Answers to Questions on notice from Community Safety and Legal Affairs C'ttee

Ms M Westcott

Committee Secretary

Community Safety & Legal Affairs Committee

Parliament House

George Street

BRISBANE  QLD  4000

I refer to the proceedings before your Committee held on 24 May 2024.

Mr Michael Cope, President QCCL, attended and took two questions on notice which I have been asked to address.

Those questions appear at page 39-41 of the Transcript of the proceedings.

The Honourable JM Krause MP raised the following questions:

·         I want to ask…your view about how (Firearm Prohibition Orders) can impact on associates of people who are issued with Orders, particularly in the rural sector and what amendments ought to be made to protect those people who are associates.[1]

·         I was seeking comment about the impact on associates of people who have FPOs taken out against them particularly in the rural sector and the amendments that might be made to alleviate those problems.

The Honourable Mr S Andrew MP posed the following questions:

·         Could you expand on the broad term ‘public interest’ a little bit.  It is just to do with the FPOs…it does capture a lot of people.  If you are on a farm, say, and you had contract fencers or musterers in there and you were working doing some other pest control work and there was someone who had one issued against them, how would that work.  I do not think anyone has taken this into consideration…to do with the serious concerns around public interest that leaves it only to the imagination of how police issue a Firearm Prohibition Order.[2]

Associates

The Explanatory Notes of the Queensland Community Safety Bill 2024 covers the Firearm Prohibition Order Scheme at the following pages:

·         18-21; 42-43; 73-83.

The term ‘associate’ is not given much consideration or attention in the Explanatory Notes.

At page 19 of the Explanatory Notes when addressing the issue of “if it is in the public interest to make an FPO in relation to an adult, the decision maker may have regard to a number of factors including whether the individual is an associate of a recognised offender (meaning a person who has a recorded conviction for a relevant offence”.  I cannot find in the pages referred to above any further consideration of the term “associate of a recognised offender” in the Explanatory Notes.  The ‘behind closed doors’ decision-making process by police to make an FPO appears to allow a police decision maker to make a FPO against someone who is an associate of a recognised offender.  That appears to envisage police making a FPO against a person who is known to and/or associates with a person who has a recorded conviction for a relevant offence.

That may have the effect of a FPO being made against the spouse or life partner of a recognised offender, a child of a recognised offender or a friend, business associate or work colleague of a recognised offender.

To cast such a wide net in terms of the definition of an ‘associate’ is highly problematic particularly having regard to the secrecy of the criminal intelligence regime under which the FPO will operate where a decision about making a FPO is made by a police officer ‘behind closed doors’ and the ability of an affected person to meaningfully appeal against such an Order is significantly restricted by the secrecy of the criminal intelligence regime which effectively prevents the affected person from knowing, and thereby challenging, the facts in respect of which an FPO is made against an associate.

If a FPO is made against an ‘associate’ that can have the effect particularly in respect of people employed in the rural sector of preventing that person from being able to carry out his/her employment including in categories referred to by Mr Andrew of “fencers or musterers”.[3]

The proposal that ‘associates’ can have a Firearm Protection Order made against them simply because the associate ‘knows’ a recognised offender is objectionable because of the width of the provision and the effect that an FPO can have on that associate’s ability to hold rural employment.

Public interest criterion

The Victorian Committee considered this issue at length.[4]

There were two contrasting positions taken on the public interest criterion respectively by the Law Institute Victoria and by Liberty Victoria on this issue.

The QCCL prefers the position of Liberty Victoria in that regard where it asserted that “the broad criteria and application of public interest could arbitrarily interfere with a person’s civil liberties and human rights…(on the basis that) the criteria for making an Order are too broad…the broad nature of the provision leaves it susceptible to the risk of misuse and inconsistent practices and interpretation by police”.[5]

 Your attention is drawn to the Committee’s conclusion in respect of this topic, namely:

·         The Committee acknowledges the importance of ensuring the concept of public interest is sufficiently flexible to enable police to effectively respond to the individual circumstances of a potential subject when making a FPO application.  The scheme’s intent is to prevent or minimise risk to public safety from myriad high-risk individuals and this should not be limited by a narrow application of public interest.  However, the Committee notes that the breadth of (the relevant) criteria may invite differing interpretations of how it is applied by the police and VCAT.  The fact that there is no guidance as to how public interest should be construed under the Firearms Act this could lead to issues with the operation of the scheme”.[6]

Further, the Committee noted:

·         It was not clear to the Committee how or if the police balanced a public risk assessment against any competing values in determining whether an Order was in the public interest.  However, the implication that a person may pose a risk suggests that an Order is made when the criteria (relates to) a probability of risk.  This is in contrast to the approach taken by Judge Hampel[7] who determined that an Order should be made on the basis that it would sufficiently abate the risk an individual poses only by reason of the grounds on which the Order was made…by leaving public interest broadly defined – namely against what values it is determined – to reflexively respond to individual matters in circumstances as contributed to confusing and differing interpretations.  This is exacerbated by the deliberately broad criteria (in the Victorian Act) forming the basis on which the police assess whether an Order meets the threshold of being in the public interest.[8]

Conclusion

I apologise for the delay in being able to provide a written response to the questions taken on notice by Mr Cope from Mr Krause and Mr Andrew respectively.  However I have been hospitalised with pneumonia and the ability for me to undertake work since my release from hospital has been significantly limited.

Thank you.

[1] See page 39/final paragraph Transcript of proceeding 24/5/24.

[2] See page 40/paragraph 4, 11, 13 & 15 Transcript of proceedings.

[3] See page 40/paragraph 13 Transcript of proceedings.

[4] See Report of the Legislative Council Legal & Social Issues Committee (Victoria) November 2019 at page 39-44.

[5] ibid at page 42.

[6] ibid at page 42.

[7] See Websdale v Chief Commissioner of Police [2019] VCAT666.

[8] ibid page 44.