Firearms Legislation in Australia - Executive Summary
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
This report examines the degree to which State and Territory Governments have complied with the 1996 Nationwide Agreement on Firearms. The report concludes that the core elements of the Agreement have been almost fully implemented and highlights areas where further legislative and administrative work is required.
At the historic Special Meeting of the Australasian Police Ministers' Council (APMC) of 10 May 1996, all Australian Governments agreed to a 10-point pan for the regulation of firearms. Subsequent meetings on 17 July and 15 November 1996 further examined the issues. Among other things, the Nationwide Agreement on Firearms prohibited specific types of firearms: established firearms registration systems in all jurisdictions: established genuine reason and genuine need provisions for owning, possessing or using a firearm and developed uniform standards for the security and storage of firearms. The Nationwide Agreement was underpinned by a 12-month amnesty and buyback scheme, and a nationwide public education ,campaign. By the end of April 1997, more than 375, 000 prohibited firearms had been surrendered and more than $187 million paid in compensation to firearms owners and dealers.
The Commonwealth Government is committed to monitoring the implementation of the Nationwide Agreement. As part of that process, the Australian Institute of Criminology was asked to produce a detailed analysis of State and Territory legislation to determine the level of compliance with APMC resolutions. This summary report is based on a more extensive report, which has been produced by an Associate of the Australian Institute of Criminology, Professor Kate Warner, Faculty of Law, University of Tasmania.
This report outlines the level of compliance by State and Territory Governments with each resolution, and highlights areas where further administrative and legislative work is required. It should be noted that a number of jurisdictions a re currently drafting Regulations to give effect to various aspects of the APMC resolutions. Furthermore, jurisdictions have used administrative mechanisms to implement a number of resolutions, and these mechanisms have been noted in this report.
The report concludes that the core elements of the Agreement - the prohibition of certain firearms, the establishment of registration systems and the development of a 12 month amnesty and buyback scheme - have been almost fully implemented. The report also indicates that, in relation to other components of the Agreement, there are particular areas where further legislative and administrative work is required.
Bans on specific types of firearms (resolution 1)
All jurisdictions have banned the sale, resale, transfer, ownership, possession, manufacture and use of non-military and military style self-loading centre fire rifles, self-loading rim fire rifles, self-loading and pump-action shotguns.
Nationwide registration of firearms (resolution 2)
All jurisdictions require registration of all firearms. All jurisdictions have established links to the National Exchange of Police Information (NEPI) and to other State and Territory registration systems through legislative or administrative provisions. NEPI's National Firearms and Licensing Index will be available for use by jurisdictions by March 1998.
Genuine reason and genuine need for owning a firearm (resolution 3)
3(a) Personal protection
Personal protection is not regarded as a genuine reason to own, possess or use a firearm in any jurisdiction. This is explicitly stated in the legislation in all jurisdictions, with the exception of South Australia, Queensland and the Northern Territory.
3 (b) Genuine reason
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 reason in paragraph (b) of the resolution are confined to participants in shooting sports recognised in the charters of such sporting events as the Olympic Game, Commonwealth Games and World Championships. In most jurisdictions this is defined broadly. In South Australia and Victoria, paintball shooting is a genuine reason for owning, possessing and using a firearm.
Recreational shooters are required by the resolution to produce proof of permission to shoot on rural land from a landowner. In New South Wales, membership of a hunting club is proof of permission. Tasmania, South Australia and Victoria allow recreational hunting if there is a hunting permit or licence from a government department.
3 (c) Genuine need
The resolution requires that, over and above satisfaction of the "genuine reason" test, an applicant for a licence for the categories B, C, D and H must demonstrate a genuine need for the particular type of firearm. South Australia, Northern Territory and Victoria (unless the reason is occupational) do not, however, require a genuine need for a Category B firearm. South Australia does not require demonstration of a genuine need for a Category H firearm. In Victoria there is no requirement to establish a genuine need for a Category D firearm if the reason is official or commercial.
3 (c) Clay target shooting
(as amended on 15/11/96)
APMC resolved on 15 November 1996 to allow the use of Category C firearms for clay target shooting under limited circumstances.
Applicants for a licence had to be a member of the Australian Clay Target Association (ACTA) as a 15 November 1996. New applicants for a Category C firearm for the purpose of clay target shooting must be supported by an officer of an ACTA affiliated club and must indicate that they have a physical need requiring the use of a semi-automatic or pump-action shotgun in order to participate in such events.
Queensland and the Northern Territory have not specifically limited the Category C exemption to ACTA members. There are no physical need provisions in South Australia and Western Australia. South Australia will however, be amending their legislation to give effect to this resolution.
3 (d) Firearms collectors
The regulatory regime for firearms collections agreed by Police Ministers on 17 July 1996 has not been comprehensively adopted. In particular, the definition of a collector or a collection is wider in Queensland, Western Australia and the Northern Territory than the agreed definition. Category A and B firearms are not required to be rendered temporarily inoperable in the Northern Territory. There does not appear to be a special regime for the storage of collections in South Australia, Western Australia, Tasmania and the ACT and possession of ammunition is not expressly prohibited in Queensland, Tasmania, Victoria, Western Australia and the Northern Territory. No jurisdiction has limited the sale and transfer of Category C and D firearms held in a collection to bona fide collectors, and all jurisdictions allow sales to firearm dealers.
The failure of three jurisdictions to adopt the recommended definition of a collector creates a potential loophole for persons wishing to retain or obtain a semi-automatic firearm 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 firearms in collections do not have to be rendered inoperable. In Queensland and Western Australia, collectors do not have to be members of an approved club, nor is there a prohibition on the possession of ammunition by collectors.
3 (e) Ammunition collectors
Council agreed that jurisdictions would consider requiring ammunition collectors to have a licence or permit for purchase or possession of ammunition unless this requirement is already covered by an appropriate shooter's licence. Queensland, South Australia, Tasmania and the ACT have not enacted regimes for ammunition collectors.
3 (f) Museums
Jurisdictions have adopted different approaches to the regulation of museums. Tasmania and the Northern Territory provide for museum firearm 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, South Australia and the ACT provide exemptions for state museums but do not appear to have prescribed conditions for public museums. Privately owned museums in Queensland, ACT and South Australia are considered to be collectors and must meet the appropriate requirements.
3 (g) Heirlooms
All jurisdictions with the exception of South Australia and Western Australia have provisions for heirlooms firearms licences which substantially comply with the conditions agreed by Ministers on 17 July 1996. In Tasmania, firearms must be rendered incapable of firing. In South Australia and Western Australia, a collector's licence must be obtained to possess an heirloom firearm.
Basic licence requirements (resolution 4)
All jurisdictions comply with the requirements for the issue of a licence, that is, being fit and proper person, being able to prove identity, and undertaking adequate safety training. South Australia and Western Australia legislation does not specifically require that safety training is mandatory for the first-time licence holders, although it is understood that such requirements have been put in place through other means. Queensland does not appear to require a photograph on its licence and neither Queensland, Western Australia nor the Northern Territory require a reminder of safe storage responsibilities on the licence.
Whilst his resolution requires licence applicants to be aged 18 years or over, all jurisdictions allow access to firearms by minors through a licence or permit system. In New South Wales and Tasmania, people aged 12 years and over can obtain a permit under limited circumstances.
4 (e) Licence categories
All jurisdictions have legislative provisions which substantially comply with the agreed categories. However, Queensland has two additional categories: Category E (bullet proof vests and telescopic batons) and Category R (machine guns, sub-machine guns and firearms capable of firing 50 caliber cartridge ammunition.) South Australia adds paintball 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 (machine guns and bazookas).
Training as a pre-requisite for a licence (resolution 5)
All jurisdictions require a course for first time applicants. There is no specific legislative provisions for course for persons employed in the security industry in South Australia, Tasmania, Victoria, Western Australia, the ACT or the Northern Territory.
Grounds for licence refusal or cancellation (resolution 6)
Most jurisdictions have comprehensively addressed the agreed grounds for refusal and cancellation of licences. South Australia and Western Australia, however, fail to provide that a domestic violence order, violence restraint order or a conviction for assault with a weapon automatically results in refusal and revocation of licence. Nor does a conviction for assault with a weapon/aggravated assault result in automatic cancellation in Tasmania nor 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 for cancellation in Tasmania, Western Australia and the Northern Territory.
Permits to acquire (resolution 7)
All jurisdictions have implemented the requirement to acquire 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, with the exception of Queensland, Western Australia and South Australia, have implemented the agreed minimum standards. Queensland does not require Category C firearms to comply with the higher standard applicable to Category D and H firearms and does not require separate storage of ammunition. Western Australia has different standards, which appear to be as stringent as the agreed minimum standards. South Australia does not require A and B firearms to be in a container if they are secured to a wall.
Recording of sales (resolution 9)
The Western Australian legislation does not appear to restrict firearm 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 jurisdictions have placed 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 the Police Commissioner determines the amount that may be purchased.
Mail order control and transport (resolution 10)
All jurisdictions, with the exception of Western Australia and Queensland have implemented the agreed requirements for mail order and control and transport. In Western Australia, one must either obtain a permit or transport the firearm by licenced courier in order to send the firearm to another licensed firearms owner in that state. In Queensland, firearm must either be sent to the nearest police station or by licenced courier. No safety requirements are yet prescribed for the movement of Category C, D and H firearms in South Australia, Western Australia or Victoria and the Northern Territory merely provides that all firearm 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 ACT or the Northern Territory.
All jurisdictions, with the exception of South Australia and the ACT, have established compensation and amnesty schemes, which will conclude on 30 September 1997. The South Australian compensation scheme concluded on 28 February 1997 and its amnesty will conclude on 30 June 1997. The ACT's compensation and amnesty scheme will conclude on 17 May 1997.
While all jurisdictions have established different offences and penalties, the penalties reflect the spirit of the resolution.
This report has identified a number of areas where the spirit and intent of the APMC resolutions have not been fully implemented. The most significant departures from the APMC resolutions include:
· The non-specification of the Category C exemption for clay target shooting in the Northern Territory and Queensland;
· The failure to implement a uniform regulatory regime for firearms collections; and
· The failure in South Australia and Western Australia to require automative revocation or refusal of a licence where a person is the subject of a domestic violence order, violence restraint order, or conviction of assault with a weapon.
This report clearly demonstrates that both the framework and the detail of the Nationwide Agreement on Firearms have been implemented. The report has, however, outlined a number of areas where further legislative or administrative reform should be undertaken. The implementation of the Nationwide Agreement on Firearms is an historic achievement, which clearly demonstrates the benefits of cooperative federalism. The implementations of these resolutions will have a profound effect on the health, safety and welfare of all Australians.