Before beginning this paper I need to make the legal disclaimer, that I am not a lawyer and am not offering legal advice, only my political opinion as a citizen. For legal advice, consult a legal practitioner. There, that’s out of the way.
In this article I want to address an issue of concern by gun owners about the new firearm regulations, especially the new storage and security arrangements. The concern of many is that the tightening of the security arrangements is being done to squeeze gun ownership out of existence, rather than produce extra safety. The safe requirements are “over-the-top” and with CTTV and security firm arrangements, make homes into spaces more like prisons. Meanwhile, the streets of Australia are flooded with illegal guns in the hands of the gangs who are coming to rule the country:
http://www.theage.com.au/victoria/government-toughens-gun-laws-in-response-to-shootings-and-gangs-arms-race-20151027-gkk18x.html
http://www.theage.com.au/victoria/as-many-as-600000-illegal-guns-in-australia-20161020-gs74ay.html
http://www.heraldsun.com.au/news/victoria/automatic-pistols-from-southeast-asia-spotted-on-local-black-market/news-story/a1c16504680a792cfaf0566aecaa0e3e.
The recent gun amnesty did nothing to control the criminal world’s appetite for illegal guns, but did make a fine political point-scoring show of producing the illusion of “safety.”
The Firearms Regulations 2017
Here I will discuss the South Australian legislation, because the lawyer that I spoke to about this article was a South Australian, and referred me to a South Australian case, which he said was the main one on the issue of “residence.” One of the concerns is with section 11, subsection 2 dealing with the total number of firearms kept at a “premise”:
“11—Storage and security of firearms other than paint-ball firearms (1) This clause— (a) does not apply to, or in respect of, paint-ball firearms; and (b) does not apply to a licensed dealer who has possession of a firearm in the ordinary course of the business of dealing in firearms; and (c) does not apply to a person who has possession of a firearm in the ordinary course of the business of storing goods; and (d) does not derogate from, and applies subject to, the conditions of a firearms licence or permit held by a person. (2) For the purposes of this clause, the total number of firearms taken to be kept at particular premises will be determined by— (a) aggregating the total number of firearms (other than paint-ball firearms) kept at the premises on a permanent basis by a person who resides at the premises as the person’s principal place of residence, or occupies the premises as the person’s principal place of business (as the case requires); and (b) if more than 1 person resides at the premises as the person’s principal place of residence, or occupies the premises as the person’s principal place of business (as the case requires)—by aggregating the total number of firearms (other than paint-ball firearms) kept at the premises on a permanent basis by each such person.
(3) When a firearm in the possession of a person is not in use, the person— (a) must keep the firearm in a building or, subject to this clause, in an outbuilding, at premises that constitute the person’s principal place of residence or, if the firearm is in the possession of the person for the purposes of the person’s business, the person’s principal place of business; and (b) must secure the firearm at the premises as follows: (i) if the total number of firearms kept at the premises is less than 20 firearms and none of those firearms is a category C, D or H firearm— (A) where the firearm is kept under the main roof of the person’s residence or place of business—subject to subclause (6), by locking the firearm in a level 1 safe; or (B) where the firearm is not kept under the main roof of the person’s residence or place of business, or the firearm is kept in an outbuilding—subject to subclause (6), by locking the firearm in a level 2 safe; or (C) subject to subclauses (6) and (7)—by locking the firearm in a prescribed safe located in a building or outbuilding on the premises; or (D) in some other manner approved by the Registrar; (ii) if the total number of firearms kept at the premises is less than 20 firearms and at least 1 of those firearms is a category C, D, or H firearm (whether or not such a category of firearm is in possession of the person)— (A) subject to subclause (6), by locking the firearm in a level 2 safe located in a building or outbuilding on the premises; or (B) subject to subclauses (6) and (7), by locking the firearm— • in a level 1 safe located in a building or outbuilding on the premises; or • in a prescribed safe, located in a building or outbuilding on the premises; or (C) in some other manner approved by the Registrar; (iii) subject to subparagraph (vi), if the total number of firearms kept at the premises is 20 or more, but less than 35, firearms and not more than 29 of those firearms are category H firearms (whether or not the person possesses a category H firearm)— (A) in accordance with the requirements of storage level 1; or (B) in some other manner approved by the Registrar; (iv) subject to subparagraph (vi), if the total number of firearms kept at the premises is 35 or more, but less than 50, firearms and not more than 29 of those firearms are category H firearms (whether or not the person possesses a category H firearm)—“
The issue for many firearm owners, such as farmers with collections, and sons/daughters with collections, is that the figure of 19 guns can be readily exceeded. What needs to be made clear, in my opinion is that the number of guns is tied to the residence idea, not to the person. The legislation is aiming to keep the number of guns down in a “premise,” or impose high level security arrangements, as detailed elsewhere in the Regulations.
What is A Residence?
The concept of a “residence” was discussed in R v Jackson [2005]SASC 472, by the Supreme Court of South Australia. In summary, it was held that although the term “residence” was open textured, with multiple meanings, in general it referred to the place where a person performs the normal functions of living, such as eating, drinking and sleeping. The court recognised that there could be a number of such premises, including caravans, boats and other places. There was no fixed limit placed upon these, although there needed to be some degree of permanent imposed upon the place, but there was no fixed time for this. See [12] to [23].
It appears to be an open question as to whether one could have multiple residents. Many people have two houses, or reside for part of the week in one house, and part in another, such as older children shared between parents, or older adult children staying with parents. Their time may roughly be equally divided between two residences, if they say, spent one night a week at a friend’s house.
The issue arises that in principle if the figure of 19 firearms is reached because of adult children having guns in a premise, would it escape the Regulation’s restrictions, if the excessive number of guns was stored in another residence of the firearms owner, in accordance with the storage regulations of the Regulations?
I raise this issue for discussion by the firearms fraternity. My hypothesis is that storage in multiple residences, with the appropriate security level, may get over the limitation problems based upon one residence. Freely discuss.