Toy Guns, Substantial Duplication And The Terrible Mess Of Imitation Firearms – The Loose Cannon

Many of us were almost literally born with a gun in our hands. Before we had ‘real’ guns, we had toy ones, and we wanted the toy to be as real as possible- so that back in my day, you could look as much like TV characters while playing cowboys and Indians of WW2.

Toy guns were therefore realistic and were accurately styled after firearms like the Winchester 76 or 94, Thompson SMG, Luger or Colt 1911 or Peacemaker, and, while plastic toy guns did exist, a there were an awful lot of diecast ones that very realistic indeed.

Indeed, as a boy, I had a realistic Winchester 94, and an alloy Luger that would have fooled an expert at room length distances.

Today in Australia, the spoilers have had their day, and there are laws prohibiting toy guns that look like the real thing.

In most states they are like s4D of the NSW Firearms Act 1996.

4D (1) This Act applies to an imitation firearm in the same way as it applies to a firearm, subject to the following:
(a) the Commissioner may not issue a licence authorising the possession or use of an imitation firearm (except to a firearms dealer) but may issue a permit authorising the possession or use of an imitation firearm,
(b) an imitation firearm is not required to be registered,
(c) the holder of a permit authorising the possession or use of an imitation firearm (a “possession or use permit” ) is not required to be authorised by a permit to acquire an imitation firearm to which the possession or use permit applies.
(2) For the purposes of the application (as provided by this section) of this Act to imitation firearms:
(a) an imitation firearm that is an imitation of a pistol is taken to be a pistol, and
(b) an imitation firearm that is an imitation of a prohibited firearm is taken to be a prohibited firearm.
Note : Reference to a pistol includes a prohibited pistol. (See section 4C.)
(3) In this section,

So, what is an ‘imitation firearm’?

The Act defines an ‘imitation firearm as’:

“imitation firearm” means an object that, regardless of its colour, weight or composition or the presence or absence of any moveable parts, substantially duplicates in appearance a firearm but that is not a firearm.
(4) However, an imitation firearm does not include any such object that is produced and identified as a children’s toy.

These laws have absurd consequences. If one goes for example to the Vicpol website, we see under ‘Examples of Imitation Firearms’ some firearms that could be mistaken for a real firearm, but we also see a number of others that look extremely plasticky and ‘cheap’ that would not, and others that appear absurd, for example, leaving aside the issue of colour, the pink stocked one with a lever action looks like no lever action firearm I have ever seen and is quite obviously a toy.

Some of this problem can be based upon the widespread use of thermoplastics to cut cost, weight increase product consistency, because as ‘real’ firearms are no longer made of blued steel and walnut, and they contain quite a bit of plastic, they look a little more toy like, and this has helped to blur the boundary.

The biggest problem is however the use of the words ‘substantially duplicates’. I first wrote about this in my ‘Firearms Appearances- The Loose Cannon’ article on 28 May 2017.

In that article I expressed the view that as ‘Substantially duplicates’ is not defined in the Act, rules of statutory construction dictate that these words should be given their ordinary meaning.

If one turns to the Macquarie Dictionary, which is long the starting point for a Court in trying to interpret statutory provisions in Australia that are not defined in an Act, one sees that substantial duplication can be defined as follows:
‘Substantial ‘
Of solid character, having to do with the substance, matter or material of a thing.’
Exactly like or corresponding to something else, to make an exact copy of.
Outward show.
When combined, one would therefore expect that one has the appearance of copy that is not a precise copy but is close to being identical.

For example

• The former Australian ‘SLR’ military service rifle, the L1A1, was a Belgian designed FN FAL (Fusil Automatique Léger). It differed from FN-FAL specifications by having been built to imperial measurement rather than metric. Most parts were therefore not interchangeable between the two, but the external appearance was the same.
• A Spanish copy of the Winchester Model 92 called the ‘El Tigre’, is almost identical to Winchester 92 but for the forward barrel band and front sight- on the Winchester the forward band is in front of the front sight, but on the El Tigre, it is behind. The El Tigre tended to be used in American Western movies because it was cheaper to acquire by prop hire firms than the American made Winchester.

• In Europe (and UK) Umarex market a .177 semi-automatic (sold in full auto form in some markets) The CO2 airgun looks like a MP 40 (‘Schmeisser’) submachine gun, as used by the Wehrmacht and SS during WW2. This gun has even been given an ‘aged’ appearance so as to look as though it has been used in combat. Such a firearm, whether with or without the ‘aging’ would clearly fail the ‘substantially duplicate’ test.
It is, I submit this type of object that the law was intended to regulate, in that it substantially duplicates a particular firearm. The current approach, which sees Police seeking to have ‘substantially duplicate’ regulate pretty much anything that looks as though it has a lock stock and barrel is simply not in my view consistent with the proper reading of the Act.
Returning to the question of toys.
Most cases in the area of imitation firearms are determined in Local Courts and do not create precedent. There is only one legal authority that I have been able to find on the subject and that is Commissioner of Police (NSW Police Force) v Howard Silvers & Sons Pty Ltd (2017) NSWSC 981.

This was an appeal by the NSW Police against a decision by a Magistrate that items seized from a novelty shop were toys.

One cannot see photographs of the items seized, they all were contained in packaging that referred to ‘toy’, ‘children’s toy’ or had the word ‘cap’, ‘cap gun’ or similar.

The Court held that focussing on the production of the items as children’s toys is not enough, one needs to separately consider:

(1) The fact that the items were made of metal or die cast metal rather than plastic or some other light weight material
(2) They were heavy to hold, similar to a comparable firearm
(3) Many of the items had moveable parts consistent with the operation of a firearm
(4) The items were produced in colours consistent with a firearm rather than the sort of bright colours normally associated with children’s toys: and
(5) Expert ballistics evidence was that the items substantially duplicated the appearance of the corresponding firearms, being self-loading pistols, revolvers and select-fire rifles.

“Further in construing and applying the legislation, it is incumbent upon his Honour to give effect to the primary object of the Firearms Act of ensuring public safety. His conclusion that ‘parliament must have intended that toy guns are not to be regarded as imitations despite varying degrees of realism’ failed to give proper attention to the purpose of the legislation to protect the community from illegal possession and use of firearms or imitation firearms’’.

Mmmm. All clear? I think not.

It is to me outrageous that Parliament passes laws that expose parents to the possibility of serious criminal charges because laws are confused and leave too much to speculation and third-party interpretation.

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962

Simon Munslow is a lawyer who has a lifelong interest in shooting, having acquired his first firearm at the age of nine, and has had an active interest in firearms law since writing a thesis on the topic over thirty years ago at University.
Simon Munslow practices extensively in Firearms Law matters throughout Australia.

He is a regular contributor to the Australian Sporting Shooter magazine’s website on Firearms law matters, has published articles on firearms reviews and firearms law, and occasionally is asked to comment in the broader media on firearms matters.

This article is written for general information only and does not constitute advice.
He can assist you with:

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