms does not apply to the States (Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399).

In PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373 Bell J observed that in the Charter, neither ‘property’ nor ‘deprived’ is defined. On first principles, these terms should be interpreted liberally and beneficially.

The term ‘property’ includes both real and personal property and any right or interest (including any economic interest) regarded as property under Victorian law. Property could also include non-traditional and less formal rights in relation to property, such as a licence to enter or occupy land and the right to enjoy uninterrupted possession of land.

A deprivation of property could occur where a title or right to property is transferred to an entity other than the owner; where a title or right to property is extinguished; or where an action has the effect of substantially depriving a property owner of the ability to use his or her property or part of that property (including enjoying exclusive possession of it, disposing of it, destroying it, transferring it or deriving profits from it). An interference with the home can amount to a deprivation of property (PJB v Melbourne Health (Patrick’s Case) (2011) 39 VR 373, [61]–[62]).

‘In accordance with law’ has a particular meaning in the human rights context. To comply with this right any deprivation must be authorised by legislation or the common law, and any discretion conferred should be confined and structured so that it is neither arbitrary nor unclear.

New section 112ZG provides for a magistrate to issue a service search warrant that authorises a police officer to break, enter and search a premises for an individual who is avoiding service of a firearm prohibition order. In my opinion, this engages the right to property as it will authorise an interference with a premises, including a door or locking mechanism at the premises. However this provision does not limit the right to property because any interference with property will be authorised by law. The authorising provision is clearly structured so that the scope of the authority to interfere with property is clearly delineated, and the relevant discretions are not arbitrary. New section 112ZH clearly sets out the matters that a magistrate must reasonably believe based on sworn or affirmed evidence, and expressly identifies additional matters that the magistrate may have regard to when exercising a discretion to grant a service search warrant.

New Subdivision 2 of Division 7 of Part 4A of the Firearms Act 1996 includes measures to limit the scope of any interference with property to the minimum reasonably necessary to achieve the policy purpose. New section 112ZN requires that before an officer executes a service search warrant on a premises they must first reasonably believe that the individual to whom the order is present at that premises. Section 112ZO requires a police officer to announce their presence, and to give an opportunity to any person at the premises to allow the police officer executing the service search warrant to enter. The Bill provides for an exception to the requirement to announce their presence when a police officer reasonably believes that immediate entry is required to ensure the safety of any person or that the effective execution of the service search warrant is not frustrated. This is consistent with similar search warrant provisions in other legislation and provides for the least restrictive means reasonably available to achieve the policy purpose.

For the reasons set out above, in my opinion the Bill does not limit the property rights protected by section 20 of the Charter.

The right to liberty and security of the person (section 21)

Section 21 of the Charter protects the human right to liberty and security. It provides that a person must not be deprived of their liberty except on grounds, and in accordance with procedures, established by law.

Section 21(1) of the Charter provides that every person has the right to liberty. Section 21(2) provides that a person must not be subject to arbitrary detention. Section 21(3) provides that a person must not be deprived of his or her liberty except on the grounds and in accordance with procedures established by law. Together, the effect of sections 21(1), (2) and (3) is that the right to liberty may legitimately be constrained only in circumstances where the deprivation of liberty by detention is both lawful, in that it is specifically authorised by law, and not arbitrary, in that it is reasonable or proportionate in all the circumstances.

Whether a particular restriction amounts to a ‘deprivation of liberty’ for the purpose of the right in section 21 is a question of degree or intensity. Detention or deprivation of liberty does not necessarily require physical restraint; however, the right to liberty is concerned with the physical detention of the individual, and not mere restrictions on freedom of movement. (Kracke v Mental Health Review Board (2009) 29 VAR 1 at [664]). In my opinion, the temporary restriction of movement that occurs when an individual complies with a police officer’s direction to stop and remain in place, or to attend the nearest police station or other safe place to receive service of a firearm prohibition order does not amount to a deprivation of liberty and is instead a restriction of freedom of movement (DPP v Kaba (2014) 44 VR 526, [78], [97], [112]). A person complying with a direction is free to go after the time that it takes to serve the firearm prohibition order (which cannot be more than 2 hours in any event). Accordingly, an individual does not experience a significant delay or physical restraint that could amount to a deprivation of liberty for the period during which the individual is subject to the direction.

If the constraints that occur when a person complies with a direction are considered to limit the right to liberty, the fact that this restraint is limited to 2 hours, and the other justifications for its use, ensure that any limitation on this right is reasonable for the purposes of section 7(2) of the Charter.

The powers conferred following a service direction determination have been structured to employ the least restrictive means reasonably available to achieve the purpose of the limitation, escalating the limitations only where an individual unreasonably refuses or fails to comply with a lawful direction given by a police officer. New section 112ZC provides for a police officer to first direct an individual to stop and remain at a place or to go to a police station or other safe place for the purposes of being served with a firearm prohibition order. An individual who complies with this direction is subject to a limitation on their right to freedom of movement for a period not exceeding 2 hours from the time of the direction.

New section 112ZD provides for a police officer to detain a person who unreasonably refuses or fails to comply with a direction given under new section 112ZC. The power to detain the individual is limited to the purpose of serving a firearm prohibition order on the individual, and arises only after the Chief Commissioner has made a service direction determination and the individual has unreasonably refused or failed to comply with a lawful direction. In my opinion the power to detain an individual under section 112ZD (and use the force reasonably necessary to apprehend and detain the individual) limits the right to liberty but is not incompatible with the right protected by section 21(1) of the Charter because it complies with the requirements in sections 21(2) and (3) of the Charter.

New section 112ZS also provides for the detention of an individual under a service search warrant, which engages and limits the individual’s right to liberty. New section 112ZU provides that the period during which an individual may be detained under a service search warrant is limited to the time it takes to serve the firearm prohibition order on the individual or 2 hours (whichever is the earliest). In my opinion, this limitation is proportionate to the important public safety purpose of commencing the enforcement of a firearm prohibition order against an individual who is avoiding service of the firearm prohibition order, and for this reason is not incompatible with the right protected by section 21(1) of the Charter.

Section 21(4) provides that a person who is arrested or detained must be informed at the time of arrest or detention of the reason for the arrest or detention and must be promptly informed about any proceedings to be brought against that person. Sections 112ZE(2) and 112ZS(2) include protections for an individual deprived of their liberty having been detained for the purposes of serving a firearm prohibition order. These protections include a requirement that a police officer tell the individual that they are not under arrest for an offence, to explain the purpose of the detention, and to inform the individual of the effect of additional protections applying to an individual detained for these purposes. In my opinion, these provisions ensure that any deprivation of liberty is compatible with the right protected by section 21(4) of the Charter.

Section 21 further provides for the proper treatment of a person who is arrested or detained in subsections (5) to (8). In my opinion, the powers to detain an individual conferred by the new provisions do not engage sections 21(5) to (8) of the Charter because the power to detain an individual for the purposes of serving a firearm prohibition order does not arise in connection with the commission of an offence, does not limit any right to judicial review, and does not relate to a person’s ability to perform a contractual obligation.

In my opinion, the Bill is compatible with the rights protected by section 21 of the Charter because the limits on the right to liberty conform with the requirements of section 21 itself. The limits are also reasonable limits under section 7(2) of the Charter because of the thresholds for the use of these powers, the confined nature of any detention that can occur under them and the various safeguards and monitoring mechanisms introduced by the Bill.

The right to humane treatment when deprived of liberty (section 22)

Section 22 of the Charter imposes certain standards in respect of the treatment of people who are detained in Victoria. It requires that any person detained must be treated with dignity and humanity. This applies to people detained in the criminal justice system and in non-punitive or protective forms of detention such as the compulsory detention of persons with a mental illness, for a public health purpose, or as is in the case of this Bill, for a public safety purpose when serving a firearm prohibition order on an individual. The Bill ensures that individuals detained for the purpose of being served with a firearm prohibition order are treated humanely and with respect as they are only detained for the very short period in which it takes to serve them, which is at most allowed to be two hours.

Additionally, Victoria Police must comply with the Charter when exercising its powers and performing its functions and duties under the Act, including the new provisions introduced by the Bill.

Importantly, the Bill inserts new Divisions 8 and 9 into Part 4A of the Firearms Act 1996 which include protections for an individual whose freedom of movement or freedom of liberty has been limited and record keeping, reporting and monitoring requirements to provide for the ongoing monitoring and oversight of the additional service powers by the Parliament, the Minister and IBAC. Each of these measures promote accountability and compliance with duties at law to treat a person detained with dignity and humanity.

In my opinion, the Bill does not limit the right to humane treatment when deprived of liberty protected by section 22 of the Charter.

The Hon Anthony Carbines MP – Minister for Police

Second reading

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.

James NEWBURY (Brighton) (10:10): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Thursday 22 February.