Firearms Act Section 8 Madness - The Loose Cannon

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Even although I have read the NSW Firearms Act 1996 many times, it is only when something particularly daft occurs that I often become aware of a problem, because, as an optimist, and one has to be, one assumes at least some level of common sense.

Let us look for a moment at section 8 of the NSW Firearms Act 2017.

A Paint Ball Field Permit recently was not renewed by the NSW Registry. One of the major reasons was that the operator changed O-rings on a paintball gun, and sought to cannibalise parts from one gun that was ‘a bit bashed about’, to put together two ‘better’ guns. All things that just about every field operator in NSW would have done.

I hasten to add that in doing so, he was not manufacturing any parts.

Unfortunately for him, a Paintball Field Operators Permit does not specifically state that one can ‘repair and maintain’ and this needs to be done by a Firearms Dealer or a Club Armourer. See s8 of the Firearms Act 1996 (the full text of which has been set out at end of this article).

….In the case of a firearms dealer other than a club armourer or a theatrical armourer, authorises the licensee and (subject to the conditions of the licence and the regulations):

1. (a) employees or directors of the corporation specified in the licence, or
2. (b) employees of the partnership so specified, or
3. (c) employees of the individual so specified,

who are eligible to be issued with a licence and who are authorised in writing by the Commissioner, to possess, manufacture, convert, acquire, supply, repair, maintain or test, in the course of carrying on the business of a firearms.

So, this basic work, like other work that a Paintball Field Operator has to do on a daily or near daily basis, such as the following, should have been done by someone with a Firearms Dealers Licence.

• Changing batteries
• Squeegeeing barrels
• Cleaning a gun
• Removing the barrel (to put the gun back into a case)
• Replacing O-rings
• Pulling out the drive train to lubricate O-Rings at the end of a day’s play
• Cleaning the gun externally and internally to remove paintball ‘paint’
• Replacing the Macro line
• Removing the bottle and hopper
• Filling the gas bottle whilst it is fitted to a paintball gun
• Filling the hopper whilst it is fitted to a gun
• Cleaning the breach of the gun after it has a broken ball in it.

I assume that the person who wrote the legislation would have had a view that the holder of a Firearms Dealers Licence, or Club Armourer somehow has special skills, however, most holders of these licences do not, and are NOT gunsmiths.

Indeed, this begs the question, what is a gunsmith? There is no Australian & NZ Standard Industrial Occupation classification this position.

Gunsmiths approach their trade from a range of backgrounds including, but not exclusively that of the trade of Fitter & Turner, so to require that the work be undertaken by someone with a Dealer Licence, who may or may not be a gunsmith, and may or may not in that instance, have any experience at all with a Paintball Marker, appears to impose unnecessary and ill-considered red tape.

Leaving aside this, imagine the effect of this interpretation on field safety and operating costs for paintball fields. Laughably, most operators would have to go out and also acquire Firearms Dealers Licences, employ a Dealer, or purchase a colossal number of paintball markers to cover the scenario where they are out of circulation for periods while booked in with a Dealer for repairs.

My client has not, I note, been prosecuted for the above act because I assume even the staff at the Firearms Registry realise that even the most recently appointed Magistrate in NSW, who has a background that includes being a card holding member of Labor Lawyers, would misinterpret the hearing date, and figure it was April the First.

I can understand the position of the Registry in that they are seeking to apply the ordinary words of the Act, and to read the document strictly. Giving language its ordinary meaning is the first test of statutory interpretation, and S 3 (b)(1) of the Act seeks to establish a strict regulatory regime in respect to the regulation of firearms.

However, a strict interpretation only ‘works’ if the Act makes sense when it is read this way; it does not. So, we are looking at a sort of Kafkaesque scenario gone mad - a sort of autistic Firearms regulation Nazi’s wet dream of over regulation for regulations' sake that destroys businesses and lives – including, as we are now starting to see happen, that of National Party MP’s who lose their seats for no purpose. 

Why do I say this?

If all a hunter or target shooter does is hunt or shoot targets respectively, they would, if this interpretation is carried to its logical limit, be unable to clean their firearms.

‘Cleaning’ being a very obvious synonym of maintenance, an activity which on the interpretation above, could only be performed by a gunsmith, and which most shooters perform after every use of their firearm.

The Registry do not seek to deny people the right to clean firearms, which is something that on the Registries interpretation of the law, is not permitted.

However, other aspects of maintenance and home gun smithing are more problematic.
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What shooter has not used a knife blade or cleaning rod to free a stuck case that a rifles extractor has failed to remove, and that has jammed in the chamber? This is a frequent occurrence and does not necessarily indicate that there is anything wrong with the firearm. To suggest a need to see a gunsmith in such an eventuality, unless it occurs frequently, or the jam cannot be cleared, defies logic.

Similarly, have you ever tinkered with the bedding of a rifle, adjusted a trigger, fitted a recoil pad, performed the fairly easy task of fitting an aftermarket trigger, or used a tapper set to adjust sights, fitted scope mounts?

Performance of minor repairs is normal human thing to do, women often resort to a sewing machine to perform minor repairs to clothing, and what male has not repaired (or tried to) fix a lawn mower or car?

If one goes to the country, the culture of ‘fixing’ is even greater, and I would assume most farmers would attempt a minor repair on a firearm before seeing a gunsmith.
Not only because of the inconvenience associated with travelling a considerable distance to see one, but because of the down time associated with having a necessary tool out of use, and because ‘fixing things’ is what farmers do and gun smithing takes time and costs money.

The absurdity in respect to interpretation of section 8 goes further. In the Firearms Regulations 2017 exposure draft, Department of Justice have sought to cure a difficulty with the strict interpretation of the Regulations that would only permit a hunter to shoot at game, by permitting the testing of ammunition and adjustment of telescopic sights in the field.

It does not go so far as to cover practice in the field, which does not need to involve the establishment of a range.

In a previous article on field practice, I expressed the view that it was necessary to practice approaching a target and shooting at it safely from a variety of angles, positions and under differing wind conditions in order to develop competencies with the firearm and avoid wounded animals and to me, logical interpretation of the Act supported this.

However, the Registry view, appears to ensure that a hunter has inadequate familiarity with a firearm and result in he or she unnecessarily injuring animals.

My view is that the Registry need to seriously consider the above, look to the intent of the legislation and then adopt a purpose-driven approach to the interpretation of the section 8 of the Legislation.

That is to say they need to interpret the legislation in a manner that will achieve the purposes of the Act, and avoiding ambiguity and uncertainty that way, as the current literal approach does not assist the purposes of the Act and is applied inconsistently, and appearing, if the literal interpretation is adopted to have some absurd consequences.

Alternatively, provision needs to be added to section 8 - or even a simple condition to this effect needs to be added to permits and licences - to permit all activities that are ‘necessary and proper’ and to enable people to perform their lawful activities with a firearm.

Ironically, in Clause 38 of the Regulatory Impact statement relating to the proposed Firearms Regulation 2017 the Justice Department wrote ‘there is significant benefit in ensuring the Regulation (or I submit Law) is consistent with accepted practice, without jeopardising public safety.

I wish they would adopt this policy across the board Instead of just placing it as a warm and fuzzy platitude in a regulatory impact statement for a Draft Regulation that un-necessarily seeks to screw shooters.

All I can say. Bring on the next election.


QUOTED LEGISLATIVE PROVISIONS
3 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.

8 Licence categories and authority conferred by licence
(cf 1989 Act s 21, APMC 1, 3, 4)
(1) The categories of licences, the firearms to which they apply, and the authority they confer, are as follows:
Firearms to which the licence applies:
• air rifles
• rimfire rifles (other than self-loading),
• shotguns (other than pump action or self-loading)
• shotgun/rimfire rifle combinations.
All prohibited firearms are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Firearms to which the licence applies:
• muzzle-loading firearms (other than pistols)
• centre-fire rifles (other than self-loading)
• shotgun/centre-fire rifle combinations.
All prohibited firearms are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered firearm of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
Firearms to which the licence applies:
• self-loading rimfire rifles with a magazine capacity of no more than 10 rounds
• self-loading shotguns with a magazine capacity of no more than 5 rounds
• pump action shotguns with a magazine capacity of no more than 5 rounds.
Any firearm referred to in item 6, 10 or 11 of Schedule 1 is excluded from this licence category. The regulations may prescribe certain other firearms (whether being of a general class or whether described specifically) that are excluded from this licence category.
Authority conferred by the licence:
Authorises the licensee (and any employee of the licensee who is eligible to be issued with a licence and who is authorised by the Commissioner in writing, but only while carrying out duties in connection with the licensee’s farming or grazing activities) to possess or use:
(a) no more than one registered self-loading rimfire rifle with a magazine capacity of no more than 10 rounds that is specified in the licence, and
(b) no more than one registered shotgun to which the licence applies that is specified in the licence,
but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm and only on land used for primary production that is owned or occupied by the licensee or that immediately adjoins that land (provided the licensee has the written permission of the owner or occupier of that adjoining primary production land to possess or use the firearm on that land).
However, the number of firearms authorised under this licence category may be increased if a special need for more than one such rifle, or for more than one such shotgun, is established by the licensee to the satisfaction of the Commissioner (for example because of the size of the rural property concerned, or because the licensee is involved with more than one rural property).
Firearms to which the licence applies:
• self-loading centre-fire rifles
• self-loading rimfire rifles with a magazine capacity of more than 10 rounds
• self-loading shotguns with a magazine capacity of more than 5 rounds
• pump action shotguns with a magazine capacity of more than 5 rounds
• any firearm to which a category C licence applies.
Any firearm referred to in item 5, 6, 9, 10 or 11 of Schedule 1 is excluded from this licence category. The regulations may prescribe certain other firearms (whether being of a general class or whether described specifically) that are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered firearm to which the licence applies, but only for the purpose established by the licensee as being the genuine reason for possessing or using the firearm.
However, in the case of a licensee who is a person referred to in paragraph (c) of the genuine reason of vertebrate pest animal control, the authority conferred by the licence is restricted as follows:
(a) the licensee is authorised to possess or use no more than one registered firearm to which the licence applies,
(b) the licensee is authorised to use the firearm only on the rural property specified in the licence.
Firearms to which the licence applies:
• pistols (including blank fire pistols and air pistols).
Prohibited firearms are excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess or use a registered pistol, but only for the purpose established by the licensee as being the genuine reason for having the licence.
In the case of a category H (sport/target shooting) licence, the licensee is authorised to possess or use a registered pistol only for the purposes of participating in competitive shooting activities that are approved by the Commissioner.
A category H (sport/target shooting) licence does not authorise the possession or use of a prohibited pistol.
Despite the provisions referred to above in relation to this licence category, a category H licence authorises the possession or use of an antique revolver within the meaning of section 6A. However, a category H (sport/target shooting) licence does not authorise the possession or use of any such antique revolver that is a prohibited pistol.
Firearms to which the licence applies:
• the kinds of firearms specified in the licence.
Authority conferred by the licence:
In the case of a firearms dealer other than a club armourer or a theatrical armourer, authorises the licensee and (subject to the conditions of the licence and the regulations):
(a) employees or directors of the corporation specified in the licence, or
(b) employees of the partnership so specified, or
(c) employees of the individual so specified,
who are eligible to be issued with a licence and who are authorised in writing by the Commissioner, to possess, manufacture, convert, acquire, supply, repair, maintain or test, in the course of carrying on the business of a firearms dealer, and only at the premises specified in the licence, any firearm to which the licence applies, and to possess, manufacture, acquire or supply ammunition for those firearms.
In the case of a club armourer, authorises the licensee to possess, manufacture, convert, acquire, supply, repair, maintain or test in the licensee’s capacity as a club armourer, and only at the premises specified in the licence, the firearms to which the licence applies, and to possess, manufacture, acquire or supply ammunition for those firearms.
The authority conferred by a firearms dealer licence issued to a club armourer is restricted to carrying out the person’s duties as club armourer for the club concerned.
In the case of a theatrical armourer, authorises the licensee to possess, use, manufacture, convert, acquire, supply, repair, maintain or test firearms (and blank cartridges for those firearms) in the licensee’s capacity as a theatrical armourer.
The authority conferred by a firearms dealer licence issued to a theatrical armourer extends to any employee of the licensee who is authorised in writing by the Commissioner.
Firearms to which the licence applies:
• the kinds of firearms specified in the licence.
Except as otherwise provided by this Act, post-1946 pistols are excluded from this licence category.
Any prohibited firearm (other than those firearms to which a category C licence or category D licence applies) is excluded from this licence category.
Authority conferred by the licence:
The licensee is authorised to possess the firearms to which the licence applies for the purpose of a firearms collection.
(2) The regulations may prescribe sub-categories in respect of category H licences and firearms dealer licences, and specify the authority conferred by each such sub-category.
(3) The authority conferred by a licence is subject to this Act and the regulations.

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
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• Advices & opinions related to Firearms law matters



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