Posted 19/10/2016 by Cat Barker
In light of renewed debate over regulation of the Adler A-110 lever-action shotgun, this FlagPost provides a brief overview of the current regulation of lever-action shotguns and recent developments.
The Customs (Prohibited Imports) Regulations 1956 currently prohibit the import of any:
- lever-action shotgun with a magazine capacity of more than five rounds or
- firearm magazine with a capacity of more than five rounds for a lever-action shotgun (even if not attached to a shotgun).
The prohibition is not specific to the Adler A-110 lever-action shotgun, and only affects imports of that model with a magazine capacity of more than five rounds (there is also a model with a capacity of five rounds).
Firearms regulation in Australia and the current review
The Commonwealth and state and territory governments share responsibility for firearm regulation. The current framework reflects two key national agreements reached by all Australian governments: the 1996 National Firearms Agreement (NFA) and the 2002 National agreement on handguns. The NFA put different types of firearms into categories A (least restricted), B, C, and D (most restricted) and H (handguns) to facilitate consistent regulation across all jurisdictions.
The joint Commonwealth-NSW report on the Martin Place Siege recommended that the Commonwealth and state and territory governments ‘should simplify the regulation of the legal firearms market through an update of the technical elements of the National Firearms Agreement’. That report was considered at the May 2015 meeting of the Law, Crime and Community Safety Council and a review of the NFA commenced shortly thereafter. That review remains underway. A media release issued by the Minister for Justice on 29 July 2016 indicates that this is due to disagreement across Australian jurisdictions: ‘The review of the NFA is due to be considered by Commonwealth, state and territory Ministers later this year. I call on my state and territory colleagues to work collaboratively to reach a national consensus’.
Categorisation of lever-action shotguns under the NFA
The NFA does not include specific mention of lever-action shotguns. Single and double barrel shotguns fall under Category A, break-action shotguns/rifle combinations under Category B, semi-automatic and pump-action shotguns with a magazine capacity of up to five rounds under Category C (prohibited except for occupational purposes) and self-loading shotguns and pump-action shotguns with a capacity of more than five rounds under Category D (prohibited except for official purposes).
Lever-action shotguns have generally been treated as Category A or B firearms. However, the Adler A-110 has been criticised by some for enabling rapid-fire operation and for being too similar in its ease of use to a pump-action shotgun, which falls under the more restrictive categories C or D. A 2015 episode of the ABC’s 7.30 program outlines both sides of this debate.
Firearm imports
The Commonwealth has responsibility for regulating imports (and exports) of firearms. To import a firearm, a person must have a firearms licence (obtained through the relevant state/territory registry) and permission to import the firearm. Requirements for the import of firearms and firearm-related articles, parts and accessories are set out in the form of different legislative tests in Schedule 6 to the Customs (Prohibited Imports) Regulations 1956 (the Principal Regulations). The Regulations below amend the Principal Regulations.
Initial ban—effective 7 August 2015
The Customs (Prohibited Imports) Amendment (Firearms and Firearm Magazines) Regulation 2015 commenced on 7 August 2015. The ban was not specific to the Adler A-110 lever-action shotgun. Rather, it prohibited the import of any lever-action shotgun with a magazine capacity of more than five rounds (and firearm magazines with a capacity of more than five rounds for lever-action shotguns, even if not attached to a shotgun).
On 10 August 2015, Senators Leyonhjelm and Muir gave notice that they would move a disallowance motion.
Sunset provision of 12 months
On 13 August, it was reported that Senator Leyonhjelm had negotiated a deal with the Government that would ensure the importation ban would automatically lapse in August 2016. This was confirmed by Senator Leyonhjelm in a statement made in the Senate on 20 August 2015.
In a media release issued on 28 August 2015, the Minister for Justice referred to the review of the NFA and stated:
To allow the Government to consult with relevant stakeholders and appropriately consider the classification of this firearm, the Government has committed to apply a sunset clause of 12 months to the temporary ban. The ban has not been lifted; it will stay in place until the review of the National Firearms Agreement is considered by COAG which is long before the sunset clause expires.
The Customs (Prohibited Imports) Amendment (Sunsetting of Firearms and Firearm Magazines Provisions) Regulation 2015 (Sunset Regulation) was made on 3 September 2015. This regulation was made to commence on 7 August 2016 and with the effect of reversing the initial ban as of that date.
Reinstatement of the ban—effective 7 August 2016
Before the Sunset Regulation took effect, a further regulation was made so that as soon as the Sunset Regulation commenced it would be superseded by a further regulation reinstating the ban initially put in place by the Customs (Prohibited Imports) Amendment (Firearms and Firearm Magazines) Regulation 2015.
The Customs (Prohibited Imports) Amendment (Shotguns and Shotgun Magazines) Regulation 2016 (2016 Regulation) was made on 28 July 2016. It commenced immediately after the Sunset Regulation on 7 August 2016 and like the initial ban, it prohibits the import of any lever-action shotgun with a magazine capacity of more than five rounds (and firearm magazines with a capacity of more than five rounds for lever-action shotguns, even if not attached to a shotgun). The Explanatory Statement is available on the Federal Register of Legislation. It explains that as with the initial ban, this one was put in place to prohibit imports of high-capacity lever-action shotguns pending agreement by all Australian jurisdictions to a revised NFA.
The new ban is indefinite in duration, so removing it would require a successful motion to disallow the regulation within the time allowed or the making of a further regulation amending the Principal Regulations.
What next?
Having been presented to both Houses of Parliament on 30 August 2016 (the first sitting day after it was made), the 2016 Regulation is currently subject to disallowance in the House of Representatives (three sitting days remaining as at 19 October 2016) and the Senate (five sitting days remaining).
Senator Leyonhjelm indicated on 30 August 2016 that he would move to disallow the 2016 regulation; however, on 12 October 2016, notice of his motion was postponed until 21 November 2016, which is the last day such a motion could be passed by the Senate under the current sitting program.
The Prime Minister stated on 18 October 2016: ‘It is not a temporary ban. It is permanent. It is set in stone. It can be amended, but it is there—like any import ban’, and later the same day: ‘There is discussion among the ministers about the possible reclassification of these lever-action guns, and we certainly encourage them to reach a consensus. Pending that, the import ban stays in place’. Statements made by the Leader and Deputy Leader of the Opposition the same day make it clear that they would not support disallowance of the 2016 Regulation.
Accordingly, the most likely outcome appears to be that the import ban will remain in place until changes to the NFA are agreed and put into place. The NSW Government is reportedly pushing for rapid-fire lever-action shotguns to be brought under Category B (which would permit importation for specific purposes), while gun control advocates continue to argue it should fall under the more restrictive categories C or D.