– which they base on ‘could’, ‘may’, ‘potential’ and ‘assumption’
The NSC wrote to eight jurisdictional regulators about the policy rationale underpinning our appearance laws and has received seven responses back. Of those seven:
- Two jurisdictions offered explanations of why they have the laws;
- One jurisdiction showed it doesn’t even understand what its own laws do;
- The other four did not address the question.
Collectively, the responses paint a picture of states and territories that reached policy positions without any form of analysis, which is a process that governments would normally reject.
Yet the laws are leading to adverse outcomes for the shooting industry for no apparent benefit– which is why they need to be removed.
The NSC will send the responses – warts and all – to the Federal Home Affairs Minister in an endeavour to show why she should lead a push to have the law removed from the National Firearms Agreement.
What are appearance laws?
WE ALL KNOW our jurisdictional regulators have an unhealthy love for ‘appearance’ laws.
The laws, which barely rate a mention in the National Firearms Agreement, enable our registries to move normally legal firearms (in category A or B) to category D – prohibiting them from use by the average shooter.
It means the gun you want to buy tomorrow, might not be legal tomorrow because of some cosmetic feature. Or it could apply to a gun you already own.
This is fraught with problems because in addition to banning a gun simply because of something so artificial, jurisdictions have no published guidelines – which mean decisions vary from jurisdiction to jurisdiction. That’s hardly a national agreement.
As many of you know, the NSC has been winning case after case fighting reclassification in our legal system because of this poor planning.
However it is a law that continues to cause problems, especially for importers and wholesalers, some of whom are teaming up with the NSC.
In February this year, the NSC wrote to police ministers in every state and territory, and the Federal Home Affairs minister simply asking what the policy justification for the law is.
We received seven responses in all. Here are what they said:
* Western Australia – the WA minister referred our correspondence to WA Police given the government was in ‘caretaker’ mode for the March state election. While this is true, the caretaker convention only exists to ensure that decisions are not made that bind the incoming government. It does not stop government from operating. As our enquiry was of a historical nature, the caretaker referral was not necessary. In other words, it was a cop-out to answering our question.
* South Australia – the response from SA states it does not have appearance-based firearms legislation, which is correct.
We knew this when we wrote the jurisdictions but decided to include SA just in case it was being contemplated. Suffice to say, there is no indication that SA is going down that path. Not yet anyway.
* Northern Territory – the minister’s response states what the law is and that it has been used twice in 23 years.
We know what the law is (it’s why we wrote to them) but wanted to know why the law is needed, which the response didn’t say.
* New South Wales – This was the first response that sought to ‘answer the question’. It says the law applies to firearms “for which the appearance may be additionally intimidating or threatening.”
One reading of this suggests that if Man Haron Monis – who used an illegal category C shotgun for the Lindt Café siege in Sydney – had instead used a gun reclassified to category D – then the police might have ‘taken that shot’ after all. We all know that is a nonsense but is how the response could be interpreted.
We appreciate that the response provided a policy basis (as requested), but the explanation is not supported by any examples or data – just a concern that something ‘may’ happen.
The predominant consideration in the Lindt Café siege needed to be the threat to the hostages, not whether the firearm looked like another one. It means that the appearance law should have no bearing on how first responders respond to an incident, and in fact relying on it could have led to an even more tragic outcome.
* Tasmania – Like WA, our correspondence to the police minister was referred to the police under the caretaker convention as the state has an election on 1 May. However like WA, our enquiry was of a historical nature, so we see this as another cop-out.
In any case Tasmania Police responded by saying the policy rationale was an “assumption that such firearms could cause significant public concern’:
* Queensland – this one’s a corker. This response is based on information from Queensland Police and states:
You read it right – according to the Queensland minister’s office, the law doesn’t affect category A or B firearms – only D and R!
We felt sorry for the author – the police ministers Chief of Staff – who had obviously been relying on advice provided to her, so we wrote back pointing out that she had been misled and invited her to provide a new response.
However nothing further has been received. Therefore, in the absence of any further information, the only conclusion we can reach is that Queensland shooters have a police minister’s office that isn’t across the firearms portfolio.
* Federal – the response states there is a ‘potential’ risk from reclassified firearms, but otherwise simply restates what the legislative arrangements are:
What matters to us here is that the federal government should be able to explain why it has appearance in the NFA that it is responsible for – but it cannot. The best it can come up with is something that is based on ‘potential‘, which is speculative at best.
Victoria did not respond, which we interpret as being on par with Queensland in not understanding the portfolio.
What good policy looks like
Laws should only exist where there are good policy reasons to do so. Good policy involves assessing the costs and benefits supporting the need for the policy position. For example, to save lives, stimulate economic growth or protect the community in some other way.
In the case of the appearance laws, most jurisdictions have no explanation for why it exists. No jurisdiction provided data, and no jurisdiction was able to quantify the benefit. One jurisdiction -Queensland – doesn’t even know what its own appearance laws do and Victoria is arguably the same.
The two states that offered explanations, based them on scenarios that ‘may’ or ‘could’ happen. The Tasmanian response was predicated on an ‘assumption‘, and the federal response on a ‘potential‘.
This, and the fact the laws have real costs with no stated benefit, is a serious departure from the government’s own requirements on regulatory practice.
So if you thought the basis of appearance laws was hollow, then you’re right. Given the negative impact this law has, and the probability of more legal challenges, it’s clear as to why this law needs to go.
We write to the Home Affairs Minister
The NSC has written to the Home Affairs Minister attaching all seven responses and requesting that the appearance laws be removed from the NFA, and for her to ask the states / territories to remove them from their statutes by a common date, to ensure consistency across the borders.
We understand your cynicism – but will let you know if anything comes of it.
Why not support our work? You can join the NSC simply by clicking here.