Legislative Assembly for the ACT: 1998 Week 4 Hansard (24 June) . . Page.. 1000 ..
MR HUMPHRIES (continuing):
We are proposing an amendment which inserts a new subsection 349ZZD(1A) - it sounds like the numberplate of a police car, does it not, Mr Speaker? - which deals specifically with the return of a knife seized in a search. It provides that, where a knife is seized under the proposed search power, the person from whom it was seized or, if the person is under the age of 16, that person's parent or guardian is entitled to have the knife returned where either (a) a prosecution for an offence under proposed section 495 has not been commenced within 60 days after the seizure or (b) a prosecution for an offence under the proposed section has not been commenced within 60 days after the seizure, and the prosecution has been finalised without the knife being forfeited. It creates a separate regime for the return of a knife and serves to clarify that the power to search for and seize a knife is a different power from the power to seize other things under the Crimes Act. So, a person has an entitlement to have a seized knife returned to them in certain circumstances. It will also allow the police, where the person is under the age of 16, to return the knife to a parent or guardian.
The other amendment is to the forfeiture provision of the Bill. The amendment is required to ensure that a forfeiture is linked to a conviction for an offence rather than simply the seizure of a knife. The proposed amendment inserts a proposed new subsection 349ZZH(1), which provides that a knife that has been seized under the proposed search power is forfeited to the Territory where (a) the person from whom the knife was seized was convicted of an offence under the proposed new section 495 or (b) the person from whom the knife was seized was charged with an offence and the matter was dealt with under section 556A of the Crimes Act. Under that section of the Crimes Act, a person might have an offence proved against them, but the court might not proceed to record a conviction. Notwithstanding that, in those circumstances it is appropriate that the court not allow the person to have the knife returned because, in fact, the substance of the offence has been made out. So, in those two circumstances, there is power to retain the knife. I think that would clarify what is a fairly important issue once the knife has been seized.
MR STANHOPE (Leader of the Opposition) (12.23 am): I just reiterate the Labor Party's position on this, to clarify the record. The situation, as I try to work it through, is that we were opposed to clause 5. We actually voted on that, and the Labor Party voted against clause 5; but it was carried. We had anticipated opposing clauses 6 and 7, which were consequential on clause 5; but, as I indicated earlier, the Minister's amendments, I do believe, are a significant improvement. So, there is little to be gained by our pursuing our opposition to clauses 6 and 7, other than perhaps to raise and actually put on the record a consideration as to whether or not the compulsory acquisition of property really does require just terms in some circumstances and whether or not the legislation does run into a little bit of a constitutional problem in relation to the confiscation of property and its destruction without any real suggestion as to whether or not just terms are required to be paid.
MR RUGENDYKE (12.24 am): I thank Mr Humphries for this amendment to my Bill. It is a much more appropriate way to deal with the return or forfeiture of a knife. I did have trouble with those provisions, and this is a sensible alternative.
Amendment agreed to.
Clause, as amended, agreed to.