Australia: Import Ban on Lever-Action Shotguns with Magazine Capacity over Five Rounds to Continue

(Nov. 28, 2016) On November 21, 2016, during a late-night session, the Australian Senate voted on a motion, put forward by Senator David Leyonhjelm, to disallow a regulation that would continue an existing ban on the importation of lever-action shotguns with a magazine capacity of more than five rounds.  (Commonwealth, Parliamentary Debates, Senate, 21 November 2016, 81-93, Parliament of Australia website.)  This ban particularly affects one brand of shotgun, the Adler A-110.

The Senate voted 45-7 against the motion, meaning that the importation ban will stand.  In a surprise move, several senators from the National Party, which is partnered with the Liberal Party to form the governing Coalition, either voted in favor of the motion (against the government’s position, or “crossing the floor”) or abstained from the vote.  (Katharine Murphy, Nationals Senators Break with Liberals and Vote to End Adler Shotgun Ban, GUARDIAN (Nov. 21, 2016); Michelle Grattan, Nationals Buck Government Line on Adler, CONVERSATION (Nov. 21, 2016); Latika Bourke, National Stage a Late-Night Revolt in the Senate over the Adler Shotgun Ban, SYDNEY MORNING HERALD (Nov. 22, 2016).)

Firearms Control Laws

The federal (Commonwealth) government and state and territory governments share responsibility for the regulation of firearms in Australia.  In 1996, the National Firearms Agreement (NFA) was agreed by all Australian governments.  (Australasian Police Ministers’ Council, Special Firearms Meeting (Canberra, May 10, 2996), Resolutions (NFA), Australian Attorney-General’s Department website.)  This agreement, along with a 2002 national agreement on handguns, provides the overarching framework for the regulatory approach.  (See generally Kelly Buchanan, Firearms-Control Legislation and Policy: Australia (Feb. 2013), Law Library of Congress website.)  The NFA includes standard licensing categorizations for types of firearms, which are reflected in state and territory legislation (NFA, supra, at 6-7):

  • Category A – air rifles, rimfire rifles (excluding self-loading), and single-and double-barrelled shotguns.
  • Category B – muzzle-loading firearms, single shot, double barrel and repeating center fire rifles, and break action shotguns/rifle combinations.
  • Category C (prohibited, except for occupational purposes) – semiautomatic rimfire rifles with a magazine capacity no greater than ten rounds; semiautomatic shotguns with a magazine capacity no greater than five rounds; pump action shotguns with a magazine capacity no greater than five rounds.
  • Category D (prohibited, except for official purposes) – self-loading center-fire rifles; self-loading shotguns with capacity of more than five rounds; self-loading shotguns and pump action shotguns with a capacity of more than five rounds; self-loading rim-fire rifles with a magazine capacity greater than ten rounds.
  • Category H – all handguns, including air pistols.

At the federal level, schedule 6 of the Customs (Prohibited Imports) Regulations 1956 (Cth) (Federal Register of Legislation website) contains various requirements for the import of firearms and firearm-related articles that are also based on the above categories.

Regulations and Debate on the Adler A-110

According to the Australian Parliamentary Library, “[l]ever-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.”  (Cat Barker, Regulation of Lever-Action Shotguns, FLAGPOST (Oct. 19, 2016), Parliament of Australia website.)  The firearm “allows up to eight shots to be fired in eight seconds.”  (Fergus Hunter, Why Was the Controversial Adler A110 Lever-Action Shotgun Banned?, SYDNEY MORNING HERALD (Oct. 19, 2016).)  The government decided to suspend imports of the firearm due to concerns that allowing its importation would undermine the NFA.  (Id.)

In August 2015, the Customs (Prohibited Imports) Amendment (Firearms and Firearm Magazines) Regulation 2015 (Federal Register of Legislation website) came into effect. (Press Release, Hon. Michael Keenan MP, Government Remains Tough on Gun Laws (Aug. 28, 2015).)  This Regulation prohibited the import of any lever-action shotgun with a magazine capacity of more than five rounds and firearm magazines for lever-action shotguns with a capacity of more than five rounds, even if not attached to a shotgun.  The importation ban was opposed by two senators, including Senator Leyonhjelm, who indicated they would put forward a disallowance motion against it.  Senator Leyonhjelm subsequently reached an agreement with the governing Coalition for the 2015 Regulation to automatically lapse in August 2016.  (Barker, supra; Jared Owens, David Leyonhjelm Trades Border Vote for Action on Gun, AUSTRALIAN (Aug. 12, 2015).)

At the end of July 2016, despite the agreement with Senator Leyonhjelm, the government made the Customs (Prohibited Imports) Amendment (Shotguns and Shotgun Magazines) Regulation 2016 (Federal Register of Legislation website), continuing the importation ban on the Adler A-110 immediately upon the expiry of the 2015 Regulation.  The explanatory statement accompanying the 2016 Regulation states that it “is intended to be in place until the review of the National Firearms Agreement is concluded and the agreed outcomes are implemented.”  (Id. Explanatory Statement, Federal Register of Legislation website; see also Press Release, Hon. Michael Keenan MP, Lever-Action Shotguns – Import Ban (July 29, 2016), Minister for Justice website.)

Senator Leyonhjelm again indicated that he would move to disallow the 2016 Regulation.  Other politicians also opposed the ban, arguing that “the gun is highly effective for farmers in shooting groups of pests, like pigs and birds, which damage crops and properties.”  (Hunter, supra.)

Regulation Disallowance Process

The Legislation Act 2003 (Cth) provides the framework for parliamentary scrutiny and “disallowance” of delegated or subsidiary legislation (“legislative instruments”) made by the executive government.  (Legislation Act 2003 (Cth), ch 3 pt 2, Federal Register of Legislation website; Parliament of Australia, Brief Guide to Senate Procedure No. 19  – Disallowance (last reviewed May 2016).)

The process involves legislative instruments being registered and then tabled (i.e., presented) in the House of Representatives.  Within 15 days after an instrument is tabled, “a senator or member of the House of Representatives [but in practice usually the former] may give notice of a motion to disallow the instrument (in whole or in part).”  (Brief Guide to Senate Procedure No. 19, supra.)  If the motion is agreed to, or if the notice of motion has not been resolved or withdrawn within sitting 15 days, “the instrument is disallowed and it then ceases to have effect.”  (Id.)  There are restrictions on the government’s ability to table instruments that are “the same in substance” within certain time frames.  (Id.)

Review of Firearms Laws

Following the December 2014 hostage crisis inside a Sydney cafe involving a lone gunman, a joint Commonwealth-New South Wales review recommended that Australian governments “should simplify the regulation of the legal firearms market through an update of the technical elements of the National Firearms Agreement.”  (Australian Department of the Prime Minister and Cabinet & NSW Department of Premier and Cabinet, Martin Place Siege: Joint Commonwealth-New South Wales Review ix & 50 (Jan. 2015).)  Following consideration by the Law, Crime and Community Safety Council, a review of the NFA commenced.  (Barker, supra; Press Release, Hon. Michael Keenan MP, Industry Reference Group to Advise Government on NFA Review (Aug. 12, 2015), Minister for Justice website.)  A final report on the review has not yet been issued.

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