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Seanad Éireann debate -
Wednesday, 26 Apr 1989

Vol. 122 No. 12

Firearms and Offensive Weapons Bill, 1989: Committee Stage.

SECTION 1.

Amendment No. 2 is consequential on amendment No. 1 and they may be discussed together.

Government amendment No. 1:
In page 3, lines 17 and 18, to delete from "and Part II" to "that date".

The purpose of these amendments is that, instead of providing for a fixed date for the coming into operation of Part II of the Bill as is provided in section 1(2) at present, the Minister will be given power to bring the provisions of Part II into operation by order on such day or days as he may fix. This change is necessary because of the additional provision which it is proposed to introduce into Part II in the amendments to be discussed. Some of these, like the proposed new offence of reckless discharge of a firearm, can be brought into operation immediately while others, like that providing for the inclusion of stun guns and crossbows as firearms, will require a period of grace before they can be brought into operation.

Amendment agreed to.
Government amendment No. 2:
In page 3, between lines 18 and 19, to insert a new subsection as follows:
"(3) Part II of this Act shall come into operation on such day or days as may be fixed therefor by order or orders of the Minister either generally or with reference to any particular provision, and different days may be so fixed for different provisions of that Part.".
Amendment agreed to.
Section 1, as amended, agreed to.
Section 2 agreed to.
SECTION 3.
Government amendment No. 3:
In page 4, line 1, to delete "1971", and insert "1971 (other than the Firearms (Proofing) Act, 1968)".

This is a technical amendment proposed by the draftsman. It excepts the Firearms (Proofing) Act, 1968 from the provision that the Firearms Acts 1925 to 1971, which include the 1968 Act shall be construed together as one. The subject matter of the 1968 Act is not closely related to the other Acts and some of the definitions in the 1968 Act to not apply to the other Acts.

Amendment agreed to.
Section 3, as amended, agreed to.
SECTION 4.

Amendments Nos. 4, 5, 6, 11, and 12 and 13 are related and may be discussed together.

I move amendment No. 4:

In page 4, subsection (1), paragraph (a), line 4, to delete "or other lethal weapon".

The combined purpose of the amendments is to provide that a crossbow will not be defined as a firearm or will not, therefore, be encompassed by the controls in the Firearms Acts. As an alternative form of control, the Senator has proposed by amendments Nos. 11 and 12 to include crossbows with knives and similar articles the carrying of which is prohibited in section 5 (1) in certain specified places of public entertainment and resort and by amendment No. 13 to include a crossbow among those weapons which it would be an offence to have under section 6 while trespassing on premises.

The effect of the Senator's amendments, if accepted, would be to make it an offence to have a crossbow in places like public houses, football grounds, dancehalls etc., or while trespassing on private premises. Otherwise there would be no controls in the availability or use of crossbows. Anybody would be entitled to buy one and to carry it on the street or in any other public place other than specified areas of public entertainment and resort where, indeed, it is unlikely to be carried anyway. Such a level of control would be so ineffective as to be worthless.

The position is that crossbows are dangerous weapons with lethal potential. They have many of the characteristics of a gun. They can be carried pre-loaded and ready to fire. They can be accurate and lethal over a considerable distance. They can be used without need of a great deal of skill and are reasonably compact.

In considering what controls should be placed on a weapon like that, the most important question is who should be allowed to have them rather than where they should be allowed. This means a licensing system and the most effective licensing system for weapons is that provided in the Firearms Acts.

With particular regard to amendments Nos. 4 and 5, the Garda authorities are of the very strong view that the words in the existing definition of firearm which these amendments seek to delete should be retained. They report that the words in question are used in the fight against terrorism to secure convictions in relation to homemade rocket launchers and projected grenades, neither of which would otherwise come into the legal definition of a firearm. The relevant provisions are also used to deal with a variety of missiles which can be projected or thrown in a number of different ways.

For those reasons I am sure the House will understand why it is impossible for me to accept Senator O'Toole's amendments.

Amendment, by leave, withdrawn.
Amendments Nos. 5 and 6 not moved.

Amendments Nos. 7 and 8 are related and may be discussed together.

Government amendment No. 7:
In page 4, subsection (1), line 17, after "paragraphs" to insert "and, for the purposes of this definition, the following articles shall be deemed to be such component parts as aforesaid:
(i) telescope sights with a light beam, or telescope sights with an electronic light amplification device or an infra-red device, designed to be fitted to a firearm specified in paragraph (a), (b), (c), or (e), and
(ii) a silencer designed to be fitted to a firearm specified in paragraph (a), (b), or (e)".

These amendments are related. They are for the purpose of amending the Firearms Acts to the extent necessary to enable this country to ratify the Council of Europe Convention on the Control of the Acquisition and Possession of Firearms by Individuals. The purpose of that convention is to regulate and control the movement of firearms and ammunition between member states of the Council of Europe with a view to preventing illicit traffic on those items. It applies in the situation where a resident of a contracting state to the convention wishes to sell, transfer or otherwise dispose of a firearm or ammunition to a resident of another contracting state or where a resident wishes to move to another contracting state and take a firearm with him.

States who became party to the convention may agree either to adopt a system, known as the notification system, whereby they merely have to notify other contracting states when a firearm is being sold or transfered to one of their residents, or they can also agree to apply a more rigorous system known as the double authorisation system whereby they undertake not to allow a resident of their state to transfer or sell a firearm to a resident of another contracting state until they have first satisfied themselves via the channels provided for the convention that the authorities of the latter state have authorised the transaction.

It is our intention when ratifying the convention to adopt the provisions of the convention in full and to apply the notification and double authorisation systems appropriate and the amendments are framed on this basis.

Amendment No. 7 provides that silencers and telescopic sights of the type referred to in the amendment will be deemed to be component parts of a firearm, thus making them subject to the provisions of the Firearms Acts. This is necessary because these items are defined as firearms in the convention. There is also another purpose for this amendment in so far as silencers are concerned and this will be discussed in the context of amendment No. 9.

Amendment No. 8 proposes to insert a new subsection (3) (A) in section 10 of the Firearms Act of 1925 to provide for the operation of the notification and double authorisation systems provided for in the convention. Paragraph (a) of the proposed new subsection will provide that a person may not sell, transfer or otherwise dispose of a firearm or ammunition to a person habitually resident in or to a company or organisation at an address in another state which is party to the convention unless the sale etc. is authorised by the garda superintendent of the district in which the firearm or ammunition is kept. Before granting such authorisation the garda superintendent must satisfy himself that the authorities of the state to which the firearm is being sent have authorised the transaction.

Paragraph (b) is for the purpose of modifying section 16 (4) of the Firearms Act of 1925 which exempts a person who is the holder of a firearms certificate from the requirement to obtain authorisation to export the firearm if he carries it with him from the state. Under the provisions of the convention the double authorisation system must be applied where a person intends to take his firearm to another contracting state on a permanent basis. Section 16 (4) must therefore, be modified to provide that where a firearm is being taken to another contracting state on a permanent basis, the authorisation required under section 16 must first be sought and paragraph (b) secures this. Paragraph (c) is merely for the purpose of excluding stun guns and crossbows as these are not covered by the convention.

Amendment agreed to.
Question proposed: "That section 4, as amended, stand part of the Bill."

Section 4 covers a specific range of weapons. I would like to ask the Minister about imitation firearms, many of which today are very sophisticated in the degree of imitation and they are very convincing indeed. Should they be brought within the scope of the Bill under section 4? I know that on Second Stage the Minister said that imitation firearms are already covered in law, that the law provides for severe penalties for the use of imitation firearms in the commission of crimes — up to 14 years — but should they be brought in under this section here?

I am advised and I am glad to get an opportunity to say to Senator Manning, that any imitation guns in the course of a crime are treated as if they were real guns and they are dealt with accordingly under the law. It is only when imitation guns are used for the purpose of committing crime that we can deal with them. We have not been able to have any legislation to deal with imitation guns, as imitation guns.

There is a difficult area for us to come to grips with in that there is genuine concern everywhere, right across the board that quite a number of these imitations are so real and so life-like that it is practically impossible for members of the security forces to know whether they are real or imitation when they are confronted with them. That is why the courts take a very serious view of the use of imitation guns and treat them as if they were genuine guns when the people are brought to court.

Perhaps to contribute a little to what has just been said, I do think there is a serious question about imitation guns, not just in regard to commission of crime but the whole matter of children and toy guns. In a society that has the problems we have had over the past 20 years, may I suggest to the Minister that, in the way that it is illegal to print any play money that in any way could ever appear to resemble real money in order to minimise the risk of forgery, that one could consider legislation, —and I would suggest it — which would prohibit the manufacture of any toy guns which could in the eyes of the Garda Síochána be seen to represent real guns. There are all these elaborate sort of ray guns that nobody would believe for one second looked like a real gun and kids play with them. But there are also imitation guns that, as the Minister said, at first glance look authentic. I do not think they should be on sale anywhere. I have three small children myself. In a country that has the problems we have, we should not do anything that encourages a cavalier attitude.

I find myself in agreement with Senator Ryan and Senator Manning very much in this particular area, as I am sure does every other Member of the House. The problem is that to deal effectively with the issue that has been outlined by Senators Manning and Ryan, would necessitate, I am told, a total ban on all sorts of toy guns because they are all so real, they all imitate so well the real thing. I have seen — I am sure others have too — cases where we have the Armalite and the Uzi in toy shapes and a whole lot of items which one could not know were real or not.

Having regard to our circumstances and the concern that exists and the availability of these toy guns, I think the day may come when we will be talking about legislation banning all toy guns altogether. I am sure I would be told at that stage, if I did come in with proposals of that nature, that I was going overboard. I feel it is something that does not now come within the scope of this Bill but I share the concern that is there.

I welcome the Minister's response and thinking on this matter and, coming from the area that I come from, it is of particular importance. The reference here regarding toy guns has to be looked at in the context that if you are looking at the muzzle end of a gun you react in a certain way and you do not deliberate whether it is a toy gun or a real gun. I think that has got to influence the drafting of legislation. What the gun was used for and how the person who was challenged with it reacted in the situation has to influence the drafting of the legislation.

I welcome the Minister's thinking on toy guns because those of us who cross the Border often would not be very comfortable if a toy gun of any shape or kind was accidentally in the car. It could have serious repercussions, serious consequences. This has been stated time out of number by the military authorities in the North of Ireland. This is an equally important matter. I am glad the Minister has responded in a positive way, and I am glad to know his thinking on this matter.

I will give the matter that has been raised here further consideration with a view to trying to come to grips with the problem.

I am glad of the advice and help which has been given here today.

Question put and agreed to.
NEW SECTIONS.
Government amendment No. 8:
In page 4, before section 5, but in Part II, to insert the following section:
5.—The Firearms Act, 1925, is hereby amended by the insertion in section 10 after subsection (3) of the following subsection:
"(3A) (a) A person shall not sell, transfer or otherwise dispose of a firearm or ammunition for a firearm to a person who habitually resides, or to a body at an address, in a country that stands prescribed for the time being for the purposes of this section unless the superintendent of the Garda Síochána of the district in which the firearm or ammunition is kept, being satisfied that the transaction is authorised by the competent authorities of that country, also authorises it.
(b) This subsection is without prejudice to the other provisions of this section and to section 16 of this Act but subsection (4) of that section does not apply to a firearm or ammunition for a firearm carried by a person from the State for the purpose of transferring it permanently to such a country as aforesaid.
(c) In this subsection "firearm" does not include a firearm specified in paragraph (c) or (d) of section 4 (1) of the Firearms and Offensive Weapons Act, 1989."
Amendment agreed to.
Government amendment No. 9:
In page 4, before section 5, but in Part II, to insert the following section:
"6.—(1) A person shall be guilty of an offence if he has in his possession or sells or transfers to another person a silencer unless the possession, sale or transfer is authorised in writing by the superintendent of the district in which the first-mentioned person resides.
(2) A superintendent shall not grant an authorisation under this section unless he is satisfied that the person who is to have possession of the silencer or to whom it is to be sold or transferred is the holder of a firearm certificate for a firearm to which the silencer can be fitted and that—
(a) having regard to all the circumstances, the possession, sale or transfer concerned will not endanger the public safety or the peace, and
(b) the person has a special need that is, in the opinion of the superintendent, sufficient to justify the granting of the authorisation for the silencer.
(3) The superintendent of the district where the holder of an authorisation under this section resides may, at any time, attach to the authorisation such conditions as he considers necessary for the purpose of preventing danger to the public or to the peace or of ensuring that the silencer is used only to satisfy the special need for which the authorisation was granted.
(4) An authorisation under this section may be granted for such period not exceeding one year as is specified in the authorisation and may be revoked by the superintendent of the district where its holder resides.
(5) A person who contravenes a condition attached to an authorisation under this section shall be guilty of an offence.
(6) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding one year or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding five years or to both.
(7) This section does not apply in relation to a person specified in paragraph (b), (c) or (d) of subsection (3) of section 2 of the Firearms Act, 1925, or paragraph (a) or (b) of subsection (4) (inserted by the Firearms Act, 1964) of that section.
(8) In this section—
"silencer" means a silencer specified in section 4 (1) (f);
"superintendent" means a superintendent of the Garda Síochána.

The purpose of this amendment is to introduce very strict controls on the availability of silencers for firearms. As the law stands, silencers are regarded as accessories rather than component parts of a firearm and, thus, they are not subject to control under the Firearms Acts. The Garda authorities have advised that they consider the ready availablity of silencers a serious threat to public safety, given the use which may be made of such items by criminals and that they would like to see their availability strictly controlled. Amendment No. 7 which has already been discussed in the context of the convention will provide that a silencer will be deemed to be a component part of a firearm. The effect of this will be that the silencer will be available only to the holder of a firearms certificate or to persons specifically authorised to have component parts of a firearm. This, in itself, would still leave them too widely available and that is why there is a need for this amendment that I have here today.

I welcome the Minister's comment here but I would like to have more clearly stated. Would the Minister consider going a little bit further because I believe it is much more important than a component part of a firearm. Anyone who has a silencer has it for a purpose. Certainly his intentions are not good. I would ask the Minister to consider the person found with a silencer on his person, in his car, in his house, or anywhere under his control should be treated separately and very seriously, much more seriously than a firearm, because the intentions are lethal at that point.

I strongly believe that there must be special legislation and special provision for dealing with that one specific item. A silencer means that somebody intends to commit a serious crime undetected and it is there for one purpose only. I would like to see the Minister being absolutely clear and positive about this.

I am indeed and I thank Senator McGowan for the views he has expressed. I share those views, as I am sure every Member of this House would share them, that anybody who has a silencer in his or her possession has it for no good reason whatsoever. Indeed, it makes the carrying of a gun more dangerous in itself because of the effectiveness of the silencer and the reduction of the danger of being caught because of the effects of the silencer. The Bill now provides for the maximum penalty of five years for anybody caught with a silencer in their possession. I am very concerned about it. As I say, a maximum penalty of five years is quite a serious penalty and I would hope would be effective in dealing with it.

We would want to have a quick look at our priorities. You can get more than five years for stealing a car, or at least the same penalty. I want to put on record that I agree with Senator McGowan. It is not often I say that in this House so when I do say it, I may as well say it clearly.

I cannot imagine any reason than a nefarious one for somebody being in possession of a silencer. It would appear to me that in specifying a five year sentence, given the other areas of criminal activity which are far less sinister in their implications that carry a five year sentence, we are perhaps being less than consistent. This is not usually my position in this House.

May I say in reply that I accept the common sense in what the Senator is saying. I undertake to have a look at it between now and before the Bill is enacted to see if there is any way I can make it more effective by way of stiffer penalties.

Amendment agreed to.
Government amendment No. 10:
In page 4, before section 5, but in Part II, to insert the following section:
7.—A person who discharges a firearm being reckless as to whether any person will be injured or not, shall be guilty of an offence, whether any such injury is caused or not, and shall be liable——
(a) on summary conviction, to a fine not exceeding £1,000 or to imprisonment for a term not exceeding twelve months or to both, or
(b) on conviction on indictment, to a fine or to imprisonment for a term not exceeding five years or to both.".

I wonder would the House be kind enough to excuse me? I am due in the other House at 3.45 p.m. and the Minister of State, Deputy Gallagher, is here to deal with the amendments for me. I am torn between two masters.

I am sure you are not, Minister.

This amendment is for the purpose of inserting a new section in the Bill to provide for an offence of reckless discharge of a firearm. There is a gap in the law at present in relation, for example, to a situation where somebody fires a gun at a person's dwelling—not with any probable intent to injure but perhaps to frighten — or otherwise discharges a firearm in circumstances where there could be a serious risk of injury to a person. The difficulty is that existing statutory provisions which might seem applicable to an action of this sort require proof of intent to cause injury or endanger life. This may not always be possible to prove in the case of the action at which the proposed new section is directed.

The person discharging the gun may well have had no deliberate intent to cause injury or endanger life. He may have had some other motive for his action, such as to frighten or intimidate, a motive which would also be difficult to prove. Again, he might simply discharge the weapon without any care as to whether some person might be injured.

Ownership and use of a firearm carries with it a duty of responsibility and care and it is right that the law should punish any deliberate or reckless misuse of a firearm which could result in injury to a person. The wording of the amendment itself is clear and does not call for any further explanation.

I welcome this amendment to the Bill because, the discharge of a firearm is often used to frighten people, or indeed probably to encourage them to do something they may not do. I think it is very important and I welcome this amendment.

I am happy to support this amendment. I seem to remember a prominent member of Senator Manning's party letting fire with a shotgun at a travellers' site one time, not doing anybody in the nation any great good. He was actually a Minister at one stage in the Government. I remember him for other reasons too; I think he had a hand in the resignation of a President subsequently.

I would like to ask the Minister one question. What are the implications of this section for members of the security forces? Are they covered by the provisions of this amendment? There are areas in which there has been some considerable public concern in recent years about members of the Garda firing what are called warning shots with fairly powerful weapons in a situation where it could not necessarily be argued that the Garda were personally threatened themselves but where there was a possibility of serious disorder. Are members of the security forces who are in possession of firearms covered by this amendment?

Yes, I am advised they have no right to discharge a firearm even though it might be in their possession. They are covered by the section.

I am glad Senator Ryan raised that point and that the Minister responded because we are not talking here about a theoretical possibility. A source of great concern to the citizens at large was the incident in O'Connell Street not so long ago when a person discharged from the courts was followed in a busy shopping area and a shot was discharged to the great concern of all the citizens. I am very glad to hear the Minister's assurance that this section will apply across the board.

Not because of any concern with precedents such as the one cited by Senator Ryan, I am a little bit concerned about the Minister's reply. I have two cases in mind. Is the Minister saying that a garda who, in his proper judgment discharges a shot over the heads of a crowd because it is his view that this is the most effective way of bringing order to a situation which is disorderly, would be acting illegally in that case? There may very well be situations where a shot fired over the heads of a crowd might help to bring people to their senses. It might well have such an effect.

There was another situation at the Munster Hurling Final a year or two ago in Thurles where, I believe, a garda fired a shot over the heads of the crowd when it looked as if there was going to be crowd trouble. I take a view that there may well be situations in which a police officer, in using his own experience and judgment, may have well come to the conclusion that greater good is done and harm is averted by firing a warning shot. I would like to know if the Minister could clarify for us whether that type of situation was always illegal, or is it now illegal under this Bill?

I would like to agree with the previous speaker in so far as it is an area where you cannot say it is black and white. We have to depend a good deal on the professionalism of the Garda and the Army. On the outside there are groups of people in this country at present who are ready to lynch and are ready to condemn. If a well trained professional garda or a member of the Army has to react in a situation and takes what he calculates is the best decision in the long run to save life there are people who actually want him crucified on the spot. The person concerned is the subject of headlines in the media and the national papers and he finds himself defending that action, perhaps with not a lot of support. In the case of the garda who decides in his wisdom to act, I would like to see legislation there to prevent him from being punished when he made a decision he considered to be the correct one.

There are two points to be made there by way of commentary on what Senator McGowan has said. The general intention of this Bill is to remove from the private citizen whatever remaining rights he has, if you like, to have resort to the immemorial right of self-defence. I agree with this. I agree that in our society citizens have to forego whatever claims they have on the right to bear arms and so on. I think that is a totally out-moded concept anyway. However, it carries with it a corresponding obligation on the part of the security forces, gardaí or whatever, who now in effect will have the monopoly of force under law in society. Therefore, they are all the more seriously obliged to discharge — that is not an inappropriate verb — their responsibilities very, very seriously indeed.

The Garda or the security forces themselves must observe the law. In any case, the recklessness or otherwise of such action is going to be determined by the courts. Is that not so? Therefore, I do not think there will be any vindictive pursuit of a garda or soldier who discharges a shot like this. As I say, the matter will be decided responsibly by the courts. I am quite happy to see the section standing and to have it applied across the board.

I want to reiterate my view that it should be very clear, and I was happy when the Minister said it, that this applied to the security forces. Let us remember that as far as the Garda go, those gardaí who most likely and most frequently carry weapons are not identifiable as members of the Garda. They are usually in plain clothes. The possible consequences to a large number of people of a civilian suddenly producing a gun, however well-intentioned and I am not denying or disputing the good intentions, can be quite disturbing. I think it is important to remember as well — it sounds like the most obvious thing in the world — that what goes up must come down and firing a firearm into the air is not firing it into outer space. It can do damage. If somebody were to unfortunately discharge something more serious than a pistol you could have serious consequences.

The reality is that firearms are extremely dangerous things that are in the possession of the security forces only for circumstance of extreme need in the defence of themselves and us from those who would use weapons for all sorts of appalling reasons. They are not things to be used as a substitute for good crowd control, as a substitute for dealing with a riot or anything like that. I think it is extremely important that they should be seen as such. Otherwise, you can have a beginning of a feeling that in any situation where perhaps the occasional use of a firearm will produce an immediate response it could be justified. If there is evidence of a reckless use of a firearm by any person in our society, then the culpability of that person should be a matter for the courts and that should apply to every person.

That would be the case in relation to our armed forces as well. As Senator McGowan has said, we have to assume that they are people trained in the use of firearms and would know exactly what is the right thing to do on a particular occasion. Anybody discharging a firearm recklessly would certainly come under this section here, irrespective of whether they are in the Defence Forces or not. That would be regarded as using the firearm recklessly.

This may be slightly out of order, and if I am I am sure the Chair will tell me. We have an example of the professionalism of members of the Garda and the extraordinary restraint which was exercised in the rescue of Mr. O'Grady from his kidnappers when the gardaí who rescued him were under fire and obviously declined to use firearms because there were too many risks for innocent civilians. At great risk to themselves they did not use their firearms because of the possible risks in a crowded street in a heavily populated area of using firearms. I think that is an indication that most members of the security forces under most circumstances realise what we are dealing with. Because of that I do not think anybody in the security forces who operates according to the normal disciplines of the forces will have anything to worry about from this, but it is a reminder that everybody is covered by the law.

Amendment agreed to.
Amendment Nos. 11 and 12 not moved.
SECTION 5.
Question proposed: "That section 5 stand part of the Bill."

Section 5 deals with the burden of proof. It puts the burden of proving innocence on the person found with the alleged offensive weapon. The burden will be to prove lawful authority or reasonable excuse on a balance of probabilities. This goes against the recommendations of the law Reform Commission in the report on vagrancy and related offences. They considered that, provided the accused adduced sufficient evidence to raise a genuine issue as to whether he had lawful authority or reasonable excuse, the burden of proving the contrary should be on the prosecution. They took the view that it would not be desirable that a burden such as proposed in this Bill should be placed on the accused. This strikes me as being a fairly major shift in practice — that the burden of proof now rests with the defendant, the accused, rather than with the prosecution — and I would like to get some opinion on this from the Minister.

The effect of the words in brackets in subsections (1) and (2) —"the onus of proving which shall lie on him" is to place a persuasive burden of proof on the accused if he raises the defence of lawful authority or reasonable excuse. The Law Reform Commission recommended in their report, LRC 11-1985, paragraph 13.8 that the words in brackets be omitted and that only an evidential burden of proof be placed on the accused. Their recommendation is not being followed as it is considered that to place only an evidential burden on an accused could make the securing of a conviction more difficult and would, therefore, greatly weaken the effect of the subhead. For example, if a person were to be charged with having say a Stanley knife in a dancehall he might say in his defence that he was using it at work that day and had forgotten to take it out of his pocket. This might discharge his evidential burden and it would be very difficult for the prosecution to disprove his statement. However, with the persuasive burden to discharge, if he raised this defence he would be obliged to produce enough evidence to satisfy the court on the balance of probabilities that this excuse was true, for example, the testimony of a colleague who had seen him work with the knife that day.

A number of statutes require an accused to discharge persuasive burden of proof in relation to criminal offences, for example, larceny, that is in the 1916 Larceny Act, section 28 paragraph 2. This provides that the onus of proving lawful possession of house-breaking implements at night shall be on any person so found.

Question put and agreed to.
SECTION 6.

Amendment No. 13 has already been discussed with amendment No. 5.

Amendment No. 13 not moved.
Section 6 agreed to.
Section 7 agreed to.
SECTION 8.

Acting Chairman

Amendments Nos. 14 and 15 are related and may be discussed together.

On behalf of Senator O'Toole I move amendment No. 14:

In page 6, subsection (1), line 24, after "sells" to insert ", repairs".

Section 8 (1) states:

Any person who manufactures, sells or hires, or offers or exposes for sale or hire, or has in his possession for the purpose of sale or hire, or puts on display, or lends or gives to any other person, a weapon to which this section applies shall be guilty of an offence.

It is only logical that a person who repairs these weapons should be in the same category of suspicion or guilt.

I support Professor Murphy and Senator O'Toole who introduced these amendments initially. It seems to me to be entirely illogical and without justification to make it an offence to sell offensive weapons, to hire offensive weapons, to offer to expose for sale or hire, or to have in one's possession for the purpose of sale or hire, offensive weapons and not to specifically include — because it would not be covered by sale or hire — anybody who, as a favour to those who use weapons, decided to repair them. He might not be selling them, he might not be hiring them. It is important to make it clear to people that it is a serious offence punishable by a considerable period of imprisonment to contribute in any way to the availability of offensive weapons in our society. Therefore, it is extremely important that the full detailed rigours of the law should be clearly spelled out and that it is as serious an offence to repair an otherwise defunct offensive weapon as it is to sell it because it puts another weapon into the hands of those who will only use them to do great harm and great damage. It is as bad to repair a weapon that would not otherwise work as it would be to sell one.

I certainly support this amendment unless the Minister can persuade me otherwise or unless the word "repair" is not quite the adequate word to describe the function the Senator has in mind. Take the situation, say, of people who have these offensive weapons who alter them in certain ways, for example, sawn-off shotguns, or where weapons are altered or repaired or changed in some way to make them even more lethal. Are they covered under this section of the Bill already? If the word "repair" could be brought in to cover them. I would certainly urge the Minister to accept this amendment.

The section does not cover firearms, but these amendments are not being accepted for the following reasons. Section 8 is designed to prohibit commercial trade in prescribed dangerous weapons. The purpose is to close off outlets where these weapons can be bought or otherwise obtained. It does not prohibit personal possession of such weapons. It will be quite lawful for a person to have such a weapon in his home, although if he takes it outside his home he may well be caught by other provisions in the Bill. If "repair" were introduced into the section in the manner suggested in the amendments, then we would have a situation that, while it would be lawful for a person to have such a weapon, it would be unlawful for him to repair it. The absence of "repair" from this section will not impair its effectiveness as it is aimed principally at closing off sales. The types of weapon involved, in any event, would not normally be brought somewhere for repair.

Under this section I would urge.

Acting Chairman

We are dealing with amendments Nos. 14 and 15. We will deal with section 8 when we have disposed of the amendments. Is amendment No. 14 withdrawn?

I would like to press the Minister a little further on this. As Senator Manning has developed the point, "repair" could mean, and frequently in practice probably does mean, someone who is an expert in this area and who is also, perhaps, in an illegal atmosphere, doing a favour, or for hire, or whatever, adapting and improving the lethal quality of a weapon. It does not seem to me that the section covers that kind of situation, that someone who is actually dealing and improving these weapons should not be subject to the rigours of the law. What provision would the Minister make for that kind of situation?

I have to refer to the section to explain the amendment. Perhaps the word "repair" is not the appropriate word. I am a great believer in leaving the issues of detail to those who are best qualified to deal with them.

I would like the Minister to explain to us why it is unacceptable to the Government that people who repair offensive weapons are somehow not making available an increasing supply over those who would sell them. If the weapon does not work and somebody is prepared to repair it so that it becomes an offensive weapon, it is then an additional weapon made available. Even if he does not sell it to somebody, if he simply takes money for making it work, for instance somebody who has experience in firearms, then the Minister is leaving a small loophole in the legislation.

I appreciate there may be objections in detail to the precise wording of these amendments in the sense that they might not precisely have the intent we would like, but that is not the same thing as dealing with the principle, which is that we are not actually saying that it is an offence per se to repair these offensive weapons in the way that it is an offence to sell them, or an offence to hire them. If a person has an offensive weapon illegally and finds somebody who is prepared to repair it, what offence does the repairer commit? He does not sell it, he does not hire it, and he does not have it in his possession other than for the period of time when he actually has it.

It should be an offence simply to do the job of repairing an illegally held offensive weapon. In other words, all areas of dealing with offensive weapons ought to be covered by the law. It appears to me that it would not be necessarily an offence simply to do the job. If one of the alleged heroes of this country who do things in our name that none of us could justify finds somebody who is half sympathetic who will fix a weapon, a weapon which is jammed or damaged, or as Senator Murphy said who will modify a weapon — I am sorry in some ways we did not put in "repairs or modifies"— will the person who does that job and does nothing else, who does not have it any longer than half an hour in his possession, be guilty of an offence? If he is not, he should be. That is the issue of principle. We can argue about the details; I leave it to the Minister, the officials and the Parliamentary Draftsman to draft an amendment for Report Stage. I want to ensure, not that this amendment goes in, but that it is quiet clear that somebody who does the things I have described is actually guilty of a serious offence, because he should be.

I oppose this amendment from the point of view — I will be raising something else under the section later on when this amendment is dealt with — of fish filetting knives and knives for skinning deer which are manufacturered in my county. If a fish filetting knive was brought in for repair to somebody, it would be an offence if we had this amendment. Most of these fish filetting knives — I brought up a sample to show to the Minister for Justice and his Department — are for export but some are used in this country. They look a fairly offensive weapon, but they are actually for filetting fish. If this amendment were included it would prohibit people from repairing these knives and also knives for skinning deer.

I do not think these are included in this section. At this stage, in view of the points put forward by Senators Ryan, Manning and Murphy, I will take it back to the Minister and ask him to give this section further consideration if that is acceptable to the Senator.

Amendment, by leave, withdrawn.
Amendment No. 15 not moved.
Question proposed: "That section 8 stand part of the Bill."

With regard to the manufacture of knives I raised this matter here the last day we were discussing this Bill. A company in my county manufacture knives. They have 140 people employed and 95 per cent of the knives are for export. At the request of the Minister I brought samples of the knives for the Minister and for the officials of his Department to look at them. Mainly they are fish filleting knives, knives for skinning deer — I did not know those knives were there until I saw them in the factory — and other types of knives. I would like to get the views of the Minister, to know if he has studied them and if there will be any prohibition on the manufacture of those type of knives.

The Minister has welcomed observations and the constructive points that have been put forward by Members. In this very same area I urge the Minister to think about the periodic examination of defective weapons, whether they be knives, guns or anything that can be described as a weapon. A defective weapon can be as lethal as one that is not defective. Even if the weapon is legally held, I urge that periodic examinations take place. This would apply mainly to guns.

It is wrong that any dealer, store or shop of any kind should have quantities of weapons of any kind stored, whether they be defective or in working order. I see the possibility of arms dealers having collections of weapons and they could describe them as antiques or items of interest. This is dangerous, I urge that special provisions be provided in the legislation to cover this area. You could have a sword on the wall or behind the door and say "Well, my grandfather took that back from the Boer War." There would be one hundred excuses and one hundred answers. There has got to be clarity on this point as to what is a weapon, what is a defective weapon, what is there for repair, who owns it and there has to be examination. I would urge that the examination be very strict as far as people who store guns are concerned. If you go to any gun dealer you will see a number of weapons that could be used to commit a crime. The gun dealer is allowed to have them and to say that they are not capable of being used. This is not enough. Now that the legislation has been introduced, I urge strongly that special provision be made to cover that situation.

I note the Senator's remarks in relation to all of these matters. They are certainly very important. This section empowers the Minister for Justice to make the regulations prescribing weapons other than firearms, which are dealt with in the Firearms Act, whose manufacture, importation, sale, etc., will be prohibited. The types of weapons which will be prescribed in the regulations be weapons which are considered particularly dangerous or undesirable for which there is no legitimate use or need. The Garda authorities are being consulted in this regard and a tentative list of such weapons has been complied. Items already on this list are as follows: flick knives, belt knuckle knives, throwing stars, hand spikes, foot claws, judo sticks, lead-filled gloves, lead-filled saps and knuckle dusters. Some of these terms are quite new to me. They are an example of some of the things that are being included. A further list will be drawn up in consultation with the Garda who come up against this kind of thing regularly.

I presume that any of the items I submitted to the Minister would not be classified as offensive weapons?

Question put and agreed to.
Sections 9 to 14, inclusive, agreed to.
Title agreed to.
Bill reported with amendments.

Acting Chairman

Next Stage?

I do not have any strong views but Senator Ryan had a point that the Minister would report back on a number of suggestions. It might be preferable if Report Stage were not taken today to allow the Minister to consider those questions.

Maybe it would be better at this stage to leave it and report back.

Acting Chairman

We will leave it. Will the acting Leader of the House indicate when it is proposed to take Report Stage?

Next Wednesday.

Report Stage ordered for Wednesday, 3 May 1989.
Sitting suspended at 4.15 p.m. and resumed at 6 p.m.
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