The legal view of our ‘appearance’ laws

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 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.

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.

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