FIREARMS AMENDMENT (PAINTBALL) BILL 2007 Explanatory Statement

2007

LEGISLATIVE ASSEMBLY OF THE

NORTHERN TERRITORY OF AUSTRALIA

MINISTER FOR POLICE, FIRE AND EMERGENCY SERVICES

FIREARMS AMENDMENT (PAINTBALL) BILL 2007

SERIAL NO. 102

States that the Act will come into operation on a date fixed by the Administrator in the Gazette.

Amends or inserts various relevant definitions under sections 3(1) and 3(3A) of the Act.

Proposed section 9(7) provides that an application for a firearms dealer licence or a paintball operator licence must specify the name and address of the close associates of the applicant, including the nature of the person’s association with the applicant. This provision was formerly in section 16A(1). A close associate is defined in section 3(3A) of the Act.

Proposed section 9(8) describes that only a body corporate can apply for a paintball operator licence.

Proposed section 9(9) requires an applicant for a paintball operator licence to describe the proposed business and specify the names and addresses of the person who will be principally responsible for the control and management of the business. The applicant must also specify the names and addresses of the applicant’s prospective employees and provide satisfactory evidence the applicant has public liability insurance at the prescribed amount.

Amends sections 10(3), 10(3)(a) to (fa), 10(4), 10(6), 10(7) and 10(8A) and inserts a new 10(6A).

Section 10(3) is amended by replacing the opening words to make it clear that for the purposes of an application for a paintball operator licence it is the nominated representative who must comply with the elements of the provision.

Sections 10(3)(a) to (fa) are amended by inserting the word “or” after each sub-section.

Section 10(4) is amended by including the representative as a person who must personally establish continuous and responsible control of the paintball firearms.

Section 10(6) is amended to include a paintball operator licence. This is necessary because the entity of a body corporate is unable to complete a course.

Section 10(6A) is inserted into the Act. Section 10(6A), provides that section 10(3)(d), (that the applicant “has completed an approved firearms training and safety course”) does not apply to an application for a paintball operator licence. This requirement has been inserted into proposed section 10AD (Restrictions on grant of paintball operator licence) under Clause 7 below.

Section 10(7), has been amended by inserting a paintball operator licence in the provision.

Section 10(8A) is amended by including a representative as a person who the Commissioner may have regard to criminal intelligence reports or information for refusing to grant a paintball operator licence.

Inserts section 10AD into the Act. Section 10AD prohibits the Commissioner from granting a paintball operator licence unless he is satisfied:

(a) that each proposed close associate is a fit and proper person to be a close associate;
(b) the applicant is able to meet the storage and safety requirements under the Act; and
(c) the premises are approved under section 49A of the Act. Section 49A is inserted under Clause 16 below to include approvals under a law of the Territory, such as planning approval for the use of the premises.
Clause 8 Amendment of section 14 (Period of licence)

Inserts sections 14(1)(h) and (i) into the Act. Section 14(1)(h) provides that a paintball operator licence remains in force for a period of 1 year, whilst section 14(1)(i) spells out that an employee licence remains in force for a period of 1 year or such shorter period as specified in the licence.

Inserts new Division 14 – “Licences for paintball” into the Act comprising proposed sections 30D to 30G inclusive.

Proposed section 30D provides that a paintball operator licence authorises the holder of the licence to possess and use paintball firearms and pellets for the purposes of carrying on the business of paintball at the approved paintball range. The approved paintball range is specified in the licence.

Proposed section 30E provides that the holder of a paintball employee licence is authorised to possess and use paintball firearms and pellets in the performance of their duties for the approved paintball operator specified in the licence, but only at the approved paintball range.

Proposed section 30F immediately cancels the employee’s licence upon the employee ceasing to be employed by the paintball operator.

Proposed 30G sets out the kinds of information the Commissioner may disclose to a paintball operator about a paintball employee or prospective paintball employee.

Proposed section 30G(1), empowers the Commissioner to disclose information about an employee, or prospective employee, to a relevant person. This provision overcomes the limitations of the Information Act on the disclosure of a person’s personal information.

Proposed section 30G(2), restricts the sort of information able to be disclosed about an employee, or prospective employee. The information is limited to whether:

(a) the employee’s licence, permit or certificate of registration (for a firearm) has been suspended or revoked within the previous 5 year period;
(b) an employee or prospective employee’s application for a licence, permit or certificate of registration (for a firearm) has been refused within the preceding 5 year period; or
(c) the operator is prohibited from employing the employee. Refer to proposed section 60F in Clause 18 for a definition of “prohibited person”.

Inserts section 31(1)(fd) into the Act. This provision gives the Commissioner the power to grant a permit authorising an approved paintball operator to carry on the business of paintball, but only at the temporary paintball range specified in the permit.

Amends section 32 by setting out the kinds of information which must be included in an application for a paintball operator permit.

Proposed section 32(2) requires the applicant to give the Commissioner such further information as requested.

(a) the proposed business at the range, including the period for which the permit is required;
(b) the names and addresses of the representative and the prospective employees; and
(c) the names and addresses of each close associate of the applicant and the nature of the association of the close associates to the applicant.
Clause 12 Amendment of section 33 (General restrictions on granting permits)

Section 33(5), provides that this section does not apply to an application for a paintball operator permit.

Inserts section 35D into the Act. Section 35D prohibits the Commissioner from issuing a paintball operator permit if the applicant would not be entitled to be granted a paintball operator licence.

Clause 14 Amendment of section 40 (Revocation of licence, permit or registration)

Inserts the term “or” after sections 40(3)(a) to (e), (f)(iii), (g)(iii) and (h)(ii).

Inserts section 40(3)(l) into the Act. Section 40(3)(l), gives the Commissioner the power to revoke a paintball operator’s licence or permit if the holder of the operator licence or permit is no longer entitled to use the approved paintball range. Or secondly, if the operator no longer carries on the business as a paintball operator at the approved paintball range.

Clause 15 Amendment of section 42 (Suspension by police officer or Commissioner)

Section 42(3) gives a member of the Police Force the power to enter, search and seize a firearm if a person fails to comply with a notice under section 42 to suspend the person’s licence, permit or certificate of registration.

Section 42(4) enables the member to use such force as is necessary to enter, search and seize the firearm or firearms, including using any assistance the member thinks necessary.

Section 49A sets out the criteria whereby applications for approval for a paintball range may be made. The application is to be made on an approved form. Following the lodgment of an application the Commissioner must consider and give written reasons for his decision as soon as is practicable.

Proposed section 49A(4) provides that the Commissioner must refuse an application unless he is satisfied the applicant has obtained all the necessary approvals to entitle the applicant to use the proposed premises as a paintball range, that the premises are suitable to be used as a paintball range and that the use of paintball firearms does not present a danger to the public in the vicinity of the range.

Section 49A(5) provides the relevant conditions for determining whether the proposed range is suitable for use as a paintball range. If a building is constructed, or is to be constructed, on the proposed range the Commissioner must consider the design and construction of the building.

Section 49A(6) provides that an approval may be made subject to such reasonable conditions the Commissioner considers appropriate. Proposed regulation 39D (Clause 30 below) describes the core specific conditions on the grant of a licence or permit.

Inserts and amends section 58 of the Act. Section 58(1A) is inserted. Section 58(1A) provides that it is not an offence for a person to possess and use a paintball firearm under section 58(1) if the person (the customer) is playing paintball at an approved paintball range and the person is entitled to play paintball.

Section 58(5) is amended by inserting sections 58(5)(ab) and (ac), which provides that in addition to the persons described in section 58(5), the following persons are unable to possess or use a firearm under the Act:

(a) a person who has been found guilty of an offence of violence (refer to Regulation 1B of the Firearms Regulations) within the previous 5 years; and
(b) a person who is subject to an order to keep the peace either in the Territory or elsewhere and the order is still in force.
Clause 18 Amendment of section 59 (Firearms to be registered)

Inserts section 59(2) into the Act. Section 59(2) excludes the possession or use of an unregistered paintball firearm by a person (a customer) if the person used the paintball firearm at an approved paintball range and the person is entitled to play paintball.

Inserts new paintball related offences into the Act comprising sections 60B to 60L inclusive.

Proposed section 60B defines the term “prohibited person” for the purposes of this Division. A prohibited person means a person who:

(a) is prohibited from applying for a licence or permit under this Act or under a law of another State or Territory;
(b) is not entitled to be granted any licence under the Act, save and except merely because the person is not a resident, or about to become a resident, of the Territory.
Proposed section 60C provides that a paintball operator must not carry on the business as a paintball operator otherwise than in accordance with the conditions of the licence or permit. The penalty for the offence is 400 penalty units or imprisonment for 2 years.

Proposed section 60D(1) requires the holder of a licence or permit to notify the Commissioner of any changes to the close associates of the business within 7 days of the change. The penalty for the offence is 200 penalty units or imprisonment for 12 months. Section 60D(2) gives the Commissioner the power to require the holder of a paintball operator licence or permit, to provide the Commissioner, within the period specified in the notice, information relating to the representative, the close associates or the employees. It is an offence not to comply with the notice, unless the person has a reasonable excuse for failing to comply. The penalty for the offence is 200 penalty units or imprisonment for 12 months.

Section 60D(4) creates the offence for a holder of a paintball operator licence or permit for failing to notify the Commissioner that an employee has ceased employment. The holder must notify the Commissioner within 7 days of the employee’s termination of employment. The penalty for the offence is 200 penalty units or imprisonment for 12 months.

Proposed section 60E provides for the keeping of various records and returns offences. Section 60E(1) requires a holder of an operator licence or permit to keep all completed player declaration forms for a period of 2 years, including all other records in compliance with the conditions of their licence or permit. The penalty for failing to retain the records is 20 penalty units.

Proposed section 60E(2) gives a member of the Police Force, or other authorised person, the power to request the holder of a paintball operator licence or permit, the representative or an employee to produce the completed player declaration forms or other records required to be kept under the Act. It is an offence to fail to comply with the request, unless the person has a reasonable excuse. The penalty is 20 penalty units. The member or authorised person may examine or take copies or extracts from the records.

Proposed section 60E(5) obliges the holder of a paintball licence or permit to give the Commissioner an annual report in an approved form within 3 months at the end of each financial year. The penalty for the offence is 100 penalty units or imprisonment for 6 months.

Proposed section 60F makes it an offence for the holder of a paintball operator licence or permit to employ a prohibited person in the business or allow a prohibited person to act as agent or participate in any management capacity in the business. The holder and the prohibited person are each guilty of the offence. The penalty for the offence is 400 penalty units or imprisonment for 2 years however, it is a defence if the holder did not know, and could not reasonably have known the person was a prohibited person. A prohibited person is defined in proposed section 60B above.

Proposed section 60G gives a member of the Police Force, or other authorised person, the power to request the holder of a paintball operator licence or permit, the representative or an employee to produce a paintball firearm in the holder’s possession. It is an offence to fail to comply with the request. The penalty for the offence is 50 penalty units. The member or authorised person may inspect and test a firearm.

Proposed section 60H prohibits the holder of a paintball operator licence or permit to allow a person to possess or use a paintball firearm otherwise than at the approved paintball range. The penalty for the offence is 400 penalty units or imprisonment for 2 years.

Proposed section 60J makes it an offence for the holder of a paintball operator licence to knowingly permit a person under the age of 18 years to possess or use a paintball firearm at the approved paintball range. The penalty for the offence is 400 penalty units or imprisonment for 2 years.

Proposed section 60K prohibits the holder of a paintball operator licence or permit from allowing a person before starting to play to possess or use a paintball firearm until after the person (the customer) has completed a paintball player declaration and provides the declaration and photographic identification to an employee of the operator. The penalty for the offence is 50 penalty units.

Before allowing the person to start to play, the employee must inspect the person’s identification and endorse the player declaration that the employee is satisfied the person appears to be the person shown in the identification. The penalty for the offence is 100 penalty units or imprisonment for 6 months.

Proposed section 60L creates the offence for the holder of a paintball operator licence or permit to allow a prohibited person to play paintball at the approved range. The penalty for the offence is 400 penalty units or imprisonment for 2 years.

It is a defence if the operator proves it did not know and could not reasonably have been expected to know the person was a prohibited person.

Section 60L(3), provides that a prohibited person must not play paintball. The penalty for the offence is 50 penalty units

Inserts section 69(2) into the Act. Section 69(2) provides that it is not an offence for a person (the customer) to possess paintball pellets for playing paintball if the person possesses the paintball pellets at an approved paintball range and the person is entitled to play paintball.

Amends and inserts section 89 of the Act. Section 89(1) is repealed and replaced by making it an offence for a person to make a false or misleading statement in a material particular in an official document. The term “official document” is defined in section 89(2).

Clause 22 Amendment of section 91A (Notification of change of representative of licence holder)

Replaces section 91A. Section 91A(1) provides that the section only applies to a person if the person ceases to be a representative for the holder of a firearms corporate licence, a firearms museum licence, a firearms club licence or a paintball operator licence or permit.

Section 91A(1A) makes it an offence for the holder of paintball operator licence or permit to fail to give written notice to the Commissioner when a representative ceases to be a representative for the holder of the licence or permit. Written notice must be given within 14 days of the event. The penalty for the offence is 100 penalty units or imprisonment for 6 months.

Section 106A(1) outlines the elements to establish a person’s state of mind for the purposes of criminal proceedings for an offence under the Act. For a representative, it must be shown that the person’s conduct was within the scope of the representative’s actual or apparent authority and that the representative held that state of mind. Conduct engaged in by the representative is also taken to have been engaged in by the person. However, no term of imprisonment can be ordered against a person if the person would not have been found guilty had sections 106(1) and (2) not been enacted.

Section 107 sets out what is meant by an offence committed by a body corporate under the Act.

Replaces section 111(1) of the Act. Section 111(1) provides that the Administrator may make regulations under the Act.

Section 114 requires the Commissioner to review the operation of the activity of paintball within 3 years after the commencement of the provisions. The Minister must table the report in the Legislative Assembly within 7 sitting days of receiving the report.

Item 12(c) of Schedule 1 to the Act is repealed and re-worded. Item 12(c) referred to a firearm capable of discharging an article known as “paint-ball” as a firearm which is a prohibited firearm.

Inserts the words “Paintball firearms” in Schedule 4 of the Act. Schedule 4 lists the Category C firearms for the purposes of the Act.

Provides a number of ancillary amendments to the Act as prescribed in the Schedule to the Bill.

Clause 30 Amendment of regulation 12 (Restrictions on granting licences for category C firearms).

Regulation 12(1)(a)(vii) is inserted to include a paintball operator or employee as a genuine reason for the grant of a Category C firearms licence.

Inserts a new Part 5A into the Firearms Regulations comprising regulations 39A to 39D inclusive.

Proposed regulation 39A prescribes a paintball firearm for the purposes of the Act.

Proposed regulation 39B prescribes paintball pellets for the purposes of the Act.

Proposed regulation 39C prescribes the amount of public liability insurance to be $10 million.

Proposed regulation 39D provides the core specific conditions on the grant of a paintball operator licence or permit.

Amends Schedule 4 of the Firearms Regulations by including a number of additional prescribed offences for the issue of infringement notices under the Act.

Northern Territory Explanatory Statements

FIREARMS AMENDMENT (PAINTBALL) BILL 2007