The Savage 10 BA - not a category B firearm in WA

In mid December, 2014, I watched with interest an article on Nioa TV, presented by Matt Williamson, that dealt with the West Australian Police Commissioner’s treatment of the Savage 110BA in Western Australia. That article can be viewed HERE.

To the uninitiated, the Savage 110 BA, is one of a broad range of bolt action rifles produced by Savage, that share the familiar, and well engineered, Savage 10 bolt action.

The 10 action appeared first in the late 50s, and it was engineered in a way that enabled considerable manufacturing cost savings to be made, enabling a highly accurate bolt action to be produced for about a third of the cost of the actions used by its competitors, while maintaining quality.

One of the main attributes of the action is the manner in which it head spaced with a locking ring, This significantly reduced manufacturing costs, and contributed to its use amongst target shooters who like the ability to exchange barrels with ease.

The 110 BA differs from most of the Savage range in that it has been fitted with a stock that has the aesthetics of a folding stock (but which does not fold), a picatinny rail, protruding magazine, pistol grip and muzzle break.

The firearm is listed with the 10 BA, the 10/110 FCP HS Precision, 10 FCP McMillan, and the 10 Precision Carbine under the Law Enforcement tag on the Savage website or catalogue. Each of these firearms features the same action, and a different barrel and stock, and each of these firearms would be of interest to someone looking for a long range firearm for hunting, or because they like the current Tacticool’ fashion in shooting gear, or for target shooting.

None of these firearms are the type of rifle that a criminal would tend to want to use, for they are all bolt action rifles and relatively heavy.

All, with the exception of the 10BA in Western Australia, are lawful to own throughout Australia, as category B firearms.

Nevertheless, ‘the Commissioner’, or rather and more correctly, a Police bureaucrat sitting in an office somewhere in Perth, who occupies a job that has a position number covered by a delegation from the Commissioner, has formed the view that the 10 BA firearm closely resembles a prohibited firearm and has banned it on the basis that Reg 26B 2 (a) of the WA Firearms Act, enables the Commissioner to ban a firearm that closely resembles a prohibited firearm.

I have attached the full text of 26B 2 (a) at the end of this article.

When Nioa staff asked what prohibited weapons the 110BA closely resembles, they were advised that the 110BA resembled a M4 self loading carbine, a Bushmaster, and a Cobb MCR SLR.

The word ‘closely’ and ‘resembles’ are not defined in the legislation, so I turned to the Macquarie Dictionary, which is the primary dictionary used by Australian courts when they are trying to interpret a word used in legislation that has not been otherwise defined in the legislation or by judges. The dictionary defines ‘closely’ as ‘nearly even or equal’, ‘not deviating from’, and ‘resembles’ ‘to be like or similar to’.

I Googled each of these firearms, and was unable to find one, or indeed, any other semi automatic firearm that to my mind ‘closely’ resembled the 110BA, which is quite clearly a bolt action.

The problem is not limited to WA.

The NSW Firearms Registry periodically becomes confused when considering paint ball markers. I have dealt with a number of matters where a paintball marker with attachments has been likened to looking a Heckler & Koch M5.

Upon looking at the marker, both with and without its ball and gas reservoirs, I have thought that without reservoirs it has looked more like my wife’s hair drier, and with reservoirs, a spray gun used on beaches to apply sun screen.

And frankly, as a person who believes in personal accountability rather than the ‘Nanny state’, anybody who runs around with something that makes Police think that they are armed with a fully automatic weapon has no reason to complain if the State engages them with the real thing.

As the 110 BA looks nothing like the firearms nominated, I have a suspicion that the delegate may possibly be seeking to justify a decision made on other grounds that the delegate should not have considered. The 110 BA is bristling with militaristic features such as a non-folding, adjustable stock, picatinny rail, protruding magazine, pistol grip and muzzle break, and is coloured black to boot – a further sign of its considerable danger to the community.

I find myself speculating that, as some of these features are the type of features that differentiated a semi automatic hunting rifle from an assault rifle under the United States’ President Clinton’s totally useless, and now thankfully defunct, cosmetically based assault rifle criteria, a Police bureaucrat in WA may be having some Clintonesque thoughts.

Can this type of decision be challenged? The answer is that yes it can.

The problem is that the Commissioner has tremendous discretion, and a Court or Tribunal can only overturn a discretionary decision under a narrow range of circumstances. The principle of ‘Wednesbury unreasonableness’. derives from a case called Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. And in a later case, of Council of Civil Service Unions v Minister for the Civil Service (1984) 3 All ER 935.

The principles laid down in the Wednesbury test for unreasonableness are:

1. That is to say that the decision is so outrageous in its defiance of logic that no sensible person who had applied his or her mind to the question to be decided could have arrived at it.

2. In making the decision the decision maker failed to take into account factors that ought to have been taken into account.

3. Or the decision maker took into account factors that should not have been taken into account

Such a challenge would also take time, and cost money, the economics of it would really depend on the size of the market for the 10BA in WA.

Would it succeed? WA Tribunals generally allow the Commissioner a very wide discretion. I think it is a good argument, but whether it would be commercially economic is another story.

What makes me angry is that this is another needling decision made by a bureaucrat who probably figures that he or she will not get challenged.

What really needs to happen though, is that Police need to do is wake up, and understand that not everyone they regulate is a danger to the community or ‘the enemy’.

They need to stop looking at the US as an example of gun laws. The US has its own peculiar set of sociological conditions based largely upon the end of slavery, and the poor manner that it was dealt with, with slaves being released, offered no compensation or training, with the result that their progeny have gravitated toward low paid jobs in ghettos.

If US Crime figures are looked at closely, it is these under privileged people who are largely the victims and perpetrators of US crime.

If a fairer comparison is sought, European countries such as Switzerland or even France, which was flooded with ex military weapons following WW2 that are seldom used in crime, represent a fairer analogy.

Of even more relevance, former colonial countries such as Canada and NZ, which treat firearms far more liberally than us and, like the US, share with us a ‘frontier tradition’.

Many countries, such as the UK, which has stringent firearms laws, allow military firearms that have been modified to work as straight pull bolt-action firearms. And there is no evidence that these firearms, or sound moderators that are widely used in the UK, being used in crime.

It is time for WA and other states, to stop looking for problems that are not there, and start focusing on appropriate regulation, remembering that excessive and un-necessary regulation absorbs resources that could be more appropriately applied to fighting crime.

26B . Certain licences, permits and approvals not to be issued, granted or given

(1) In this regulation revolving rifle means a rifle the ammunition for which is loaded into and fired from a revolving cylinder or revolving chamber.

(2) A licence, permit or approval relating to a firearm cannot be issued, granted or given if —

(a) in the opinion of the Commissioner, the firearm closely resembles a firearm that is prohibited under regulation 26; or

(b) in the opinion of the Commissioner, the firearm is designed to be, or capable of being, readily adapted for use as a handgun; or

(d) subject to subregulation (3), the firearm is a revolving rifle.

(3) Subregulation (2)(d) does not prevent a licence, permit or approval being issued, granted or given for a revolving rifle if —

(a) the revolving rifle is a single action revolving rifle; and

(b) in the opinion of the Commissioner, the revolving rifle has significant commemorative, historical, thematic or heirloom value.

(4) The following firearms are specified for the purpose of subregulation (2)(c) —

.22 calibre Armi Jager Model AP 15 semi-automatic rifle

.22 calibre Armi Jager Model AP 75 semi-automatic rifle

.22 calibre Josef G: Lndmann-Preetz Model JGL automatic 65 semi-automatic rifle

.22 calibre Squibman Model 16 semi-automatic rifle