Weapons Prohibition Act 1998

This Act is the Weapons Prohibition Act 1998.

This Act commences on a day or days to be appointed by proclamation.

The underlying principles of this Act are—

to confirm that the possession and use of prohibited weapons 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 prohibited weapons.

The specific objects of this Act are as follows—

to require each person who possesses or uses a prohibited weapon under the authority of a permit to have a genuine reason for possessing or using the weapon,

to provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons,

to provide an amnesty period to enable the surrender of prohibited weapons.

In this Act—

apprehended violence order means—

a final apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007, or

a final order made under Part 15A of the Crimes Act 1900 before its repeal, or

an order or a decision under an Act or law of a place other than New South Wales, being an order or a decision that is prescribed for the purposes of this definition by the regulations.

approved means approved by the Commissioner from time to time.

authorised employee of an authorised theatrical weapons armourer or authorised weapons dealer means a person who—

is an employee of the armourer or dealer concerned, and

is eligible to be issued with a permit, and

is authorised in writing by the Commissioner.

authorised officer means a person who is authorised by the Commissioner for the purposes of this Act.

authorised theatrical weapons armourer means a theatrical weapons armourer who is the holder of a theatrical weapons armourer permit.

authorised weapons dealer means a weapons dealer who is the holder of a weapons dealer permit.

buy includes—

purchase by wholesale, retail, auction or tender, and

hire, and

take possession under a hire-purchase agreement, and

cause or permit anything referred to above.

Commissioner means the Commissioner of Police.

community correction order has the same meaning as in the Crimes (Sentencing Procedure) Act 1999.

conditional release order has the same meaning as in the Crimes (Sentencing Procedure) Act 1999.

exercise a function includes perform a duty.

function includes a power, authority or duty.

genuine reason means a genuine reason as referred to in section 11.

holder of a permit means the person to whom it is issued.

interim apprehended violence order means—

an interim apprehended violence order within the meaning of the Crimes (Domestic and Personal Violence) Act 2007, or

an order or decision under an Act or law of a place other than New South Wales, being an order or decision that is prescribed for the purposes of this definition by the regulations.

manufacture a prohibited weapon includes repair or test the weapon in the course of carrying on a business.

military-style weapon means a prohibited weapon of a kind referred to in clause 1A of Schedule 1.

permit means a permit in force under this Act.

possession of a prohibited weapon includes any case in which a person knowingly—

has custody of the weapon, or

has the weapon in the custody of another person, or

has the weapon in or on any premises, place, vehicle, vessel or aircraft, whether or not belonging to or occupied by the person.

prohibited weapon means anything described in Schedule 1.

public museum means an institution that—

has a written constitution that states the museum’s charter, goals and policies, and

has a stated acquisition policy, and

acquires, conserves and exhibits objects of scientific or historical interest for the purposes of study, education and public enjoyment, and

is sufficiently financed to enable the conduct and development of the museum, and

has adequate premises to fulfil its basic functions of collection, research, storage, conservation, education and display, and

is regularly open to the public.

sell includes—

sell by wholesale, retail, auction or tender, and

parting with something under a hire-purchase agreement, and

barter or exchange, and

supply for profit, and

offer for sale, receive for sale, have in possession for sale or expose or exhibit for sale, and

conduct negotiations for sale, and

consign or deliver for sale, and

cause or permit anything referred to above.

serious domestic abuse prevention order means a serious domestic abuse prevention order under the Crimes (Domestic and Personal Violence) Act 2007.

theatrical weapons armourer means a person who, in the course of carrying on a business, manufactures, buys or sells prohibited weapons for use in connection with cinematographic, television or theatrical productions.

use a prohibited weapon includes causing a reasonable belief that the weapon will be used.

weapons dealer means a person who, in the course of carrying on a business, manufactures, buys or sells prohibited weapons otherwise than for use in cinematographic, television or theatrical productions.

weapons prohibition order means an order in force under section 33.

For the purposes of this Act—

anything that would be a prohibited weapon if it did not have something missing from it, or a defect or obstruction in it, is taken to be a prohibited weapon, and

any collection of the component parts of a thing that if assembled would be a prohibited weapon (or would be a prohibited weapon if it did not have something missing from it or a defect or obstruction in it) is taken to be a prohibited weapon, and

a person in or on (or in or on any part of) any premises, vehicle, vessel or aircraft in which there is a prohibited weapon is to be regarded as having possession of the weapon unless the person proves otherwise, and

if parts of a prohibited weapon are in the possession of, or are being carried by, 2 or more persons, each of those persons is to be regarded as possessing the weapon.

The regulations may—

amend Schedule 1 by adding the name or description of anything, or

amend Schedule 1 by omitting the name or description of anything, or

amend Schedule 1 by amending the name or description of anything for the purpose of more accurately describing the thing concerned, or

omit Schedule 1 and insert in its place a Schedule containing the names or descriptions of anything.

This Act binds the Crown in right of New South Wales and, so far as the legislative power of Parliament permits, the Crown in all its other capacities (except as otherwise provided by this section).

A person is not guilty of an offence under this Act or the regulations only because of something done by the person while acting in the ordinary course of the person’s duties—

as a police officer (or as a student police officer), or

as a special constable within the meaning of section 82L of the Police Act 1990 who is exercising functions of a police officer, or

as a correctional officer employed in the Department of Corrective Services, or

as a member of the police force, or as a custodial officer (however described), of the Commonwealth or of another State or Territory, or

as a member of the armed forces of the Commonwealth, or of any government that is allied or associated with the Commonwealth in any war or joint military exercise in which the Commonwealth is engaged.

A person is not guilty of an offence under Part 2 only because of possessing a prohibited weapon—

that is being conveyed or stored in the ordinary course of the person’s duties in the business of a carrier or warehouse operator, or

that has been seized by the person, under the authority of any Act or other law, in the course of the person’s duties as an employee or officer of a government agency or public authority, or

while acting in the ordinary course of the person’s duties as a member (other than a police officer) of the NSW Police Force.

The regulations may exempt any person or class of persons from the operation of any provision or requirement of this Act in such circumstances, and subject to such conditions, as may be specified in the regulations. Any such regulation may create offences in relation to a failure to comply with a condition prescribed in relation to an exemption.

A person must not possess or use a prohibited weapon unless the person is authorised to do so by a permit.

Maximum penalty—imprisonment for 14 years.

Without limiting the operation of subsection (1), a person who is the holder of a permit to possess or use a prohibited weapon is guilty of an offence under this section if the person—

possesses or uses the prohibited weapon for any purpose otherwise than in connection with the purpose established by the person as being the genuine reason for possessing or using the weapon, or

contravenes any condition of the permit.

The categories of permits and the authority they confer are as follows—

General permit

Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon.

Weapons dealer permit

Authorises the holder of the permit, and any authorised employee, to possess, buy, sell and manufacture prohibited weapons of the kind specified in the permit, but only in the course of carrying on business as a weapons dealer and only at the premises specified in the permit (or at such other premises as may be approved).

Theatrical weapons armourer permit

Authorises the holder of the permit, and any authorised employee, in the course of carrying on business as a theatrical weapons armourer—

to possess, use, buy, sell and manufacture prohibited weapons of the kind specified in the permit, and

to supervise and train persons who are involved in a cinematographic, television or theatrical production in the use of prohibited weapons to which the permit relates.

The authority conferred by a theatrical weapons armourer permit also authorises those persons who are involved in the cinematographic, television or theatrical production concerned to possess and use prohibited weapons to which the permit relates, but only while under the supervision of the holder of the permit or an authorised employee.

The regulations may prescribe different types of general permits.

The authority conferred by a permit is subject to the regulations.

An application for a permit must be made to the Commissioner in an approved manner and the fee prescribed by the regulations for the application must be paid when the application is made or as otherwise approved.

The application must include or be accompanied by such information and particulars as may be prescribed by the regulations.

An applicant for a permit must provide proof of the applicant’s identity in accordance with the requirements of the Financial Transaction Reports Act 1988 of the Commonwealth that apply in respect of the opening of a bank account.

On receiving an application for a permit, the Commissioner may carry out such investigations and inquiries as the Commissioner considers necessary to enable the Commissioner to consider the application properly.

Section 12 of the Criminal Records Act 1991 does not apply in relation to an application for a permit.

The Commissioner may, after considering an application for a permit—

issue a permit to the applicant, or

refuse to issue a permit to the applicant.

A permit must not be issued unless—

the Commissioner is satisfied that the applicant is a fit and proper person and can be trusted to have possession of prohibited weapons without danger to public safety or to the peace, and

the applicant (including such authorised employees as are nominated by the applicant) has completed, to the satisfaction of the Commissioner, such training and safety courses as may be approved in relation to the kind of permit sought, and

the Commissioner is satisfied that such storage and safety requirements as are imposed by or under this Act are capable of being met by the applicant.

A permit must not be issued to a person who—

has, within the period of 10 years before the application for the permit was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, or

is subject to an apprehended violence order or interim apprehended violence order or who has, at any time within 10 years before the application for the permit was made, been subject to an apprehended violence order (other than an order that has been revoked), or

is subject to a serious domestic abuse prevention order or who has, at any time within 10 years before the application for the permit was made, been subject to a serious domestic abuse prevention order, other than an order that has been revoked, or

is subject to one of the following in relation to an offence prescribed by the regulations—

a good behaviour bond, whether entered into in New South Wales or elsewhere,

a community correction order imposed in New South Wales,

a conditional release order imposed in New South Wales, or

is subject to a weapons prohibition order, or

is a registrable person or corresponding registrable person under the Child Protection (Offenders Registration) Act 2000.

A permit must not be issued to a person if the Commissioner is of the opinion, having regard to any criminal intelligence report or other criminal information held in relation to the person, that—

the person is a risk to public safety, and

the issuing of the permit would be contrary to the public interest.

Note.

Any such grounds for not issuing a permit may also be grounds for suspending or revoking the permit—see sections 16 (1) and 18 (2).

The Commissioner is not, under this or any other Act or law, required to give any reasons for not issuing a permit on the grounds referred to in subsection (3A).

Despite any other provision of this section, the Commissioner may refuse to issue a permit if the Commissioner considers that the issue of the permit would be contrary to the public interest.

The regulations may provide other mandatory or discretionary grounds for refusing the issue of a permit.

(Repealed)

The Commissioner must not issue a permit authorising the possession or use of a prohibited weapon unless the applicant has, in the opinion of the Commissioner, a genuine reason for possessing or using the weapon.

Without limiting the reasons that the Commissioner may be satisfied are genuine reasons, the Commissioner may determine that an applicant has a genuine reason for possessing or using a prohibited weapon if the applicant—

states that he or she intends to possess or use the weapon—

for any one or more of the reasons set out in the Table to this subsection, or

for any other reason prescribed by the regulations, and

is able to produce evidence to the Commissioner that he or she satisfies the requirements (if any) specified in respect of any such reason.

Table

Reason: recreational/sporting purposes

The applicant must demonstrate that the recreational or sporting activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

Reason: historical re-enactment purposes

The applicant must be a current member of a historic or commemorative club or society approved by the Commissioner in accordance with the regulations and which conducts activities or events requiring the possession or use of the prohibited weapon for which the permit is sought.

Reason: business/employment purposes

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the prohibited weapon for which the permit is sought.

Reason: film/TV/theatrical purposes

The applicant must demonstrate that the film, television or theatrical activity concerned requires the possession or use of the prohibited weapon for which the permit is sought.

Reason: weapons collection

The applicant must—

be a current member of a collectors’ club or society approved by the Commissioner in accordance with the regulations, and

demonstrate that the applicant’s weapons collection has a genuine commemorative, historical, thematic or financial value.

Reason: public museum purposes

The applicant must demonstrate that the public museum concerned is involved in the collection and display of prohibited weapons.

Reason: heirloom

The applicant must demonstrate that the applicant has inherited the prohibited weapon for which the permit is sought and that the weapon has a genuine sentimental value.

Reason: animal management

The applicant must be a veterinary practitioner (within the meaning of the Veterinary Practice Act 2003), or an organisation that has responsibilities for animal management, and demonstrate that it is necessary in the conduct of the applicant’s responsibilities to possess or use the prohibited weapon for which the permit is sought.

Reason: scientific purposes

The applicant must demonstrate that the prohibited weapon for which the permit is sought is required for legitimate scientific purposes.

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. However, any such reason may constitute a genuine reason in the case of a prohibited weapon referred to in clause 4 (1) of Schedule 1 or in the case of a prohibited weapon that is of a kind prescribed by the regulations for the purposes of this subsection.

Subsection (3) does not limit the reasons that the Commissioner may determine are not genuine reasons for the purposes of possessing or using a prohibited weapon.

If a permit holder’s genuine reason for possessing or using a prohibited weapon can no longer be established by the holder, the holder must, within 7 days of ceasing to have that genuine reason, notify the Commissioner in writing of that fact.

Maximum penalty—50 penalty units.