Is a Nerf gun a “firearm”? Yes, if you’re in NSW!

Does your Nerf gun propel a projectile by means of any gas, including air, or by means of a spring? If it does, and you’re in New South Wales (“NSW”), it is a “firearm” (Firearms Act 1996). In NSW, unauthorised possession of a firearm carries a maximum penalty of 5 years imprisonment.

“firearm” includes “air gun” – Section 4, Firearms Act 1996 (NSW)

If your Nerf gun is also a pistol or is capable of firing multiple projectiles from a single press of the trigger, the maximum penalty for unauthorised possession of the Nerf gun is 14 years imprisonment.  

Includes machine guns, sub machine guns and the Nerf N-Strike Mega Mastodon

A recent example of a person charged and sentenced for the possession of a toy gun (a gel ball blaster) is R v Graves – NSW Caselaw. The indicative sentence for unauthorised possession of the gel ball blaster was 3 years and 6 months imprisonment. The Court acknowledged that the gel ball blaster was not capable of firing bullets.

How does a toy become a firearm? In NSW, firearms are regulated by the Firearms Act 1996 (“the Act”) and accompanying regulations. Whenever there is a question about whether or not an item is a firearm, it is sent to the NSW Police Ballistics Unit. The experts conduct an assessment of the item which may include dismantling the item to identify how it works. The factual findings of the expert are then compared to the definition of “firearm” set out in the Act and accompanying regulations. If the item falls within the definition, and is not excluded under the regulations, it is a firearm.

The current laws do not require the expert to consider the purpose for which the item was manufactured, what the item was manufactured from, or to conduct an assessment of the danger or risk posed by the use of the item in question.

The decision to charge someone who was in possession of a toy gun such as a Nerf gun or gel blaster, with unauthorised possession of a firearm resides with NSW Police. For example, NSW Police have previously issued public notices stating that gel ball blasters are firearms but have not provided guidance on what a gel ball blaster is (at least I haven’t managed to find any). Because “gel ball blasters” are not defined in the Act, it is entirely at the discretion of NSW Police. The same applies to other types of toy gun which are capable of falling within the definition of a “firearm”.

How did this happen? The firearms laws in NSW were a result of national gun control reforms introduced shortly after the Port Arthur Massacre in Tasmania, 1996 (35 dead and 23 wounded). The massacre was committed by a single gunman using semi automatic (rapid fire) military style rifles with large capacity magazines. The reforms, including gun buyback, were intended to reduce the risk of this type of event ever happening again in Australia.

The laws introduced to prevent mass murder are now used by NSW Police to prosecute people for possession of toy guns. Perhaps these laws need a refresher?