Today’s question relates to the use of an Arborist Slingshot by members of NSW State Emergency Service. I’m told:
Many NSW SES Units have an Arborist Slingshot which is used for getting a line over a roof, tree branch, flooded creek etc. Because Slingshots are classed as a prohibited weapon we had until recently a permit issued by NSW Police to allow their use.
The permit holder was our former Deputy Commissioner who retired late last year, so until a new permit is arranged their use has been suspended.
I’ve been told that we may not get a new permit due to the legal risks or liability to the permit holder, and I was wondering if you could explain what these might be?
We have quite strict procedures around their use, training and secure storage, but if one was used to commit an offence (be that by an SES member or member of the public who somehow gets access to one) then presumably they would be responsible and charged, but what are the implications for the actual permit holder?
I was also provided with a copy of:
- Operations Bulletin 02/1920 Temporary Removal of the Arborist Slingshot from Service (15 November 2019); and
- Prohibited Weapons Permit issued 6 July 2016.
Section 8 of the Weapons Prohibition Act 1988 (NSW) says (emphasis added) that a permit:
Authorises the holder of the permit to possess or use a prohibited weapon of the kind specified in the permit, but only for the purpose established by the holder as being the genuine reason for possessing or using the prohibited weapon.
There are categories of permits that allow the holder of the permit or an authorised employee to possess a prohibited weapon, but they relate to weapons dealers and theatrical weapons armourers and are not relevant to the SES that is not in either of those business nor are volunteers employees. There are other sorts of permits set out in the regulations but none of them are relevant to the SES.
Section 14 says:
(2) In addition to the conditions specified in a permit, a permit is subject to the following conditions:
(a) the holder must not allow any other person to possess or use any prohibited weapon in the holder’s possession if that other person is not authorised to possess or use the weapon…
(c) the permit cannot be transferred to another person.
Regulation 7 of the Weapons Prohibition Regulation 2017 (NSW) says (emphasis added):
(2) For the purposes of section 9 (2) (b) of the Act, an application for a permit must be accompanied by the following information:…
(c) the arrangements for the storage and safe keeping of each weapon (including particulars of the premises at which each weapon is to be kept).
(3) An application for a permit that confers authority on persons (in addition to the permit holder) who are specified in the permit must provide the following information in respect of each additional person proposed to be specified in the permit:
(a) full name,
(b) residential address,
(c) date of birth,
(d) employee authority number (if applicable).
The permit issued to the NSW SES
The permit issued to the NSW SES says that the permit holder is Mr Newton. The permit says (emphasis added):
This permit authorises the permit holder and any current NSW State Emergency Service personnel to possess the prohibited weapon listed in this permit for use as part of the Service’s response to all requests for assistance.
This is clearly more than the authority in s 8 in that it purports to authorise people other than the permit holder. It is not clear that the Commissioner of Police can give that sort of permit. As noted, s 8 says that the permit authorises the permit holder and only one person was named as the permit holder. Section 14(a) says the holder of the permit cannot authorise anyone else to carry the weapon ‘if that other person is not authorised to possess or use the weapon’. It might be implied that the authority in this permit is that authority but as noted, it’s not clear. I would suggest, given that only two class of permits appear to extend to employees, that the authority in the ‘other’ person must be their own permit or other authority.
The permit goes onto say:
- The permit holder must ensure Level 1 safe keeping requirements, as prescribed by section 32B of the Weapons Prohibition Act 1998, are maintained for the prohibited weapons to which this permit relates…
- The permit holder must ensure the safe handling and use of weapons at all times.
Those obligations are upon the permit holder. They do not say the permit holder must take ‘reasonable measures’ or the like. If an SES member were to misuse the weapon that member will be accountable for his or her actions and may commit a criminal offence. But the fact that the permit holder has not ‘ensured’ the safe handling and use of the weapons or that the weapon was used contrary to the permit issued in his name, would also make that permit holder guilty of an offence (s 7(2)(b) and 32A).
The permit gives the storage address as ‘approved safe storage where no access is available to non NSW State Emergency Service personnel…’. That is not the detail required by regulation 7(2).
The authority to possess the weapon is said to extend to ‘any current NSW State Emergency Service personnel’. There is no suggestion that it is limited to a list of named individuals where the application has included the name, date of birth, address and employee number for each member.
Further information
In this blog I write my opinion based on the law. I don’t like to check with others to see if they agree. But having received the original question, but before I could post my answer, my correspondent wrote saying
The following update has just been provided by a senior SES staff member:
part of the problem in fact all of the problem is that they classed as prohibited weapons and require a licence. In the past the licence was held by one person so if anyone used them in a way that injured or killed someone the licence holder is responsible. Licences must be held by individuals and not groups or units and the sling shots held in lockable cabinets with only the licence holder have access.
So there is a whole of Government and legislative change that needs to occur. It’s not a simple process and very complicated to navigate.
I agree with that.
Discussion
The Prohibited Weapons Act provides for a person to be authorised to use a prohibited weapon by the issue of a permit. At least two permits allow that authority to extend to employees but they are not relevant to the SES as the SES is not engaged in that work and in any event, volunteers are not employees (even if they are ‘workers’ for the purposes of the Work Health and Safety Act).
It appears to me that the permit issued on 6 July 2016 was not authorised by law. The permit extends beyond the permit holder and does not contain the details required by the regulations.
The conditions of the permit are personal to the permit holder. If one of the weapons ‘was used to commit an offence (be that by an SES member or member of the public who somehow gets access to one) then presumably they would be responsible and charged’ but the permit holder could also be guilty of offences relating to the safe keeping of the firearms and their use.
Conclusion
It would appear to me that the licence issued to the SES is not consistent with and therefore was not authorised by the Weapons Prohibition Act 1988 (NSW) (though no doubt the officer who issued it thought it was).
I agree with the ‘senior SES staff member’ that ‘Licences must be held by individuals and not groups or units and the sling shots held in lockable cabinets with only the licence holder have access.’ To issue the sort of permit the SES want would require a change to either the Weapons Prohibition Act 1988 (NSW) and/or the Weapons Prohibition Regulation 2017 (NSW).
Australian Emergency Law 
SA SES are looking at an air operated launcher for the throw bag. Like many states, the slingshot is a contentious piece of equipment, and the individual should be the license holder to use such a device.
The air launcher is a much safer and less dangerous piece of equipment, and while the pressure for launch is around 100 plus psi, the pressurising device is via a hand pump. By using a ball valve release, a weighted throw bag can be easily directed to the desired location. Bendon Clarke is the person to contact for more information.
T-shirt “cannons” are also considered prohibited weapons (PW). As an aside, compound bows are explicitly excluded (as PW) but no mention of recurve bows… Go figure.
https://www.police.nsw.gov.au/online_services/firearms/permits/firearms_permits/frequently_asked_questions_-_firearm_permits#wp1
are any of those tools used by the SES?
Thanks Michael for the analysis. A further question for you leading off this matter. Many individual SES Units are in possession of an arborist slingshot, locked away so members cannot access them. What are the legal consequences for the Units having possession of these prohibited weapons? Should they be surrendered to the Police? It doesn’t appear that we will get a permit in future, so what are the options?
If I was the unit controller I would want to get rid of them. I would be urging the regional office to collect them or, as a minimum, take possession of all the keys. Ideally they should be taken out of local units until the SES sort it out.
If it’s deemed there is no valid permit (if that’s the hypothesis that’s been made ) then does it not follow there is no authority to possess? Does Simply locking up at the unit negate the lack of permit, as it’s still deemed possession.? And if it’s the case there was only one permit holder (by conclusion of Ses) and he has left the organisation, then no one in SES has the authority and the only safe option would be to surrender to police?
You are correct, the safest legal option would be to ask police to come to the unit and collect it., but that would not be without its problems as no doubt region and state staff would say ‘we did not want you to do that, we’re a government agency and we are/were working with the minister and police for a solution.’ And regardless of the merits, one is likely to face blowback for not dealing with the item as directed in the operations bulletin.
The law is not self executing so I don’t think there is a real risk the ‘armed offenders’ squad (or some such) is about to raid the local SES unit. Possession relates to having control so if I was the unit controller I would want to at least give the keys to the cupboard to someone at region HQ so then the local unit can say they are not ‘in possession’. The slingshots remain the property (even if illegal) of the SES so again rather than give them to police I’d be asking Region to collect it (I wouldn’t deliver it) to get it out of the unit and then the question of how they store it and what risk they are willing to accept its given to the salaried staff.
If you really are concerned then, as the Operations Bulletin says ‘refer any questions on this matter to capability@ses.nsw.gov.au in the first instance’.
Our Police Rescue Squad (PRS) has the same Slingshot NSW SES uses (or used to use) so would their members need permits to use it or are Police except?
Police are exempt – s 6(2) says “A person is not guilty of an offence under this Act or the regulations only because of something done by the person while acting in the ordinary course of the person’s duties:
(a) as a police officer …” Being in the Police Rescue Squad would be part of the squad members ordinary duties as a police officer.
Thanks Michael, very interesting reading what you have written above and it most certainly does clarify alot of the issues and also raises many more questions.
Do they really need a hunting slingshot they could use a homemade one for their purpose a low powered one they don’t one that will put a hole in corregated iron.