Economic Policy Scrutiny Committee Inquiry into the Firearms Legislation Amendment Bill 2019 November 2019
Tabled paper 1423
Tabled Papers for 13th Assembly 2016 - 2020; Tabled Papers; ParliamentNT
Tabled by Tony Sievers
Made available by the Legislative Assembly of the Northern Territory under Standing Order 240. Where copyright subsists with a third party it remains with the original owner and permission may be required to reuse the material.
Department of the Legislative Assembly
Examination of the Bill 19 Clause 6 proposed section 49F Considerations in making firearm prohibition order 3.16 Proposed s 49F provides for the Commissioner to make an FPO if satisfied that it is in the public interest to do so and sets out five factors that the Commissioner may consider when making the determination. 3.17 The factor provided at proposed s 49F(c) because of the people with whom the person associates, was considered by the Law Society NT to be problematic because it: infringes on the ability of an individual to freely associate the Commissioner can make an order simply based on association, and not on the actions of the individual subject to the order.16 3.18 The Statement of Compatibility with Human Rights acknowledges that proposed section 49F(c) infringes on the right to freedom of association but considers this justified as: the scope of the right is primarily concerned with protecting freedom of association to pursue lawful interests in formal groups, and its scope does not extend to restrictions on associations between private individuals. The scheme is intended to target criminal groups. Northern Territory Police are particularly concerned with firearm possession and use amongst organised crime groups and persons considered a risk in the counter-terrorism context. 3.19 The Australian Law Reform Commission (ALRC) Issues Paper 46, Traditional Rights and Freedoms Encroachments by Commonwealth Laws, provides some support for this interpretation and cites the following justifications that have been provided through the High Court for restricting freedom of association where there is potential for criminal conduct that may result in threats to public safety or interest. 4.22 Preventing people from getting together to hatch crimes has long been considered one justification for restrictions on freedom of association.25 Chief Justice of the High Court, Robert French, has said that: Laws directed at inchoate criminality have a long history, dating back to England in the Middle Ages, which is traceable in large part through vagrancy laws. An early example was a statute enacted in 1562 which deemed a person found in the company of gypsies, over the course of a month, to be a felon.26 4.23 The High Court has recognised a public interest in restricting the activities, or potential activities, of criminal associations and criminal organisations.28 In South Australia v Totani (2011),29 French CJ explained that legislative encroachments on freedom of association are not uncommon where the legislature aimed to prevent crime. The Serious and Organised Crime (Control) Act 2008 (SA) does not introduce novel or unique concepts into the law in so far as it is directed to the prevention of criminal conduct by providing for restrictions on the freedom of association of persons connected with organisations which are or have been engaged in serious criminal activity.17 16 Submission 3 Law Society NT, p. 1. 17 Australian Law Reform Commission (ALRC), IP 46, Traditional Rights and Freedoms Encroachments by Commonwealth Laws, pp. 37-38, https://www.alrc.gov.au/publication/traditional-rights-and-freedomsencroachments-by-commonwealth-laws-ip-46/. https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-ip-46/ https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-ip-46/