Section 5 of the Firearms Act 1977(SA) provides for five classes of firearms:
Class A firearms includes air rifles, air guns, paint-ball firearms, .22 rim fire rifles (not self loading) and single or double barrel shotguns (not self-loading or pump action)includes air rifles, air guns, paint-ball firearms, .22 rim fire rifles (not self loading) and single or double barrel shotguns (not self-loading or pump action)
Class B firearms which are muzzle loading firearms (not handguns), revolver chamber rifles, centre fire rifles (not self-loading), double barrel centre fire rifles that are not designed to hold additional rounds in a magazine, break action combination shotguns and rifles and all other firearms (not being prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms.
Class C firearms self-loading rim fire rifles having a magazine capacity of 10 rounds or less, self-loading shotguns firearms having a magazine capacity of 5 rounds or less, or pump action shotguns having a magazine capacity of 5 rounds or less. Class C does not include revolving chamber rifles.
Class D firearms self-loading rim fire rifles having a magazine capacity of more than 10 rounds, self-loading centre fire rifles, self-loading shotguns having a magazine capacity of more than 5 rounds, or pump action shotguns having a magazine capacity of more than 5 rounds. Class D does not include revolving chamber rifles.
Class H firearms which are handguns
Prescribed firearms which are automatic, have barrel(s) less than 330 mm (not pistols, air rifles, air guns or power heads), shotguns with barrel(s) less than 450 mm, air rifles and air guns with barrel(s) less than 250 mm, with overall length less than 750 mm (not pistols or power heads), that can be reduced to less than 750 mm in length and are then capable of being fired (not pistols), that are designed to fire projectiles containing tear gas or any other lachrymatory substance or any nauseate or poison, that are home made, that have the appearance of other objects, bazookas and similar military firearms.
The Commonwealth and all State and Territory Governments have agreed that the possession of firearms is not a right but a conditional privilege. Personal protection is not a genuine reason.
Certain classes of firearms banned
Class C and D firearms are banned apart from exemptions for military, police and occupational categories of shooters licensed for a specific purpose (eg extermination of feral animals).
Primary producers may be licensed to hold class C firearms but only where the Registrar of Firearms is satisfied there is a genuine need that cannot be met with a non prohibited firearm.
Possession of a firearm is defined to include not only handling a firearm but also having it in your home or in any vehicle you travel in [Firearms Act 1977 (SA) s 15D].
The penalty for unauthorised possession of a firearm depends upon the type of firearm:
- Prescribed firearm – maximum penalties are $50 000 or 10 years gaol;
- Class C, D or H firearms – maximum penalties are $35 000 or 7 years gaol; and
- Any other firearm – maximum penalties of $20 000 or 4 years gaol (OR maximum fine of $10 000 or gaol for 2 years where the offence is dealt with in the Magistrates Court) [s 11].
There also offences under the Firearms 1977 Act (SA) in relation to possession of silencers, certain parts of firearms, and firearm accessories [see ss 29A, 29B, 5(1)].
Manufacturing and trafficking firearms are offences under the Firearms Act 1977 Act (SA) [see ss 14, 14A, 27, 27AAB]. There are also offences under the Act relating to the alteration of firearms [ see ss 27AA-27AAB].
To obtain a firearms licence a person must provide all personal information required by the Commissioner of Police [Firearms Act 1977 (SA) s 12, s19]. All licences include the holder's photograph and must be carried at all times when the holder is carrying or has immediate possession of the firearm. The maximum penalty for failing to carry a licence while carrying a licenced firearm is $5 000 [s 29C].
A person must be a fit and proper person to hold a firearms licence [see s 5(10)-(13), reg 5] .
People deemed not to be fit and proper people to hold a licence include anyone who has a mental or physical condition that would make it unsafe for that person to possess a firearm [s 5(10)]. Anyone who has a prior conviction for actual or threatened violence anywhere in the world, or who has a prior Firearms Act 1977 (SA) conviction anywhere in Australia, or who has at any time been the subject of a Domestic Violence Order or Intervention Order anywhere in Australia would not be regarded as a fit and proper person. There are also requirements that the person comply with safe handling requirements and that it not be contrary to the public interest that she or he possess a firearm [s 5(11)].
A person under 18 years of age cannot obtain a firearms licence unless she or he is at least 15 years of age and is directly involved in primary production (farming) as a family member or employee [see ss 5 and 12].
Further, medical practitioners and firearms clubs are required to inform the Registrar of Firearms if they have reasonable cause to believe that a person is: suffering from a physical or mental illness; or other circumstances exist such that a threat could arise in relation to their own or others’ safety as a result of their possession, use or acquisition of a firearm [ss 27A and 21I]. In the case of firearms clubs there is an obligation to expel a person under circumstances where the actions or behaviour of a member give rise to a threat to their own or others' safety or where a firearms prohibition order applies [s 21H].
There are tight requirements on selling, giving, lending or hiring a firearm. The transfer must be witnessed by a licensed dealer, authorised officer or police officer [s 15B(9)]. Breach of these requirements carries maximum penalties of $10 000 or two years gaol if it is a class C, D, H firearm or a prescribed firearm. For any other kind of firearm the maximum penalties are $5 000 or up to one year gaol [s 15B(13)] .
Interim firearms prohibition orders
Under the Firearms Act 1977 (SA) a police officer may issue and interim firearms prohibition order if they suspect on reasonable grounds that:
- possession of a firearm by the person would be likely to result in undue danger to life or property; or
- the person is not a fit and proper person to possess a firearm [s 10A].
An interim order applies to a person as soon as it is issued against the person, but the order only comes into force against the person when it is served personally on the person [s 10A(4)]. A police officer can require a person to wait while the order is being prepared and can arrest a person who refuses and detain them for up to two hours, until they are given the order [s 10A(5)]. The person then must provide the Commissioner of Police, in writing, with their address and once that it done the interim application expires 28 days after that [s 10A(6)-(7)]
Firearms prohibitions orders
The Commissioner of Police may issue a firearms prohibition order against a person if satisfied that:
- possession of a firearm by the person would be likely to result in undue danger to life and property; or
- the person is not a fit and proper person to possess a firearm; and
- it is in the public interest to prohibit the person from owning or using a firearm [Firearms Act 1977 (SA) s 10B ].
A firearms prohibition order applies to a person as soon as it is issued against the person, but the order only comes into force against the person when it is served personally on the person [s 10B(2)].
A police officer who believes that a firearms prohibition order applies to a person, but they have not been served it can require a person to wait while the order is served on them and can arrest a person who refuses and detain them for up to two hours, until they are given the order [s 10B(3a)].
A firearms prohibition order has the effect of disqualifying the person who is the subject of the order from obtaining any licence or permit relating to firearms and from using, acquiring or possessing firearms, firearm parts or ammunition. If they already hold a licence then the licence will be suspended [s 10C].
A person subjected to a prohibition order will be required to surrender all firearms and must not reside at an address where firearms are present [s10C (4), (7)]. They are also under an obligation to inform each person aged 18 years or over that they reside with of the fact that a prohibition order is in effect against them. Failure to do so will result in a maximum penalty of $10 000 or 2 years imprisonment [s10C(9)].
Penalties while subject to prohibition orders
Acquiring, using or possessing a firearm, firearm part or ammunition
Maximum penalty in the case of a firearm: $75 000 or imprisonment for 15 years
Maximum penalty in the case of a firearm part or ammunition: $35 000 or imprisonment for 7 years [s 10C(3)].
Failure to surrender firearms, firearm parts or ammunition
Maximum penalty in the case of a firearm: $50 000 or imprisonment for 10 years
Maximum penalty in the case of a firearm part or ammunition: $20 000 or imprisonment for 4 years [s 10C(4)].
Attending a firearms club or range, etc whilst subject to a prohibition order
Maximum penalty: $10 000 or 2 years imprisonment [s 10C(5)].
Residing at an address where there are firearms or ammunition
Maximum penalty in the case of a firearm: $50 000 or 10 years imprisonment
Maximum penalty in the case of a firearm part or ammunition: $20 000 or 4 years imprisonment [s 10C (7)].
The Firearms Act 1977 (SA) also provides for penalties for people who themselves are not the subject of a prohibition order but who supply firearms to a person the subject of the order or carry firearms in their presence [s 10C(10) - (13)]. For example, a person who is not the subject of a prohibition order but who has a firearm on his or her person, if found in the company of a person under such an order, can themselves face a penalty of up to $10 000 or 2 years imprisonment [s 10C(11)]. Even bringing a firearm or ammunition to the residence of a person who is subject to a firearms prohibition order consitutes an offence and the penalties can be very severe [s 10C(12)].
Powers to require information
The police have wide powers to require information of a person reasonably suspected of possessing or having possessed a firearm or ammunition and the penalty for failing to answer questions truthfully is a maximum fine of $10,000 or imprisonment for two years. This includes the full name, address and age of anyone suspected of possessing or having possessed a firearm or ammunition and the police may require proof [s 30].
Even people who may incriminate themselves are required to answer questions about the location of a firearm or identify anyone who has or has had possession of a firearm and may also be required to provide proof [Firearms Act 1977 (SA) s 30(4)].
Police also have the power to demand firearms owners produce weapons for inspection [Firearms Act 1977 (SA) s 32(a1)].
Powers to search and seize firearms
The police also have the power to seize any unsafe, unregistered or prohibited firearms. Seizure also applies if the person is not a fit or proper person to hold a firearm, there is undue danger to life or property, or there is a court order [Firearms Act 1977 (SA) s 32].
To ensure compliance with a firearms order, a police officer may detain a person to search for firearms, licences, mechanisms, fittings or ammunition [s 32(3a)]. They can also stop or detain a vehicle, vessel or aircraft or enter premises to conduct a search [s 32(3b)] and enter any premises. Where police suspect on reasonable grounds that a firearm, licence, mechanism, fitting or ammunition is being held on premises that would be subject to seizure they have the power to break into, enter and search those premises.
It is an offence to obstruct or resist a police officer acting in exercise of these powers and the maximum penalty is $10 000 or 2 years imprisonment [s 33].
Under section 32AA of the Criminal Law Consolidation Act 1935 (SA) it is an offence to:
- discharge a firearm intending to injure, annoy or frighten any person, maximum penalty 8 years imprisonment [s 32AA(1)]
- discharge a firearm with the intent of damaging property, maximum penalty 5 years imprisonment [s 32AA(2)]
- discharge a firearm being reckless as to whether doing so does or may injure, annoy or frighten any person, maximum penalty 5 years imprisonment [s 32AA(3)]
- discharge a firearm being reckless as to whether doing so does or may damage property, maximum penalty 3 years imprisonment [s 32AA(4)]
Classes of people permitted to possess a firearm include:
- sporting shooters who are members of registered clubs
- recreational shooters who have permission from landowners
- people with an occupational requirement such as primary producers
- security employees and professional shooters for nominated purposes
- bona fide collectors
- people as authorised by the Act.
Section 20AA of the Criminal Law (Sentencing) Act 1988 (SA) sets out serious firearms offences. A person convicted of a serious firearms offence is generally deemed to be a serious firearms offender [see s 20AAB].
A sentence of imprisonment must be imposed in relation to a serious firearms offender for a serious firearms offence (even if it is the person's first serious firearms offence) and cannot be suspended [see s 20BA], unless the serious firearms offender can satisfy the Court be evidence on oath that:
- their personal circumstances are so exceptional as to outweigh the need for general and personal deterrence to be the paramount consideration in the sentencing (as set out in s 10(2)(e) of the Act); and
- it is appropriate to suspend the sentence in all of the circumstances.
For a comprehensive summary of penalties for offences against the Firearms Act 1977 (SA) click here
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