One of our legal minds has been looking
at the ‘appearance’ provisions of the Victorian Firearms Act 1996.
The offending provisions are found in sections 3A and 3B of the Act
which give the Chief Commissioner broad powers to either temporarily or
permanently recategorise Cat A or B firearms on the basis of appearance.
In fact, if you read what he has to say carefully, you’ll see it’s
worse than that. The Chief Commissioner can recategorise firearms for reasons
which go beyond appearance – or for no reason at all.
In his words, sections 3A and 3B are ‘really good examples’ of
delegated legislative authority gone wrong, and their continued operation
presents issues surrounding natural justice and procedural fairness for licence
holders. Here are some key points regarding their operation:
Section 3A
Section 3A provides the Chief Commissioner the power to temporarily
declare a firearm to be Category D or E for a period not exceeding 12 months.
There is no necessary link to a firearm’s appearance, operation or other
characteristics.
The only criteria for a temporary declaration is that it be validly
declared by the Chief Commissioner in an instrument. The Act provides no
clarification of what type of ‘instrument’ is required or its form; however, in
practice the declarations have been published in the Victorian Government Gazette
in a specific format.
The Chief Commissioner does not need the Minister’s express approval
to exercise this power; however, it must be exercised in ‘consultation’ with
the Minister.
The Chief Commissioner has a positive obligation to publish the
declaration ‘as soon as practicable after the declaration is made’; however,
the declaration is in effect immediately—prior to publication, and prior to the
public being able to see how the law has changed.
Section 3A(3) states the declaration remains in place unless revoked
by the Chief Commissioner or their expiration at 12 months. Neither in the Act
nor in the second reading speech for the Firearms Amendment Act
2007 (VIC) (which inserted s 3A) is the process for parliamentary
scrutiny of a declaration under s 3A outlined. The takeaway is the Chief
Commissioner’s power is not expressly limited by either the Act or the Minister
and it should be.
Section 3A(6) gives the Chief Commissioner powers to use his
declaration to override regulations made by the Minister under the powers
conferred at s 191 of the Act. This is remarkable because it means an unelected
statutory officer has the power to override a Minister accountable to the
Victorian Parliament, even if the Minister drafted regulations permitting a
specific type of firearm affected by the Chief Commissioner’s declaration. This
is an area that could be explored and challenged.
The defence provided by s 3A(7) is a defence rather than a bar on
prosecution. In practical terms this means police may (unwisely) charge a
person with an offence and use the process as punishment.
Finally, the administrative review options available to affected
shooters are very narrow. The Chief Commissioner’s decision would be difficult
to challenge in a merits based review as his power is broad and can be
arbitrarily exercised against any type of firearm without the
requirement for further justification. As long as the procedure is followed
there is little that can be viably challenged in either a tribunal or court.
Section 3B
Section 3B is a good example of where the police have pursued a long term goal
in terms of restricting access to firearms for Victorian shooters.
Section 3A was inserted into the Act in 2007, only for Victoria
Police to seek out permanent powers with s 3B in 2008. Section 3B differs from
s 3A in its permanency, technicality, and the legal restrictions placed on the
Chief Commissioner when making a declaration.
Section 3B gives the Chief Commissioner the power to permanently
recategorise firearms if he is ‘satisfied’ it is ‘designed or adapted for
military purposes, or substantially duplicates a firearm of that type in
design, function and appearance’.
‘Satisfied’ opens the Chief Commissioner’s decision up to review in a
way s 3A lacks. It gives him a positive duty to consider information and his
decision. ‘Designed or adapted for military purposes’ is the key term and it
has not yet been satisfactorily clarified by a court. The latter terms
‘substantially duplicates’ and ‘design, function and appearance’ hinge on the
earlier ‘military purposes’ definition.
Section 3B(1) is really an just an appearance based law that has
technical issues from a drafting perspective but gives the police the powers
they want—to permanently recategorise any firearm they do not want Victorian
shooters to access.
In terms of its operation, the Firearms Act 1996 (Vic) is
structured on the objective criteria of a firearm’s characteristics based on
its calibre, cyclical operation, or ammunition capacity. A firearm is
categorised based on whether it is rimfire or centrefire, bolt action or
semi-automatic, or holds a particular number of rounds, etc. This is the basis
for ‘categories’ of firearms and the licences that permit shooters to hold and
use such firearms.
Section 3B(1), however, provides the Chief Commissioner the power to
alter the law via delegated legislative authority using the ‘military purposes’
basis and a declaration. This ‘military purposes’ basis is at face
value objective: an exhaustive list of firearms ‘military firearms’ could
theoretically be produced. However, the terms ‘designed or adapted for
military purposes’, ‘substantially duplicates’ and ‘design,
function and appearance’ create a subjective test based on whether the
Chief Commissioner is ‘satisfied’ a firearm can fall into this category. There
is no necessary link to its calibre, cyclical operation or even appearance.
The Chief Commissioner has a duty to choose which category ‘most
closely resembles’ the applicable firearm when recategorising through
declarations. This does not mean the category need be appropriate, only the
closest.
Section 3B does not have the same issue with ex post facto laws
as s 3A. A declaration only comes into effect the day it is published or at a
latter point listed in the declaration. This removes some of the compliance
difficulties for those holding the applicable firearm.
Appealing a decision to reclassify
The criteria listed above provide an affected shooter the ability to
challenge the Chief Commissioner’s decision and declaration under s 3B through
administrative review in a way that s 3A lacks. The exercise of power under s
3B is vulnerable if the Chief Commissioner doesn’t arrive at a decision with a
process and records of that process. In light of the recent examples of
Victoria Police’s response to requests for information surrounding their
decisions (including the ongoing CFCV VCAT proceedings), an affected party
could face a substantial challenge in obtaining the relevant documents.
If an affected party challenged a declaration under s 3B and sought
specific guidance from a court or tribunal on the interpretation of ‘designed
or adapted for military purposes’, ‘substantially duplicates’ and ‘design,
function and appearance’, the Chief Commissioner’s powers would probably be
narrowed, but not to the extent it would deprived him of broad power to
recategorise firearms under s 3B.
The Chief Commissioner would almost certainly retain the power to
recategorise both milsurp rifles (including antique examples) and the range of
new sporting rifles produced with picatinny rails, pistol grips or other
features disliked by some.
A law which is bad in principle
Licencing laws based on subjective criteria are bad in principle and
worse in operation. They lack the certainty required for shooters to know the
boundaries of the law lay, and in this example provide Victoria Police with
inappropriate powers.
Section 3B is so broad in its application it may permanently capture
almost any firearm available in Victoria. From fighter pilots using shotguns to
shoot clays to understand leading targets, to bolt action 22s being used by
others for survival training, the Chief Commissioner can call upon obscure
examples of military use to enliven his power.
To date the Chief Commissioner has refrained from recategorising, for
example, Snider-Enfield .577 rifles as Category E firearms; however, this only
indicates that Victoria Police have focussed on the appearance of firearms as
justification for use of these powers.
They should be repealed
For Victorian shooters if the issues regarding the operation of
sections 3A and 3B are narrowed, it’s about two things.
First, s 3A gives the Chief Commissioner power that in practice can
be exercised arbitrarily and with little opportunity for legal review or
democratic scrutiny.
Section 3A should be repealed outright.
Secondly, s 3B is centred on the Chief Commissioner’s use of an
unreasonably broad criteria that is subjectively interpreted and applied.
Unlike the Firearms Act 1996, this power stands in contrast to the
objective criteria of categorising a firearm’s characteristics based on its
calibre, cyclical operation, or ammunition capacity.
It too should be repealed.
If a power is necessary to recategorise particular firearms then it
should only be conferred upon the Minister and subject to parliamentary
scrutiny or disallowance.
Most Victorian shooters will agree that appearance or other
subjective criteria should not be used to de facto ban firearms that are
otherwise identical to those available under Category A and Category B.
