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.