Firearms Lawyer Simon Munslow answers your legal questions.

The Devil is in the detail: are you unwittingly buying guns illegally?


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If you are a NSW shooter, have you ever bought a firearm from a local or interstate firearms dealer or individual, without having a Permit to Acquire? Acting with the knowledge that you must have it before you can actually obtain possession of the firearm from a dealer?

GUILTY! You have broken the law.

See s50 of the Firearms Act 2600.  Maximum penalty ten years in respect to a prohibited firearm and five years in any other case.

Have you sold a firearm to someone without seeing his or her permit to acquire or licence? Relying just on the dealer process to achieve compliance?

GUILTY! So have you!

See section 51 of the Firearms Act 2600, Maximum penalty FIVE YEARS!

These breaches could see you being prosecuted.

This is despite the fact that both scenarios are common place in today’s commercial environment, where firearms are advertised on line, and payment is made by direct deposit or credit card, and parties rely on dealers paid to handle the transaction, though not the sale, to deal with the transfer of possession and regulatory issues.

The law is clear. When purchasing a firearm on line over the internet, the buyer must have a licence and PTA and the seller must have seen it, before the sale can go ahead.  This cannot be delegated to third parties who are neither buying nor selling the firearm or part.

SHORT TERM SOLUTION

It seems to this correspondent that one way around this would be for an on line seller to obtain a holding deposit, and agree to hold the firearm for a period of time for the buyer to obtain the necessary paperwork, before the transaction can go ahead.

Individuals selling firearms need to obtain a copy of the purchaser’s licence and PTA and retain these in case they are ever asked to produce them by Police.

LONG TERM SOLUTION

This issue requires immediate legislative action, as Police are now aware of the problem. 

To me the current law represents ‘legislative over kill’ because, even although the firearm has been ‘acquired’ by the purchaser,  ‘possession’ of the firearm is not going to occur until all compliance issues have been addressed: that it has been ‘acquired’ is an irrelevancy. 

I have set out the relevant sections regarding firearms below.  Readers should note that parallel provisions relating to firearms parts exist.

Clearly, as interstate trade issues are often involved in respect to firearms trade, a ‘fix’ must involve the adoption of a national position by the Commonwealth, that reflects what is reasonably necessary to regulate sales, rather than the apparently over regulated situation that we have at present.

The relevant provisions are set out below.

50 Acquisition of firearms

(cf APMC 7, 1989 Act s 6)

A person must not acquire a firearm unless the person is:

(a) authorised to possess the firearm by a licence or permit, and

(b) except in the case of a licensed firearms dealer, authorised to acquire the firearm by a permit (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned).

Maximum penalty: imprisonment for 10 years if the firearm concerned is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.

51 Restrictions on supply of firearms

(1) A person (“the supplier” ) must not supply, or knowingly take part in the supply of, a firearm to another person unless:

(a) the other person is authorised to possess the firearm by a licence or permit, and

(b) the following documents have been produced to, and inspected by, the supplier:

(i) the other person’s licence or permit, and

(ii) if the other person is not a licensed firearms dealer-the other person’s permit to acquire the firearm (or the equivalent of any such permit that is issued under the law of another State or Territory in respect of the firearm concerned).

Maximum penalty: imprisonment for 5 years.

(1A) A person (“the supplier” ) must not supply, or knowingly take part in the supply of, a pistol or prohibited firearm to another person unless:

(a) the other person is authorised to possess the pistol or prohibited firearm by a licence or permit, and

(b) the following documents have been produced to, and inspected by, the supplier:

(i) the other person’s licence or permit, and

(ii) if the other person is not a licensed firearms dealer-the other person’s permit to acquire the firearm (or the equivalent of any permit that is issued under the law of another State or Territory in respect of the pistol or prohibited firearm concerned).

Maximum penalty: imprisonment for 20 years.

(2) A person other than a licensed firearms dealer must not supply, or knowingly take part in the supply of, a firearm to a person who is not a licensed firearms dealer unless:

(a) the supply has, in accordance with the regulations, been arranged through a licensed firearms dealer, or

(b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available-the supply is witnessed by a police officer authorised by the Commissioner.

Maximum penalty: imprisonment for 5 years.

(2A) A person other than a licensed firearms dealer must not supply, or knowingly take part in the supply of, a pistol or prohibited firearm to a person who is not a licensed firearms dealer unless:

(a) the supply has, in accordance with the regulations, been arranged through a licensed firearms dealer, or

(b) in any case where a licensed firearms dealer is not (as determined by the regulations) reasonably available-the supply is witnessed by a police officer authorised by the Commissioner.

Maximum penalty: imprisonment for 20 years.

(3) For the purposes of this section, a person “takes part in” the supply of a firearm if:

(a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that supply, or

(b) the person provides or arranges finance for any step in that process, or

(c) the person provides the premises in which any step in that process is taken, or suffers or permits any step in that process to be taken in premises of which the person is the owner, lessee or occupier or of which the person has the care, control or management.

(4) If on the trial of a person for an offence under subsection (1A) or (2A) the jury is not satisfied that the accused is guilty of the offence charged but is satisfied on the evidence that the accused is guilty of an offence under subsection (1) or (2), respectively, it may find the accused not guilty of the offence charged but guilty of the latter offence, and the accused is liable to punishment accordingly.

This is for information only, it does not constitute legal advice.  If needed seek an opinion dealing with your particular circumstances.  Reading this article does not give rise to a solicitor- client relationship.

Please call me to discuss or to suggest subject matter for further articles.

Simon Munslow

 


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