South Australian Current Acts South Australian Current ActsSchedule 2—Exempt persons—prohibited weapons
Part
1—Preliminary
In this Schedule, unless the contrary intention appears—
number , in relation to the identification of a weapon, means an identifying
mark comprised of either numbers or letters or a combination of both numbers
and letters;
official ceremony means a ceremony conducted—
(a) by
the Crown in right of the State or the Commonwealth; or
(b) by
or under the auspices of—
(i)
the Government of the State or the Commonwealth; or
(ii)
South Australia Police; or
(iii)
the armed forces;
prescribed masonic organisation means—
(a) the
Antient, Free And Accepted Masons Of South Australia and the Northern
Territory Incorporated; or
(b) a
Lodge or Order of Freemasons warranted and recognised by the association
referred to in paragraph (a); or
(c) the
Lodge of Freemasons named "The Duke of Leinster Lodge";
prescribed services organisation means—
(a) The
Returned and Services League of Australia (S.A. Branch) Incorporated or
any of its sub-branches; or
(b) an
association or other body (whether or not incorporated) that is a member of
the Consultative Council of Ex-Service Organisations (S.A.).
(1) If—
(a) in
Part 2, a person is expressed to be an exempt person for the purposes of
1 or more offences against section 21F(1) of this Act in relation to
a particular class of prohibited weapon; and
(b) the
weapon is, in accordance with the regulations, included in 1 or more of the
other classes of prohibited weapon,
the person is an exempt person in relation to that weapon for the purposes of
the offences even though he or she is not an exempt person in relation to a
prohibited weapon of the other class or classes referred to in
paragraph (b).
(2) The exemptions in
Part 2 (other than under clauses 3, 4, 5 and 12) do not apply to a person
who has, whether before or after the commencement of this Schedule, been found
guilty by a court of—
(a) an
offence involving violence for which the maximum term of imprisonment is
5 years or more; or
(b) an
equivalent offence involving violence under the law of another State or
Territory of the Commonwealth or of another country.
(3) If a person is an
exempt person in relation to a weapon under a clause in Part 2 (other than
under clauses 3, 4, 5 or 12) and a court finds the person guilty of using
the weapon to threaten or injure another person, he or she ceases to be an
exempt person in relation to that or any other weapon under that clause and
can never again become an exempt person under that clause.
(4) A person who,
prior to the commencement of this Schedule, ceased, in accordance with
regulation 7(4) of the Summary Offences (Dangerous Articles and
Prohibited Weapons) Regulations 2000 , to be an exempt person under a
particular regulation is taken not to be exempt under any corresponding
provision of Part 2.
Part 2—Exemptions
A police officer is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act if
the officer uses or has possession of a prohibited weapon for the purpose or
in the course of his or her duties as a police officer.
A person is an exempt person for the purposes of an offence of possession of a
prohibited weapon under section 21F(1)(b) of this Act if the person has
possession of a prohibited weapon for the purpose of delivering it as soon as
reasonably practicable to a police officer.
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act if
the person uses or has possession of a prohibited weapon for the purpose, and
in the course, of dealing with an emergency (whether as a volunteer or in the
course of paid employment), provided that the person does not use the weapon
to threaten or injure another person.
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act if
the person uses or has possession of a prohibited weapon in the course of
conducting his or her business or in the course of his or her employment,
provided that—
(a) the
use or possession of the weapon is reasonably required for that purpose; and
(b) the
use or possession of the weapon is not in the course or for the purpose of
manufacturing, selling, distributing, supplying or otherwise dealing in the
weapon.
A person is an exempt person for the purposes of an offence of possession of a
prohibited weapon under section 21F(1)(b) of this Act in relation to the
possession of a knife (other than a butterfly knife, flick knife, push knife
or trench knife) or dagger if—
(a) the
person is a member of a religious group; and
(b) the
person possesses, wears or carries the knife or dagger for the purpose of
complying with the requirements of that religion.
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act if
the person uses or has possession of a prohibited weapon in the course of
providing a lawful and recognised form of entertainment of other persons that
reasonably requires the use or possession of the weapon.
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act if
the person uses or has possession of a prohibited weapon in the course of
participating in a lawful and recognised form of recreation or sport that
reasonably requires the use or possession of the weapon.
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act if
the person uses or has possession of a prohibited weapon in the course of an
official ceremony that reasonably requires the use or possession of the
weapon.
A person is an exempt person for the purposes of an offence of possession of a
prohibited weapon under section 21F(1)(b) of this Act if the person has
possession of a prohibited weapon for the purposes of a museum or art gallery.
(1) A person is an
exempt person for the purposes of an offence of possession of a
prohibited weapon under section 21F(1)(b) of this Act if the person has
possession of a prohibited weapon in the course of his or her duties—
(a) as
the executor, administrator or other representative of—
(i)
the estate of a deceased person or a bankrupt; or
(ii)
a person who is legally incompetent; or
(b) as
receiver or liquidator of a body corporate.
(2) A person is an
exempt person for the purposes of an offence of sale or supply of a
prohibited weapon under section 21F(1)(a) of this Act, if the person
sells or supplies a prohibited weapon in the course of his or her
duties—
(a) as
the executor, administrator or other representative of—
(i)
the estate of a deceased person or a bankrupt; or
(ii)
a person who is legally incompetent; or
(b) as
receiver or liquidator of a body corporate,
provided that the sale or supply is to a person who is entitled to possession
of the weapon under section 21F of this Act.
A person is an exempt person for the purposes of an offence of possession of a
prohibited weapon under section 21F(1)(b) of this Act if the person has
possession of a prohibited weapon that is of sentimental value to him or her
as an heirloom and that was previously in the possession of 1 or more of
his or her relatives provided that the person keeps the weapon in a safe and
secure manner at his or her place of residence and does not remove it except
for the purpose of—
(a)
display by a person who is entitled under section 21F of this Act to have
possession of it for that purpose; or
(b)
repair or restoration by a person who carries on a business that includes the
repair or restoration of articles of that kind; or
(c)
valuation by a person who carries on a business that includes the valuing of
articles of that kind; or
(d)
secure storage by a person who carries on the business of storing valuable
property on behalf of other persons; or
(e)
permanently transferring possession of the weapon to another person (being a
person who is entitled under section 21F of this Act to have possession
of it).
(1) A person is an
exempt person for the purposes of an offence of possession of a prohibited
weapon under section 21F(1)(b) of this Act if the person has possession
of a prohibited weapon as part of a collection of weapons or other artefacts
or memorabilia (comprised of at least 3 weapons, whether or not
prohibited weapons) that has a particular theme, or that the person maintains
for its historical interest or as an investment, provided that—
(a) the
person keeps the following records in a legible manner in a bound book at his
or her place of residence for a period that expires at the end of 5 years
after he or she ceases to be in possession of the collection:
(i)
a record describing and identifying the weapon;
(ii)
a record of the date of each occasion on which he or she
obtains or re-obtains possession of the weapon and the identity and address of
the person from whom he or she obtains or re-obtains possession;
(iii)
the date of each occasion on which he or she parts with
possession of the weapon to another person and the identity and address of
that person; and
(b) the
person keeps the weapon in a safe and secure manner at his or her place of
residence and does not remove it except for the purpose of—
(i)
display by a person who is entitled under
section 21F of this Act to have possession of it for that purpose; or
(ii)
repair or restoration by a person who carries on a
business that includes the repair or restoration of articles of that kind; or
(iii)
valuation by a person who carries on a business that
includes the valuing of articles of that kind; or
(iv)
repair, restoration or valuation—
(A) by another collector who is, under this
clause, an exempt person in relation to a prohibited weapon; or
(B) by a person who is, under
clause 17, an exempt person in relation to a prohibited weapon; or
(v)
secure storage by a person who carries on the business of
storing valuable property on behalf of other persons; or
(vi)
storage by another collector who is, under this clause,
an exempt person in relation to a prohibited weapon; or
(vii)
returning it to—
(A) another collector who is, under this
clause, an exempt person in relation to a prohibited weapon; or
(B) a prescribed services organisation that
is, under clause 15, an exempt person in relation to a prohibited weapon,
on whose behalf he or she has repaired, restored, valued or stored the weapon;
or
(viii)
taking it to a meeting but only if the majority of
persons at the meeting are collectors who are, under this clause, exempt
persons in relation to prohibited weapons; or
(ix)
its sale or supply to another person in accordance with
subclause (2); and
(c) the
person permits a police officer at any reasonable time to enter his or her
residential premises to inspect the collection and the records kept under
paragraph (a).
(2) A person who is an
exempt person under subclause (1) will also be an exempt person for the
purposes of an offence of sale or supply of such a weapon under
section 21F(1)(a) of this Act if the person sells or supplies the weapon
in the normal course of maintaining the collection, to a person who is
entitled to possession of a prohibited weapon under section 21F of this
Act.
(3) A reference in
subclause (1) to the place of residence of a person will be taken, in the
case of a body corporate, to be a reference to the registered office of the
body corporate.
15—Prescribed services organisations (RSL etc)
(1) A prescribed
services organisation is an exempt person for the purposes of an offence of
possession of a prohibited weapon under section 21F(1)(b) of this Act if
it has possession of a prohibited weapon of a kind acquired or used by one of
its members (or by a person that it represents) while on active war service as
a member of Australia's armed forces, provided that—
(a) the
organisation keeps the following records in a legible manner in a bound book
at its premises for a period that expires at the end of 5 years after it
last ceased to be in possession of the weapon:
(i)
a record describing and identifying the weapon;
(ii)
a record of the date of each occasion on which the
organisation obtains or re-obtains possession of the weapon and the identity
and address of the person from whom the organisation obtains or re-obtains
possession;
(iii)
the date of each occasion on which the organisation parts
with possession of the weapon to another person and the identity and address
of that person; and
(b) the
organisation keeps the weapon in a safe and secure manner at its premises and
does not remove the weapon except for the purpose of—
(i)
display by a person who is entitled under
section 21F of this Act to have possession of it for that purpose; or
(ii)
repair or restoration by a person who carries on a
business that includes the repair or restoration of articles of that kind; or
(iii)
valuation by a person who carries on a business that
includes the valuing of articles of that kind; or
(iv)
repair, restoration or valuation—
(A) by a collector who is, under
clause 14, an exempt person in relation to a prohibited weapon; or
(B) by a person who is, under
clause 17, an exempt person in relation to a prohibited weapon; or
(v)
secure storage by a person who carries on the business of
storing valuable property on behalf of other persons; or
(vi)
its sale or supply to another person in accordance with
subclause (2); and
(c) the
organisation permits a police officer at any reasonable time to enter the
premises of the organisation to inspect the weapon and the records kept under
paragraph (a).
(2) A person who is an
exempt person in relation to a prohibited weapon under subclause (1) will
also be an exempt person for the purposes of an offence of sale or supply of
such a weapon under section 21F(1)(a) of this Act if the person sells or
supplies the weapon in the normal course of maintaining the collection, to a
person who is entitled to possession of a prohibited weapon under
section 21F of this Act.
16—Possession by collector on behalf of prescribed services organisation
or another collector
A person who is, under clause 14, an exempt person for the purposes of an
offence of possession of a prohibited weapon under section 21F(1)(b) of
this Act (the first collector ) will also be an exempt person for the purposes
of such an offence in relation to a prohibited weapon that is owned by another
collector or a prescribed services organisation if—
(a)
possession of the weapon by the first collector is solely for the purpose of
repairing, restoring, valuing or storing it on behalf of the prescribed
services organisation or the other collector; and
(b) the
other collector is, under clause 14, or the prescribed services
organisation is, under clause 15, an exempt person in relation to the
weapon; and
(c)
while the weapon is in the possession of the first collector, the first
collector complies with the conditions in clause 14(1)(a) to (c) in
relation to the weapon as though it were part of the first collector's
collection.
A person is an exempt person for the purposes of an offence of manufacture,
sale, distribution, supply of, or other dealing in, possession or use of a
prohibited weapon under section 21F(1) of this Act if—
(i)
has not been found guilty by a court of an offence
involving the use, or the threat of using, a weapon; and
(ii)
has notified the Commissioner in writing that he or she
is, or intends, manufacturing, selling, distributing, supplying or otherwise
dealing in prohibited weapons and of—
(A) the person's full name; and
(B) the address of the place or places at
which the person is, or intends, conducting those activities; and
(C) the person's residential address; and
(D) in the case of a body
corporate—the full name and residential address of each of its
directors; and
(iii)
the possession and use is, or is to be, only to the
extent reasonably necessary for the purpose of manufacturing, selling,
distributing, supplying or otherwise dealing in the weapons (as the case
requires); and
(b) the
weapons are kept in a safe and secure manner; and
(c) in
the case of the sale, distribution or supply of, or other dealing in, a
prohibited weapon—the weapon is not sold, distributed or supplied to, or
dealt in with, a person who is under the age of 18 years; and
(d) a
prohibited weapon is not marketed (within the meaning of section 21D of
this Act) by the person in a way that—
(i)
indicates, or suggests, that the weapon is
suitable for combat; or
(ii)
is otherwise likely to stimulate or encourage
violent behaviour involving the use of the knife as a weapon; and
(e) in
the case of the manufacture of prohibited weapons, each weapon manufactured is
marked with an identifying brand and number in a manner that ensures that the
brand and number cannot be removed easily and will not wear off in the normal
course of use of the weapon; and
(f) the
person keeps the following records in a legible manner (and in a form that is
reasonably accessible to a police officer inspecting the records under
paragraph (i)) at his or her business premises for a period of at least
5 years:
(i)
a description of each prohibited weapon that is, or has
been, in his or her possession;
(ii)
the identifying brand and number (if any) that is marked
on each of those weapons;
(iii)
the name and address of the person to whom he or she
sells, distributes, supplies, or with whom he or she otherwise deals in, each
of those weapons;
(iv)
the date of each transaction; and
(g) the
person permits a police officer at any reasonable time to enter his or her
premises or a vehicle in which prohibited weapons are carried to inspect the
premises or vehicle, the weapons on the premises or in the vehicle or records
kept by the exempt person under paragraph (f); and
(h) the
person notifies the Commissioner in writing of a change in any of the
information referred to in paragraph (a)(i) and (ii) within
7 days after the change occurs.
18—Possession by manufacturer etc on behalf of prescribed services
organisation or another collector
A person who is, under clause 17, an exempt person for the purposes of an
offence of possession of a prohibited weapon under section 21F(1)(b) of
this Act (the manufacturer ) will also be an exempt person for the purposes of
such an offence in relation to a prohibited weapon that is owned by a
collector or a prescribed services organisation if—
(a)
possession of the weapon by the manufacturer is solely for the purpose of
repairing or restoring the weapon or valuing or storing it on behalf of the
collector or prescribed services organisation; and
(b) the
collector is, under clause 14, or the prescribed services organisation
is, under clause 15, an exempt person in relation to the weapon.
19—Prescribed weapons—security agents
(1) A person is an
exempt person for the purposes of an offence of use or possession of a
prohibited weapon under section 21F(1)(b) of this Act in relation to the
use or possession of a weapon of a kind prescribed for the purposes of this
clause if—
(a) the
person is—
(i)
authorised by a licence granted under the Security and
Investigation Industry Act 1995 to carry on the business of protecting or
guarding property as a security agent; and
(ii)
the holder of a firearms licence under the Firearms
Act 2015 authorising the possession and use of a handgun in the course of
carrying on the business of guarding property; and
(b) the
weapon is kept in a safe and secure manner at the person's business premises
when not being used; and
(c) the
weapon is marked with a number for identification and with the name of the
person in a manner that ensures that the number and name cannot be removed
easily and will not wear off in the normal course of use of the weapon; and
(d) the
weapon is not issued to another person unless the other person is—
(i)
an employee in the business; and
(ii)
an exempt person under subclause (2); and
(e) the
person keeps the following records in a legible manner (and in a form that is
reasonably accessible to a police officer inspecting the records under
paragraph (f)) at his or her business premises for a period of at least
5 years:
(i)
the make and model of the weapon and the identifying
number marked on the weapon under paragraph (c);
(ii)
the date and time of every issue of the weapon to an
employee, the identification number of the weapon, the identity of the
employee to whom the weapon is issued and the date and time when the weapon is
returned by the employee;
(iii)
the date or dates (if any) on which a person to whom the
weapon has been issued uses the weapon (as opposed to carrying the weapon) in
the course of his or her duties and the reason for that use of the weapon; and
(f) the
person permits a police officer at any reasonable time to enter his or her
business premises to inspect the weapon, the manner in which the weapon is
kept and the records kept under paragraph (e); and
(g) in
the case of a natural person—
(i)
the person has completed a course of instruction approved
by the Commissioner in the proper use of such weapons and has been awarded a
certificate of competency by the person conducting the course; and
(ii)
the person does not carry the weapon while engaged in
crowd control.
(2) A person is an
exempt person for the purposes of an offence of use or possession of a
prohibited weapon under section 21F(1)(b) of this Act in relation to the
use or possession of a weapon of a kind prescribed for the purposes of this
clause if the person—
(a) is
employed to protect or guard property by a person who carries on the business
of protecting or guarding property; and
(b) is
authorised by a licence granted under the Security and Investigation Industry
Act 1995 to protect or guard property as a security agent; and
(c) is
the holder of a firearms licence under the Firearms Act 2015 authorising
the possession and use of a handgun in the course of employment by a person
who carries on the business of guarding property; and
(d)
reasonably requires the possession of the weapon for the purposes of carrying
out the duties of his or her employment; and
(e) has
completed a course of instruction approved by the Commissioner of Police in
the proper use of such weapons and has been awarded a certificate of
competency by the person conducting the course; and
(f) has
not been found guilty by a court of an offence involving the illegal
possession or use of such a weapon, a firearm or any other weapon; and
(g) does
not carry the weapon while engaged in crowd control; and
(h) as
soon as reasonably practicable after using the weapon in the course of his or
her duties, provides his or her employer with a written report setting out the
date on which, and the circumstances in which, he or she used the weapon.
20—Prescribed weapons—members of Scottish associations
A person is an exempt person for the purposes of an offence of possession of a
prohibited weapon under section 21F(1)(b) of this Act in relation to the
possession of a weapon of a kind prescribed for the purposes of this clause
if—
(a)
—
(i)
the person is a member of an incorporated association
that has as its sole or a principal purpose the fostering and preservation of
Scottish culture or the playing or singing of Scottish music; or
(ii)
the person is a member of a society, body or other group
(whether or not incorporated) that is affiliated with an incorporated
association and both the society, body or group and the incorporated
association with which it is affiliated have as their sole or a principal
purpose the fostering and preservation of Scottish culture or the playing or
singing of Scottish music; and
(b) the
person has possession of all of the clothes and other accoutrements
traditionally worn with the weapon (or, if the weapon is traditionally worn
with different clothes on different occasions, he or she has possession of the
clothes and accoutrements for at least 1 of those occasions); and
(c) the
person has possession of the weapon solely for the purpose of—
(i)
wearing it with that clothing; and
(ii)
if the weapon is of a kind prescribed for the purposes of
this subparagraph—using it in traditional Scottish ceremonies; and
(d) if
the weapon is of a kind prescribed for the purposes of
paragraph (c)(ii)—the person only uses the weapon for the purposes
of traditional Scottish ceremonies; and
(e) the
person keeps the weapon in a safe and secure manner at his or her place of
residence and does not remove it except—
(i)
for the purpose of wearing it with that clothing; or
(ii)
for the purpose of lending it to a person who is entitled
under section 21F of this Act to have possession of it; or
(iii)
for the purpose of permanently transferring possession of
the weapon to another person (being a person who is entitled under
section 21F of this Act to have possession of it).
21—Prescribed weapons—lodges of Freemasons etc
A prescribed masonic organisation is an exempt person for the purposes of an
offence of use or possession of a prohibited weapon under
section 21F(1)(b) of this Act in relation to the use or possession of a
weapon of a kind prescribed for the purposes of this clause if the
weapon—
(a) is
only used at the premises of the organisation for traditional ceremonial
purposes; and
(b) when
not in use, is kept at the premises of the organisation, in a safe and secure
manner; and
(c) is
not removed from the premises except for the purpose of—
(i)
repair or restoration by a person who carries on a
business that includes the repair or restoration of articles of that kind; or
(ii)
valuation by a person who carries on a business that
includes valuing articles of that kind; or
(iii)
permanently transferring possession of the weapon to
another person (being a person who is entitled under section 21F of this
Act to have possession of it).
22—Prescribed weapons—astronomical purposes
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act in
relation to the use or possession of a weapon of a kind prescribed for the
purposes of this clause if—
(a) the
person is using or has possession of the weapon for the purpose or in the
course of participating in astronomy; and
(b) the
person—
(A) the Astronomical Society of South
Australia Incorporated; or
(B) the Mars Society Australia
Incorporated; or
(ii)
participates in astronomy under the supervision of a
member of a body referred to in subparagraph (i); or
(iii)
participates in astronomy at an observatory; or
(iv)
participates in astronomy as part of a course of study
conducted by an educational institution.
23—Prescribed weapons—food preparation
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act in
relation to the use or possession of a weapon of a kind prescribed for the
purposes of this clause if the use or possession is solely for the preparation
of food or drink for human consumption.
24—Prescribed weapons—NSW fisheries officers
A person is an exempt person for the purposes of an offence of use or
possession of a prohibited weapon under section 21F(1)(b) of this Act in
relation to a baton designed for use as a weapon that can be extended in
length by gravity or centrifugal force or by a release button or other device
if the person is a fisheries officer (within the meaning of the
Fisheries Management Act 1994 of New South Wales) who uses or possesses
the weapon in the course of official duties or functions under that Act.