Controlled Weapon or Prohibited Weapon? (Vic)

Currently in Victoria, the Control of Weapons Act 1990 (The Act) and the Control of Weapons Regulations 2021 (The Regulations), are the two primary sources of legislation that deal with weapons. In addition to the stringent licencing and regulatory approval, one needs to go through to obtain a permit or approval to possess a weapon in Victoria, there are also a number of criminal offences relating to the possession, storage or use of weapons. This article deals with controlled weapons, prohibited weapons and dangerous articles in Victoria. 

Broadly speaking, weapons are separated into three categories, namely: 

1. Controlled weapons; 
2. Prohibited weapons;
3. Dangerous articles.  

Controlled weapons

Controlled weapons are weapons that can be possessed and carried, for a legitimate purpose but that may pose a danger to the safety of others and the community in general. 

Under Section 3 of the Control Weapons Act 1990 and Schedule 1 of the Control of Weapons Regulations 2001, a controlled weapon is defined as follows:

1. A knife (other than a knife that is classed as a prohibited weapon); and
2. Any article prescribed by the Regulations as a ‘controlled weapon’, including the following:

1. 1. Spear guns; 
   2. Batons and cudgels (including any short stick made of ay material designed as a weapon); 
   3. Bayonets (including any thrusting, striking, or cutting weapon designed to be attached to a firearm;
   4. Cattle prods. 

Under Section 6 of the Control of Weapons Act 1990, it is an offence to possess, carry or use a controlled weapon without a lawful excuse and this can attract a maximum penalty of up to 120 penalty units or up to one year of imprisonment. 

In considering what constitutes a ‘lawful excuse’, the court must have regard to the circumstances of the incident, including the time and location of the incident, as well as any other contextually relevant material, this can include but is not limited to:

1. the pursuit of any lawful employment, activity, or duty; 
2. participation in any lawful sport or recreation; or
3. the legitimate collection, display or exhibition of weapons. 

Prohibited weapons

On the other hand, prohibited weapons are generally classified as weapons in which are inappropriate for general possession and use, unless approval is sought by the relevant legislative body to do so. 

Under Section 3 of the Control of Weapons Act 1990 and Schedule 2 of the Control of Weapons Regulations 2021, a controlled weapon is defined as:

1. An imitation firearm; 
2. Any article prescribed by the Regulations as a ‘Prohibited Weapon’, including the following:

1. • Flick knives/butterfly knives/double ended knives/push knives; 
   • Daggers; 
   • Any item designed to conceal a knife/blade; 
   • Throwing blades; 
   • Crossbow; 
   • Blow gun; 
   • Slingshots; 
   • An article that is designed or adapted to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical; 
   • An article that is designed or adapted to emit an electric current into a human body for the purposes of incapacitation or injury.
   • Knuckle dusters; 
   • Weighted/studded gloves; 
   • Whips; 
   • Martial arts weapons, including: 
     • Butterfly swords; 
     • Tonfas; and
     • Sais. 

Under Section 6 of the Control of Weapons Act 1990, it is an offence to possess, carry or use a controlled weapon, without a lawful excuse, which can attract a maximum penalty of up to 240 penalty units or up to two years imprisonment. 

In order to lawfully possess and/or carry a prohibited weapon, an individual must obtain an exemption under Section 8B of the Control of Weapons Act 1990, or an approval under Section 8C of the Control of Weapons Act 1990. 

In order to obtain an Approval, a person must first submit an application for an approval, which, if approved, will grant the applicant approval to do anything that is otherwise prohibited by Section 5 of the Control of Weapons Act 1990.

Dangerous articles

Lastly, under Section 3 of the Control of Weapons Act 1990, a dangerous article is defined as; 

1. An article that has been adapted or modified so as to be capable of being used as a weapon; or
2. Any other article that is carried with the intention of being used as a weapon. 

It is important to note that any item may be considered to be a dangerous article, so long as it meets the above definition. This can include everyday items that one might have in their possession, including but not limited to tools, household items and/or sporting equipment. 

As indicated above, it is a defence to a charge for possession of a dangerous article, that there is a lawful excuse to have that item in the persons possession. 

Under Section 7 of the Control of Weapons Act 1990, it is an offence to possess, carry or use a dangerous article, without a lawful excuse, which can attract a maximum penalty of 60 penalty units or six months imprisonment. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.