Possession of a Firearm

In Australia, the Commonwealth and all State and Territory Governments have agreed that the possession of firearms is not a right but a conditional privilege, and that personal protection is not a genuine reason to possess a firearm (and it is, in fact, in the interest of public safety that strict gun control be enforced) [Firearms Act 2015 ss 3(1) and 15(3)].

If you have a firearm without a firearms license you may be guilty of an offence. Likewise, if you have a firearms license but you use or store your firearm in a way that is not authorised by the firearms licence you may be guilty of an offence [Firearms Act 2015 s 9].

The maximum penalties for possessing a firearm without a licence or not adhering to a firearms licence are as follows:

• if the firearm is a prescribed firearm—$50,000 or 10 years’ imprisonment;
• if the firearm is a category C, D or H firearm—$35,000 or 7 years’ imprisonment;
• if the firearm is any other category of firearm—$20,000 or 4 years’ imprisonment.

The maximum penalties for an aggravated offence are as follows:

• if the firearm is a prescribed firearm—$75,000 or 15 years’ imprisonment;
• if the firearm is a category C, D or H firearm—$50,000 or 10 years’ imprisonment;
• if the firearm is any other category of firearm—$35,000 or 7 years’ imprisonment.

An offence will be aggravated if it is proved that:

• the firearm to which the offence relates was
  • loaded (irrespective of whether the you knew that it was loaded); or
  • in the immediate vicinity of ammunition suitable for use in the firearm; or
• you concealed the firearm near or on your person; or
• you committed the offence in connection with illicit drugs.

The code of practice for security, storage and transport of firearms, ammunition is set out in Schedule 1 of the Firearms Regulations 2017 (SA). A person who contravenes the code of practice is guilty of an offence [Firearms Act 2015 (SA) s 35)].

Maximum penalty:

• for a category A offence—$75,000 or 15 years’ imprisonment;
• for a category B offence—$50,000 or 10 years’ imprisonment;
• for a category C offence—$20,000 or 4 years’ imprisonment;
• for a category D offence—$10,000 or 2 years’ imprisonment;
• for a category E offence—$5,000 or 12 months imprisonment;
• for a category F offence—$2,500.

Expiation fees:

• for a category E offence declared under a code of practice to be expiable—$315;
• for a category F offence declared under a code of practice to be expiable—$210.

Generally, if you have been arrested, you are not under any legal obligation to answer police questions and you should ask to speak with a lawyer before answering any questions. However, if requested, you must give them your full name and address (and it is an offence to give a false name or address).

In relation to firearms, if requested, you must also tel them your date of birth, whether you are the owner of the firearm, or the name of the owner of the firearm (if known). You must also answer any questions relating to the firearm (including its whereabouts) and any other people who have, or have had, possession of the firearm.

If you do not provide the above information you may be guilty of an offence. The maximum penalty for which is $20,000 or 4 years’ imprisonment [Firearms Act 2015 (SA) s 55].

The categories and types of firearms are set out under section 5 of the Firearms Act 2015 (SA).

Category A firearms consisting of the following:

• air guns
• paint-ball firearms
• rim fire rifles (not being self-loading rifles)
• shotguns (not being self-loading or pump action shotguns)
• break action combination shotguns and rim fire rifles

Category B firearms consisting of the following:

• muzzle loading firearms (not being handguns)
• revolving chamber rifles
• centre fire rifles (not being self-loading centre fire rifles)
• multiple barrel centre fire rifles that are not designed to hold additional rounds in a magazine
• break action combination shotguns and rifles (not being break action combination shotguns and rim fire rifles)
• all other firearms (not being prescribed firearms, handguns,
• self-loading firearms or pump action shotguns) that are not category A firearms

Category C firearms consisting of the following:

• self-loading rim fire rifles having a magazine capacity of 10 rounds or less
• self-loading shotguns having a magazine capacity of 5 rounds or less
• pump action shotguns having a magazine capacity of 5 rounds or less

Category D firearms consisting of the following:

• self-loading rim fire rifles having a magazine capacity of more than 10 rounds
• self-loading centre fire rifles
• self-loading shotguns having a magazine capacity of more than 5 rounds
• pump action shotguns having a magazine capacity of more than 5 rounds

Category H firearms consisting of handguns (not being prescribed firearms).

Prescribed firearms consisting of the following:

• automatic firearms
• mortars, bazookas, rocket propelled grenades and similar
• military firearms designed to fire explosive projectiles
• firearms designed to fire projectiles containing tear gas or any other lachrymatory substance or any nauseating substance or poison (but not firearms designed to tranquillise, immobilise or administer vaccines or other medicines to animals)
• firearms designed to have the appearance of other objects
• any other firearms declared by the regulations to be prescribed firearms.

It may be a defence to the charge if you:

• Are an exempt/authorised person
• Did not have possession; and
• Had an honest and reasonable belief about the firearm being on you premises.

If you are charged with illegal possession of a firearm, the prosecution must prove that you:

• had possession of a firearm; and
• at the time of possession, you did not have a firearms licence authorising possession of that firearm.

If you are charged with breaching the condition of your firearms licence, the prosecution must prove that you:

• had possession of a firearm that is not authorised by your licence; or
• used a firearm for a purpose that is not authorised by your licence.

The court that will hear the matter will depend on type of firearm and the penalty associated with it.

If the firearm is prescribed, which carries with it a 10 year sentence then the matter will be heard in the District Court of South Australia. If however the firearm offence carries with it 2 years imprisonment then the matter will be dealt with in the Magistrates Court of South Australia.