53. WHY PROHIBITED?
54. I cannot understand the regulation applied to silencers in Australia.
55. They hardly deserve to be a prohibited weapon.
56. It is really only in Australia and Russia that treat it in this way, which suggests that Australian policy on the matter may owe more to Hollywood and the James Bond movies than to sound regulation.
57. Illegal silencers are easy to fabricate, with a plastic Coke bottle, brillo pads and gaffer tape being all that a would-be maker would need to fabricate one, or else one could use a crude adaptor to attach a car oil filter.
58. Despite this, in Bikie Turf wars in Australia, silencers are hardly ever used in crime, and the only criminal charges one sees involving silencers involve their possession.
59. This is consistent with the US, where research indicates that between 1995 and 2005,153 federal criminal cases involving silencers, only 15 of which involved the actual use of the silencer in the commission of a crime. Less than 0.1 percent of homicides in federal court, an infinitesimally low 0.00006 percent of felonies in California and a mere 0.1 percent of armed robberies involve a silencer.
60. I believe criminals are doing a simple cost benefit analysis and conclude that the installation of a silencer and use of the type of ammunition needed to render the firearm quiet, is not worth the reduction in the firearms effectiveness, concealability, ergonomics and manoeuvrability.
61. The risk of being caught with the silencer would not effect criminal decision making because the penalty for murder or attempted murder would be larger than that for possession of a silencer, so as all penalties are served at the same time (concurrently), not a day would be served for the silencer offence.
62. GET FURTHER INFORMED
63. If you want to get a silencer, get informed. There is plenty of material on line dealing with them, and books that are downloadable from Amazon such as Wayne. N ‘Homemade silencers and suppressors’ (for academic use only) and White M ‘Low signature weapons for Military and Police’.
64. If you want the best result from a silencer, you need to consider choice of silencer, firearm, rate of barrel twist, throat depth, projectile and powder very carefully if you are to get the best outcome from it.
65. One interesting point while on the topic of projectiles, is that during WW2 Britain produced gold bullets for use in .22 LR silenced firearms.
66. Gold is twice as dense as lead, and by doing so, they were able to produce a 75 grain round instead of the typical 40 grain projectile loaded (White).
67. This was perhaps triggered the idea for the James Bond novel ‘The Man with the Golden Gun’.
68. Interestingly, Scaramanger’s fictional ‘gun’ had a grip that when removed looked like a cigarette lighter- a feature of the Welrod pistol, which was designed to be, when disassembled, confused at a glance with a cigarette lighter and a bike pump. But I digress….
69. If I were looking for a round to use with a suppressor I would be more inclined to look at a 7.62×39, or 44 magnum. If you were simply to stick a moderator onto the end of anything that is significantly over bore, you may be disappointed.
70. Used with high velocity ammo, you will reduce muzzle blast, and reduce noise by about 50% (Wayne).
71. Under some circumstances this shall result in less disturbed game, as they may be confused about the direction that the shot came from. As animals tend to focus on the loudest source of noise (the bullet) and its point of impact rather than its source.
72. Subsonic ammunition results in a marked drop in killing power reducing it to approximately 1/8th of a full power round with a similar projectile (White).
73. Interestingly, evidence led before the Tribunal by NPWS Rangers only seems to deal with the use of silencers with subsonic ammunition in areas where they do not wish to distress humans such as for rabbiting on the North Head reserve in Sydney.
74. Overseas, hunters tend to use them with HV ammunition.
75. Also, you are shooting under a code of conduct, and wish to use sub sonic ammunition, will a low velocity load be compliant? And does the code permit use of a silencer?
76. THE LAW- LEGISLATION
77. The Weapons Prohibition Act 1998 is an Act that prohibits a large range of items and sets out a means for authorising possession of them.
78. The Principles of the WPA Act are similar to the Firearms Act, in that it confirms that possession of prohibited articles to be a privilege conditional on an overriding need for public safety, and It seeks to impose strict requirements for possession and use, including the requirement of a genuine reason to possess the item.
S11 of the WPA Act deals with ‘Genuine Reason’
(1) 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.
(2) 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:
(a) states that he or she intends to possess or use the weapon:
(I) for any one or more of the reasons set out in the Table to this subsection, or
(ii) for any other reason prescribed by the regulations, and
(b) 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 permits 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:
(a) be a current member of a collectors’ club or society approved by the Commissioner in accordance with the regulations, and
(b) 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.
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.
(3) 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.
(4) 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.
When preparing an application, keep referring back to the genuine reason and the intent of the legislation.
80.THE LAW- CASE LAW
81. If you wish to apply for a Moderator, you need to be familiar with:
Weapons Prohibition Act 1998 (‘WPA’)
Allen v Commissioner of Police, NSW Police Force (2015) NSWCATAD 224 (‘Allen’)
Marando v Commissioner of Police, NSW Police Force (2017) NCAT (‘Marado’).
Osborne v Commissioner of Police (2000) NSWADTAP 10 (‘Osborne’).
82. In neither of Allen nor Marando did Police seek to argue that silencers were a risk to public safety, other than to refer to one piece of English research that concluded that people intimidated by firearms were more intimidated when a silencer was used! For goodness sake, I would have thought degree of intimidation has more to do with context as was the size of the hole in the end of the barrel!
83. Let’s call it for what it is, as is often the case with firearms laws, we are dealing with regulation for the sake of regulation, injustice, ignorance and prejudice.
84.The major issue for a person seeking a permit, is whether they have a genuine reason within the meaning of s8(1) and s11(2) and whether the silencer is ‘necessary’- or ‘required’.
85 ‘Necessary’ is an ordinary non-technical term- Collector of Customs v Pozzolanic Enterprises P/L (1993) 43 FCR 380 at 287.’Necessary’ means happening or existing by necessity, ‘directly required’ Word ‘necessary’ acting or proceeding from compulsion or necessity, not free, a necessary agent.
86. This is a very high standard. For example, a silencer would be ‘useful’ for most of us to possess, it may even be ‘highly desirable,’ and still fall well below the threshold of It being required- i.e. ‘necessary’ for them to farm, because inherent in ‘necessary’ is the requirement that you cannot undertake the activity without it.
87. Mr Allen owned a property adjoining a National Park where he had stock loss of 25-30% as a result of feral predation. He used this as a means of separating himself from other farmers. He did not choose his neighbours (NPWS) and his need for a silencer is different to everyone else’s.
88. Mr Marando owned a 5-acre block on Sydney’s outskirts. It was not considered ‘necessary’ in his case.
89. In the Allen decision, there was an observation at paragraph 84 that suggests that, had the Tribunal had wanted to, it could possibly have decided the matter on the basis of a broader definition of ‘necessary’.
90. It chose not to do so, and chose to ‘distinguish’, that is to say work around the ‘Osborne’ decision.
91. I would presume that the reason for this was that had he decided the matter by a broader definition of ‘necessary’, the Tribunal realised that it would undermine the entire Prohibited Weapon’s regime in NSW.