Legal Weapon Framework in NSW
The heavily regulated legal framework around the possession of weapons is one of the tenets of Australian law.
Within 12 days of the tragic Port Arthur massacre of April 1996 that saw 35 people shot dead by gunman Martin Bryant, all six Australian states agreed to enact the National Firearm Agreement. This constituted a national approach to the regulation of firearms and caused tightly restrictive weapons laws to be enacted across the country to prevent such an event occurring again.
Consequently, in Australia weapon possession and use is recognised as a privilege that is conditional upon the overriding need to ensure public safety. In NSW, this is upheld by two primary pieces of legislation: the Firearms Act 1996 and the Weapons Prohibition Act 1998.
These Acts require that a person hold a firearm licence or permit to possess or use a firearm or otherwise prohibited weapon. Licence and permit holders must demonstrate a ‘genuine reason’ for possessing or using the weapon, and all firearms must be registered.
Firearms Act 1996
The Firearms Act regulates the possession and use of firearms in NSW and outlines offences and penalties for non-compliance. The objects of the Act include:
To prohibit the possession and use of all automatic and self-loading rifles and shotguns except in special circumstances;
To establish an integrated licensing and registration scheme for all firearms;
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;
To provide strict requirements that must be satisfied in relation to licensing of firearms and the acquisition and supply of firearms; and
To ensure that firearms are stored and conveyed in a safe and secure manner.
Types of Legal Weapons in NSW
In NSW, it is illegal to possess, carry, or use a weapon unless you hold a valid permit or licence for the State.
Section 8 of the Firearms Act stipulates a range of licence categories, enumerated as A through to H, and the firearms to which they apply and the authority they confer. This gives an overview of the kinds of firearms that are legal to own under varying but strict licence conditions.
The Firearms Act also provides a list of prohibited firearms under Schedule 1. Those firearms that are not also covered by a potential licence category (such as those listed under Category D, which are prohibited except for official purposes) are absolutely prohibited. These include, but are not limited to:
any machine gun;
a rifle that is adapted for military purpose;
any firearm with a muffling device attached; and
a firearm that substantially duplicates in appearance some other article and disguises the fact that it is a firearm.
Schedule 1 of the Weapons Prohibition Act 1998 contains an exhaustive list of prohibited weapons including (but not limited to):
Bombs, grenades, rockets, missiles, and anything that propels or launches a weapon;
Anything containing or expelling an explosive, incendiary, gas, or smoke;
Spear guns less than 45cm in length;
Maces and flails;
Blow-guns, blow-pipes and darts capable of being projected from them;
Tasers and hand-held devices that administer electric shocks;
Knuckle-dusters, sap gloves, and studded gloves;
Pepper spray and other devices capable of discharging an irritant;
Handcuffs (excluding antiques, children’s toys, and those designed to be released by the wearer);
Laser pointers with an output greater than 1 milliwatt; and
Portable tyre deflation devices; and
The prohibited weapons listed in the Act require a permit and a genuine reason for their use or possession.
Firearms are defined in the Firearms Act as ‘a gun or other weapon, that is (or at any time was) capable of propelling a projectile by means of an explosive, and includes a blank fire firearm, or an air gun, but does not include a paintball marker within the meaning of the Paintball Act 2018 or anything declared by the regulations not to be a firearm.’
The possession or use of a firearm in NSW requires a valid firearms licence or permit, which require the prospective licensee to have a genuine reason for its possession.
The Act also requires that firearms be registered, and it is an offence to possess, supply, acquire, or use one that is not.
Recreational Fishing Gear
It is legal to possess recreational fishing gear under NSW laws, however there is a maximum number of each item permitted per person. Further, the use of spears, spear guns, explosives, firearms, or electrical devices are prohibited. The NSW Government Department of Primary Industries exhaustively outlines the regulations around fishing gear with respect to freshwater and saltwater recreational fishing.
Crossbows are prohibited in NSW, as Schedule 1 of the Weapons Prohibition Act includes ‘a crossbow (or any similar device) consisting of a bow fitted transversely on a stock that has a groove or barrel designed to direct an arrow or bolt.’ It is possible to obtain a permit for genuine target shooting at recognised archery clubs, however.
A Compound Bow is not a prohibited weapon in NSW, and you do not require a licence or permit to own one.
Knives and Other Edged Weapons
Several specific knives and edged weapons are included in the Weapons Prohibition Act, including a:
Urban skinner push dagger;
Star knife; and
This list includes other devices with common features.
While all other kinds of knives are not illegal to own, a number of offences with respect to knives are listed in section 11C of the Summary Offences Act 1998 (NSW). Most notably, it is always an offence to possess a knife or blade in a public place without a reasonable excuse. This includes a knife, razor blade, and any other blade, and carries a maximum penalty of 2 years imprisonment.
Can you legally own a sword in NSW?
Generally, swords fall outside the scope of the Weapons Prohibition Act and do not require a licence or permit, nor are there any specific safe storage requirements.
The Act does, however, prohibit a sword (or any other single- or multi-edged blade or spike) that is concealed within a walking stick or cane.
Note that under section 11B of the Summary Offences Act 1998 it is an offence to possess an offensive implement in a public place or school without reasonable excuse, and this would include swords.
Self Defence Tools
Self-defence is not a valid reason to possess a firearm or prohibited weapon in NSW. The Weapons Prohibition Act s11(3) states that the possession or use of a prohibited weapon for personal protection, or for the protection of any other person, is not a ‘genuine reason’ for the possession or use of the weapon. The one exception to this is that self-defence may be a genuine reason in the case of body armour vests, despite their being listed among the prohibited self defence weapons otherwise.
Likewise, with respect to firearms, the Firearms Act s12(2) confers that an applicant does not have a genuine reason for possessing or using a firearm if they intend to possess or use it for personal protection or the protection of any other person.
Paintball Markers & Air Guns
Paintball markers are now considered recreational sporting devices, managed by Fair Trading in the interest of public safety, rather than firearms regulated by NSW police.
Regardless, you do need a permit to buy or own a paintball marker in NSW, and the permit does not allow you to use the marker outside of an authorised venue. To acquire the permit, you must pass a ‘fit and proper person assessment’ and undertake a training course.
Air guns are included in the definition of firearms in the Firearms Act and require a valid firearms licence or permit; there is no distinction between air rifles and more powerful guns.
Weapon Ownership Laws in NSW
Weapon ownership in NSW is governed by the Acts and accords with the principles that firearm possession and use is a privilege that is conditional on the overriding need to ensure public safety, and to improve public safety by imposing strict controls on the possession and use of firearms and weapons, and by promoting the safe and responsible storage and use of firearms, and to facilitate a national approach to the control of firearms.
Permit and Licensing
Part 2 of the Firearms Act concerns licences and permits and dictates that a person must not possess or use a firearm, a pistol, or a prohibited firearm unless they are authorised to do so by a licence or permit and must comply with the licence conditions. The Weapons Prohibition Act stipulates the same requirement for permits in respect to prohibited weapons.
It is also an offence under both acts to use a firearm, weapon, or pistol for any purpose other than in connection with that established by them as being the genuine reason for possessing or using it.
A firearms licence can only be issued if you are over 18 years of age, a resident of NSW, have a genuine reason for its possession and use, and the firearm also falls within one of the prescribed licence categories.
Permits are issued where a legitimate reason exists, but the reason or weapon fall outside the requirements of the licensing scheme. Examples include a Minor’s Permit (which allows a person under 18 years of age to possess and use a firearm), and an Overseas Competitor Permit (for an overseas visitor who wishes to participate in a shooting competition in NSW).
To obtain a licence and permit, an applicant must be determined a ‘fit and proper person’ that can be trusted to have possession of firearms without danger to public safety or peace, have completed firearms training and safety courses, demonstrate that the storage and safety requirements are capable of being met, and provide a ‘genuine reason’.
The permissible genuine reasons listed in the Firearms Act under s12 are:
Recreational hunting/vermin control;
Vertebrae pest animal control;
Business or employment;
Occupational requirements relating to rural purposes;
Animal welfare; and
The Act also lists specific requirements for each of these reasons.
Likewise, the Weapons Prohibition Act lists the following genuine reasons for possession or use of a weapon under s11:
Historical re-enactment purposes;
Public museum purposes;
Animal management; and
Section 11 of the Firearms Act lists general restrictions on issue of licences, notably including that if you have been convicted of a ‘prescribed offence’ within the past 10 years, you cannot obtain a gun licence. These offences are those prescribed by clause 5(1) of the Firearms Regulation 2017, and include sexual, violent, drug, terrorism, robbery, fraud, and firearms offences.
Purchase and Registration
After you have obtained a licence, you must lodge a ‘permit to acquire’ application for each firearm. This form must identify where it will be stored, the category of firearm you are seeking, a declaration that you can comply with safekeeping requirements, and you genuine reason for acquiring the firearm. This is a separate permit that is required in addition to any prohibited weapons permit or firearms licence you have already obtained.
Any purchase must be conducted by a licensed NSW firearms dealer. If there is no such dealer within 100km of both the buyer and seller’s residential address, the transaction may be witnessed by an authorised police officer.
To register a firearm, you must meet all the previous criteria, submit a Permit to Acquire application, and pay any required fees. You will need to provide information that will be kept on the register of firearms, including:
Your current residential address and contact details;
Details of the premises where the firearm will be kept;
The identifying number of any spare barrel that is capable of taking and discarding ammunition; and
Particulars relating to the acquisition of the firearm.
Weapon Storage Requirements
The legislation also sets out the responsibilities of firearms owners in relation to safe storage. The different categories of licence require different levels of storage, but across all categories, any person who possesses a firearm must take all reasonable precautions to ensure that the firearm:
Is kept safe;
Is not lost or stolen; and
Does not come into the possession of a person who is not authorised to possess the firearm.
These responsibilities are found in Part 4 of the Firearms Act and Part 4A of the Weapons Prohibition Act, varying per category for firearms and level for weapons.
Penalties for Weapon Offences in NSW
The offence of unauthorised possession or use of firearms generally carries a maximum penalty of imprisonment for 5 years, while the offence of unauthorised possession or use of pistols or prohibited firearms carries a maximum penalty of imprisonment for 14 years. Both offences may also be made out if the firearm, pistol, or prohibited firearm was used for any purpose otherwise than in connection with that established as being the genuine reason for its possession or use, or for contravention of any condition of the licence.
A person must not supply, acquire, possess, or use an unregistered firearm, and this carries a maximum penalty of 14 years imprisonment for a pistol or prohibited firearm, or 5 years in any other case (Firearms Act s36).
Similarly, s7 of the Weapons Prohibition Act conveys that a person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit, with a maximum penalty of 14 years imprisonment. The further scope of this offence is the same as that for firearms.
Failure to observe the general requirements for safe keeping carries a maximum penalty of 2 years imprisonment in respect to both firearms and prohibited weapons, and/or a fine of 50 penalty units (currently $5,500) for firearms and 100 (currently $110,000) for weapons.
Have you been charged with a Weapons Offence in NSW? Contact Hamilton Janke Lawyers
If you are being charged with a criminal offence in NSW, it is vital that you seek legal advice and legal representation. An experienced criminal defence lawyer will be able to advise you on how to proceed and assist you through every step of the process. Contact our expert Criminal Defence Lawyers now.