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.
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.
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.
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).