To all -
Here is a draft of the SSCV submission on the Control of Weapons (Amendment) Regulations 2003 for your comment and examination. As it is a Victorian proposal, local input will take priority along with that of those specifically impacted - crossbowmen and their support base.
It will also go out to all affiliates of the Council for review.
Dennis La Varenne
acting Secretary
Shooting Sports Council of Victoria.
10th October, 2003.
Mr Chris Shea
Policy Officer
Justice Policy
DEPARTMENT OF JUSTICE
Level 1
55 St Andrews Place
EAST MELBOURNE VIC 3002
Submission on the proposed Control of Weapons (Amendment) Regulations 2003
Dear Mr Shea,
INTRODUCTION
The Shooting Sports Council of Victoria (SSCV) makes this submission in response to the Regulatory Impact Statement concerning the proposed changes to the Control of Weapons (Amendment) Regulations 2003 about which perhaps not unexpectedly, we have some serious concerns, particularly in respect of those pertaining to the intention to prescribe crossbows as prohibited weapons.
As an umbrella body, we reflect the sympathies and arguments of our affiliates and will only reprise the details of those submissions.
However, we have been sent copies of submissions from a crossbow manufacturing and importing organization, Crossbow Australia, that of the Victorian Nationals Party and those of sundry independent persons, as well as from organizations whose principal interest is in the use of swords of a surprisingly large variety in the various re-enactment, martial arts and Scottish Highland Dancing Societies, all of whom have been caught in this regulatory nightmare because the Government now realises the grave threat which Highland Dancers pose to society.
As an umbrella whose area of expertise is the shooting sports, we confine our comment to that specific field of concern.
This submission contends that the justifications for this intention are not even reasonably substantiated in the arguments proffered by the RIS, relying as they do on very sketchy, uncommon to rare and sometimes hearsay accounts of misuse of crossbows.
There has only been one serious misuse of a crossbow in recent history in this whole country and that was the incident in New South Wales where a youth shot and wounded two female students at his school. There is no demonstrable incidence in the criminal misuse of crossbows in this country and those that are generally reported are of the nature of very rare cases of vandalism against animals, sometimes in residential areas.
There seems to be considerable reliance placed on a newspaper report appearing in the Melbourne Herald Sun reporting an increase in the reporting of domestic and other animals being shot by crossbows in the past 18 months, increasing from perhaps one per year to about 6 in the previous 18 months.
This is not an increase in a criminal misuse of crossbows which poses a danger to the community, the minimization or prevention of which is the stated intention of the RIS. These are minor incidences of vandalism and should be treated as such. The remedy for this kind of vandalism is not the persecution and punishment of the entire of the crossbow using community of this State who were not involved in any of these instances of vandalism, nor even remotely contributory to their occurrence.
This RIS clearly and quite deliberately tries to create an underclass of less desirable members of this community who, despite their having legitimate peaceful uses for their crossbows, are to be treated as either criminal in intent or potential merely by their association with the crossbow.
The RIS offers not a single substantiable means of creating a safer community by implementing this proposed regulation. It is full of generalised statements about community safety being achievable by this regulation but nowhere demonstrates that there is a genuine social problem which needs addressing in the first place, and nowhere demonstrating how the implementation of the regulations will achieve anything other than advancing its own flawed premise.
It is good politics to claim the existence of a non-existent problem which can be remedied by a proposed set of regulations whose efficacy never needs to be proven and be able to claim afterwards that they have been successful because there are few or no instances occurring of problems that were not occurring in the first instance.
THE IMPACT OF CROSSBOW PROHIBITION UPON USERS
The impact upon users of crossbows and local manufacturers and importers will be severe. This has been covered in detail in the submissions already mentioned by Crossbow Australia, Ausbow Industries, Alcock & Pearce, the Victorian Nationals, etc.
The proposed paper audit trail can be easily achieved in the case of crossbows by requiring that intending purchasers be of a minimum age and provide proof of identification at point of purchase. These details can be kept by the dealers in a purchases register at the place of business which could be available to any police enquiry at any reasonable time. We understand that the trade has offered this alternative to the prohibited weapons status preferred by the RIS.
There is no justifiable need for creating a new addition to the prohibited weapons list when the same intended objectives of restricting a crossbow to suitable persons by modification of the requirements of its present controlled weapon status. It would then indeed be an effectively controlled weapon rather than a prohibited weapon with exemptions and the attendant unjustifiable cost of administrative processes which clearly do not achieve a preventive outcome.
Certainly, it would achieve the exact same desired protective effect as listing as a prohibited weapon without the additional subsidy to the Police Licensing Services Branch to the amount of $130 for a 3 year licence and the aftercost of a $300 gunsafe to store it in when it could be adequately and safely disassembled and stored out of the reach of minors with less.
We remind the SARC that illegal misuse of a crossbow is still quite heavily penalised under the provisions of the Summary Offences Act 1966, viz.
7. Offences tending to personal injury or damage to property
Any person whoâ€â€
(g) throws or discharges a stone arrow or other missile to the injury of or danger to any person or damage to any propertyâ€â€
shall be guilty of an offence.
Penalty: 25 penalty units or imprisonment for six months or both.
This law puts an absolute onus upon the user for ensuring the public safety using any form or archery equipment. There are also very severe penalties for criminal negligence resulting in intentional bodily harm or homicide using any kind of instrument including crossbows, under the Crimes Act 1958.
What is the purpose that is being served by the intention of this RIS to recategorize an instrument as deserving of special criminal procedures for possession when the problem of its misuse is already adequately addressed?
The additional nonsense of the RIS requiring crossbows to be stored in gunsafes as some kind of public safety measure has no basis. Criminals do not steal them from homes as a preferred form of weapon of assault when it is absurdly easy to obtain a far more effective and efficient weapon of coercion in a handgun, often from police or military sources, than to lumber around with a cumbersome and obvious weapon such as a crossbow. Criminals may be bad but they are not usually so stupid.
POLICE SUBMISSION TO LIST CONVENTIONAL BOWS AS CONTROLLED WEAPONS
This Council has been made aware of the intention of Police to recommend that conventional bows be created controlled weapons. We oppose that specifically because the cause of the recommendation as we understand it could not have conceivably been prevented if conventional bows had already been listed as controlled weapons.
We have a copy of the coroner’s report on the tragedy at Rye nearly 3 years ago and we have a copy of the coroner’s report on the matter. One of our officers has been in contact with the father of the young man who shot the arrow. The incident resulted in the sad but accidental death of a bystander through such a remarkable set of circumstances that they could never be repeated in deliberation.
There has been a terrible cost to both families involved, but it was a completely unpredictable accident despite the extraordinary precautions which the family of the young archer took to ensure the public safety.
The ensuing fatality was a fluke of unpredictable circumstance. It is clearly not the justifiable cause of some kind of public concern.
The recommendation of the coroner was flawed in its pretention to the obviation of public harm, and we view the police recommendation as little more than the exploitation of a tragic circumstance to further a political ambition.
Any move to add this intention to the regulation must be preceded with another RIS, and this Council will pursue its lack with vigour.
There is no evidence of conventional bows being used even minimally as the means to inflict public harm, and this single incidence of a tragic accident is not symptomatic, and the recommendation has no merit whatsoever.
THE PROBLEM WITH PROHIBITION
The problem with prohibition is that is does not work and has absolutely no public benefit. We have a continuing and escalating illegal drugs problem of monumental proportions to prove it, aided and abetted by ordinary citizens who are not usually described or accepted socially as criminal, but who play a considerable part in the support of the criminal suppliers because of their incalcitrant willingness to have a go at recreational use.
Some of us realise the nexus, but most do not seem to want to know because despite its proven harmful potential, it interferes with a recreational lifestyle.
This is nothing remotely like the obtaining social situation of public use of crossbows and swords by their respective groups where harm is so rare as to be statistically unmeasurable because of the voluntary codes of conduct under which these people operate, a demonstrable fact of life which the RIS pretends does not exist.
The very fact of such vanishingly little public harm derives specifically from the voluntary codes of practice which these disciplines impose upon themselves contrary to the contention of the RIS.
There is literally no problem to fix.
The incident in NSW where a disaffected schoolboy shot and wounded two of his female colleagues was a tragic one-off out of which ambitious Police Ministers have sought political gain for themselves. The transparency of motive is obvious to all but them.
As we pointed out in our previous submissions on changes to these regulations, since its first making back in 1990 the existing regulation proposed that it would make society safer from the misuse of a whole battery of potentially lethal instruments.
Because of its total failure, it has seen two previous remakes with increasingly worse prohibitions and strictures on those who use those weapons legitimately. All of these remakes have likewise proven totally useless to prevent their criminal misuse. Now this RIS is proposing an even worse further edition of the same.
How many times must the Government repeat a mistake?
The blinding stupidity of this process lies in the fact that this and previous governments keep making the same mistakes and keep applying the same useless remedies to the people who are not causing the problem in the first place. This is because it is unable to do anything at all to alter the behaviour of those in this community who choose to live their lives outside of the laws.
There are thousands of crossbow owners in this community who hunt, target shoot and belong to historical re-enactment organizations and who have never unlawfully misused their accoutrements in their lives and never will.
Yet this Government, in an act reminiscent of a spiteful school teacher who detains the whole class because one child misbehaves, seems to think that it can make a more peaceable society by harming those who do not do the harm, and still expect its citizens to respect the rule of law when any fool can see that those laws reflect the private political ambitions of Ministers rather than any genuine concern for the public safety.
There has never been any kind of genuine threat from the ordinary crossbow and sword user in the first place.
It is the unlawful harmful misuse, where a person has been injured or threatened with injury, or where property has been damaged – in other words, the actual crime that causes the harm. This proposed regulation makes a criminally serious crime warranting up o 12 years imprisonment for not having the correct paperwork to own a crossbow. Where has the actual harm has been done?
Worse still, it trots out the age-old formula of prohibition whose only notable achievement is the creation of an illegal black market at every turn it is attempted. Its consequences are so routine and predictable that the criminal world must see it as a welcome market opportunity, such is the reliability it can place upon this Government sponsored economic incentive.
The RIS cites astonishingly FEW instances of criminal misuse of swords for instance where considerable harm was done by identified persons who have been apprehended and punished by the law for crimes under the Crimes Act.
This RIS does not show how it proposes to prevent the re-occurrence of this kind of crime by persons who have no intention of ever complying with its requirements and who will always exist in human society. Absolutely nothing can prevent this. But nothing good can ever hope to be achieved by holding responsible for such crimes, those who have never misused their crossbows or swords. Pretending that punishing their ownership by law-abiding citizens can ever prevent them is wrong. It cannot - and it is a considerable deceit to pretend so.
Laws which punish for misuse are appropriate. Laws, which punish a class of person in society purely by virtue of a particular association, are morally wrong.
Laws which pretend to protect society by prohibiting possession are the most spectacular failures of legislative intent we have in our legal system. Intrinsically, they punish not for harm done, but for not having the correct paperwork, and their punishments are as spectacular in their excess as their failure to achieve.
The only people they affect are those least likely to break the laws of this country because those who abide by them are also those who are least likely to misuse that possession anyway. These people, who are continually frightened into compliance and loss of rights under a deceitful pretence of protection, are always the losers.
There are two parallel societies in any community - the law abiding and the non-law abiding. The legislators continually make laws with the promise of controlling, limiting, prohibiting and eliminating the non-law abiding. It has never worked and the laws they make inevitably diminish only the lives of those already on their side with mostly no effect on those who are not.
This proposed regulation is just another repetition of the same. Its only demonstrable effect will be to expand the revenue base for the operations of the Police Licensing Services Branch so that an essentially non-productive bureaucracy can continue its present status.
PROBLEMS WITH THE RIS PROCESS
Whilst the following is peripheral to the subject of the RIS, it is of concern to us that this particular RIS reads as if, following an agreement of an Australian Police Minister’s Conference, the Justice Department has been handed a brief to draft up all the necessary requirements in compliance with the Subordinate Legislation Act merely so that its legal protocols have been met in order that the APMC agreement can be rubber-stamped locally.
Clearly, the standard of justification does not need to be of any reasonable quality (the Act does not require it), only that the protocols of the Act be met to fulfil the requirements of a Regulatory Impact Statement.
Secondly, we have noticed over the years that the consultation with stakeholders is largely a formality, with little or no intention by Ministers to concede that the necessity to make the regulation is questionable or even necessary. No Minister has ever conceded that a mistake has been made.
Consultation need only meet with the specific legal requirements of the Subordinate Legislation Act 1994 (SOA). There is no compulsion upon the Minister to be bound by the objections of the stakeholders or that the Minister resile from making the regulation because of the poor standard of justification published in the RIS, or was just plain wrong in the first instance.
This present RIS is just such a case. It is breathtakingly bad in justifying its claims and ought to be a cause for embarrassment.
Thirdly, we have a serious problem with the political fact of life that under the Westminster system of Government, the Executive controls the Legislature absolutely, especially where one political party controls both Houses.
The supposed separation of powers between these two bodies does not exist in practice. That makes the effect of the Subordinate Legislation Act, originally designed to curb the excessive use of Executive powers, almost a joke.
It is inconceivable that in any recommendation of the Scrutiny of Acts and Regulations Committee of the Parliament for the disallowance of any regulation in whole or in part, that members of any majority party in either House will risk party disendorsement and the consequent political castigation by voting against the Minister.
We cannot believe that SARC is not aware of this. However, it remains that it is largely powerless to do anything about it.
As a matter of basic principle, we contend that if the justifications in an RIS do not clearly substantiate the necessity for a regulation by demonstrating clear and uncontrovertible proofs of the existence of a continuing widespread and statistically provable problem of significant harm to society, and that the RIS does not advance remedies that can be proven to be effective in a measurable way, then that regulation must be abandoned.
Furthermore, we recommend that all enacted legislation and proclaimed regulations be audited by the Auditor General’s Department for proven public benefit and efficacy after 5 years and again after 10 years, this second audit to form part of the sunset RIS for any regulation and for mandatory review of legislation by the parliament.
This requirement will help prevent the abuse of Executive powers for political gain.
RECOMMENDATION
This RIS validates none of its stated objectives with even reasonably justifiable argument, and should be abandoned as expensive to run, punitive of those not the cause of any genuine public harm, and worthless in effect.
Any intended funding should be redirected to the Royal Children’s Hospital or other public hospital, or the upskilling and equipment improvement of our volunteer firefighters, for some real harm prevention and reduction which we can all see.
The one glaring shortcoming of the Subordinate Legislation Act is its lack of a prescription for provable or testable argument in the RIS, or the requirement of an audited test of efficacy of any regulation in justification of its existence. Much useless and misdirected legislation made subsequent to the private political ambitions of individual politicians might not prevail and, there might be much less redundant and useless law for SARC to review.
Perhaps there is a greater community benefit in less legislation and its attendant bureaucracy than the implementation of the present regulation borne as it is through the pique of a politically vindictive Police Minster.
We further recommend that the Police recommendation to list conventional bows as controlled weapons be disregarded.
- thanks Dennis!
Erron
I never knew they were such a threat to society...it must be what's under the kilts hey? 
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