The Weapons Prohibition Act 1998 (NSW) (the Act) is a crucial piece of legislation in New South Wales (NSW) aimed at controlling the possession and use of dangerous weapons to ensure public safety. It outlines various offences and penalties related to prohibited weapons, and understanding these provisions is essential for both firearm owners and the general public.

What Constitutes a Prohibited Weapon under the Weapons Prohibition Act 1998 (NSW)?

The Act defines a prohibited weapon as "anything described in Schedule 1." This schedule includes a wide array of items, categorized as:

Prohibited Firearms and Weapons

As mentioned earlier, firearms are a significant category of prohibited weapons. This includes not only firearms themselves but also specific components and accessories:

• Firearms: Automatic and self-loading rifles, machine guns, sub-machine guns, pistols, and firearms disguised as other objects.
• Firearm Parts: Silencers, detachable magazines with capacities exceeding legal limits, and devices designed to catch ejected cartridge cases.

Knives and Edged Weapons Prohibited under the Act

The Act prohibits various types of knives designed for offensive purposes, including:

• Flick knives: Knives with blades that open automatically.
• Ballistic knives: Knives that propel a blade.
• Sheath knives: Knives with sheaths that retract into the handle.
• Trench knives: Knives with knuckle dusters.
• Butterfly knives: Knives with handles that rotate around the blade.
• Star knives: Throwing knives with multiple blades.
• Zombie knives: Knives with serrated blades often marketed for violent purposes.

Other Prohibited Weapons in NSW

The Act's Schedule 1 also encompasses a wide range of other dangerous items:

• Explosives: Bombs, grenades, rockets, missiles, and similar devices.
• Offensive Weapons: Knuckle dusters, tasers, pepper spray, extendable batons, and other items designed to cause harm.
• Military-Style Weapons: Items intended for military use, such as flamethrowers.
• Miscellaneous Items: Crossbows, slingshots, blow-guns, whips with metal lashes, and laser pointers exceeding a certain power output.

It's important to note that even possession of digital blueprints for manufacturing prohibited weapons using 3D printers or milling machines is an offence under the Act.

Understanding what constitutes a prohibited weapon is crucial as the possession or use of any item listed in Schedule 1 without a valid permit is a criminal offence in NSW.

Offences Relating to the Unauthorised Possession or Use of Prohibited Weapons in NSW

The Weapons Prohibition Act 1998 (NSW) outlines various offences related to prohibited weapons, each carrying different penalties depending on the severity of the crime.

Possess or Use a Prohibited Weapon without Authorisation

Under Section 7(1) of the Act, it is an offence to possess or use a prohibited weapon unless the person is authorised by a permit or otherwise under the Act. This is the most common offence under the Act. The maximum penalty for this offence is 14 years imprisonment if dealt with in the District or Supreme Court. If the matter is heard in the Local Court, the maximum penalty is 2 years imprisonment and/or a $5,500 fine.

The offence also applies to permit holders who:

• Possess or use the weapon for a purpose other than the approved "genuine reason."
• Contravene any condition of their permit.

For example, if a person has a permit to possess a crossbow for target shooting at a registered archery club, but they are found with the crossbow in a public park, they would be committing an offence.

Other Offences under the Weapons Prohibition Act 1998

The Act also covers other offences related to prohibited weapons, including:

• Unauthorised sale or purchase of prohibited weapons: This includes advertising the sale of prohibited weapons. The maximum penalty for this offence is 10 years imprisonment for non-military style weapons and 14 years imprisonment for military-style weapons.
• Unauthorised manufacture of prohibited weapons: This involves creating or assembling prohibited weapons without a permit. The maximum penalty for this offence is 10 years imprisonment for non-military style weapons and 20 years imprisonment for military-style weapons.
• Possession of digital blueprints for manufacture: This relates to having digital designs for 3D printing or milling prohibited weapons. The maximum penalty for this offence is 14 years imprisonment.
• Breach of safekeeping requirements: Failing to store prohibited weapons securely as per the regulations. The maximum penalty for this offence is 50 penalty units ($5,500) or imprisonment for 2 years, or both.
• Offences against weapons prohibition orders: Violating the terms of a Weapons Prohibition Order (WPO), which prohibits a person from possessing any prohibited weapon. The maximum penalty for this offence is 10 years imprisonment.

The penalties for these offences vary, with some carrying maximum penalties of up to 14 years imprisonment. It's crucial to consult the Act or seek legal advice from a criminal defence lawyer for specific details on each offence.

Penalties for Unauthorised Possession or Use of a Prohibited Weapon under the Weapons Prohibition Act 1998 (NSW)

The Weapons Prohibition Act 1998 (NSW) outlines various penalties for offences involving the unauthorised possession or use of prohibited weapons, reflecting the serious nature of these crimes and their potential risk to public safety. The specific penalty imposed will depend on various factors, including the type of offence, the circumstances of the case, and the offender's criminal history.

Maximum Penalties for Possessing or Using a Prohibited Weapon without Authorisation

The Act stipulates a maximum penalty of 14 years imprisonment for the possession or use of a prohibited weapon without a valid permit. If the offence is heard in the Local Court, the maximum penalty is 2 years imprisonment and/or a $5,500 fine.

Types of Penalties for Offences under the Act

In addition to imprisonment, the court may impose other penalties for offences involving prohibited weapons, such as:

• Fines: The amount of the fine will depend on the severity of the offence and the offender's financial circumstances.
• Intensive Correction Orders (ICOs): These are an alternative to full-time imprisonment, where the offender is subject to strict supervision and conditions.
• Community Correction Orders (CCOs): These orders involve conditions such as community service, supervision, and rehabilitation programs.
• Conditional Release Orders (CROs): These orders require the offender to comply with certain conditions, such as good behaviour.

It's important to note that these are just some of the penalties that may be imposed for offences involving prohibited weapons in NSW. The specific penalty will depend on the individual case and the discretion of the court.

Defences to Offences Involving the Unauthorised Possession or Use of Prohibited Weapons in NSW

While the Weapons Prohibition Act 1998 (NSW) imposes strict regulations and penalties for offences involving prohibited weapons, there are legal defences available to individuals charged under the Act. These defences can lead to acquittal or a reduction in the severity of the penalty.

General Defences to Offences under the Act

Several general defences can be raised in cases involving offences under the Act, including:

• Duress: This defence applies when a person is coerced or threatened into committing an offence against their will. To succeed with this defence, the accused must prove that the threat was serious enough to justify their actions and that they had no reasonable alternative but to comply. For instance, if someone is forced at gunpoint to transport a prohibited weapon, they may be able to argue duress.
• Necessity: This defence is available when a person commits an offence to prevent a greater harm from occurring. The accused must demonstrate that they honestly believed on reasonable grounds that they were in imminent danger and that their actions were proportionate to the threat. An example could be using a prohibited weapon to fend off a wild animal attack in a remote area.
• Self-defence: If a person uses a prohibited weapon to defend themselves or another person from unlawful violence, they may be able to rely on self-defence. The force used in self-defence must be reasonable and proportionate to the threat faced. This defence is often complex and requires careful consideration of the specific circumstances.

Licence and Permit Defences to Offences Involving Prohibited Weapons

In some cases, having a valid licence or permit can be a defence to an offence involving a prohibited weapon. However, this defence is not absolute and depends on the specific circumstances of the case.

• Valid licence or permit: If a person possesses or uses a prohibited weapon with a valid permit, they may not be guilty of an offence. However, the permit must be for the specific type of weapon and the purpose for which it is being used. For example, a permit for a hunting rifle does not authorise the possession of a pistol.
• Genuine reason: Even with a permit, the person must have a genuine reason for possessing or using the prohibited weapon. The Act outlines several acceptable reasons, such as recreational or sporting purposes, historical re-enactments, or occupational requirements. If a person cannot demonstrate a genuine reason, their permit may not be a valid defence.
• Compliance with permit conditions: Permit holders must adhere to all conditions of their permit, such as storage requirements and restrictions on where the weapon can be used. Failure to comply with these conditions can negate the defence of having a permit. For instance, if a permit requires a firearm to be stored in a locked safe, leaving it unsecured would violate this condition.

It's important to note that the burden of proving these defences rests with the accused. They must provide sufficient evidence to raise reasonable doubt about their guilt. If you are facing charges under the Weapons Prohibition Act 1998 (NSW), it is crucial to seek legal advice from an experienced criminal defence lawyer who can assess your case and advise you on the most appropriate defence strategy.

Weapons Prohibition Orders (WPOs) under the Weapons Prohibition Act 1998 (NSW)

A Weapons Prohibition Order (WPO) is a legal order issued by the NSW Police Commissioner under Section 33 of the Weapons Prohibition Act 1998. It prohibits a person from possessing or using any prohibited weapon, as defined in Schedule 1 of the Act.

What is a Weapons Prohibition Order?

A WPO is a serious measure aimed at protecting public safety by restricting individuals deemed unfit to possess weapons from accessing them. The Commissioner of Police can issue a WPO if they believe it is in the public interest to do so, even without a prior conviction for a weapons offence.

Legal Implications of a Weapons Prohibition Order

If a person is subject to a WPO, they must not possess or use any prohibited weapon. This includes firearms, knives, explosives, and other dangerous items listed in Schedule 1 of the Act. Violating a WPO is a criminal offence, carrying a maximum penalty of 10 years imprisonment.

Additionally, a person under a WPO cannot sell or give a prohibited weapon to another person, knowing that the other person is also prohibited from possessing such weapons. This offence carries the same maximum penalty of 10 years imprisonment.

It's important to note that WPOs are not subject to merits review by the NSW Civil and Administrative Tribunal (NCAT). This means that while certain decisions related to firearm permits can be reviewed by NCAT, the issuance of a WPO itself cannot be challenged on its merits.

WPOs are a powerful tool for law enforcement to control the possession and use of prohibited weapons in NSW. They serve as a deterrent and a means to protect the community from potential harm. If you have been served with a WPO or have any questions about offences involving prohibited weapons, it is crucial to seek legal advice from an experienced criminal defence lawyer in Sydney.

Frequently Asked Questions