Police Seizure Abuse - The Loose Cannon.

Although I once defied the odds and got nought out of thirty in an open book multiple choice Chemistry test, leading to me studying law and not an agricultural science, Newton’s third law ‘for every reaction there is an equal and opposite reaction’, has always appealed to me, because at least on one level it applies to human and organisational behaviour and not just objects.

Thus when Police are affected by something they react.

Most readers would be familiar with the Edwards tragedy last year.  Mr Edwards was granted a special Commissioner's Permit for a handgun, against the wishes of a gun club he had previously approached, and then he went oput and commited a murder suicide soon after.  Further compounding the tragedy, his distraught former spouse committed suicide earlier this year. 

Police did not blame themselves for granting the permit, and are now targeting anyone who shoots and who is involved in a Family Law break up.

Case in point, I am acting for a small dealer at present who is in the process of going through a break up with his spouse.  The parties are separated under the one roof.

On my instructions his former partner was somewhat jealous because he was having a discussion and was actively engaged in play with his son. His wife’s mother suggested she call Police, which she proceeded to do.

Police attended, and as no threat was made, and there was no apprehension of violence, no AVO was issued.

Nevertheless, my client’s licence was suspended.  The reason on the suspension was ‘child at risk’- yet there was on these facts no evidence of this.  The only thing that happened that night that would have been scary to a child was the arrival of two Police Officers after the child’s bed time - although I stress that in this particular situation the officers behaved commendably well, and only followed instructions.

Not every child in a break up is a child at risk, and if Police wanted to target children at risk their attention would be better spent visiting shopping centres and rounding up truanting children during the day, and getting tired drivers off the road.

As you may be aware, Police policy of seizure, for a ‘cooling off period’ of 28 days, does not appear to have any statutory basis and any seizure of firearms needs to comply with Firearms Act 1996 or the Law Enforcement (Powers and Responsibilities) Act 2002.

The Police power to suspend a Firearms licence is set out in paragraph 22 of the Firearms Act 1996, and I have set it out below.

22   Suspension of licence

(cf APMC 6, 1989 Act s 35)

(1)  The Commissioner may, if the Commissioner is satisfied there may be grounds for revoking a licence, suspend the licence by serving personally or by post on the licensee a notice:

(a)  stating that the licence is suspended and the reasons for suspending it, and

(b)  requesting that the person provide the Commissioner with reasons why the licence should not be revoked.

(1A) If a licence is being suspended because the Commissioner is satisfied that there may be grounds for revoking the licence under section 11 (5A), the notice suspending the licence is not required:

(a)  to state the reasons for the suspension, or

(b)  to include any request that the licensee provide the Commissioner with reasons why the licence should not be revoked.

(2)  The Commissioner must suspend a licence in accordance with this section if the Commissioner is aware that the licensee has been charged with a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 or the Commissioner has reasonable cause to believe that the licensee has committed or has threatened to commit a domestic violence offence within the meaning of that Act.

(3)  A suspended licence does not authorise the possession or use of firearms during the period specified in the notice suspending it.

Whilst not relevant, I shall set out section 11(5) below for your convenience

11(5) A licence must not be issued to a person who:

(a)  is under the age of 18, or

(b)  has, within the period of 10 years before the application for the licence 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

(c)  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 licence was made, been subject to an apprehended violence order (other than an order that has been revoked), or

(d)  is subject to a good behaviour bond, whether entered into in New South Wales or elsewhere, in relation to an offence prescribed by the regulations, or

(e)  is subject to a firearms prohibition order, or

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

Turning to the Law Enforcement (Powers and Responsibilities) Act 2002 which again relevantly provides:

      20   Relevant offences

The following offences are relevant offences for the purposes of this Division:

       (a)  indictable offences,

       (b)  an offence against section 93FB of the Crimes Act 1900,

       (c)  an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996, or a regulation made under either of those Acts,

       (d)  an offence against a provision of Part 2 of the Explosives Act 2003.

      21   Power to search persons and seize and detain things without warrant

      (cf Crimes Act 1900, ss 357, 357E, Drug Misuse and Trafficking Act 1985, s 37)

       (1)  A police officer may, without a warrant, stop, search and detain a person, and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:

       (a)  the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained,

       (b)  the person has in his or her possession or under his or her control anything used or intended to be used in or in connection with the commission of a relevant offence,

       (c)  the person has in his or her possession or under his or her control in a public place a dangerous article that is being or was used in or in connection with the commission of a relevant offence,

       (d)  the person has in his or her possession or under his or her control, in contravention of the Drug Misuse and Trafficking Act 1985, a prohibited plant or a prohibited drug.

       (2)  A police officer may seize and detain:

       (a)  all or part of a thing that the police officer suspects on reasonable grounds is stolen or otherwise unlawfully obtained, and

       (b)  all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and

       (c)  any dangerous article, and

       (d)  any prohibited plant or prohibited drug in the possession or under the control of a person in contravention of the Drug Misuse and Trafficking Act 1985,

       found as a result of a search under this section.

      22   Power to seize and detain dangerous articles on premises

      (cf Crimes Act 1900, s 357)

A police officer who is lawfully on any premises may seize and detain any dangerous article that the police officer finds on the premises, if the police officer suspects on reasonable grounds that the dangerous article is being or was used in or in connection with the commission of a relevant offence.

 Premises include vessels, vehicles, aircraft and other places.

       The difficulty for Police here is that while a firearm is a dangerous article within the meaning of s21(2)(c) there is no relevant offence, nor is there any suspicion on reasonable grounds that the article is or was used in commission of an offence (s22).

After realising that they were on shakey grounds a Sergeant rang my client, alluded to gaol, and referenced the following alleged offences, none of which are supported by available evidence.

1.     That my client was in possession of 14 unregistered firearms.  This allegation was denied.  My client had completed all PAB28 and 31 paperwork as required by legislation as required and had forwarded these to the Registry by Registered Post.  My client also completed his quarterly return with respect to these entries and forwarded the quarterly return to the Registry by Registered Post.  Apparently, Police wish to hold my client responsible for processing tardiness at their Registry.

     That my client was in possession of a number of prohibited firearms specifically firearms fitted with a folding stock. Allegation admitted. My client is authorised by virtue of his dealer licence to possess prohibited firearms no 11 of Sch 1 of the Firearms Act 1996, item 11 are any firearms fitted with a folding stock.

1.     That my client was informed he would be asked why one firearm had a defaced serial number.  Upon entering details of all firearms acquired by my client the physical serial number of the firearm was sighted at all times when making these entries.  My client can answer no explanation why one has a defaced serial number he questions if part of a serial number may be partially obscured by a stock.  I requested further particulars.
2.     The Sergeant informed my client that his decision to suspend my client in the morning of 9 May 2019 was supported by an allegation involving matrimonial property.  On the 8 May 2019 attending Police referred to this as a civil matter, and it was not raised as a complaint until the afternoon of the 9 May 2019. For this reason, this allegation was not raised on the Suspension Notice and had no bearing upon the decision to suspend.

My criticism is with a Police Policy in practice in respect to domestic situations that exceeds the law, and that involves the seizure of firearms without probable cause merely on suspicion of a domestic break up. 

Just because Firearms ownership is a privilege and not a right, does not mean that privilege is subject to unfettered discretion by Police to seize firearms or suspend licences without appropriate due process.

When I first came to Australia, I was amazed how far this country has progressed since it was a penal colony, a mere couple of hundred years ago.  However the longer I practice law, the more convinced I am that my assumption is wrong, for certainly in terms of Police attitude, this state is still a Penal Colony.

Simon Munslow

National Firearms Lawyer
P: (02) 6299 9690
M: 0427 280 962
E: solicitor@bigpond.com
W: firearmslawyer.com.au

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:

Criminal law & Administrative law and in particular that related to Firearms

• All firearms, weapons and game charges
• Avoiding & setting aside Apprehended Violence Orders
• Possession of unregistered firearms
• Unsafe transportation & storage matters
• Applications for prohibited weapons
• License Appeals
• Freedom of Information / Government Public Access matters
• Importation & Customs problems
• Advices & opinions related to Firearms law matters

Read more at http://www.sportingshooter.com.au/latest/police-seizure-abuse-the-loose-cannon#iq2kiJvR6Pw57ZCw.99
http://www.sportingshooter.com.au/latest/police-seizure-abuse-the-loose-cannon

Petition To Have Muzzle Loading Pistols Removed From an H class licence ...

"To the Honourable the Speaker and Members of the Legislative Assembly of New South Wales in Parliament assembled".

PARLIAMENT OF NEW SOUTH WALES.

Parliament House
6 Macquarie Street,
Sydney, NSW 2000.

assembly@parliament.nsw.gov.au

The Petition of Keith H. Burgess.
President of the New England Colonial Living History Group.

Brings to the attention of the House the matter of firearms licensing in relation to muzzle-loading pistols (percussion locks excluded).

At this present time, working replica (replicas of original 17th and 18th century antique muzzle-loading pistols) muzzle-loading pistols of the lock types matchlock, wheellock, tinderlock, doglock, snaphance and flintlock can only be owned by a person possessing a category H gun licence, and these pistols can only be legally fired on a registered gun range. Antique muzzle-loading pistols of the same type may be owned, but not used/fired without the owner possessing an H class licence. This requirement excludes the use of these antiques & antique replicas for Living History and Historical Re-enactment purposes. It also excludes the use of these antique replicas for use as a back-up safety for muzzle-loader hunters hunting on private property who are hunting with single shot muzzle-loading rifles or smoothbores.

Historical Re-enactment groups and Living History organisations have re-enactment rules which preclude the use of live ammunition and preclude the use of a ramrod during any and all re-enactment displays. There is also a permit requirement; this permit is for historical re-enactment organisations wishing to conduct an historical re-enactment event involving the possession and use of firearms by participants. Clause 61 - Firearms Regulation 2006.

Replicas of muzzle-loading pistols of the lock types mentioned are single shot (though some flintlocks can have two barrels), slow to load and require a good deal of knowledge and training to ensure the workability of this type of gun. Ignition even when used by a competent person can not be guaranteed. Therefore these muzzle-loading guns are not suitable for criminal use.

We fully understand the purpose of the H class licence requirements, but these primitive muzzle-loading pistols are not the same as modern breech-loaders, revolvers or semi-automatics. If a criminal wishes to use a concealable gun to commit a crime, they can simply cut down a modern breech-loading rifle or shotgun.

At present anyone can purchase an antique muzzle-loading pistol without the need to apply for a permit to purchase, a licence or registration. However, they cannot be legally fired/used unless the owner posesses an H class licence. These replica muzzle-loading pistols are no different from the antiques, their workings, capabilities & disabilities are exactly the same.

The undersigned petitioners therefore ask the Legislative Assembly to change the licensing requirement for these replica antique & antique muzzle-loading pistols (percussion locks excluded) from the present category H class licence to the category B class licence. Alternately we respectfully request that these muzzle-loading pistols be placed on a new less restrictive class of firearms licence , allowing these guns to be used with no more restrictions than are presently placed on muzzle-loading long arms.

Sincerely,

Keith H. Burgess.

Petition Here:
https://www.change.org/p/to-the-honourable-the-speaker-and-members-of-the-legislative-assembly-of-new-south-wales-in-parliam-muzzle-loading-pistols-to-be-placed-on-a-less-restrictive-licence/share_for_starters?just_created=true

Why Firearms Restrictions?

http://www.gunlistings.org/

Why Firearms Restrictions?

·      Terrorism

·      Crime

·      Suicides

Do restrictions on law abiding licensed firearms owners do anything to stop the above problems/threats? Answer: No

Why No? Because law abiding citizens are not criminals or terrorists & if they want to commit suicide they have other gentler means of killing themselves without blowing their brains out.

How do restrictions to muzzle-loading long arms & pistols effect the above? They don’t is the easy answer. No criminal will choose a muzzle-loading firearm over a modern breach loading firearm to use in committing a crime.

Why are restrictions placed on muzzle-loading firearms by the Australian government if by doing so it has no effects on crime, terrorism or suicide? Good question, & if we could actually ask the government this question & get an answer, it would be very interesting to hear but probably complete & utter bullshit.

Firearms restrictions are based on the premise that they keep the public safe, but to date that has never been proven to be the case, in fact, there is some question as to whether being able to carry a side arm in public may not actually be a deterrent to crime & terrorism.

Let us take a look at the rules in NSW concerning muzzle-loading firearms:

·      Antique muzzle-loading guns do not require a permit to purchase, registration, or a firearms licence. But you are not legally allowed to fire an antique gun.

·      Replica muzzle-loading guns are exactly the same as antique muzzle-loading guns, exactly the same in all respects. The loading procedure, the firing procedure, & the ignition method. All are the same. Replica muzzle-loaders are just that, they are replicated copies of originals. Not breach loaders, not smokeless gunpowder, not fast loading, not high powered. But still they require registration, permit to purchase, & a firearms licence. In the case of a flintlock, matchlock, tinderlock or wheel lock pistol, they require a Pistol Licence, & to get a pistol licence you have to join a pistol club, & to maintain membership you have to attend regular meetings, & the membership is expensive. On top of this you are not allowed to use this muzzle-loading pistol anywhere except on an approved firing range.

Anyone wanting to make a crude muzzle-loading gun can do so in about 30 minutes using a piece of gas pipe. It would be illegal to do so, but it could easily be done. Yet the above restrictions on these primitive guns are supposed to be keeping the public safe from harm. If it were not so serious, if it did not seriously affect people’s rights to recreation through Living History & Historical Re-enacting, it would be laughable. The legislators who pen these laws may well be looked on as a joke, but the restrictions they place on law abiding citizens is no joke.

I respect other people’s points of view, I understand why some people are frightened by guns. I understand & respect their wish not to own or use a gun, even in the defence of their loved ones & themselves. But I simply can not understand why they are unable to look at the situation & understand that law abiding citizens are not the enemy, we are not a part of the problem, and we are not criminals. Treating us as such is unforgivable & an offence against human rights.

Disagreeing with someone is a human right, but spreading misinformation & lies is something else. The Greens, the government & other anti-gun lobby groups are guilty of spreading misinformation, lies & fear mongering in order to achieve further restrictions on firearms & ammunition just to satisfy their own need to control people, to gain some sort of power. It makes them feel good. What then does this say for these sorts of people?

We, the law abiding gun owner are not totally blameless in the restrictions that we suffer. Self-serving organisations such as the S.S.A.A. (Sporting Shooters Association Of Australia) could be doing a lot more for Australian gun owners, but instead it seems to me that they are more interested in not rocking the boat & at the same time lining their own pockets. Individuals are divided, muzzle-loading shooters have always readily backed modern gun shooters, but modern firearms owners are often guilty of hanging us black powder enthusiasts out to dry! I don’t see that anyone is dividing us, we seem to have divided ourselves. When we finally have so many restrictions & possibly even confiscations, then we will have no one to blame but ourselves.
Keith H. Burgess.

A Woodsrunner's Diary: Firearms Legislation !!! A Message to all anti-gun...

A Woodsrunner's Diary: Firearms Legislation !!! A Message to all anti-gun...

Firearms Legislation. What Do We Need?

Firearms Legislation.

What Do We Need?

By any type of firearms legislation, what is the main goal? What do we want to achieve? Firstly I think we need to achieve a reasonable level of safety for Australian citizens, without impeding the freedom & rights of Australian gun owners. Note I said “reasonable level of safety”. I say that because there will always be a criminal element in our society that will ALWAYS have access to illegal firearms, no matter what our government may legislate. You simply can not expect criminals to obey the law; that is why we call them criminals!

At present in New South Wales, a person wanting to own a firearm must pass a written & practicle exam before they can obtain a firearms licence. When they want to purchase a firearm, they must apply for a “permit to purchase”. This permit must show the exact firearm that the licensed person wants to acquire, & this is done by recording the serial number of the firearm that is for sale. If that firearm is sold by the time the permit is issued, then the licensed person must start all over again, finding another gun, & applying for another permit to purchase.

Once the gun is purchased & in the charge of the licensed gun owner, it must be at all times, other than when in use or being cleaned, lock in a secure firearms safe that meets all legislation requirements. Next this firearm must be registered with the New South Wales Firearms Registry. Only two of these requirements do anything to partially secure the safety of the Australian public, & that is the licensing of the would-be gun owner, & the requirement that the firearm be secured in a gun safe. Permit to purchase & firearms registration does nothing except add more cost for the gun owner & the Australian tax payer, & of course more work & cost for the NSW Firearms Registry which is a part of the NSW Police Service.

FIREARMS LICENCE CATEGORIES

LICENCE CATEGORY A:
air rifles
rimfire rifles(other than self-loading)
shotguns (other than pump action or self-loading)
shotgun/rimfire rifle combinations.
LICENCE CATEGORY B:
muzzle-loading firearms (other than pistols)
centre fire rifles (other than self-loading)
shotgun/centre fire rifle combinations.
LICENCE CATEGORY C: (prohibited except for occupational purposes)
self-loading rimfire rifles with magazine capacity of no more than 10 rounds
self-loading shotguns with magazine capacity of no more than 5 rounds
pump action shotguns with magazine capacity of no more than 5 rounds.
LICENCE CATEGORY D: (prohibited except for official purposes)
self-loading centre fire rifles
self-loading rimfire rifles with a magazine capacity of more than 10 rounds
self-loading shotguns with a magazine capacity of more than 5 rounds
pump action shotguns with a magazine capacity of more than 5 rounds
any firearm to which a category C licence applies.
LICENCE CATEGORY H:
pistols (including blank fire pistols and air pistols).
Special licensing requirements apply for Licence Category H. They are not addressed in the Handbook. For information on pistol licences contact the NSW Police Firearms Registry.
In all Licence Categories, the licensee is authorised to possess or use registered firearm(s) of the kind to which the licence applies, but only for the purpose established by the licensee as being the genuine reason(s) for possessing or using the firearm(s).

Please note that certain classes of firearms are restricted; every would-be gun owner MUST give a good reason for owning any firearms. This of course only applies to law abiding citizens; criminals have no restrictions placed on them at all.

Also note that Muzzle-Loading firearms other than pistols require a B Class licence, the same as centerfire firearms.

Shotguns require an A Class licence. But some Muzzle-Loading guns are also shotguns, but they are on a B Class licence.

Firearms made before 1901 are classed as antiques, & providing modern ammunition can not be purchased over the counter for these guns. These antiques require no licence, permit to purchase, or registration. It is interesting to note here, that modern made Muzzle-Loading firearms are no different in design or operation than an antique Muzzle-Loading gun, yet the modern replica requires a licence, registration & permit to purchase.

Let me give you a quick run down on how a Flintlock Muzzle-Loading gun works. Gunpowder must be loaded loose, down the barrel from the muzzle using a powder measure. The shotgun is then loaded with two wads down the barrel, then loose shot also with a measure, then another wad is loaded on top. Each wad load must be pushed down the barrel with a ramrod or wiping stick. Then you have to prime the pan with more loose gunpowder. Ignition is supplied by a piece of rock, yes rock as in stone. This rock is held in the jaws of a cock. When the trigger is pulled, the cock flies forward & the piece of rock strikes the hammer. This causes sparks to fall into the priming pan igniting the priming powder which flashes through a vent into the breech of the barrel & ignites the main charge in the barrel & the gun fires.
Now I am sure, even if you are a firearms novice, that you will see that not just anyone will know how to make this gun work properly. It is NOT the choice of criminals, it is NOT the choice of people wishing to commit suicide, & it is NOT the choice of mentally ill people wishing to slaughter their family or anyone else. This gun is the choice of Living Historians, Historical Reenactors & Muzzle-Loading enthusiast, & yet the same restrictions are placed on this primitive tool as is placed on centerfire breech loading cartridge firing firearms.

PROPOSALS:

1.        I propose that the registering of all firearms be abolished. I see no reason for registration. It does allow the government to keep track of who owns what so they can be confiscated at any time, but this does not add to the well being of the general public.

2.       I propose that the Permit To Purchase be abolished. This too serves no purpose that I can see, other than to make it harder for a law abiding citizens to acquire a firearm.

3.       I propose that permit to purchase & registration be abolished for the ownership of all reproduction Flintlock, Wheellock, Matchlock, & Tinderlock firearms, including; pistols, shotguns, rifles, fusils, muskets, swivel guns, wall guns, palisade guns, & blunderbuss. Compared to the array of modern firearms available on the black market, this type of gun poses no threat to the general public what so ever, & to suggest that it does is simply not sensible or practicle & shows total ignorance on the part of the law makers.
4. I propose that all muzzle-loading guns other than percussion locks & cap & ball revolvers require only a Category A licence.
5. I propose that percussion lock muzzle-loading guns & cap & ball revolvers require only a Category B licence.
6. I propose that the requirement for all muzzle-loading pistols & cap & ball revolvers be for Hunting  & that pistol club membership not be mandatory. These primitive arms have been used for a back-up for hunting for centuries, as the muzzle-loading long arm is usually only a single shot. Carrying a muzzle-loading pistol is a humane way of dispatching game if it is wounded, & carrying one when hunting wild boar is a safety measure for the hunter.

If anyone has any views or suggestions relating to this article & firearms legislation in Australia, I would welcome their comments.

Keith.

The Matchlock is very similar to the Tinderlock. It requires a burning match cord for ignition.

The Wheellock requires a piece of Pyrite rock for ignition and a key to wind the lock up.

The flintlock requires a piece of flint rock to supply ignition.

The swivel gun must be mounted on a post and can not be used freehand. Ignition is supplied by a burning match cord secured in a linstock.