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SUMMARY OFFENCES ACT 1953 - SCHEDULE 2

SUMMARY OFFENCES ACT 1953 - SCHEDULE 2

Schedule 2—Exempt persons—prohibited weapons

Part 1—Preliminary

1—Interpretation

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.).

2—Application of Schedule

        (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

3—Police officers

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.

4—Delivery to police

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.

5—Emergencies

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.

6—Business 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 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.

7—Religious purposes

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.

8—Entertainment

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.

9—Sport and recreation

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.

10—Ceremonies

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.

11—Museums and art galleries

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.

12—Executors etc

        (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.

13—Heirlooms

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).

14—Collectors

        (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.

17—Manufacturers etc

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—

            (a)         the person—

                  (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—

                  (i)         is a member of—

                        (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.