Executive Summary and Recommendations
This report sets out the results of this Committee’s inquiry into the Weapons Bill 1998 (“Bill”), referred by the Legislative Council of Western Australia on 20 October 1998 to the Committee for consideration and report.
What the Bill does
Currently, section 65(4a) of the Police Act 1892 is the central provision in Western Australian law dealing with the carrying of weapons. In replacing that provision, the Bill expands the ambit of weapons laws in a number of ways, the most significant being to:
- create new categories of weapons and other articles, and to detail different offences relating to each category;
- increase penalties for offences relating to weapons and other articles;
- prohibit, in most circumstances, a person possessing a weapon or other article for purposes of defence;
- make it an offence to carry or possess an article other than a weapon with the intention of using it, whether or not for defence, to injure or disable;
- partially reverse the burden of proof for weapons offences, so that where (a) a person is in possession of a “controlled weapon” or (b) there are reasonable grounds for suspecting that the person has the intention of using an article other than a weapon to injure or disable, it is presumed that an offence is committed unless the person can prove otherwise;
- empower a member of the police force to search persons and seize weapons; and
- provide for forfeiture of a weapon to the Crown or retention by a member of the police force in a range of circumstances.
Definitions of “prohibited weapon” and “controlled weapon”
The Bill defines a “prohibited weapon” and one type of “controlled weapon” to be whatever the regulations prescribe. The argument for this approach is that first, it is appropriate for the articles to be listed in regulations as listing them in a schedule to the Act would be too cumbersome, and secondly that defining in detail what articles can be prescribed would make the regulations vulnerable to challenge on the ground that they are beyond power.
It is appropriate that prohibited and controlled weapons should be prescribed by regulation. However, it is reasonable to set some parameters indicating what can be prescribed. The Bill clearly differentiates in its operative provisions between prohibited weapons, controlled weapons and other articles. It is appropriate that the definitions reflect this differentiation.
The Bill makes it an offence for anyone other than a member of the police force or an employee of a recognised museum, in the performance of their respective functions, to possess a prohibited weapon, unless delivering it to the police. This means that a person who has a weapons collection which includes a prohibited weapon will commit an offence, unless regulations providing an exception are introduced.
The Bill should recognise the existence of weapons collectors by specifically providing for regulations allowing an exception in their favour, subject to appropriate safeguards. Further, regulations should be prepared to this effect.
Definition of “controlled weapon”
“Controlled weapon” is defined to cover weapons similar to those covered by existing section 65(4a) of the Police Act, and in addition specifies that articles for use in the practice of a martial sport and the like are controlled weapons. Defining the term broadly is appropriate, with the qualification that not all articles used in martial sports, but only articles used for defence or attack, should be included.
“Lawful excuse” for possessing a controlled weapon
The Bill allows that a person can have a “lawful excuse” for possessing a controlled weapon. Under current law, “defence” of self, others and property can be a lawful excuse where, for example, a person has a realistic and well-founded fear of attack. The Bill, in contrast, specifies that “defence” cannot be a lawful excuse for possessing a controlled weapon. The House should consider whether the Bill’s removal of the right to carry a controlled weapon for defence is appropriate.
There is considerable support for allowing the carrying of controlled weapons which are specifically designed for defence, such as pepper sprays. Although the Bill itself does not allow this, an exception can be effected by way of regulations. The Committee supports preparation of regulations which would allow persons at all times (ie whether or not there is a “realistic and well-founded fear of attack”) to carry such weapons.
The Bill, like current law, provides that a person carrying a controlled weapon bears the burden of proving that they have a lawful excuse for doing so. On balance, this reversal of the usual burden of proof is justified, but it has the potential to cause injustice where a person carries a weapon for a legitimate purpose but has difficulty proving the purpose. The provision relies heavily on the good judgment and common sense of the police and the courts.
“Reasonable grounds for suspecting” intention to use an article to injure
In addition to dealing with prohibited weapons and controlled weapons, the Bill includes a “catch-all” clause 8 making it an offence to carry or possess any article with the intention of using it to injure or disable a person, whether or not for defence. Where there are “reasonable
grounds for suspecting” such intention, there is a statutory presumption that the person has the intention and the person must seek to prove the contrary.
Unlike the provisions discussed above, which in essence reproduce existing law with some modifications, clause 8 creates a new type of criminal offence, one which operates on a statutory presumption of guilt upon a mere suspicion of a person’s intention. While on balance there is some justification for the creation of the offence, it is of concern that the threshold for laying a charge under the provision is a very low one.
Possessing an article for defence
Clause 8 substantially restricts the right to possess an article other than a weapon, such as a baseball bat or crowbar, for defence. A person can carry or possess an article for defence only at a “dwelling” and only for use “in circumstances that the person has reasonable grounds to apprehend may arise”.
It is of concern that keeping an article for defence at places such as on a property but outside the dwelling, at a workplace or in a vehicle will become an offence. Similarly, picking up an article in an instinctive act of defence could become an offence. Confusingly, in many circumstances it will be legal under the Criminal Code to use an article for defence, while at the same time it is an offence under clause 8 to possess the article.
The defence to a charge under clause 8 should be broadened. This could be most simply done by allowing a person to possess or carry an article for defence where the person has a “lawful excuse”. Alternatively, or in addition, the defence available for a person at a dwelling could be expanded to include other places, or by removing the limitation relating to “reasonable apprehension”.
Search and seizure provisions
The Bill introduces new powers for a police officer to search a person whom the officer believes on reasonable grounds to be committing an offence under the Bill, and to seize weapons. There is some concern that because the offences under the Bill are so broad, the “reasonable grounds” test is so easily satisfied that it would be almost impossible to prove that an officer conducting a search did not have such reasonable grounds, for the purpose of disciplinary action or charges being laid against the officer.
The Bill makes no provision, unlike other search powers, for searches of women to be carried out by a female police officer or female member of the public authorised by a police officer. The Bill should be amended to include such provision.
Recommendations are grouped as they appear in the text at the page numbers indicated.
Recommendation 1: that the definition of “prohibited weapon” in clause 3 be amended to incorporate a description of the general characteristics of a prohibited weapon.
Recommendation 2: that the Bill be amended by the insertion of a new clause 10(3) to provide for the preparation of regulations which will allow a bona fide weapons collector to maintain a collection including prohibited and controlled weapons, subject to suitable safeguards.
Recommendation 3: that the Government prepare appropriate regulations under the new clause.
Recommendation 4: that consideration be given to amending paragraph (a) of the definition of “controlled weapon” in clause 3 to incorporate a description of the general characteristics of a controlled weapon.
Recommendation 5: that paragraph (b)(iii) of the definition of “controlled weapon” in clause 3 be amended to read as follows:
“ . . . (iii) for attack or defence in the practice of a martial sport, art or similar discipline.”
Recommendation 6: that the Government prepare regulations which would allow persons to carry or possess at all times particular types of controlled weapons designed for defence.
Recommendation 7: that clause 8 be amended to provide a broader defence (or set of defences) to a charge under clause 8(1).
Recommendation 8: that the House consider whether the defence to a charge under clause 8(1) should be broadened:
Recommendation 9: that Part 3 be amended to provide for searches of women to be conducted by a female police officer or a female member of the public authorised by a police officer, similarly to section 53B(2) of the Police Act.