From 1 July 2017, the new Firearms Act 2015 (SA) and Firearms Regulations 2017 (SA) apply in South Australia. The new Act and Regulations aim to provide a modernised scheme for firearm control in South Australia, facilitate a nationally consistent approach, improve public safety, prevent crime and reduce red tape. A summary of the offences and penalties under the new Act and Regulations can be accessed here.
Section 5 of the Firearms Act 2015 (SA) provides for five classes of firearms, as well as prescribed firearms.
Class A firearms includes air guns, paint-ball firearms, rim fire rifles (not self loading), shotguns (not self-loading or pump action) and break action combination shotguns and rim fire rifles
Class B firearms includes muzzle loading firearms (not handguns), revolving chamber rifles, centre fire rifles (not self-loading), multiple barrell centre fire rifles that are not designed to hold additional rounds in a magazine, break action combination shotguns and rifles (not break action combination shotguns and rim fire rifles) and all other firearms (not prescribed firearms, handguns, self-loading firearms or pump action shotguns) that are not class A firearms.
Class C firearms includes 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 D firearms includes 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 H firearms includes handguns (not prescribed firearms).
Prescribed firearms includes automatic firearms, mortars, bazookas, rocket propelled grenades and similar military firearms designed to fire explosive projectiles, firearms designed to fire projectiles containing tear gas or any other lachrymatory substance or any nauseating substance or poison (but not firearms designed to tranquillise, immobilise, or administer vaccines or other medicines to animals), firearms designed to have the appearance of other objects and firearms declared by the Firearms Regulations 2017 (SA) to be prescribed.
The Commonwealth and all State and Territory Governments have agreed that the possession of firearms is not a right but a conditional privilege, and that personal protection is not a genuine reason to possess a firearm [ss 3(1) and 15(3)].
It is an offence to have possession of a firearm without holding a firearms licence authorising possession of the firearm [Firearms Act 2015 (SA) s 9(1)].
Possession of a firearm is defined to include not only handling a firearm but also having control of it through another person, in your home or in any vehicle you travel in [Firearms Act 2015 (SA) s 6].
The maximum 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 9].
There also offences under the Firearms 2015 Act (SA) in relation to unauthorised possession of sound moderators, restricted or prohibited firearm accessories and ammunition [see ss 31, 39 and 40].
Manufacturing and trafficking firearms are offences under the Firearms Act 2015 Act (SA) [see ss 22, 25 and 37]. There are also offences under the Act relating to the alteration of firearms [ see s 38].
To obtain a firearms licence a person must provide all personal information required by the Registrar of Firearms [Firearms Act 2015 (SA) s 14]. All licences include the holder's photograph [Firearms Regulations 2017 (SA) reg 38] and must be carried at all times when the holder has physical possession or control of a firearm under the licence [reg 35]. The maximum penalty for failing to carry a licence when in possession of a licenced firearm is $2 500 or an expiation fee of $315.
A person must ultimately produce a firearm's licence authorising possession of the firearm within 48 hours of a request for inspection by police or face a maximum penalty of $10 000 or imprisonment for 2 years [Firearms Act 2015 (SA) s 58].
A person must be a fit and proper person to hold a firearms licence [see s 7, reg 10] .
People deemed not to be fit and proper people to hold a licence include anyone who has a physical or mental illness, condition or disorder, or in relation to whom other circumstances exist, that would make it unsafe for that person to possess a firearm [s 7(2)].
Anyone who has a prior conviction for actual or threatened violence anywhere in the world, has a prior Firearms Act 2015 (SA) conviction anywhere in Australia, has a prior conviction for an offence prescribed by the regulations, has not complied with the Firearms Act 2015 (SA) in relation to the safe handling, use, storage or transport of firearms or who has at any time been the subject of a Domestic Violence Intervention Order anywhere in Australia would not be regarded as a fit and proper person [s 7(3)].
In deciding whether a person is a fit and proper person regard may be had to the reputation, honesty and integrity of the person and of any person with whom they associate and to whether there is any risk of the person using the firearm for an unlawful prupose, to harm him or herself or another, or failing to exercise continuous and responsible control over a firearm [s 7(4)].
A person under 18 years of age cannot generally obtain a firearms licence [s 14(3)]. There are some limited exceptions.
Firearms clubs and medical practitioners are required to inform the Registrar of Firearms if they have reasonable cause to suspect that a person is suffering from a physical or mental illness, condition or disorder, or other circumstances exist such that a threat could arise in relation to their own or others’ safety as a result of their possession or use of a firearm [Firearm Regulations 2017 (SA) regs 94 and 96]. 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 [reg 95].
There are tight requirements on the acquisition, lending or hiring of firearms. Before acquiring a firearm, a person must first apply to the Registrar of Firearms for a permit and comply with a prescribed process for the acquisition [Firearms Act 2015 (SA) s 22(1)]. The Act sets out that a person does not have a genuine reason to acquire a firearm if they intend to possess or use it for the purpose of personal protection, the protection of another or the protection of property [s 22(6)]. The Act provides for loan or hire to persons authorised by a firearms licence to possess the firearm for 10 or 28 days, but failure to return the firearm within time is an offence.
Interim firearms prohibition orders (issued by police)
Under section 43 of the Firearms Act 2015 (SA) a police officer may issue an 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.
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 43(4)]. A police officer can require a person to wait while the order is being prepared or to accompany them to the nearest police station for the order to be served [s 43(5)]. Police have the power to arrest a person who refuses to comply and can detain them for as long as is necessary for the order to be served or for a period of up to two hours, whichever is the lesser amount of time [s 43(5)]. The person then must provide the Commissioner of Police, in writing, with their address [s 43(7)].
The interim prohibition order expires 28 days after the Registrar has been given written notice of the person’s address for service [s 43(8)].
A person who has been issued an interim firearms prohibition order has the right to apply to the Registrar for a review of the decision to issue the order [s 46].
Firearms prohibitions orders (issued by the Registrar)
The Registrar also has the power to issue a firearms prohibition order under section 44 of the Firearms Act 2015 (SA) if satisfied of the following:
- that possession of a firearm by the person would be likely to result in undue danger to life or property; or
- that the person is not a fit and proper person to possess a firearm; and
- that it is in the public interest that a prohibition order be issued against the person.
The Registrar may also issue a prohibition order if the person is, or has been, a member of a criminal organisation or is the subject of a control order under the Serious and Organised Crime (Control) Act 2008 (SA). A person will be presumed to be a member of a criminal organisation if the person is displaying an insignia of that organisation (e.g. on an article of clothing or as a tattoo) [s 44(10)].
As with orders issued by police officers (see above), the order applies to the person as soon as it is issued but only comes into force against them when it has been personally served on them [s 44(2)]. Personal service in this instance includes service by registered post at the address for service provided to the Registrar under section 43 [s 44(3)].
A person may be required to wait or to accompany police to the nearest police station for the purpose of serving the order [s 44(4)]. If they refuse to comply they can be detained in custody (without warrant) for as long as is necessary to serve the order or two hours (whichever is the lesser period of time).
It is an offence to fail to notify the Registrar or a police officer of an address for service within 48 hours of the request being made and the maximum penalty for this is $10 000 [s 44(8)].
Effect of firearms prohibitions order
A firearms prohibition order acts to suspend any licence or permit held under the Firearms Act 2015 (SA) and a person subjected to a prohibition order must not acquire, possess or use a firearm, firearm part, a sound moderator or ammunition [s 45(2)].
All firearms owned or held by the person must be surrendered to the Registrar [s 45(3)]. This includes firearm parts, sound moderators and ammunition.
Under section 45(4), whilst the prohibition order is in force a person must not be present on or at:
- the grounds of a firearms club or paint-ball operator; or
- a commercial shooting range or gallery; or
- an arms fair; or
- a place of business where firearms are repaired, modified or tested or where firearms, firearm parts, sound moderators or ammunition are bought or sold or hired out; or
- a place where firearms, firearm parts or sound moderators are manufactured; or
- a place where firearms are refurbished; or
- any other place prescribed by the regulations.
Membership of a firearms club (whether continuing or new) is also prohibited.
A person subject to a firearms prohibition order must not be in the company of a person who has physical possession or control of a firearm.
The maximum penalty for failure to comply with the above requirements is $50 000 or imprisonment of 10 years [s 45(4)].
Whilst subject to a prohibition order it is an offence to reside at premises on which there is a firearm, firearm part, sound moderator or ammunition. The maximum penalty is $50 000 or imprisonment of 10 years in the case of a firearm and $20 000 or imprisonment of 4 years in the case of a firearm part, sound moderator or ammunition [s 45(6)].
A person subject to a firearms prohibition order must inform all persons over the age of 18 who resides at the same premises of the order [s 45(8)]. The maximum penalty for failure to comply is $20 000 or imprisonment for 4 years.
A person who has been issued with a firearms prohibition order by the Registrar has the right to apply for a review of the decision with the South Australian Civil and Administrative Tribunal [s 47].
Penalties while subject to prohibition orders
Acquiring, using or possessing a firearm, firearm part, sound moderator 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, sound moderator or ammunition: $35 000 or imprisonment for 7 years [s 45(2)].
Failure to surrender firearms, firearm parts, sound moderators 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, sound moderator or ammunition: $20 000 or imprisonment for 4 years [s 45(3)].
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, sound moderator or ammunition: $20 000 or 4 years imprisonment [s 45(6)].
The Firearms Act 2015 (SA) also provides for penalties for people who themselves are not the subject of a prohibition order but who supply firearms, parts, sound moderators or ammunition to a person the subject of the order or carry firearms etc in their presence [s 45(9) – (10)]. For example, a person who is not the subject of a prohibition order but who has a firearm on his or her person, is found in the company of a person under such an order, can themselves face a penalty of up to $20 000 or 4 years imprisonment [s 45(10)]. 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 45 (11)].
Powers to require information
The police have wide powers to require information of any person reasonably suspected of having knowledge relevant to and reasonably required for the administration and enforcement of the Firearms Act 2015 (SA) [s 55(1)]. This includes the person's full name, date of birth, usual place of residence and evidence of their identity.
Anyone who has or recently has had possession of a firearm or ammunition, anyone who is in the company of such a person and anyone who is the occupier or in charge of or present in premises or a vehicle, vessel or aircraft where a firearm or related item is found, must answer further questions relating to the ownership and possession of the firearm, and the owner must answer questions relating to the whereabouts and possession of the firearm [s 55(2)]. The penalty for failing to answer questions truthfully is a maximum fine of $20,000 or imprisonment for 4 years [s 55(5)].
Even people who may incriminate themselves are required to answer questions [s 55(7)].
Police also have the power to demand firearms owners produce weapons for inspection [s 57(1)].
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 [s 57].
A police officer who suspects on reasonable grounds that there is a firearm, firearm part, sound moderator, prohibited firearm accessory, restricted firearm mechanism, or licence liable to seizure on any person, vehicle, veseel or aircraft, they may stop, detain and search them [s 57(7)]. If a police officer suspects on reasonable grounds that a person who has possession of a firearm has failed to keep it safely and securely, the police office may enter and search any premises and inspect the firearm and how it has been secured [s 57(8) and (9)]. Reasonable suspicion is presumed if the licensee fails to report the results of an audit at the request of the Registrar of Firearms, or fails to comply with a condition for inspection as to safe keeping [s 57 (10)]. A police officer has similar powers to stop, detain and search to ensure compliance with firearms prohibitions orders [s 57(11) and (12)].
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)]
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 by 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.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.