Starting in the late 1990s, Australia underwent an extensive national firearm law reform process, primarily in response to specific incidents such as the Port Arthur shootings in Tasmania in 1996 and the Monash University shootings in 2002. Following these events, the Australian, state and territory governments, through the then APMC and COAG, entered into three national agreements that became responsible for the shaping of contemporary Australian firearm laws.
These agreements were the:
- National Firearms Agreement (1996);
- National Firearm Trafficking Policy Agreement (2002); and
- National Handgun Control Agreement (2002).
The aim of these agreements was to encourage the adoption of consistent firearms legislation in all states and territories to ensure a uniform national approach to the regulation of firearms. While the Australian Government has constitutional power to legislate in relation to the importation of firearms, the responsibility for regulation of the use, possession and sale of firearms in each jurisdiction is held by the relevant state or territory government. Many of the provisions adopted in response to these three agreements were relevant to disrupting the diversion of firearms to the illicit market and facilitation of illegal transactions.
Also shaping Australia’s firearm laws is its commitment to international controls. Australia is a signatory to, although has yet to ratify, the United Nations Protocol against the Illicit Manufacturing and Trafficking of Firearms, Their Parts and Components and Ammunition 2001 (herein referred to as the UN Protocol; UNGA 2001), and is thus committed to find measures to handicap the illegal trade in firearms and their diversion into the illicit market. The preventive provisions specified in the UN Protocol recommend signatory states to make legislative changes around manufacturing, marking, record keeping, deactivation and licensing (or similar type of control) on the import and export of firearms. These obligations include:
- the establishment of a criminal offence for the unauthorised manufacture of firearms;
- ensuring firearms are marked at time of manufacture (and preferably also at time of import, time of disposal [other than destruction], time at deactivation and time at transfer from government stocks to civilian use);
- the maintenance of records (for not less than 10 years) on firearm transactions;
- the establishment of criminal offences to prevent the illicit reactivation of deactivated firearms; and
- the establishment or maintenance of an effective system of export and import licensing or authorisation for the transfer of firearms, their parts and components and ammunition.
National Firearms Agreement (1996)
The first of the national agreements—the National Firearms Agreement (1996)—emerged in response to the mass shootings that occurred at Port Arthur in 1996. The Agreement resulted in restricted legal possession of automatic and semi-automatic firearms and further restricted the legal importation of non-military centrefire self-loading firearms to those with a maximum magazine capacity of five rounds. The Agreement further committed all states and territories to a firearms registration scheme and licensing of persons in order to legally possess and use firearms. Previously, only handguns needed to be registered; obligations around long-arm registration varied between jurisdictions. In addition was the introduction of laws that were designed to minimise the legal acquisition of firearms by unsuitable persons. The resolutions passed by the APMC on 10 May 1996 are summarised in Table 3.
The National Firearms Agreement (1996) was implemented by the states and territories in stages in the following years, including a provision for a 12 month national amnesty and a compensation buyback scheme. During this period, the Australian Government continued to work with state and territory governments to develop new legislative and policy initiatives in support of the National Firearms Agreement and to improve community safety through the regulation of firearms more generally.
|Bans of specific types of firearm|
All jurisdictions to ban the sale, resale, transfer, ownership, possession, manufacture and use of automatic and semi-automatic long-arms banned or proposed to be banned from import other than in exceptional circumstances.
All jurisdictions to ban competitive shooting involving the aforementioned firearms.
|Nationwide registration of all firearms|
States and territories to establish an integrated licence and firearms registration system or review existing registration systems to ensure compatibility.
|Genuine reason for owning, possessing or using a firearm|
Personal protection will not be regarded as a genuine reason for owning, possessing or using a firearm.
‘Genuine reason’ must be demonstrated to own, possess or use a firearm (eg recreational shooters/hunters who produce permission from a landowner; bona fide collectors of lawful firearms; sporting shooters with a valid membership of an approved club).
Applicants for a licence for a Category B, C, D and H firearm must also demonstrate a ‘genuine need’ for the particular type of firearm.
Category C firearms will be limited to primary producers.
|Basic licence requirements|
In addition to the demonstration of ‘genuine reason’, a licence applicant should be aged 18 years or over, be a fit and proper person, be able to prove identity (ie 100 point system) and undertake an adequate safety test.
The licence bears a photograph of the licensee and the holder’s address, be endorsed with the category of firearm, be issued after a waiting period of not less than 28 days and for a period of no more than five years, be issued subject to undertakings to comply with storage requirements and submit to inspection by licensing authorities and be subject to immediate withdrawal of licence and confiscation of firearms in certain circumstances.
The following categories be used in the licensing of firearms:
|Training as a prerequisite for licensing|
All jurisdictions require the completion of an accredited course in safety training for firearms for all first time licence applicants (the course will be comprehensive and standardised across Australia for all licence categories).
|Grounds for licence refusal or cancellation and seizure of firearms|
Among other provisions, jurisdictions set out in legislation circumstances in which licence applications are refused and licences cancelled. These would include:
|Permit to acquire|
Separate permits will be required for the acquisition of every firearm and the issue of a permit should be subject to a waiting period of at least 28 days to enable appropriate checks.
|Uniform standard for the security and storage of firearms|
It should be a precondition to the issuing of a new firearms licence that the licensing authority be satisfied as to the proposed storage and security arrangements.
|Recording of sales|
Firearm sales to be conducted only by or through licensed firearm dealers.
|Mail order sales|
Mail order arrangement to apply only to licensed gun dealer to licensed gun dealer exchange.
Advertisement for sales will be prohibited unless conducted by or through a licensed gun dealer.
The movement of Category C, D and H firearms must be in accordance with prescribed safety requirements.
The commercial transportation of ammunition will be prohibited.
a: The APMC later resolved to add a restricted case of shooters—clay target shooters who possess a semi-automatic or pump action shotgun and affiliated with the Australian Clay Target Association—to gain access to Category C firearms
National Firearm Trafficking Policy Agreement (2002)
In July 2002, the APMC further resolved that additional provisions be made to control the illegal trade in firearms in Australia. The Trafficking Agreement sought to achieve this purpose through:
- increased border protection;
- the introduction of nationally consistent regulation of the legal manufacture of firearms;
- the establishment of new offences or substantial penalties for matters relating to:
- the illegal possession and supply of firearms;
- the defacing of serial numbers;
- conspiracy to commit interstate firearm wrongdoings; and
- tighter recording and reporting provisions for dealer transactions involving firearm and major firearm parts.
The resolutions derived from the National Firearm Trafficking Policy Agreement (2002) are summarised in Table 4.
National Handgun Control Agreement (2002)
Following the death of two students in a handgun shooting at Monash University in October 2002, the Australian, state and territory governments implemented further legislative reforms through the introduction of the National Handgun Control Agreement (2002). The Agreement comprised 28 resolutions aimed at restricting the availability and use of handguns, particularly those that are easily concealable. The resolutions included a restriction on the possession of handguns based on calibre, barrel length and magazine capacity, a system of graduated access to handguns for legitimate sporting shooters and provisions to prevent ‘club shopping’, through the introduction of requirements for a person wishing to join a club to provide details to the club of any other shooting clubs to which they belonged and the firearms they owned. Handguns would be limited to a maximum of .38” calibre (up to .45” calibre for shooters attending specially accredited sporting events), with prohibition on semi-automatic handguns with a barrel length of less than 120mm and revolvers and single shot handguns with a barrel length of less than 100mm. In reference to the National Firearms Trafficking Policy Agreement (2002), the resolutions reiterated the need to establish substantial penalties for illegal possession.
The National Handgun Control Agreement (2002) was accompanied by a national handgun buyback scheme which ran from 1 July to 31 December 2003. This scheme provided compensation to owners surrendering handguns, handgun parts and accessories to state and territory authorities during the specified six month period. States and territories providing compensation were reimbursed by the Australian Government under the National Handgun Buyback Act 2003 (Cth) which enabled the Commonwealth to ‘appropriate funds for the purpose of providing financial assistance’.
Specific legislative changes
Australian firearm laws consequently went under considerable revision to implement the reforms as specified in the aforementioned Agreements. These amendments included the introduction of new offences and increases to penalties for existing offences; many of these amendments were directly relevant to deterring the trafficking of firearms or were ‘defacto’ responses to this activity (eg increasing penalties for illegal possession).
New offence provisions were introduced relating to:
- unauthorised possession (or use) of a prohibited firearm;
- unauthorised possession of firearms in ‘traffickable’ quantities;
- unauthorised sale or purchase of a firearm;
- ‘trafficking’ in firearms;
- unauthorised manufacture of a firearm or firearm parts;
- unauthorised modification of a firearm (eg shortening, conversion);
- defacement or alteration of identification marks or possession of a firearm with defaced identification marks;
- failure to record dealer transactions on firearm and firearm parts;
- wilful entry of false records; and
- conspiracy to commit a firearm offence outside jurisdiction of residence.
In 2008, the AIC undertook a review of Australian, state and territory government legislation to examine the extent of compliance with the resolutions specified in the National Firearms Agreement, the National Firearms Policy Trafficking Agreement and the National Handgun Control Agreement (see Davies & Mouzos 2008). This review found general compliance across the states and territories but highlighted where differences in laws between the jurisdictions still existed. A re-examination of inter-jurisdictional compliance and comparability, incorporating the further changes made to firearms laws in the interim period, is presented in Table 5 and below.
|Unregistered firearms||s 36 Offence to sell, purchase, possess or use unregistered firearm||s 6A Offence to possess, carry or use unregistered longarm||s 50A Offence to possess an unregistered weapon||s 19(1) Offence to sell, deliver, dispose, purchase or possess an unlicensed firearm||s 23 Offence to possess an unregistered firearm||s 74 Offence to sell, acquire, possess or use unregistered firearm||s 177 Offence to dispose, acquire, possess or use an unregistered firearm||s 59 Offence to sell, purchase, possess or use an unregistered firearm|
|s 7B Offence to possess, carry or use unregistered handgun|
|Unauthorised possession of a restricted firearm||s 7 Possession or use of a prohibited firearm or pistol||s 7A Possess etc prohibited handgun||s 50 Unlawful possession of a weapon||s 19(1) Unauthorised possession of a firearm or ammunition||s 11 Unauthorised possession or use of a firearm||s 9 Unauthorised possession or use of firearms||s 42 Unauthorised possession or use of a prohibited firearm||s 58(6) Unauthorised possession or use of a prohibited firearm|
|s 7B Possess etc unregistered handgun||s 19(1)(1ac)(b): Possession of a handgun or prescribed firearm|
|Unauthorised possession of firearms in ‘traffickable’ quantities||s 51D Unauthorised possession of firearms in aggravated circumstances ie three or more firearms that are not registered and owner is not authorised to possess by licence or permit||s 7C Possession of a traffickable quantity of unregistered firearms, that is more than 10 firearms that are not registered||s 50(1a) Unlawful possession of 10 or more weapons (5 of which are Category D, E, H or R)||–||–||–||s 42(a) Unauthorised possession or use of 10 or more prohibited firearms||–|
|s 51D(1) non-prohibited firearms||s 50(1b) Unlawful possession of 10 or more weapons||s42(b): Unauthorised possession or use of three or more prohibited firearms but less than 10 prohibited firearms|
|s 51D(2) prohibited firearm or pistol||s 43(a)(i) Unauthorised possession or use of 10 or more firearms other than prohibited firearms|
|Unauthorised sale and purchase of firearms||s 50 Unauthorised purchase of a firearm||s 93 Persons from whom a dealer can acquire firearms||s 35(1) Unauthorised acquisition of a weapon||s 19(1) Unauthorised sale, disposal, delivery or purchase of a firearm or ammunition||s 14 Unauthorised acquisition of a firearm||s 10 Unauthorised acquisition of a firearm||s 177 Unlawful disposal or acquisition of an unregistered firearm||s 62 Unauthorised purchase of a firearm|
|s 50AA Unauthorised purchase of firearm parts||s 94 Persons to who a dealer can dispose firearms||s 36(1) Unauthorised disposal of a weapon||s 19(2) Sale, disposal or delivery of a firearm or ammunition to unauthorised purchaser||s 14a Unauthorised supply of a firearm||s 11 Unauthorised dealing in firearms (eg sell, possess for purpose of sale)||s 226 Unlawful disposal of a firearm||s 63 Unauthorised sale of a firearm|
|ss 51(1) & 51(1A) Sale of firearm/prohibited firearm or pistol to person not authorised to purchase||s 95 Prohibition on acquisition of a firearm except from licensed firearms dealer||s 50B Unlawful supply of weapons||s 16 Dealing in firearms and ammunition without a dealer’s licence||s 24 Purchase by unlicensed dealer||s 227 Unlawful acquisition of a firearm||s 68A Unauthorised sale and acquisition of ammunition|
|s 51(2) & 51(2A) Sale of firearm/prohibited firearm between persons that are not licensed firearm dealers||s 96 Prohibition on disposal of firearm except to licensed firearms dealer||s 21B Unauthorised acquisition of ammunition||s 25 Licensed dealer purchase or sale from unauthorised person||s 248 Unlawful acquisition of ammunition|
|s 51A(1) & 51A(2) Purchase of firearm from unauthorised seller||s 101B Prohibition on providing financial accommodation||s 105(1)(2) Unauthorised sale and acquisition of ammunition|
|s 51BA Unauthorised sale of firearm parts||s 125 Disposal of cartridge ammunition to unauthorised persons|
|s 65 Unauthorised sale and purchase of ammunition|
|Trafficking in firearms||s 51B Contravene s 51 (unauthorised sale of firearms) on three or more occasion over 12 month period||s 101A Prohibition on the acquisition or disposal of traffickable quantities of firearms||s 65 Unlawful trafficking in weapons||s 19(1)(1aa) Unauthorised selling, delivering or disposing of three or more firearms||–||s 110A Unlawful trafficking in firearms||s 220 Trafficking in firearms||s 63A Contravene s 63 on three or more separate occasions during course of 30 day consecutive period|
|s 51BB Contravene s 51BA (unauthorised sale of firearm parts) on three or more occasions over 12 month period|
|Unauthorised manufacture||s 50A(1) Unauthorised manufacture of a firearm||s 59 Carry on the business of being a firearms dealer without licence or permit (note: includes manufacturing a firearm or possessing any parts to manufacture a firearm)||s 69(1A) Manufacture of a weapon by person other than licensed armourer||s 19(4) Manufacture a firearm without authorising licence||s 27 Unauthorised manufacture or taking part in manufacture of firearm or firearm part||s 11 Unauthorise d dealing in firearms (note: dealing includes manufacture firearms and firearms parts)||s 228 Unauthorised manufacture of a firearm||s 61(1) Manufacture a firearm without a licence or permit|
|s 50A(2) Unauthorised manufacture of a prohibited firearm or pistol||s 61(2) Manufacture a prohibited firearm or pistol without a licence or permit|
|Unauthorised modification||s 62 Unauthorised shortening of a firearm||s 134 Alteration of a firearm (1) shorten barrel (2) reverse inoperability||s 61 Shorten a firearm||s2 3(5)(c) Unauthorised alteration—from design or characteristics, calibre etc||s 29A(2)(a) Possession of mechanism to convert firearm to automatic||s 116 Shorten a firearm <65cm||s 240 Unauthorised shortening of a firearm||s 61A Unauthorised modification (or repair) of a firearm|
|s 63 Unauthorised conversion of a firearm (1) shorten to a pistol (1A) alter construction or action to convert to prohibited pistol (2) alter construction or action to convert to non-prohibited firearm (3) alter construction or action to convert to prohibited firearm||s 134A Unauthorised conversion||s 62 Modify construction or action||s 117 Unauthorised alteration of construction or action of firearm||s 241 Unauthorised conversion of a firearm (1) shorten into a pistol (2) alter construction or action to convert prohibited firearm to non-prohibited firearm||s 68 Unauthorised alteration of safe operation or conversion to another category|
|Alteration of identifying marks||s 66 (a) Deface or alter identification mark on firearm or barrel (b) Possess firearm or barrel with deface or altered ID||s 134(3) Deface or alter any number, letter or other identifying symbol or mark on firearm||s 63 (a) Deface or alter identifying serial number of mark (b) possess such a weapon (c) acquire or sell such a weapon||s 23 (5)(a) Defaces or removes any number or identification mark (b) possesses such a firearm||s 24A(7)(a) Defaces, alters or removes identifying characters (b) possesses such a firearm||s 124 Intentionally or recklessly deface or alters any number, letter or identification mark on any firearm or firearm part||s 252 (1) Defaces, alters or removes a number, letter or other identification mark on a firearm or firearm barrel (2) possesses such a firearm and knows a number, letter or other identification mark has been defaced etc||s 74 (1) Alter an identifying mark (2) Knowingly possess such a firearm (3) Deface or remove an identifying mark (4) Knowingly possess such a firearm|
|s134C Unauthorised possession of a firearm without a serial number|
|Conspiracy to commit offence outside jurisdiction of residence||s 51C Conspire to commit or aid commission of offence outside New South Wales||s 124AA Conspiring to commit and aiding the commission of an offence outside Victoria||–||–||–||s 120A Conspiracy to commit firearms offence in another jurisdiction||–||s 60A Conspiring to commit and aiding commission of offence outside Territory|
|Close associate provisions for firearm dealers||s 44(4) Provision of false or misleading information about close associates||s 75A Requirement to notify Commissioner of close associates||s 10C Licensed dealers associate to be fit and proper person||s 6D Information about close associates of applicant for issue or renewal of dealer’s licence||s 17(3)(a)(1a) Register to refuse application for dealers licence if close associate is not a fit and proper person||s 99A(1b) Cancellation of licence—close associate is not fit and proper person s 93A Failure to provide Commissioner with business management declaration (including information on close associates)||s 186 Information about close associates of certain firearm dealersb||s 16A Failure to keep or provide false and misleading information about close associates|
|s 25A Provision of information on dealer’s associate if requested||s 6G Provision of information on close associates||s 20 Cancellation etc of licence if close associate is not a fit and proper person|
|Proscribe certain persons from employment in firearm dealership||s 44A Proscribed persons not to be involved in firearms dealing business||s 75B Offence to employ prohibited persons in management of business||s 70 Employees of dealers and armourers to be qualified weapons employee||s 6F Persons not to be involved in firearm dealership||–||s 96A Employment restrictions—proscribed persons||s 190 Prohibited persons not to be involved in firearms dealing business||s 20 Restriction on employing prescribed persons|
|Increased recording||s 45(1) Ensure recording of transactions and dealings concerning firearms and firearm parts||s 87 Requirement to keep register of transactions||s 71 Licensed dealers and armourers to keep register||ss 17–18 Maintain records of ammunition sales and firearm dealings||s 18 Failure to keep records on dealings in firearms and ammunition||s 89 Keep records of all dealings with firearms, firearm parts and ammunition||s 193 Failure to keep records on each acquisition and disposal of firearm and firearm parts||s 18 Records to be kept by dealers|
a: Firearms Act 1996 (NSW), Firearms Act 1996 (Vic); Weapons Act 1990 (Qld); Firearms Act 1973 (WA); Firearms Act 1996 (SA); Firearms Act 1996 (Tas); Firearms Act 1996 (ACT); Firearms Act (NT)
b: Criminal Code offences for giving false or misleading information
State and territory amendments
Unauthorised possession of (a) an unregistered firearm and (b) a prohibited or prescribed firearm
The resolutions from the National Firearms Agreement (1996) concerning the nationwide registration of firearms and the establishment of restricted categories of firearm were accompanied by the creation of offences relating to the possession of an unregistered firearm and the possession of a prohibited or prescribed firearm or pistol. Offence provisions regarding unregistered firearms are extended in New South Wales, Western Australia, Tasmania, the Australian Capital Territory and Northern Territory to include the use, sale and purchase of such firearms. A separate offence to possess, carry or use a prohibited or prescribed firearm does not exist in Queensland weapons legislation; instead more substantial penalties are applied to the possession of standard restricted firearm/weapon categories (ie Category D, H and R). In Victorian firearms legislation, there is a separate offence to possess etc a prohibited handgun (Firearms Act 1996 (Vic), s 7A) but not a prohibited long-arm. Penalties for the latter offence are, as in Queensland, dealt with through the application of more substantial penalties for restricted firearm categories in the generic possession offence (Firearms Act 1996 (Vic), s 6A).
Tasmania has yet to include provisions regarding the possession or use of a prohibited or prescribed firearm. Section 9 of the Firearms Act 1996 (Tas) refers to the offence of possessing or using a firearm without the appropriate licence but there is no provision for possession or use of a prohibited firearm, through either a separate offence or application of a greater maximum penalty.
Unauthorised possession of firearms in ‘traffickable’ quantities
Four jurisdictions—New South Wales, Victoria, Queensland and the Australian Capital Territory—have created offences or introduced more substantial penalties for the unauthorised possession of multiple numbers of firearms. In New South Wales, the prescribed quantity is three or more firearms; in Victoria, Queensland and the Australian Capital Territory it is 10 firearms, although in legislation from the latter two jurisdictions there is an intermediate penalty attached to the possession of 10 firearms, of which three are prohibited or restricted models. The creation of this offence in the Firearms Act 1996 (NSW) (through the Firearms Amendment (Public Safety) Act 2002 No 47 (NSW)), and presumably the rationale for its inclusion in firearms laws in the other three jurisdictions, was to prevent the ‘warehousing’ or stockpiling of firearms and the potential accumulation for the purposes of trafficking. There are no stipulations in firearm laws in the remaining jurisdictions to deter warehousing of firearms.
Unauthorised sale or purchase of firearms
New South Wales and the Australian Capital Territory are the only jurisdictions to have fully complied with the legislative requirements relating to the sale and purchase of firearms. Most jurisdictions have included some form of legislative definition for selling (disposing of) and purchasing (acquiring) a firearm, although they vary in their conformity with that recommended in the National Firearm Trafficking Policy Agreement (2002). Western Australia has yet to implement a definition for either.
All jurisdictions have complied with the creation of an offence to sell a firearm unless the purchaser is authorised; and an offence for a person, other than a dealer, to purchase a firearm from a person other than a licensed dealer, unless the transaction has been arranged by a licensed dealer or other approved authority. There is variability, however, among the jurisdictions regarding requirements to physically inspect a seller’s or purchaser’s licence or permit, with these conditions most explicitly stated in NSW and ACT firearm laws.
Among the resolutions in the National Firearm Trafficking Policy Agreement (2002) around new laws to restrict the illegal supply of firearms was one to expand the definition of involvement in an illegal sale to include:
- any person who takes, or participates in, any step, or causes any step to be taken, in the process of sale;
- any person who provides or arranges finance for any step in the process; or
- any person who provides the premises in which any step in the process of sale is taken.
New South Wales, South Australia and the Australian Capital Territory are the only jurisdictions to have implemented the full definition. Victoria has, however, established a specific offence for ‘providing financial accommodation’ to the illegal acquisition or disposal of firearms (Firearms Act 1996 (Vic), s 101B).
Trafficking in firearms
All jurisdictions except South Australia have an offence of firearms trafficking or the illegal sale of firearms on three or more separate occasions. Differences exist between the jurisdictions in the quantity of firearms specified, the number of sales that need to occur and the time period over which sales are to take place for an offence to be committed. For example, the offence of unlawful trafficking in firearms in Tasmania simply refers to the unauthorised sale of unregistered firearms (quantity not stipulated) on ‘one or more occasions’ (Firearms Act 1996 (Tas), s 110A), whereas in New South Wales and the Northern Territory, the illegal sale is to occur on three or more separate occasions, although like Tasmania there is no provision regarding the quantity of firearms trafficked. For a trafficking offence to be committed in the Northern Territory, those three sale events must occur within a 30 day period, while in New South Wales and the Australian Capital Territory, that timeframe has been extended to 12 months. It was noted in the second reading speech to the Firearms and Crimes Legislation Amendment (Public Safety) Act 2003 No 92 (NSW) that the extension of the timeframe from three illegal firearm sales in 30 days to a period of 12 months was to reflect the different modus operandi used to traffic firearms compared with drugs, on which the 30 day turnaround was based. Unlike other jurisdictions, New South Wales has also created an additional offence of trafficking in firearm parts (Firearms Act 1996 (NSW), s 51BB).
Western Australian firearm laws define what is ostensibly a trafficking offence in prescribing the volume of firearms that can be sold—s 19(1)(1aa) of the Firearms Act 1973 (WA) refers to the sale of three or more firearms without a licence or permit entitling the sale of any of the firearms tendered. Victorian and ACT firearm laws also attach volume stipulations to trafficking offences—s 110A of the Firearms Act 1996 (Vic) defines a ‘traffickable quantity’ of firearms as 10 or more unregistered firearms, which for an offence to be committed must be acquired or disposed of by a person without a dealer’s licence within a seven day period. In the Firearms Act 1996 (ACT), the offence specified in s 220 comprises either the contravention of a dealing provision (per ss 177, 226 or 227—see Table 4) on three or more separate occasions over a 12 month period (similar to the trafficking offence specified in New South Wales) or the contravention of a dealing provision involving four or more firearms on the same occasion.
Illegal manufacture of firearms
The scale of domestic illegal manufacture of firearm and firearm parts is unknown but, as described in the following section, is likely to comprise mostly small-scale, made-to-order operations. Nonetheless, it was recognised as being a potentially important contributor to the illicit firearms market and hence the offence of illegal manufacture was to be established in state and territory firearm laws, with substantial maximum penalties attached.
Six of the eight jurisdictions have introduced an offence of unauthorised manufacture; the offence in South Australia also includes the manufacture of firearm parts as well as complete firearms. The exceptions are Victoria and Tasmania, which include manufacturing under the definition of ‘carrying on the business of being a firearms dealer’ (Firearms Act 1996 (Vic) s 59(3)(d)) or ‘deal, in relation to a firearm’ (Firearms Act 1996 (Tas) s 3) respectively. Depending on jurisdiction, maximum penalties vary according to the class or restricted status of the firearm being manufactured.
Unauthorised modification/alteration of identifying marks
The implementation of restricted categories of firearm was later accompanied with the inclusion of offences relating to the modification of firearms, specifically the shortening of firearms and alterations to the construction or action of a firearm to convert it from a non-prohibited to prohibited model or vice versa. Most jurisdictions have complied with these provisions, although Western Australia has not included an offence related to the shortening of a firearm, and in Tasmanian legislation the sole modification offence relates only to the possession of a mechanism to convert a firearm to automatic firing.
An additional measure recommended in the National Firearm Trafficking Policy Agreement (2002) was to create an offence of altering or defacing a firearm’s identifying marks. Illicit firearms often have obliterated serial numbers or similar identifying markers. There has been cross-jurisdictional compliance in the creation of an offence of altering or defacing a firearm’s identifying mark, or in Victoria of possessing a firearm without a serial number, but Tasmania has not implemented a complementary offence of possessing a firearm with defaced markings. The offence in New South Wales and Australian Capital Territory extends to defacing an identifying mark on a firearm barrel, not just the complete firearm, as well as possessing a firearm barrel with an obliterated identifying mark. Possession offences in the Australian Capital Territory and the Northern Territory stipulate the owner knowingly possessing a firearm with a defaced or obliterated identifying mark, whereas in New South Wales, Queensland, Western Australia and South Australia this intention is not explicitly stated (and presumably must be established for an offence to occur).
Commission of an interstate firearm offence
Four jurisdictions (New South Wales, Victoria, Tasmania and the Australian Capital Territory) have complied with the resolution to establish an offence to conspire to commit an interstate firearms offence. In these jurisdictions, the offender is subject to the same penalty that the offender would be subject to had the offence been committed within the jurisdiction of residence.
The remaining four jurisdictions have no such provisions. While some jurisdictions do have offences relating to conspiracy to commit an offence and aiding or abetting in the commission of an offence, such as the ACT’s Criminal Code 2002, these extensions of criminal responsibility relate only to offences against the jurisdiction’s laws and not to an interstate offence as intended by the resolution.
It was resolved in the National Firearms Agreement (1996) that dealers should be required to record and maintain details of each firearm purchased or sold (against the prescribed particulars of the client) and to provide records to the state/territory licensing authority on a consistent (usually quarterly) basis. These records must also be made available for inspection to police when requested.
All jurisdictions have complied with the requirement for dealers to record and maintain the details of all transactions and dealings, to send these records to the licensing authority for inclusion in the register and to allow police to inspect dealers’ records. These provisions comprise dealings relating to both firearms and firearm parts—these are either expressly included under the recording requirements or comprise major component parts under the definition of a firearm.
The provision of false or misleading information has been established as an offence in firearm legislation or, as in the case of Western Australia, in reference to the general offence of giving false or misleading information as stipulated in the Criminal Code. Only New South Wales, Queensland and Western Australia have additionally established a specific offence for a firearms dealer making a false or misleading entry or altering a record in the dealer’s register.
Close associations and employment of proscribed persons
To prevent the potential exploitation of firearm dealerships, state and territory firearm laws have been amended so that applications for (or renewal of) dealer licences can be refused where a close associate of the applicant is deemed not to be a fit and proper person. Close associate provisions also prevent ineligible persons from using eligible persons to ‘front’ a firearms dealership. A ‘close associate’ is defined as someone who holds or will hold any relevant financial interest (or other relevant power) in the business or holds or will hold any relevant position. In all jurisdictions, the disclosure of this information is incorporated in stipulations on acquiring a firearm dealers’ licence and forms the basis of offences of failure to provide, or provision of false or misleading, information.
South Australia is the one jurisdiction that has not introduced provisions prohibiting the employment of proscribed persons in dealerships. A proscribed person is one that:
- has, within the preceding 10 years, had a firearm dealer licence revoked; or
- has, within the preceding 10 years, had an application for a firearms licence or permit refused or revoked, on the grounds of not being fit and proper and not to be trusted of having possession of a firearm without danger to public safety or peace; or that issue of the licence or permit would be contrary to the public interest; or
- is subject to an apprehended, domestic or family violence order (or similar); or
- is the subject of a good behaviour bond relating to an offence of violence; or
- is subject to a firearms prohibition order.
Queensland has legislated to restrict dealers from employing a person who will have access to weapons unless the person is a ‘qualified weapons employee’, meaning a person who is 18 years or over and holds a firearms licence. This scheme substantially complies with the requirements not to employ proscribed persons, as ‘proscribed persons’ as defined would also be disqualified from obtaining a licence. The one difference is the period of restriction, which in Queensland only refers to the past five years and not 10 years as specified elsewhere.
Together with the changes to state and territory firearm and weapons laws, which absorbed the bulk of these reforms, were amendments to Commonwealth law, specifically the import and export of firearms and the cross-border trafficking of firearms.
In 2000, the Customs Act 1901 (Cth) was amended by the Customs Legislation Amendment (Criminal Sanctions and Other Measures) Act 2000 (Cth) to introduce special criminal offences relating to the import and export of Tier 1 and Tier 2 goods (ss 233BAA and 233BAB respectively). Offences relating to the importation and exportation of restricted firearms (as specified under s 4F of the Customs (Prohibited Imports) Regulations 1956 (Cth), Tier 2 goods) were now made punishable on conviction by a penalty of up to $250,000 fine and/or 10 years imprisonment.
Restrictions on the importation of handguns and handgun parts were introduced first with the Customs (Prohibited Imports) Amendment Regulations 2000 (No. 7) (Cth) so that handguns were ‘released into the community on an ‘as needs’ basis [only] and once a legitimate end user ha[d] been established’ (Explanatory Statement: np). The Regulations also ensured that only a limited number of handguns, as well as Category C firearms, could be imported as dealer stock for the purposes of testing and demonstration. The Customs (Prohibited Imports) Amendment Regulations 2002 (No. 4) (Cth) imposed further controls on the importation of handguns and handgun parts, specifically prohibiting the importation of handguns (and handgun parts) for models with a calibre greater than .38”, a barrel length of less than 120mm for semi-automatic handguns and less than 100mm for revolvers and single-shot handguns, and/or a magazine/shot capacity exceeding 10 rounds.
The firearms provisions of the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Act 2002 (Cth) amended the Criminal Code Act 1995 (Cth) and commenced on 16 January 2003. The changes to the Act established a criminal offence, in the course of trade or commerce between any states and territories, to illegally dispose of or acquire a firearm, or to take or send a firearm from one state or territory to another, intending that the firearm will be disposed of illegally (see Division 360 Part 9.4 Criminal Code Act 1995 (Cth). The maximum penalty on conviction for either offence is 10 years imprisonment, a fine equivalent to 2,500 penalty units or both.
Part of the National Firearms Agreement (1996) resolved that jurisdictions were to establish an integrated system for the registration of firearms. All states and territories complied; however, variations in the legislative definition of a firearm resulted in inconsistencies arising between jurisdictions in the requisite registration of deactivated firearms and of specified firearm parts.
A deactivated (or inoperable) firearm is one that has been rendered incapable of discharging shot, bullets or other projectiles by means of an explosive charge or compressed gas and cannot be returned to its original firing condition (without modifying the appearance of the firearm; see Customs (Prohibited Imports) Regulations 1956—Reg 4F). The legislation in New South Wales and the Australian Capital Territory describes a firearm as a gun or other weapon that is (or at any time was) capable of propelling a projectile by means of an explosive; deactivated or inoperable firearms are thus included in the definition of a firearm. Similarly, in Victoria, Tasmania and the Northern Territory, the definition of a firearm is broad enough to include deactivated or inoperable firearms. In these jurisdictions, firearms remain ‘accountable’ even when deactivated. This means that a firearm’s registration status is not invalidated if it is deactivated and record of the firearm is retained with the relevant firearm register.
Deactivated firearms, however, do not fall within the legislative definition of a firearm in South Australia and Western Australia. Deactivated Category H firearms in Queensland are still considered a firearm but not deactivated long-arms. A firearm in these two former states, and a long-arm in Queensland, loses its accountability status on being certified as deactivated. This poses a problem where deactivation standards are not uniform or verified by the licensing authority. One way ‘deactivated’ firearms that have been deemed unaccountable may enter the illicit pool is through the transfer of the serial number from the deactivated firearm to another, operable firearm, with the purpose of concealing the identity of the latter firearm. The other is through the reactivation of (deliberately) poorly deactivated firearms. A deactivation loophole in Queensland legislation inadvertently led to the deactivation of reportedly thousands of handguns by Queensland-based dealers and based on firearm seizure data, the transfer of some of these handguns into the national illicit pool (Project stakeholder personal communication 24 September 2010). Prior to amendments to the Weapons Act 1990 (Qld) and Weapons Regulation 1996 (Qld), a handgun if rendered inoperable lost any requirement to remain registered in Queensland. Compounding this vulnerability was the lack of inspection of the firearm once the deactivation process had taken place and many thousands of poorly deactivated handguns were reactivated by firearm enthusiasts and criminals, and made their way into the illicit market (Project stakeholder personal communication 24 September 2010). Of note is the inclusion now in Queensland legislation of an offence to reverse the inoperability of a firearm that has been proscribed under the Act to be rendered inoperable (Weapons Act 1990 (Qld)), s 62(2)).
State and territory firearm laws now stipulate deactivation standards that generally align with each other and those prescribed in the Australian Federal Police Firearm Deactivation Standards, which were endorsed by the then APMC in 2006. Depending on jurisdiction, these standards apply to specific firearm types, categories and/or models. In Queensland, the Weapons Amendment Act 2011 (Qld) amended the Weapons Regulation 1996 (Qld) to include firearm deactivation standards consistent with the aforementioned AFP Firearm Deactivation Standards (Schedule 2A), while in South Australia, a SAPOL deactivation policy stipulates deactivation procedures to be adhered to. The latter policy requires deactivated firearms, irrespective of whether an owner or dealer has undertaken the deactivation, to be inspected by the SAPOL Armoury Section. A ‘Certificate of Deactivation’ is issued only where the deactivation has been completed according to standard.
Registration of firearm parts
Prior to the implementation of the Firearms Amendment (Trafficking) Act 2001 No 24 (NSW), a technical error in the definition of a handgun in New South Wales legislation enabled the diversion of many handguns to the illicit market (Project stakeholder personal communication 24 September 2010). The Firearms Act 1996 (NSW) as originally enacted, required firearm barrels, but not frames or receivers, to be registered under Part 3 (Registration of Firearms) of the Act. The exemption of frames and receivers meant handguns without barrels could be sold without having to observe regulations on firearm disposal and frames/receivers could be purchased without need to register them. This opened up opportunities to convert or build up new handguns using non-registrable parts purchased in New South Wales with parts purchased elsewhere (Project stakeholder personal communication 24 September 2010). Among the amendments prescribed in the Firearms Amendment (Trafficking) Act 2001 No 24 (NSW) was the stipulation that registration now ‘applies to every firearm frame and firearm receiver in the same way as it applies to a firearm’ (s 93(1)).
Legislation regarding the registration of firearm parts is not clear but it appears that jurisdictions excluding Western Australia, Tasmania and the Australian Capital Territory have made (at least some) firearm parts subject to registration. Jurisdictional variation exists as to whether specified firearm parts are contained within the definition of a firearm; for example, Queensland includes ‘a major component of a firearm’ in its definition of a firearm (Weapons Act 1990 (Qld), sch 2) and South Australia includes ‘a receiver of a firearm and any device, which if in working order, would be a firearm’ (Firearms Act 1977 (SA), s 5). The Northern Territory also includes firearm parts in its definition of a firearm. In New South Wales and Victoria, specified parts require registration.
The registration of firearm parts was not considered by the National Firearm Agreements (1996) and regulation of all firearm parts is not necessarily a feasible option. However, ensuring the mandatory registration of major component firearm parts (eg frames and receivers) in all jurisdictions would enable police to more easily trace ownership history and the movement of firearms constructed illegally from firearm parts.
Prior to the firearm law reforms described above, it could be argued that opportunities to divert firearms were inadvertently facilitated by legislative loopholes or oversights and/or a general lack of deterrence based on the offences proscribed and the maximum penalties attached. The extensive nature of the reforms and the subsequent amendments to close identified gaps and further increase penalties suggest a considerable amount has already been accomplished in legislatively deterring the flow of firearms from the licit to the illicit market. This is not to suggest that inconsistencies in firearm laws, particularly between jurisdictions, cannot or will not be tested. For example, it has been suggested by stakeholders consulted for this project that dealers who are involved in the illegal diversion of firearms will continue to test the legislation to identify avenues for exploitation (Project stakeholders personal communication 4 May 2011; 28 November 2011). These avenues may not be detected by law enforcement agencies until after the fact, such as occurred with the Queensland ‘deactivation’ and New South Wales ‘firearm receiver’ loopholes described previously.
Areas where legislative accord could be improved concern the activities of dealerships and registration and manufacture of firearm parts. Resolutions specified in the National Firearm Trafficking Policy Agreement (2002) aimed to deter dealer involvement in the illicit market by prohibiting certain persons being employed in dealerships, requiring the provision of close associate information, enabling better scrutiny of firearm dealings (through mandatory recording and provision of transaction records) and making it an offence to wilfully record a false or misleading entry in records on firearm and firearm part transactions. Strengthening provisions around false entries, such as recording false disposal or sales notices, false interstate transfer or failure to record receipt of goods, may deter (some) dealers from making wilful false entries to conceal the diversion of firearms. The maximum penalty for this offence, usually a relatively minimal fine, may not produce the adequate deterrence to offset the temptation to falsify records.
State and territory firearms laws are not completely consistent in the legal definition of a firearm or what constitutes a major firearm component or part (and hence requires registration). It was noted above that registration of all firearm parts has not been judged a feasible option (eg the registration of components would require considerable resources and technical expertise to implement properly) but uniform regulation of major parts (including spare receivers and frames) would prevent diversion opportunities as witnessed in New South Wales with non-registrable receivers. The vulnerability of firearm parts to the illicit trade additionally recommends the uniform adoption of an offence to illegally manufacture parts, not just complete firearms, which is presently only an offence in South Australia.
Inter-jurisdictional inconsistencies in legislation, however, tend to be localised in that one or two jurisdictions have failed to introduce specific offences that have been implemented elsewhere (eg the absence of an offence of trafficking in firearms in South Australia or the possession of a prohibited or prescribed firearm in Tasmania). The significance of these inconsistencies is debatable, although as noted in Davies and Mouzos (2008: 55), the ‘departures from the resolutions of the firearm agreements…are potentially detrimental to the integrity of the scheme’ and standardisation would ‘give full effect to the national principles of firearm controls as envisaged’.
Nonetheless, the review undertaken by Davies and Mouzos (2008) and revisited for this study, suggests that most of the past legislative looseness has been tightened and outside of increasing penalties, which might produce further deterrence, other avenues of scrutiny and control are better served by revision or improvement.