There have been a number of occasions where SSAA members have experienced a brush with the law while travelling with firearms. We hope to explain the legal requirements when transporting firearms in your state or territory and what rights you have, if any. So the question is: What do I have to do to be within the law regarding the way I transport my firearms to and from the shooting range, hunting trip or the gunshop?
Here is a typical scenario. You are returning from a shoot and you are pulled over by the police, who are conducting random breath tests (RBTs) at the roadside. While sitting in the queue, you wonder what you would do if the police told you that, because you are carrying guns and ammunition, they wanted to search your car. You realise you have no idea what your rights are.
In certain circumstances, police do have the powers to search you and your vehicle if they reasonably suspect you might be doing or carrying something illegal. Now, of course, travelling with your firearms is not illegal, as you are a law-abiding licensed firearms owner with registered firearms. So if the police in this instance wish to carry out a search of your vehicle, they are checking on whether or not you are complying with the regulations.
If, for example, you are waved over at an RBT site and a police officer is doing a registration check on your vehicle and, as part of the process, is alerted to the fact that you are a firearms licence-holder, it may be reasonable to expect the police officer to ask to see your firearms licence at the same time they are checking your driver’s licence and analysing your breath. It’s also reasonable to expect police to ask you if you are carrying firearms.
Sydney-based lawyer Stephen Mainstone suggests that if the person produced their licence but told the police they did not have any firearms with them, it is likely the police may still want to search the vehicle. “Naturally, if the licence-holder does have firearms in their car, they would be foolish in my view to lie to the police, because if the police then conduct a search of the vehicle, regardless of whether they had the power or not, and find the firearms, they will take a dim view of being lied to and may charge the person with failing to comply with the regulations and/or put a report into the firearms registry about whether it is appropriate for the person to continue to hold a licence,” he said.
“If you have your firearms licence on you and firearms in your vehicle, you should simply comply with the request to inspect. If you don’t have firearms with you and you tell the police officer this and they still want to search your vehicle, you then need to make a decision of whether to allow them to conduct the search or get into an argument with them about your rights. The police will not back down on such an argument – a bit like arguing with the referee’s decision in a footy game after he’s blown the whistle. So you need to decide if this is a battle you want to enter.”
Using the RBT scenario again, a police officer inspects your vehicle and considers that the way your firearms are stored is not in accordance with the regulations. So what happens next? A lot depends on whether you are, in fact, in breach of the Act.
It is quite common for the police to make such a decision without full knowledge – and understanding – of the regulations relating to firearms transportation. Courts and administrative tribunals often see cases where the firearms owner is completely cleared of any breach of the law and the police have been overzealous in their actions. But the poor shooter is still inconvenienced by the whole affair, not to mention the loss of firearms and licence, loss of income, costs, stress and a potential day in court.
Each state and territory has its own Firearms Act and Regulations. Each differs slightly, but all have the same general underlying theme. That is: You will be charged with an offence (breach of the Act) if you allow your firearm to be lost or stolen and/or it comes into the possession of an unlicensed person.
Mr Mainstone, who spends a lot of time in the New South Wales courts defending firearms owners, says, “People who have been successfully prosecuted by the police for breaches of the Firearms Act when travelling with or carrying firearms have been found not to have taken every reasonable precaution.”
Below are extracts from the various state and territory firearms regulations, accompanied with guidelines and website links, where available.
New South Wales
In New South Wales, Section 59 of the Firearms Act empowers police to make on-the-spot inspections of firearms, licences and permits. The Act provides that a person who is carrying a firearm or possesses a firearm that is within the immediate vicinity of the person must, on the demand of a police officer, at any time, produce for inspection by the police officer, the firearm and any licence or permit that authorises them to possess the firearm.
“I am of the view that the Section gives police the power to demand the production of firearms licences and firearms when they come across firearms-holders who are out and about, such as hunters or primary producers, or even in the scenario where a vehicle is stopped at an RBT when they were returning from a shoot at their range,” said to Mr Mainstone.
All licence-holders in NSW for Category A and B firearms must comply with the general requirements found under Section 39 of the Firearms Act 1996. This Section states that the licence-holder must take all reasonable precautions to ensure the firearm in their possession is safely kept; that it is not lost or stolen; and that it does not come into the possession of a person who is not authorised by a licence or permit to possess or use it.
The holders of licences for Category C, D and H firearms have additional requirements under Clause 126 of the Firearms Regulation 2006.
While there is only the general requirement under Section 39 of the Act for the transportation of Category A and B firearms, the Commissioner of Police only considers “all reasonable precautions” have been met if Category A and B firearms have been transported in the same way as Category C, D and H firearms.
The NSW Firearms Registry website has links to the Firearms Act, Regulations and fact sheets.
In Queensland, Section 61 of the Weapons Regulation 1996 states that a person in control of a firearm must ensure it is not placed in or on a vehicle unless:
- the vehicle has a lockable boot, the firearm is locked in the boot; otherwise:
- the firearm is locked in a metal container fixed to the vehicle; or the firearm is in a securely closed container that is out of sight in the vehicle.
The metal container and anything on or attached to it, must not suggest that a firearm is inside. Examples of how a container or something on or attached to it may:
- indicate a firearm is inside;
- the container’s shape or other features is like a firearm;
- a mark or label on the container mentions firearms, ammunition; or
- XYZ Gun Shop (other than as part of an address).
A person in control of a firearm (whether or not the person has custody of it) must ensure the firearm is not left in an unlocked vehicle if the vehicle is not being attended by someone licensed to possess the firearm.
Queensland also has a regulation relating to carriage of firearms in vessels (boats) and motor homes/caravans, which sits somewhere between the safe storage requirement in homes and transporting firearms in vehicles. The following is an explanation by the Queensland Weapons Licensing Branch: In order to store a firearm on a vessel or caravan (motor home) you would be required to apply for what is known as an ‘Alternative Safe Storage Certificate.’ This is a certificate permitting you to store a firearm other than in a building.
Sections 120, 149 and 150, and Schedule I to the Victorian Firearms Act discuss police powers regarding production of licences and firearms for inspection and their powers relating to searching of persons and vehicles. Section 126 of the Act specifies the requirements regarding safekeeping of firearms and cartridge ammunition while being carried or used, namely: A person who is carrying or using a Category A or B longarm must ensure that the firearm is carried and used in a manner that is secure and is not dangerous; and must take reasonable precautions to ensure that the firearm is not lost or stolen.
The requirement for Category C or D longarms and handguns is the same as stated above, but the penalty units for defaulters is doubled from 60 to 120 or 12 months to two years imprisonment.
The following extract is from the Victorian Police Firearm Safety Code brochure and is accessible from its website: Even before you buy your first firearm you need to know how you will carry it home and where you will keep it. Bear in mind that it is illegal to carry or use a loaded firearm in a vehicle. All Victorian licence-holders should, when travelling interstate, check with that state’s Police Firearms Registry as to licensing and storage requirements. It is vital for community safety and crime reduction to keep your firearms and ammunition secure at all times. You may lose your firearms licence if you fail to do so.
Update: In addition to this, Victoria Police unveiled new guidelines for transporting firearms in November 2015, as detailed on the SSAA Victoria website.
Apart from Schedule 4 of the Western Australian Firearms Regulations 1974, WA has no specific regulation regarding travelling with firearms. However, you can refer to the fact sheet ‘Firearm Storage Requirements’ via the WA firearms registry website, and the Firearms Act Section 24 does provide a lengthy explanation of police powers regarding inspection of licences, firearms and ammunition.
Section 23 of the Act describes offences regarding carriage and safe storage of firearms and also the requirement to allow police to inspect safe storage facilities. In short: A person who, being responsible for the storage of any firearm or ammunition, fails to provide and use adequate storage facilities to ensure its safety; or where prescribed requirements as to security are specified in relation to a firearm or ammunition of a prescribed kind, to ensure that those requirements are observed; or otherwise, to safeguard it from loss or improper use; or being responsible for the storage of any firearm or ammunition, refuses to permit a member of the police force to inspect the storage facilities provided, at a reasonable time after such an inspection is requested in writing by the member of the police force, commits an offence.
Sections 31 and 32 of the South Australia Firearms Act describe police powers in regard to production of a firearms licence and registration papers to police and their powers relating to inspection and seizure of firearms.
Apart from the following part of the regulations, which relates to storage on a premises, SA also has no specific rules or guidelines regarding travelling with firearms. Security of firearms: A person (not being a dealer) who has possession of a class A or B firearm must keep the firearm secured by: securely attaching and locking it to part of the building in which it is kept; or keeping it in a locked cabinet made of hardwood or steel that is securely attached to the building in which it is kept; or keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or keeping it in a locked steel and concrete strong room; or such other method as is approved by the Registrar.
A person (not being a dealer) who has possession of a class C, D or H firearm must keep the firearm secured by: keeping it in a locked safe made of steel that is securely attached to the building in which it is kept; or keeping it in a locked steel and concrete strong room; or such other method as is approved by the Registrar.
Sections 82, 108 and 135 of the Tasmania Firearms Act outline the police powers regarding inspection of firearms and licences, as well their search and arrest powers of offenders. Tasmania Police provides a downloadable ‘Firearms Transport Guidelines’ pdf through its website.
Apart from the usual requirement to prevent loss or theft, there is an additional requirement: A firearm should not be readily accessible to a person in the normal seated position while a vehicle is in motion.
For Category A and B firearms and non-prohibited H firearms, Regulation 12A states: The firearm must be in the unloaded condition at all times and magazines are not to contain any ammunition. Ammunition must be stored in a closed container completely separate from the firearm. The firearm should not be left unattended, and the licence holder must adhere to at least one of the following requirements:
- The firearm is to be in a locked receptacle (note: see receptacle details below), or
- The bolt of the firearm is to be in a closed container, completely separate from the firearm, and/or The firearm is to be fitted with a mechanism that locks or disables the trigger or action and prevents the firearm from being used.
For Category C, D and prohibited H firearms, Regulation 12 states: The firearm must be in the unloaded condition with the magazine (if detachable), removed from the firearm. The bolt or breech block where possible should be removed from the firearm.
Wherever possible, a trigger lock or a mechanism that locks or disables the action should be fitted to the firearm. If the firearm is not a pistol, the firearm is to be conveyed in a locked receptacle that is of solid construction or made of hardwood that is at least 10mm thick. The receptacle is to be fitted with a metal lock.
Any pistol is to be contained in a locked receptacle preferably located in the most secure area of a vehicle (such as the locked boot of a sedan). The locked receptacle is not to contain any ammunition, and magazines are not to contain any ammunition.
Australian Capital Territory
Section 236 of the ACT Firearms Act covers on-the-spot inspections of firearms by police, while Part 12 of the Firearms Act (Safe Storage of Firearms) Section 180 – Offences – Failing to comply with storage requirements, Subsection 2, specifically addresses the storage of firearms in vehicles and states: For a firearm stored in a vehicle, the person who possesses the firearm takes all reasonable steps to ensure it is stored safely if the firearm is stored in the vehicle in accordance with any guidelines under Section 37 (Minister’s guidelines).
According to the explanations to the 2008 update of the ACT, Subsection 2, in 2004-05, 13 per cent of incidents of firearms theft involved theft from vehicles or while the firearms were in transit. A person will contravene the Act if they fail to take all reasonable steps to store a firearm safely in a vehicle in accordance with the registrar guidelines.
Sections 96, 96A, and 97 of the Northern Territory Firearms Act describe the responsibilities of the firearm owner in regard to producing firearms, licences or permits to police and also police powers relating to searching premises.
As far as transportation is concerned, the Firearms Regulations state at Section 32 (2); Where: a firearm is being conveyed in a motor vehicle; and the motor vehicle is left unattended at a place away from where the firearm is normally stored or secured, Then: the firearm is to be placed in the boot, the cargo carrying area or some other lockable compartment of the vehicle or is to be secured by means of a firearm securing device; the firearm is to be completely hidden from open view; ammunition for the firearm is to be placed in a lockable compartment of the vehicle (other than the compartment in which the firearm is placed) or in a locked container secured in or on the vehicle; and the person in charge of the vehicle must take all reasonable steps to ensure that, while the vehicle remains unattended, the firearm: is kept safely in the vehicle; is not stolen or removed from the vehicle; and does not come into the possession of a person who is not licensed to be in possession of the firearm.
The NT has mutual recognition with all states and territories for visiting interstate recreational licence holders in respect to Category A and B firearms only. This merely applies for up to three months. Persons staying in the NT for longer than three months must apply for a Temporary Permit.
Even though each state and territory’s Firearms Act, Regulations or guidelines differ slightly, you gain a pretty good idea of what’s expected by the authorities as ‘taking every reasonable precaution to prevent your firearm being lost or stolen’, which, when you read the Act of most states, is the offence you may be charged with.
If you intend travelling interstate with your firearms, you should check on the regulations in the states you propose visiting, just to make sure you understand the regulations there. While most states offer reciprocal rights to interstate visitors with firearms, it’s always a good idea to check before travelling.
And a final note from Mr Mainstone: “Many states’ Police Commissioners set conditions or recommendations regarding transportation of firearms. It should be noted that these are only guidelines and not the law and a court may have a different view if a licence-holder can show their alternative arrangements are reasonable. However, as it is usually the police with whom you will have first contact on this issue, if you can comply with the guidelines as set, you may save yourself a lot of time arguing the point with the police.”
Please note that information contained in this article is general in nature and should not be considered legal advice. For further information on the safe storage and transportation of firearms and ammunition in your area, please contact your state or territory firearms branch. Should you require legal advice relevant to a particular matter concerning you, it is always advisable to contact a lawyer who is able to provide such guidance on firearms-related matters.