Clarity needed on confusing ‘appearance’ laws

Of the many frustrations which confront shooters, none is more exasperating and totally pointless than appearance laws which allow police to essentially ban certain firearms because they don’t like the look of them.

This had its origin in the 1996 National Firearms Agreement which, with some limited exceptions, banned semi-automatic rifles “or a firearm which substantially duplicates those rifles in design, function or appearance”.

In other words, a firearm which looks like a military rifle could be banned, even though it’s neither military nor self-loading. In practice that means firearm with a pistol grip and/or detachable box magazine, even though it may be a bolt, slide or single-shot action which would be otherwise completely legal.

Pre-1996, restrictions based on appearance would have applied only to self-loading military pattern rifles. But not nowadays and this is increasingly problematic, considering the prevalence of bolt action rifles mounted on chassis systems which commonly feature pistol grips, detachable box magazines, accessory rails and muzzle devices. These are legitimately used for both target shooting and hunting and, other than appearance, are no different to the exact same action in a conventional timber or synthetic stock.

Firearms legislation in each state and territory, with the exception of South Australia, contain provisions to ban certain firearms based on appearance. The problem is the varying interpretations, with the discretion in the hands of firearms licensing police – and this is highly subjective.

SSAA chief executive Tim Bannister said firearms should be treated according to their actual engineered capability, not emotions based on their appearance. He said appearance laws seemed to be based on a misunderstanding on what helped to achieve public safety, with bolt action firearms placed in more restrictive categories based just on what they looked like. A firearm is either self-loading or it’s not, he said.

 “It doesn’t matter whether the firearm is black or pink with wood or metal stock, it should be just a plain and simple scientific engineering analysis of what the firearm can and can’t do,” he said, “remembering it’s always  the cartridge which is the key driver of firearm capability. There are a variety of firearms which have multiple uses in legal sporting and hunting activities.”

And it’s not just appearance. Some jurisdictions have problems with particular calibres such as the .338 Lapua Magnum and .50 BMG. This has been challenged. In 2016, a Canberra gun owner took the ACT Firearms Registry to the ACT Civil and Administrative Tribunal over its refusal to issue a permit for him to acquire a Barrett M98B bolt action rifle in .338 Lapua Magnum.

Ultimately the Tribunal upheld the police decision but the registry didn’t have it all its own way. Initially police cited five reasons for refusal – the “military nature of the rifle”, that it was fitted with a pistol grip which was prohibited,  none of the shooting ranges in the ACT had a template large enough for .338 Lapua, there was no property or game in the ACT suited to this calibre and that he already had too many guns. The Tribunal ultimately relied only on the issue of appearance.

“The Tribunal is satisfied the .338 Lapua Magnum rifle is a firearm that substantially duplicates in appearance (regardless of calibre or manner of operation) a self-loading centrefire rifle of a kind that’s designed or adapted for military purposes, and is therefore a prohibited firearm that cannot be acquired under a category B licence,” it ruled.

In an earlier case, the West Australia State Administrative Tribunal considered an appeal against a police decision to refuse to allow a shooter to acquire a US BAT Machine RSS rifle also in .338 Lapua Magnum. In that case the central issue was the calibre, not rifle appearance. Police told the Tribunal this cartridge was developed to address military need for a sniper rifle with a capability beyond 1000m.

“. . . it was the (Police) Commissioner’s policy that private persons should under no circumstances be licensed to hold a .338 Lapua Magnum due to its excessive ballistic capabilities,” police told the Tribunal. In its decision, the Tribunal said the shooter just couldn’t justify owning a rifle in this calibre for the type of hunting and target shooting he wanted to do.  “The .338 Lapua Magnum and its ballistic capacity is, for lack of a better word, complete ‘overkill’ for the shooting of wild dogs and kangaroos,” it said.

Highlighting the inconsistency of approach across different jurisdictions, the ACT case noted there  were a number of other rifles in .338 Lapua Magnum registered in the ACT. Presumably they are of acceptable appearance. However, based on the WA decision, nothing in .338 Lapua Magnum would be acceptable in that state, although there are other cartridges of comparable or superior ballistics.

Interpretation of appearance laws doesn’t seem immutable. Where once the ACT objected to rifles with pistol grips, it now issues permits to acquire rifles such as the bolt action Ruger Precision Rimfire with AR-pattern pistol grip.

NSW has sought to bring some clarity by convening a panel to adjudicate on firearms based on their appearance. Tasmania publishes guidelines and a list of firearms and their categorisation based on appearance. The guidelines say to be banned a firearm must substantially duplicate a known fully-automatic firearm and not just share characteristics with numerous other fully-automatic firearms.

The Tasmanian list seems to be based on a practical approach – bolt action centrefires with pistol grip chassis remains in Category B, self-loaders are Category D while AR-pattern rifles remain banned. Tasmania has no problem with bolt action rifles in .338 Lapua Magnum.

In the first instance, any firearm entering Australia must first pass through the Customs barrier. Australian Border Force (ABF) imposes its own appearance test, banning import of any guns “that are substantially the same in appearance as a fully automatic firearm.” The consequence is while ABF allows entry, different states and territories then impose their own rules on what’s acceptable.

Some jurisdictions have a particular problem with rifles with adjustable and folding stocks, either banning them outright or requiring they be pinned. Presumably the logic is that such firearms are more concealable and thus more likely to be used by criminals.

However, the Commonwealth has barred rifles based on appearance. In 2008 it banned import of the Heckler & Koch R8, a straight-pull variant of the self-loading SL8 on the basis of its “military style” appearance. Presumably, that would apply to any move to import straight-pull rifles derived from the AR-15, of the type used in competition in the UK. In the ACT case, the shooter noted ABF had no problem allowing entry of the Barrett rifle he sought to acquire.

In 2016 the WA Law Reform Commission reported on the state’s firearms legislation, including a good look at the issue of prohibiting firearms based on appearance. It concluded there was lack of uniformity in decision-making and that prohibiting a firearm based on appearance did not achieve what some claimed.

The key claims of those favouring bans based on appearance is that a firearm which looks military is likely to engender greater fear in the public and a more emphatic response by police. The WA Law Reform Commission said a firearm of military appearance used “within the scope of lawful activity” was unlikely to cause greater fear to a person than any other firearm.

And police response to any illegal firearm use was unlikely to be any different whether the gun was of military appearance or a self-loading rimfire.

The Commission recommended the subjective appearance provision be replaced with a technical, evidence-based approach which limited subjective and ad hoc decision-making. Further, WA should negotiate at national level for removal of the appearance provision.

In a peer-reviewed academic paper published in 2018, Tasmanian student Samuel Adams  said it was clear from the experience of other jurisdictions that provisions allowing for the prohibition of firearms based solely on appearance were difficult to enforce. “These provisions result in inconsistent interpretations that appear to fail in fulfilling the public functions as claimed by proponents,” he said.

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