Firearms Legislation in Australia - Overview and Comments
by Professor Kate Warner, Faculty of Law, University of Tasmania
Australian Institute of Criminology Report
Released to the Australian Senate May 1998
Report dated April 1997
Reviewing the legislation against the resolutions reveals a number of areas where jurisdictions appear to me to have failed to meet the minimum standards agreed to. Discussed under each resolution seriatim, these are:
Bans on specific types of firearms (resolution 1)
Contrary to the resolution, the Northern Territory allows semi-automatic firearms for sport shooting. Otherwise automatic and semi-automatic longarms are either banned or restricted in accordance with the resolution. The position in relation to pistols is not clear. As the Commonwealth has banned the import of certain types of pistols, namely automatic handguns and machine pistols, these should be prohibited by all jurisdictions. The States and territories do not seem to have prohibited them.
Nationwide Registration of all firearms (resolution 2)
All states now require registration of all firearms with the agreed particulars. There is no legislative requirement for NEPI links or access to other states in South Australia, Victoria or Western Australia.
Genuine reason and genuine need for owning a firearm (resolution 3)
The action plan for implementing resolution 3(a) envisaged that all jurisdictions would confirm that personal protection be excluded as a genuine reason for owning, possessing or using a firearm. While no jurisdiction makes personal protection a reason, the Firearms Act 1997 (SA) does not prevent self defence being approved as a reason by the Registrar and the Weapons Act 1990 (Qld) does not prevent it being prescribed as a reason by the regulations.
Not all jurisdictions have confined the genuine reasons for owning, possessing or using a firearm to those stipulated by the resolution or imposed the conditions stipulated in relation to particular reasons. The genuine reasons in paragraph (b) of the resolution confine sporting shooters to those participating in shooting sports recognised by competitions such as the Olympic Games. Paint-ball games or war games would not be within the spirit of this resolution. However paint-ball shooting is a genuine reason in South Australia and in Victoria paint-ball activities are included under sport and target shooting. In fact in most jurisdictions approved shooting clubs are not limited to the shooting sports envisaged by the resolution.
Recreational shooters are required by the resolution to produce proof of permission to shoot on rural land from a landowner. No proof of permission is required in South Australia and in New South Wales membership of a hunting club allows recreational hunting. Some jurisdictions (eg Tasmania and Victoria) allow recreational hunting if there is a hunting permit or licence from a government department. While the form of the legislative provisions comply with the resolutions by requiring a genuine reason and in most cases, production of appropriate evidence in support of the application based on that reason, there is a potential for abuse. If all that the Commissioner requires it be satisfied that the applicant has a genuine reason of recreational hunting or vermin control is a document giving permission to shoot from an owner or occupier of land or a government official such as the Director of the National Parks and Wildlife authority, then there is a real possibility that this is not the genuine reason for obtaining the licence. This is particularly so when the currency of the hunting permit may only be one year but the currency of the licence 5 years.
Contrary to paragraph (c) of the resolution, three jurisdictions, South Australia, Victoria (unless the reason is occupational) and the Northern Territory do not require a genuine need for a Category B firearm. Moreover South Australia does not require demonstration of a need for a Category H firearm. In Victoria there is no requirement to establish a genuine need for Category D if the reason is official or commercial.
While the resolution of 10 May confined Category C licences to primary producers, the resolution of 15 November allowed the use of Category C weapons for clay target shooting under certain conditions. While most jurisdictions have provisions which allow Category C weapons for clay target shooting, the restrictions in relation to physical need for club members joining after 15 November 1996 do not apply in South Australia and Western Australia and in Northern Territory, Category C weapons are allowed for sports shooting without restricting it to clay target shooting.
3 (d) Firearms collectors
The regulatory regime for firearms collections agreed to on 17 July has not
been always been comprehensively adopted. In particular the definition of
a collection or a collector is wider than the agreed definition in Queensland,
Western Australia and the Northern Territory. Category D weapons are not required
to be made permanently inoperable in Western Australia and Category A and
B weapons are not required to be rendered temporarily inoperable in the Northern
Territory. There appears to be no special regime for storage in South Australia,
Tasmania, Western Australia nor the Australian Capital Territory and possession
of ammunition is not expressly prohibited in Queensland, Tasmania, Victoria,
Western Australia nor the Northern Territory. The apparent intent of the provision
in relation to sales was to restrict sales of Category C and D firearms to
other collectors. No jurisdiction has implemented this and all allow sales
to register dealers.
The failure in three jurisdictions to adopt the recommended definition of collector creates a potential loophole for persons wishing to retain or obtain a semi-automatic weapon without having a legitimate genuine reason. This is particularly a potential problem in Western Australia where one weapon can constitute a collection and Category D weapons in collections do not have to be rendered permanently inoperable. It is significant that collectors in Queensland and Western Australia do not have to be members of an approved collectors' club nor is the possession of ammunition prohibited by collectors.
3 (e) Ammunition collectors
Neither Queensland, Tasmania
nor the Australian Capital Territory have enacted a regime or ammunition collectors.
Nor has South Australia but this State has prohibited possession of the types
of ammunition that the terms of the resolution of 17 July agreed would be
banned. The Northern Territory makes provision for permits for ammunition
collectors but does not ban the agreed types of ammunition.
3 (f) Museums
The separate jurisdictions
have adopted different approaches to museums. Tasmania an the Northern Territory
provide for museum firearms licences. In Tasmania the holder of such a licence
must comply with the same safe storage requirements as dealers but in the
Northern Territory no special storage provisions apply to holders of a museums
firearms licence.
New South Wales, Queensland, Victoria, Western Australia and the Australian Capital Territory provide for exemption for state museums and the South Australian firearms legislation does not bind the Crown in any event. None of these jurisdictions appear to have prescribed conditions for public museums, at least in the firearms legislation. Private museums would be covered by the collectors' provisions.
3 (g) Heirlooms
All jurisdictions except South Australia and Western Australia have provisions
for heirloom firearms licences which substantially comply with the conditions
resolved upon 17 July (Tasmania does not require firearms to be rendered permanently
inoperable). In Western Australia a collector's licence must be obtained to
possess an heirloom firearm and in South Australia there appear to be no relevant
provisions.
Basic Licence Requirements (resolution 4(a) and (b))
Subject to the comments above relating to permits or licences for minors, all jurisdictions comply with the age, fit and proper person and proof of identity requirements for the issue of a licence. All but South Australia and Western Australia clearly require first time applicants to undertake a training course. As to the licence itself, Queensland does not appear to require a photograph and neither Queensland, Western Australia nor the Northern Territory require a reminder of safe storage responsibilities on the licence.
4 (e) Licence categories
All jurisdictions have legislative provisions which substantially comply with
the agreed categories and with minor variations, the listed firearms are as
agreed. However Queensland has two additional categories, Category E and Category
R. South Australia adds "paint-ball firearms" to Category A and has an additional
category of prescribed firearms for which a licence may be obtained. Victoria
also has a Category E but has no Category H.
Training as a pre-requisite for a licence (resolution 5)
All states require a course for first time applicants except South Australia, where the Regulations provide the Registrar may require a course, and Western Australia, where a course may be prescribed by regulation. There is no specific legislative provision for courses for persons employed in the security industry in South Australia, Tasmania, Victoria, Western Australia, the Australian Capital Territory or the Northern Territory.
Grounds for licence refusal or cancellation (resolution 6)
Most jurisdictions have dealt very comprehensively with the agreed grounds for refusal and cancellation of licences. An omission in South Australia and Western Australia is the failure to provided that a domestic violence order, a violence restraint order or a conviction for assault with a weapon automatically results in refusal and revocation. Nor does a conviction for assault with a weapon/aggravated assault result in automatic cancellation in New South Wales, Tasmania or the Northern Territory. The public interest is not specified as a ground in some jurisdictions and failure to notify change of address is not made a ground of cancellation in Tasmania or Western Australia nor it seems, in the Northern Territory.
Permits to acquire (resolution 7)
All jurisdictions have implemented the requirement of a permit to acquire for each firearm although Western Australia and the Northern Territory, while requiring a 28 day delay for a first firearm provide for expedited approval in certain circumstances.
Uniform Standards for the security and storage of firearms (resolution 8)
All jurisdictions except Queensland, Western Australia and South Australia have laid down the agreed minimum uniform standards. Queensland does not require Category C weapons to comply with the higher standard applicable to D and H weapons and does not require separate storage of ammunition. Western Australia has different standards which appear to be as stringent as the agreed minimum standard, South Australia does not require A and B weapons to be in a container if they are secured to the wall.
Recording of Sales (resolution 9)
The Western Australian legislation does not appear to restrict firearms sales to licenced dealers while South Australia allows certain authorised officers of recognised firearms clubs to witness transfers. Queensland does not appear to have any provisions regulating the sale of ammunition and few states have tackled the issue of placing limits on the quantity of ammunition that may be purchased. South Australian regulations limit it to a reasonable amount for 12 months and in Tasmania it is left to the Commissioner to determine the amount.
Mail Order Control and Transport (resolution 10)
Contrary to the resolution, mail order from dealer to non-dealer is allowed in Queensland and to and from non-dealers in Western Australia. No safety requirements are yet prescribed for the movement of Category C, D and H weapons in South Australia, Victoria or Western Australia and the Northern Territory merely provides that all weapons must be sent by registered post or commercial freight carrier. There are no provisions for the prohibition or regulation of commercial transport of firearms with ammunition in New South Wales, Queensland, Victoria, Western Australia, the Australian Capital Territory or the Northern Territory.
Compensation provisions have legislative provisions for an amnesty and for compensation. the expression of the desirability for uniform offences and penalties appears to be a vain hope in the light of the table of offences!
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