Paintball Act 2018 (NSW)

Paintball Act 2018 No 44 An Act to remove the regulation of paintball markers from the Firearms Act 1996 and to instead establish a separate system of permits for the regulation of paintball markers and of paintball venues; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Paintball Act 2018. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— approved means approved by the Secretary from time to time. authorised officer means a person appointed under Division 2 of Part 6 or a police officer. authorised paintball venue means a paintball venue that is the subject of a paintball venue permit that is in force. authorised supplier means the following— (a) the holder of a paintball venue permit, (b) the holder of a firearms dealer licence under the Firearms Act 1996, (c) the holder of a weapons dealer permit under the Weapons Prohibition Act 1998. close associate—see section 4. Department means the Department of Customer Service. equivalent authorisation means a permit, licence, certificate, registration or other authorisation or qualification (however described) that is issued or conferred under the law of another Australian jurisdiction and that authorises the holder to do things similar to the things that a permit authorises a holder to do and includes anything that the regulations prescribe as an equivalent authorisation but does not include anything that the regulations prescribe as not being an equivalent authorisation. function includes a power, authority or duty, and exercise a function includes perform a duty. grant a permit includes grant a renewal or restoration of a permit. paintball game area has the meaning given by section 37. paintball marker means a sporting device for use in the sport known as paintball that can propel, or is designed to propel, a paintball by means of any gas or mixture of gases, including air (but not including a gas or mixture of gases generated by an explosive) and is operated or designed for operation by means of a trigger or similar device, but does not include— (a) a paintball marker that has been modified to propel something other than a paintball, or (b) a paintball marker prescribed by the regulations. Note— A paintball marker may also be an imitation firearm within the meaning of the Firearms Act 1996. The Firearms Act 1996, section 4D requires the holding of a permit to authorise the possession or use of an imitation firearm. This may mean a person is required to hold a paintball marker permit under this Act and an imitation firearm permit. paintball venue means a place at which the sport known as paintball is played or at which paintball markers are used. permit means a paintball venue permit, a paintball marker permit or an international paintball competitor permit granted under Part 3. possession of a paintball marker includes any case in which a person knowingly— (a) has custody of the paintball marker, or (b) has the paintball marker in the custody of another person, or (c) has the paintball marker in or on any premises whether or not belonging to or occupied by the person. premises includes— (a) a building or structure, or (b) land or a place (whether enclosed or built on or not), or (c) a mobile plant, vehicle, vessel or aircraft. Register means the Register of paintball markers compiled and maintained under Part 7. relevant offence means an offence against any of the following Acts or provisions of Acts or the regulations under those Acts or provisions— (a) this Act, (b) the Firearms Act 1996, (c) the Crimes Act 1900 but only in respect of an offence involving a firearm or offensive weapon or instrument or an offence prescribed by the regulations, (d) the Weapons Prohibition Act 1998, (e) any other Act, or provision of an Act, prescribed by the regulations. Secretary means— (a) the Commissioner for Fair Trading, Department of Customer Service, or (b) if there is no person employed as Commissioner for Fair Trading—the Secretary of the Department. supply means transfer ownership of, whether by sale, gift, barter, exchange or otherwise, and includes the following— (a) offer for supply, receive for supply, have in possession for supply or expose or exhibit for supply, (b) conduct negotiations for supply, (c) consign or deliver for supply, (d) cause or allow supply. Tribunal means the Civil and Administrative Tribunal. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for a permit or the holder of a permit if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person's own right or on behalf of any other person), in the business of the applicant or holder that is or will be carried on under the authority of the permit, and by virtue of that interest or power is or will be able (in the opinion of the Secretary) to exercise a significant influence over or with respect to the management or operation of that business, or (b) holds or will hold any relevant position, whether in the person's own right or on behalf of any other person, in the business of the applicant or holder that is or will be carried on under the authority of the permit, or (c) is or will be engaged as a contractor or employed in the business of the applicant or holder that is or will be carried on under the authority of the permit. (2) For the purposes of this section, a financial institution is not a close associate by reason only of having a relevant financial interest in relation to a business. (3) The provisions of this section extend to relevant financial interests and relevant powers even if those interests and powers are not payable, exercisable or otherwise enforceable as a matter of law or equity, but are nevertheless payable, exercisable or otherwise enforceable as a matter of fact. (4) In this section— relevant financial interest, in relation to a business, means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or (c) any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business is or is to be carried on (such as, for example, an entitlement of the owner of the premises at which the business is carried on to receive rent as lessor of the premises). relevant position means— (a) the position of director, manager or secretary, or (b) any other position, however designated, if it is an executive position. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. Part 2 Key offences 5 Using paintball marker other than at authorised paintball venue (1) A person must not use a paintball marker other than at an authorised paintball venue. Maximum penalty—imprisonment for 2 years or 500 penalty units (or both). (2) A person does not commit an offence against this section if— (a) the person is authorised by the Secretary to use the paintball marker at a place other than an authorised paintball venue, and (b) the person uses the paintball marker in accordance with the authorisation. (3) The regulations may prescribe matters in relation to applications for authorisations including— (a) the process for making an application, and (b) application forms approved by the Secretary, and (c) application fees, including the reduction, postponement, waiver or refund of fees, and (d) considerations the Secretary must take into account when deciding whether to approve an application, and (e) the process for applications to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision under this Act in relation to an application. Note— For the Crimes Act 1900, a reference to a firearm means a firearm within the meaning of the Firearms Act 1996, and is taken to include a paintball marker within the meaning of this Act. Consequently, being authorised under the Firearms Act 1996 to possess a paintball marker satisfies a requirement in the Crimes Act 1900 that possession of the paintball marker is authorised under the Firearms Act 1996. See the Crimes Act 1900, section 4(7A). 6 Possessing paintball marker without permit other than at authorised paintball venue A person must not possess a paintball marker other than at an authorised paintball venue unless the person is authorised to do so by a permit. Maximum penalty—imprisonment for 12 months or 200 penalty units (or both). 7 Purchasing or obtaining paintball marker without permit (1) A person must not purchase (or otherwise obtain possession of) a paintball marker unless the person is authorised to do so by a permit. Maximum penalty—imprisonment for 12 months or 200 penalty units (or both). (2) This section does not apply to a person who obtains temporary possession of a paintball marker at a paintball venue solely for use at that venue. 8 Operating paintball venue without permit A person must not operate a paintball venue unless the person is authorised to do so by a permit. Maximum penalty—imprisonment for 2 years or 1,000 penalty units (or both). 9 Unauthorised supply of paintball markers (1) A person must not supply a paintball marker unless— (a) the person is an authorised supplier and the supply of the paintball marker is to another authorised supplier or to the holder of a permit under this Act that authorises the holder to purchase the paintball marker, or (b) the person is the holder of a permit under this Act that authorises the holder to possess the paintball marker and the supply of the paintball marker is to an authorised supplier, or (c) the person is the holder of an authorisation issued under the law of another Australian jurisdiction equivalent to a firearms dealer licence under the Firearms Act 1996 or a weapons dealer permit under the Weapons Prohibition Act 1998 and the supply of the paintball marker is to an authorised supplier. Maximum penalty—imprisonment for 6 months or 200 penalty units (or both). (2) This section does not apply to the supply of a paintball marker if the supply is otherwise authorised by a permit. 10 Unauthorised disposal of paintball markers (1) A person other than an authorised supplier must not dispose of a paintball marker. Maximum penalty—imprisonment for 6 months or 200 penalty units (or both). (2) This section does not apply to the disposal of a seized paintball marker by an authorised officer or disposal in accordance with an order of the Local Court under section 70. Part 3 Permits Division 1 Preliminary 11 Paintball venue permit (1) The Secretary may, by granting a paintball venue permit under this Part, authorise a person to do the following— (a) operate a paintball venue, (b) purchase and possess paintball markers for the purposes of operating that venue, (c) supply paintball markers to persons at that venue solely for the temporary use of the paintball markers at that venue, (d) supply paintball markers to another holder of a paintball venue permit under a paintball marker sharing arrangement that complies with the regulations, (e) anything else prescribed by the regulations. (2) Each paintball venue requires a separate paintball venue permit. (3) A paintball venue permit is subject to any conditions of the permit. 12 Paintball marker permit (1) The Secretary may, by granting a paintball marker permit under this Part, authorise a natural person to do the following— (a) purchase (or otherwise obtain possession of) 1 or more paintball markers, (b) possess a paintball marker other than at an authorised 1 or more paintball markers, (c) anything else prescribed by the regulations. (2) A paintball marker permit is subject to any conditions of the permit. 13 International paintball competitor permit (1) The Secretary may, by granting an international paintball competitor permit under this Part, authorise a natural person to do the following— (a) possess, other than at an authorised paintball venue, 1 or more paintball markers that the person brought into the State, (b) anything else prescribed by the regulations. (2) An international paintball competitor permit is subject to any conditions of the permit. (3) A person is disqualified from holding an international paintball competitor permit unless the person resides in a country other than Australia and requires the permit to compete in a paintball competition in this State. 14 Grounds for finding a person not suitable to hold a permit (1) A person is not a suitable person to hold a permit if— (a) the person is disqualified under this Act from holding the permit, or (b) the person (including, if the person is a body corporate, a director of the body corporate) is a natural person who is under 18 years of age, or (c) the person (including, if the person is a body corporate, a director of the body corporate) is not a fit and proper person to hold the permit, or (d) the person is a mentally incapacitated person, or (e) the person has not completed any course of training that may be prescribed by the regulations in respect of the particular permit, or (f) the Secretary is of the opinion that the person is not a suitable person to hold the permit. (2) The Secretary may form an opinion that a person is not a suitable person to hold a permit in any one or more of the following circumstances— (a) the person (including, if the person is a body corporate, a director of the body corporate) has, within the previous 10 years, been convicted of a relevant offence, (b) the person (including, if the person is a body corporate, a director of the body corporate) is an undischarged bankrupt, (c) the person is a body corporate that is being wound up, (d) the person has contravened a requirement imposed by or under this Act or any other Act or law prescribed by the regulations, (e) an equivalent authorisation of the person has been suspended or cancelled (other than at the person's request) under the law of another Australian jurisdiction, (f) the person is disqualified (other than on the grounds of not residing in that jurisdiction or on the grounds that the person is a body corporate) from holding an equivalent authorisation under the law of another Australian jurisdiction, (g) a close associate of the person who would not be a fit and proper person to hold the permit exercises a significant influence over the person or the operation and management of the person's business, (h) any other circumstances prescribed by the regulations. Division 2 Application for permit 15 Application for permit (1) A person may apply to the Secretary for the grant of a permit. Note— The definition of grant a permit in section 3 (1) includes grant a renewal or restoration of a permit. (2) An application must— (a) be in an approved form, and (b) include or be accompanied by any information or evidence that the Secretary reasonably requires to assess the application. Note— Part 5A of the Crimes Act 1900 contains offences relating to the making of false or misleading applications or providing false or misleading information or documents. Those offences have a maximum penalty of imprisonment for 2 years or a fine of $22,000 (or both). (3) The regulations may provide for a fee to be paid for an application for the grant of a permit. (4) The Secretary may require the fee to accompany the application. (5) If the Secretary considers it necessary to do so, the Secretary may require further documents or information to be provided by the applicant. (6) If an application for the grant of a renewal of a permit is duly made to the Secretary before the expiry of a permit, the permit is taken to continue in force until the Secretary notifies the applicant of a decision to grant or refuse the application. 16 Secretary may obtain information from third parties (1) The Secretary may, by notice in writing, require an applicant or a close associate of the applicant— (a) to authorise a person described in the notice— (i) to provide such information as is specified in the notice as is relevant to the investigation of the application, or (ii) to produce, in accordance with directions in the notice, such records relevant to the investigation of the application as are specified in the notice and to permit examination of the records, the taking of extracts from them and the making of copies of them, or (b) to furnish to the Secretary such authorities and consents as the Secretary directs for the purpose of enabling the Secretary to obtain information (including financial and other confidential information) from other persons concerning the person or close associate. (2) If a requirement made under this section is not complied with, the Secretary may refuse to consider the application concerned while the non-compliance continues. (3) A person who complies with a requirement of a notice under this section does not on that account incur a liability to another person. 17 Grant or refusal of permit (1) The Secretary may, on application, grant or refuse a permit. (2) The Secretary may refuse a permit— (a) if the application for the permit does not comply with any requirement imposed by or under this Act, or (b) on any grounds prescribed by the regulations. (3) The Secretary must refuse a permit if the applicant is not a suitable person to hold the permit. (4) The Secretary is to give the applicant notice in writing of a decision to grant or refuse a permit. (5) If the Secretary fails to give an applicant for a permit notice of a decision to grant or refuse the permit within the period prescribed by the regulations, the Secretary is taken to have refused to grant the permit. 18 Duration of permit (1) A permit remains in force for a period not exceeding 5 years (or 1 year in the case of an international paintball competitor permit) specified by the Secretary in the notice by which a permit is granted, unless sooner cancelled. (2) A permit has no effect during any period in which the permit is suspended. 19 Variation of permit (1) The Secretary may, at any time, by notice in writing to the holder of a permit, vary the permit (including any conditions of the permit imposed by the Secretary). (2) A variation includes the imposition of new conditions on a permit, the substitution of a condition or the removal or amendment of a condition. (3) The regulations may make further provision for the variation of a permit, including— (a) applications for variation, and (b) fees for applications for variation. Division 3 Conditions of permit 20 Conditions of a permit (1) A permit is subject to the following conditions— (a) the conditions set out in this Act, (b) any conditions prescribed by the regulations, (c) any conditions imposed by the Secretary. (2) The Secretary may impose conditions on a permit— (a) at the time of the grant of a permit, or (b) at any other time by variation of the permit. (3) A provision of this Division that authorises a type of condition to be imposed on a permit does not prevent other types of conditions being imposed, or limit the matters that can be provided for by conditions, except where expressly provided for by this Division. 21 Compliance with rules The conditions of a permit may require the holder of a permit to comply with specified rules of conduct made by the Secretary and published on the NSW legislation website. 22 Conditions may provide that authorisation takes effect later The conditions of a permit may provide that an authorisation conferred by the permit does not take effect until the end of a specified period or on the happening of a particular event or on the occurrence of a specified state of affairs. Division 4 Suspension or cancellation of a permit 23 Grounds for suspension or cancellation of a permit Each of the following constitutes grounds for suspending or cancelling a permit— (a) the holder of a permit is not a suitable person to hold the permit, (b) the holder of a permit is not entitled to hold the permit, (c) the holder of a permit has requested the Secretary to suspend or cancel the permit, (d) the permit was granted in error, (e) the Secretary has determined to suspend or cancel the permit under Part 5, (f) any other grounds prescribed by the regulations. 24 Suspension of a permit (1) The Secretary may, by notice in writing to a holder of a permit, suspend the permit if the Secretary is satisfied that there are grounds for the suspension of the permit. (2) Notice of the suspension must specify— (a) the date or time from which suspension takes effect, and (b) the period of suspension, and (c) the grounds for the suspension. 25 Cancellation of a permit (1) The Secretary may, by notice in writing to a holder of a permit, cancel the permit if the Secretary is satisfied that there are grounds for the cancellation of a permit. (2) Notice of the cancellation must specify— (a) the date or time from which cancellation takes effect, and (b) the grounds for the cancellation. 26 Suspension or cancellation may be subject to conditions (1) A permit may be suspended or cancelled unconditionally or subject to such conditions as the Secretary imposes. (2) Those conditions may include (but are not limited to) any conditions to which the permit was subject immediately before it was suspended or cancelled. (3) The Secretary may, by notice in writing given to the former holder of a permit, attach new conditions to, or vary or revoke any existing conditions of, the suspension or cancellation of the permit. 27 Direction regarding paintball markers when permit is suspended or cancelled (1) When suspending or cancelling a permit the Secretary is to direct the holder of the permit as to the action the holder is required to take with respect to any paintball markers in the possession of the holder. (2) A direction may specify a time within which the action must be taken. (3) A direction may require that a paintball marker be surrendered to an authorised officer. (4) A person who fails without reasonable excuse to comply with a direction is guilty of an offence. Maximum penalty—imprisonment for 6 months or 200 penalty units (or both). (5) A person who is complying with a direction is authorised to do so despite any other provision of this Act. Division 5 Miscellaneous 28 Offence of contravening condition (1) A holder of a permit (including a former holder of a permit) who contravenes any of the following is guilty of an offence— (a) a condition of the permit (other than a condition set out in section 33 (1) or 34 (1) or (2)), (b) a condition of a suspension or cancellation of a permit. Maximum penalty—1,000 penalty units. (2) Despite subsection (1), the regulations may prescribe a lesser maximum penalty for contravention of a condition prescribed by the regulations. (3) A holder of a permit who contravenes a condition of a permit where the contravention causes any of the following is guilty of an offence— (a) a person being injured by the illegal use of a paintball marker, (b) a significant risk to a person's safety by the illegal use (or threatened illegal use) of a paintball marker. Maximum penalty—imprisonment for 12 months or 20 penalty units (or both). 29 Permit not transferable A permit is not transferable. 30 Offence of lending a permit (1) A holder of a permit must not let out, hire or lend the permit to any other person or permit any other person to use the permit. Maximum penalty—imprisonment for 6 months or 200 penalty units (or both). (2) A court that convicts a person of an offence against this section is to order the cancellation of the permit concerned. The permit is cancelled on the making of the order. 31 Review by NCAT A person aggrieved by any of the following decisions may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision— (a) a decision of the Secretary to refuse to grant a permit, (b) a decision of the Secretary to suspend or cancel a permit, (c) a decision of the Secretary to refuse an application to vary a permit, (d) a decision of the Secretary to impose any condition on a permit, or on the suspension or cancellation of a permit, (e) a decision of the Secretary to give a direction when suspending or cancelling a permit, (f) a decision of the Secretary to vary a permit. Part 4 Conditions of permits Division 1 Conditions of all permits 32 Requirements of Division are conditions of every permit Each of the requirements set out in this Division (or set out in regulations made under this Division) is a condition of every permit. 33 Storage of paintball markers (1) Paintball markers must be stored— (a) in an inoperable state (such as by having the gas canister removed), and (b) in a strong lockable metal container that is locked to prevent access to the paintball marker. (2) The holder of a permit who contravenes the requirements of subsection (1) is guilty of an offence. Maximum penalty—imprisonment for 6 months or 200 penalty units (or both). (3) The regulations may set out further requirements for or with respect to the storage of paintball markers. 34 Transport of paintball markers (1) Paintball markers must be transported— (a) in an inoperable state (such as by having the gas canister removed), and (b) in a secure bag or container that conceals the paintball marker and that does not indicate that it contains a paintball marker. (2) A paintball marker must not be left unattended when being transported, unless the paintball marker is secured in a locked vehicle. (3) The holder of a permit who contravenes the requirements of subsection (1) or (2) is guilty of an offence. Maximum penalty—50 penalty units. (4) The regulations may set out further requirements for or with respect to the transport of paintball markers. 35 Maintenance, repair and disposal of paintball markers The regulations may set out requirements for or with respect to the maintenance, repair and disposal of paintball markers. Division 2 Conditions of paintball venue permit 36 Requirements of Division are conditions of paintball venue permit Each of the requirements set out in this Division (or set out in regulations made under this Division) is a condition of every paintball venue permit. 36A Display of paintball venue permit details The holder of a paintball venue permit must display a copy of the permit or the permit number and the name of the permit holder in the following ways— (a) in a prominent position at the entry to the paintball venue, (b) if the holder of the permit makes information about the venue available on a publicly accessible website maintained by the holder—in a prominent position on the website, (c) if the holder of the permit makes information about the venue available on a publicly accessible social media platform—on the social media platform account page for the venue or permit holder. Maximum penalty—20 penalty units. 36B Use of non-venue paintball markers at paintball venue The holder of a paintball venue permit must ensure a person does not use the person's own paintball marker at the paintball venue unless the person's paintball marker permit has been shown to— (a) the holder of the paintball venue permit, or (b) an employee of the holder of the paintball venue permit. Maximum penalty—200 penalty units. 37 Paintball game area (1) An area of the paintball venue must be clearly designated with signs and boundaries as the area in which the use of paintball markers is permitted (the paintball game area). (2) A person must not be permitted to use a paintball marker in an area other than the paintball game area. (3) A person must not be permitted to enter a paintball game area at any time during which there is a paintball marker in the area unless the person has protective clothing or equipment (or both) that— (a) is prescribed by the regulations, or (b) if no protective clothing or equipment is prescribed, is adequate to protect the person from injuries that may occur from the use of a paintball marker. 38 Minimum age of participants (1) A child under the age of 12 years must not be permitted to possess or use a paintball marker at the paintball venue or enter the paintball game area. (2) A child or young person who is 12 years of age or more and under the age of 18 years must not be permitted to possess or use a paintball marker at the paintball venue or enter the paintball game area without the written consent of a person having parental control over the child or young person. 39 Insurance (1) The holder of a paintball venue permit must maintain a policy of public liability insurance in an approved form that provides cover for public liability incurred in connection with the operation of the paintball venue, being a policy that provides for cover for an amount of not less than $10,000,000 or such other amount as may be prescribed by the regulations. (2) If children or young persons under 18 years of age are permitted to possess or use a paintball marker at the paintball venue or enter the paintball game area, the insurance policy must cover those children and young persons. (3) The holder of a paintball venue permit must not permit a person to use a paintball marker at the paintball venue at any time during which a policy of insurance as required by this section is not in force. 40 Training of staff The holder of a paintball venue permit must ensure that all persons employed at the paintball venue undertake any training that may be required by the regulations. 41 Supervision of the use of paintball markers (1) The holder of a paintball venue permit must ensure that any use of paintball markers at the paintball venue is supervised by an employee who holds a paintball marker permit or who satisfies other