Custody of a knife in public - penalties and laws in New South Wales

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The offence of custody of a knife in public carries a maximum penalty of $4,400 fine and/or 4 years imprisonment
Australia Criminal Law
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Recent serious knife-related incidents have prompted calls for legislation to be introduced which could grant New South Wales Police the power to use metal-detecting wands to conduct searches.

The proposed power is suggested to involve police being permitted to use handheld metal-detecting wands to search people without a warrant in designated areas, including transport, night precincts, and shopping centres.

Main proponents behind the move include the New South Wales Opposition Party and the parents of 17-year-old Jack Beasley who died in a 2019 knife attack in Queensland.

Jack's parents campaigned for law reform, leading to the Queensland state government to introduce "wanding powers" in March 2023 – informally referred to as "Jack's Law".

In the first nine months of its operation, 400 weapons were seized by the police.

Jack's father, Brett Beasley has since spoken with New South Wales Police Minister, Yasmin Catley about bringing Jack's Law to the state.

"Wanding" powers currently exist in Queensland, South Australia, and the Northern Territory.

The New South Wales Liberal Party stated that: "given the recent tragedy at Bondi Junction Westfield and the alleged terrorist event at Wakeley, the powers should be designed in the interests of public safety and to protect people who are lawfully going about their everyday lives...

"There are many circumstances where these powers would enhance public safety."

They noted that there appears to be "widespread support" for these powers, including the Police Association and a range of public service trade unions.

Civil liberty advocates have raised concerns with the practice, in that it permits police to conduct warrantless searches, and do not even need to have the suspicion that you may have a knife on you.

A review of the trial period of 'Jack's Law' by Griffith University's Criminology Institute found that there was no relationship between increased wanding and a decrease in knife crime.

It also detailed that some officers were targeting people based on racial or cultural stereotypes.

Whilst the New South Wales Opposition Party stated that their proposal would 'go further' than the Queensland legislation, no draft bill has been introduced yet.

In Queensland, police were given the power to use of handheld metal detecting wands to conduct searches under Part 3A of the Police Powers and Responsibilities Act 2000 (QLD).

The powers are currently permitted to be used in safe night precincts and public transport hubs. This includes the Surfers Paradise Central Business District ('CBD') and Broadbeach CBD Safe Night Precincts ('SNPs'). There are currently 15 SNPs in key entertainment areas across Queensland.

If the powers have been authorised in a specific location, an officer can require, without a warrant, that a person in a public place stop and submit to the use of a handheld scanner for the purpose of ascertaining whether the person is carrying a knife.

The scanner may be used in close proximity to the person and their belongings.

If the scanner indicates the likely presence of metal, the officer may require the person to produce the object and then submit to re-scanning.

On 1 May 2024, the Queensland Government introduced a further bill to the parliament which proposes 'Jack's Law' to be expanded into more places in Queensland including shopping centres, licenced premises, sporting and entertainment venues and high-risk retail outlets.

The proposal extends the 'trial period' until October 2026. The Government is providing an additional 3,000 wanding devices, bringing the total number to over 4,500 statewide to facilitate this.

Queensland Premier Steven Miles noted: "Brett and Belinda Beasley have been true champions for reducing knife crime, and it's because of their advocacy that Queensland leads the nation with Jack's Law...Now, Brett and Belinda are meeting with representatives from the New South Wales and Western Australia to expand these game-changing laws around the nation.

"My government is proud to back their expansion into more locations – locations Queenslanders expect to feel safe and be safe."

However, many pub and hotel owners have expressed dismay that this may lead to losses for their business, as well as further losses for civil liberties.

In New South Wales, whilst recent tragic events – namely the stabbing attacks at Westfield Bondi and the alleged terrorist act in Wakeley – have caused evident concerns, the rate of violent knife crime is at a 20-year low.

The Bureau of Crime Statistics and Research ('BOCSAR') have revealed that as of December 2023, knife crimes were about two thirds below what they were in 2004.

In 2000-2010, there was an annual average of 1,292 knife assaults. However, in the five-year period to 2021, there was an average of 634 knife assaults, as reported by BOCSAR.

Nonetheless, penalties for knife possession in a public place were doubled in mid-2023.

Custody of a Knife in Public

Section 93IB of the Crimes Act 1900 (NSW) prohibits the custody of a knife in a public place or a school. This offence carries a maximum penalty of $4,400 fine and/or 4 years imprisonment.

An available defence is where the defendant proves that there was a reasonable excuse to have custody of the knife.

A reasonable excuse will include where you have a knife as it is reasonably necessary for:

  • lawful pursuit of your occupation, education, or training,
  • the preparation or consumption of food or drink,
  • participation in a lawful entertainment, recreation, or sport,
  • the exhibition of knives for retail or other trade purposes,
  • an organised exhibition by knife collectors,
  • the wearing of an official uniform, or
  • genuine religious purposes.

It also includes where having custody of the knife is reasonably necessary as it occurs during travel to or from or is incidental to one of the outlined activities.

It is not a reasonable excuse to have custody of a knife for self-defence or for the defence of another person.

Police are able to issue a penalty infringement notice (i.e., a fine) of $550 for a first offence for knife possession, instead of charging you. If you pay a penalty infringement notice, this does not appear as a criminal conviction and means you do not need to attend court.

Section 93IC of the Act outlines that it is an offence to use or carry a knife that is visible, if the use or carrying occurs in the presence of a person, and in a public place or a school.

It must also be proven that the action was done in a way that was likely to cause a reasonable person to reasonably fear for their safety. This is a separate offence, in that it targets actions such as brandishing or using a knife, as opposed to mere possession in a public place. This offence carries a maximum penalty of $11,000 fine and/or 4 years imprisonment.

However, the defence of having a reasonable excuse remains available.

The offences are classified as 'table 1' indictable offences. This means that they will be dealt with in the Local Court, unless the prosecution or accused person elects for the matter to be heard in the District Court.

In practice, this means that they will likely be dealt with summarily in the Local Court.

In the Local Court, the maximum penalty of imprisonment that can be imposed is limited to 2 years for a single offence. The maximum fines remain applicable for both offences.

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