Firearm Appearances - The Loose Cannon

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  1.   My awareness of the issue of firearms ‘appearing’ to be military firearms first became an issue in Western Australia about three years ago in respect to the Savage 110BA, and those of you who have followed my articles since their inception can no doubt remember an article written by me at the time.
  1.       Within the same time frame, I also represented a NSW paint ball equipment importer, in respect to approval of paintball guns that, with reliance upon an amazing power of creativity, the Firearms Registry were saying looked like an H&K MP-5.  More on that later. 
  1.       I understand that following the Martin Place Siege in Sydney, all Australian Police services agreed to conduct an audit of their firearms holdings to ensure that data records held are accurate and in line with state regulation. 
  1.       The Martin Place Siege report also called upon Commonwealth states and Territories to simplify the regulation of the legal firearms marketplace through an update of technical elements of the NFA.  
  1.       This attempt at ‘simplification’ has led to opening a can of worms that is anything but.

 

DEFINITION 

  1.       In NSW, Schedule 1 item 7 of the Act prohibits firearms that substantially duplicates in appearance, regardless of calibre or manner of operation a firearm referred to in 1, 5, or 6, in other words, a machine gun or firearm, designed for, or adapted for military purposes.  
  1.       ‘Substantially Duplicates’ is not defined in the Firearms Act 1996, nor is it defined in any other Act of similar effect across Australia.

In interpreting sections of the Firearms Act, it is always necessary to have regard to s 3 of the Act which sets out the Principles and objects of Act; 

(1) The underlying principles of this Act are: 

(a) to confirm firearm possession and use as being a privilege that is conditional on the overriding need to ensure public safety, and 

(b) to improve public safety: 

(i) by imposing strict controls on the possession and use of firearms, and 

(ii) by promoting the safe and responsible storage and use of firearms, and 

(c) to facilitate a national approach to the control of firearms

(2) The objects of this Act are as follows: 

(a) to prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances, 

(b) to establish an integrated licensing and registration scheme for all firearms

(c) to require each person who possesses or uses a firearm under the authority of a licence to prove a genuine reason for possessing or using the firearm

(d) to provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms

(e) to ensure that firearms are stored and conveyed in a safe and secure manner, 

(f) to provide for compensation in respect of, and an amnesty period to enable the surrender of, certain prohibited firearms 

  1.       There is nothing in s3 of the Act that aids in the interpretation of the provision.

 

CASE LAW 

  1.       I have performed a case search on Austlii, and only found the ACT case of Eichner v Registrar of firearms (2016) ACAT 98 at 57 which is relevant, there The Tribunal held, in respect to a Barrett .338 Lapua Magnum that had many features of a Barrett rifle used by the military that the decision may be one of impression, and just because there may be some differences between the relevant rifle and military rifles does not prevent a finding of ‘substantial duplication’. 
  1.       While this case deals with slightly different legislation, the legislation is for the same purpose and effect, and while a Tribunal decision does not give rise to binding authority, it is nonetheless influential.   However, the judgement is I believe fatally flawed in its analysis in that it fails to explore the meaning of ‘substantial duplication’. 
  1.   From photo’s features listed in the Barrett catalogue the 98B and 107A1 are superficially quite similar, specifically:

 

98B                                                                              107A1

Bolt action                                                                   Semi auto

10 round detachable mag                                          10 round detachable mag

Straight line design                                                     Straight line design

Ceracoted                                                                   Ceracoted                              

Muzzle break                                                              Muzzle break

Ergonomic pistol grip                                                 Ergonomic pistol grip

Full length pic rail / tapped for additional                  Full length pic rail / tapped for additional rails

 Bipod                                                                          Bipod

 

  1.   However, cosmetically the 98B has what appears to be a Harris bipod rather than what could be described as a proprietary, ‘Meccano’ bipod commonly seen on Barrett firearms, it is a bolt action and not a semi-automatic, and it is quite obviously not the same firearm as the 107A1. 
  1.   Aside from ‘style’ matters of a ‘tactical’, nature, I note that the 98B is not a military issue firearm anywhere and the firearms are easily visually distinguishable from one another. 

EXPLANATORY MEMORANDUM 

  1.   There is no mention of cosmetic interpretation of bolt action firearms in the Explanatory Memorandum, to the Act, which simply reads as follows: 

Schedule 1 lists the firearms that are prohibited firearms for the purposes of the proposed Act. The list includes machine guns (these are currently 
prohibited weapons under the Prohibited Weapons Act 1989)  and all 
self-loading (ie semi-automatic or rapid fire) rifles and shotguns (regardless of whether they are military style and regardless of their calibre and magazine capacity) 

 

ORDINARY MEANING 

  1.   If one turns to the Macquarie Dictionary, which is long the starting point for a Court in trying to interpret statutory provisions in Australia that are not defined in an Act, one sees that substantial duplication can be defined as follows: 
  1.    ‘Substantial

Of solid character, having to do with the substance, matter or material of a thing.’ 

  1.   ‘Duplicate

Exactly like or corresponding to something else, to make an exact copy of. 

  1.   ‘Appearance’

 Outward show. 

  1.   When combined, one would therefore expect that one has the appearance of copy that is not a precise copy, but is close to being identical. 
  1.    For example
  •          The former Australian ‘SLR’ military service rifle, the L1A1, was a Belgian designed FN FAL (Fusil Automatique Léger). It differed from FN-FAL specifications by having been built to imperial measurement rather than metric.  Most parts were therefore not interchangeable between the two but the external appearance was the same. 
  •          A Spanish copy of the Winchester Model 92 called the ‘El Tigre’, is almost identical to Winchester 92 but for the forward barrel band and front sight- on the Winchester the forward band is in front of the front sight, but on the El Tigre, it is behind.  The El Tigre tended to be used in American Western movies because it was cheaper to acquire by prop hire firms than the American made Winchester. 
  •          In Europe (and UK) Umarex market a .177 semi-automatic (sold in full auto form in some markets) The CO2 airgun looks like a MP 40 (‘Schmeisser’) submachine gun, as used by the Wehrmacht and SS during WW2.  This gun has even been given an ‘aged’ appearance so as to look as though it has been used in combat.  Such a firearm, whether with or without the ‘aging’ would clearly fail the ‘substantially duplicate’ test. 
  1.    It is, I submit this type of firearm that the law was intended to regulate, in that it substantially duplicates a particular firearm.

 

CLINTON ASSAULT WEAPON BAN 

  1.   President Clinton’s assault weapon ban sought to avoid inconsistency in his assault weapons ban by identifying some firearms by name, and deemed them to be assault rifles (even those lacking selective fire capability), he also included other firearms that were semi-automatic, accepted detachable magazines and had two or more of the following features, a pistol grip, folding or telescopic stock, bayonet mount, flash suppressor, threaded barrel or grenade launcher mount. 
  1.   Of course, most of these features were cosmetic, and manufacturers simply tweaked their product lines accordingly, one company Aries Defense even made a ‘featureless’ AR platform with a stock that has a shape more like what you would find on a conventional bolt action than an AR! 
  1.   In August 2016, Tasmanian Police scrapped proposed guidelines that would have guided interpretation of Tasmanian laws regarding substantial duplication, that would have listed the presence of an extended magazine shroud, skeletal, folding or adjustable stock and pistol grip etc as indicative that the firearm ‘substantially duplicated’ a fully automatic firearm.  Pressure from shooting groups, including the Shooters Union and SSAA led to its abandonment. Well done chaps! 
  1.   We may laugh at this, but at least Clinton and the Tasmanians had a go at being objective.  In Australia, we prohibit and regulate firearms that duplicate a militaristic type’ in design, function and appearance, purely subjectively. 
  1.   Unfortunately, however, any attempts at that type of definition will lead one into a very sticky swamp indeed. 
  1.   In reality, virtually all firearms used today are from designs that were either intended in their entirety for military use, or use features that have arisen from military orientated research in respect to firearms or ammunition design and function. This is logical, because even allowing for the size of the global sporting shooter market, this pales into insignificance when one looks at the military market, which is where the big R & D money gets spent. 
  1.   This together with ‘fashion’ has led to current conflict between the firearms industry and Registries.  
  1.   The Chassis stock evolved from aluminium bedding blocks used within a stock that provide for more stable barrel bedding than bedding on to wood or plastic. They combine typically vastly enhanced ergonomic stock design that dissipates recoil energy, far more efficiently than a traditional rifle stock. 
  1.   Similarly, developments in bolt action locking lug design negate the need for a bolt action to be pushed down like a door lock bolt in order to secure it, enabling a far more efficient ‘straight pull’ bolt design to evolve. 
  1.   Some semi-automatic firearms are converted to straight pull design- and are used by sportsmen without legal difficulties, as occurs in the UK. 
  1.   In Australia, the use of a bolt action on a chassis firearm has often confused licensing authorities.  However, what is the problem here? 
  1.   Sporting firearms are starting to use finishes like Ceracote rather than blueing or stainless steel, because they provide sportsmen, like the military with a finish that does not reflect the sun and that impedes rust more efficiently than blued carbon steel or stainless steel. 
  1.   Picatinny rails enable shooters to swap telescopic sights between rifles more easily, and allow for infinitely more room for adjustment. 
  1.   We are also seeing designs evolve that are ‘Tactical’, or ‘Tacticool’, they are styled after the military in a broad fashion sense, but are certainly not military firearms.  Registries and Border Force are tending to confuse ‘tacticool’ items with ‘military’ items and in so doing are involving the Police in a futile exercise in fashion policing that is not preventing crime.

 

SOUND POLICING? 

  1.   Putting these features and developments together, one can understand the flurry of ‘appearance’ matters occurring across Australia.  However, is this sound Policing. 
  1.   Some years ago, I acted for a paintball field operator and importer who was having difficulties with the NSW Registry precisely on this point.  They claimed that paintball guns ‘looked like’ a firearm and when pressed as to what gun they considered it to be, they advised me that it looked like a HK MP5. 
  1.   At the time, I ran the test by showing the silhouette of the so-called HK MP5 submachine gun inspired paintball gun to others, who are not associated with firearms, and their response was that it looked like a ‘hair dryer’, ‘spray paint gun’, ‘device for spraying sunscreen or dye’ and the closest to firearm was ‘Star War’s gun’.  
  1.   This last response confused me, because having been a fan of Star Wars since its inception, I have never seen any blaster used by storm troopers, rebels or anyone’s allies in that Universe far away that even remotely looked like that. So, go figure. 
  1.   The difficulty here is that the human mind sees what it wants to see, and this is the whole point behind the Rorschach ink blot test.  Subject to one’s mindset, two circles on a page about 10cm apart could remind you of bike wheels, two pictures of an eclipse, two nipples or a three-shot group fired by a bad shot. 
  1.   There is I believe a looming collision course between ‘appearance’ and modern chassis rifles and straight pull firearms that is amplified by the ‘tactical’ shooter fashion market.  A lot of resources are I believe being wasted in this area across Australia at present, and the waste is doing little to enhance public safety. 
  1.   Military style semi-automatic firearms attract stringent licensing requirements because of the perceived danger that can arise from their illegitimate usage.  However, I can see no public safety rationale for regulating something because it has a vague resemblance to such a firearm? 
  1.   To do so, removes Police from protecting the public and into the realm of being the arbiters of shooter fashion. 
  1.   How the focus upon cosmetic aspects of firearms can somehow further the objectives of the Firearms Act, and in particular the overriding need to ensure public safety is beyond me, however, so was the banning in Australia of the next generation, semi-automatic bull pup configured, pic rail fitted Nerf gun on public safety grounds.

Please call or email me any suggestions- either now, or in the future.

I have made a small message to the firearms registry regarding their flood affected area.

Simon Munslow


National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.


This article is written for general information only and does not constitute advice.
He can assist you with:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advices & opinions related to Firearms law matters

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