Hi all,
Sorry about the long posts but I’m after the opinions of those who have been interested in or might be interested in some of the new pump action rifles out there. I’ve outlaid my thoughts and I’d like some feedback from anyone who’s interested.
I’ve recently had a few discussions with dealers and watched a few threads only to come to the conclusion there’s nothing stopping us having these except for the respective state registries either abusing their powers or acting unlawfully.
I’m one of the many Australians interested in the Troy PARs
http://troydefense.com/pumpactionrifle/. There’s already a range of pump action rifles and straight pulls on the market that are similar, but for some reason the Troy PARs seem to have raised the ire of the registries.
I gave one store a call and was bluntly told that I was the third person to call that day about the Troy PAR and there was no chance in hell it would ever be imported. They said it was because the state registries would never issue a PTA because it’s too scary looking and too close to an AR15.
Well I’m not one to take that sort of answer as gospel so I did a bit of research and found that the law suggests something rather different to the stores Firearms’ opinion.
The process to import a firearm is pretty simple as far as I’ve worked out:
• Apply to the your registry for a PTA and an import permit (B709A for Cat B in this case) to satisfy the
Customs (Prohibited Imports) Regulations 1956 (Vic)
• Have your dealer/appropriate person/etc from the US (or elsewhere) dispatch your firearm to Australia via a commercial carrier
• Firearm arrives in Australia and is inspected and released by customs to a licenced firearms dealer via a commercial courier
• Dealer registers the firearm and releases it to the licenced firearm owner.
Where the issue appears to be is the state registries just outright refuse to issue a PTA or an import permit if they don’t like the firearm in question, regardless of whether it’s normally permitted. To me this is a blatant abuse of their powers and probably unlawful in many instances. The issue is few are willing to challenge them for fear of being put on one of their infamous lists and subjected to targeting by police.
I’m a Victorian so I’ll use the Commonwealth law overlaid with the
Firearms Act 1996 (Vic) to outline what I think the case is legally.
PTA –Here in Victoria the “[t]he Chief Commissioner may issue a permit” to a licence holder under the power conferred by s 103 of the Firearms Act (the Act). The word “may” is important as it does not say “must” or “should” etc. This discretion, however, is limited by s 104 which outlines the Chief Commissioner’s general power to refuse to issue a PTA. I’ll break s 104 down: The CC must not issue a PTA if:
• You or a related person are a prohibited person [s 104(1)(a)],
• You are not a fit and proper person [s 104(1)(b)(i)],
• You have not met the storage requirements [s 104(1)(b)(ii)],
• The acquisition of the firearm is not against the public interest [s 104(1)(b)(iii)],
• The genuine reason you hold your licence is no longer applicable ([s 104(1)(d)(i)],
• You have not demonstrated a genuine need for a Cat B firearm [s 104(1)(d)(ii)].
Additionally s 104(2) expands on what the CC must consider when determining whether you have a “genuine need” is for a Cat B firearm:
• Whether a Cat A firearm would satisfy the need
• The number, category and type of firearms you already possess, and
• Any other prescribed matter.
There is no general power for the CC to refuse to issue you a permit simply because he dislikes you, your type of firearm or maybe your pet dog. He’s only permitted to refuse a permit for the reasons outlined in s 104.
Pretty straightforward? Well if you have a genuine need, a good safe, a current licence and aren’t a prohibited person you would expect a PTA to be issued. But…the issue lies with s 104(1)(b)(iii) and the public interest test. What is the public interest test the CC must use? Well the Act doesn’t list what a public interest test is. The public interest test is one of the most often referenced yet least defined or understood tests in administrative law. So let’s consider this with a Troy PAR in .223.
The Troy PAR is a pump action rifle. It fires from a 10 round magazine (satisfying s 1(8)(a) of sch 2) that is identical to that found on say the Remington 7615 or many other .223 rifles. .223 is a very common centrefire calibre. Pump action centrefire rifles are legal under Category B and there are many others firearms with an identical function and similar appearance already registered to licenced firearm owners. The design of the rifle also prevents its conversion to a semi-automatic firearm. The only real difference is its appearance.
The product of this is that if you’ve satisfied all requirements of ss 103 and 104 and the firearm is in a category you have the correct licence for the Chief Commissioner can only rely on the public interest test to refuse the permit. Given a PAR in .223 is specifically permitted under the Act, he can only rely on subjective reasons regarding its appearance, something that would be unlikely to survive any form of scrutiny in a court or tribunal, and therefore their policy of refusing PTAs is probably unlawful.
Re-categorising firearmsThere’s another trap that might be sprung upon us. The Chief Commissioner has the power to either temporarily or permanently re-categorise a firearm to Cat D, E or F in consultation with the minister under s 3A of the Act. His power to do so is limited to one 12 month declaration, after which a permanent declaration under s 3B must be sought for the firearm, type of firearm or category of firearm. This allows the CC to re-categorise a firearm to a category you don’t have the correct licence for and legitimately refuse the PTA. Theoretically the CC possess this power with respect to ANY firearm, but if he exercised this power and re-categorised .177 air rifles to Cat E for a year it would constitute a gross abuse of power.
Section 3B permits the CC to permanently declare what would otherwise be a Cat A, B, or C firearm to be re-categorised to Cat D or E. However, his power to do so is limited by the requirement at s 3B(1) that he be satisfied that it is “designed or adapted for military purposes, or substantially duplicates a firearm of that type in design, function or appearance”.
To date Victoria Police have re-categorised six firearms. The most recent declaration (2014) saw two semi-automatic shotguns and a semi-automatic .22LR re-categorised to Cat D. The three previous declarations in 2009 saw the centrefire bolt action H&K R8, the straight pull Olympic Arms Match E2 MK2 Rifle, and the DPMS Panther Pump Action Rifle effectively banned for most licenced firearms owners. What’s really concerning here is that their re-categorisation is not based on a concern these firearms could be easily converted from say Cat B to Cat C or D, but that they didn’t like their appearance so chose to broadly interpret “designed or adapted for military purposes, or substantially duplicates a firearm of that type in design, function or appearance”.
What constitutes military purposes? What constitutes design, function or appearance? If you choose to broadly interpret these terms the text of the Firearms Act 1996 provides no temporal restriction on “military purposes”, meaning firearms used by any military at any period in time could apparently be
de facto banned for sporting shooters. Watch out muzzle loaders, a Cat D re-categorisation might you’re your way because of Waterloo.
Similarly, “function” is just as ambiguous. Militaries have used and continue to use just about every type of firearm in one form or another for all sorts of purposes. A broad interpretation of s 3B therefore means .22LRs used by cadets decades ago gives Victoria the police the authority to re-categorise them to Cat E if they please.
But most frustrating is the inclusion of “appearance”. It is the most subjective given the expansion of firearms design over the past decade, and the fear of picatinny rails and black paint the anti-gun movement have spread. Victoria Police are relying on what amounts to a superficial policy based on subjective dislike of a firearm’s appearance. It’s also another example of Victoria Police broadly interpreting sections of the
Firearms Act 1996 (Vic) to operate outside the Act’s intent, something that constitutes an abuse of power at the very least.
Import permit – The import permit process seems to be more straight forward that PTAs or re-categorisation. If the firearm in question is fits within the category the licenced firearm owner is permitted to possess, and they have either been issued a PTA or can compel the registry to issue a PTA, then nowhere in the Act is a general discretion to refuse to issue the permit. If they do refuse then an appeal may be made to the Firearms Appeal Committee to seek to compel the Chief Commissioner to issue the permit. If the Firearms Appeal Committee makes a decision to deny the permit then an application can be made to VCAT to have the matter reviewed per s 182(1) of the Act. If there is no legal basis on which to refuse a permit then the decision maker must issue it. It’s as simple as that.
Thoughts? And does anyone have any experiences they can share?