What the Law says about Possessing, Supplying or Making Explosives in NSW

By Sahar Adatia and Jimmy Singh.

On 25 July 2019, a 63-year-old man was charged with multiple explosives and firearms offences after a search of three properties in South Australia uncovered explosive materials, guns and detonators.

Murray Mallee Police, along with members of the bomb squad searched houses, sheds, vehicles and scrublands at the three properties in Bowhill, about 150 kilometres east of Adelaide.

Special Tasks and Rescue (STAR) operations also assisted in the arrest, which included a bomb response and dog operation officers.

They covered an area of about 250 acres during the search.

According to police, a quantity of explosives, electronic detonators and a detonation cable was allegedly found. The explosives were safely detonated on site by bomb response technicians.

Police also allegedly discovered three firearms, including a 12-gauge shot gun, a .22 rifle, and an air rifle. All firearms were seized.

The man was arrested and charged with multiple explosives and firearm offences, including possessing explosives without a permit, possessing firearms without a licence and possessing an unregistered firearm.

He will face Murray Bridge Magistrates Court in September.

Police Warn Public to Take Extreme Caution if they Come Across Dangerous Materials or Explosives

ABC News reports that following the arrest, police made a warning to the public to take extreme caution should anyone come across dangerous materials or explosives.

“In the event that you find any explosives or suspicious items, do not touch or attempt to move the item,” police said.

“Ensure your own personal safety and that of any other persons in the vicinity and immediately report the matter to police.”

Police also urged the public to surrender their explosives or related materials by contacting the South Australia Police call centre or their local police.

“Under no circumstances are explosives or dangerous items to be taken to a police station,” police said.

“Items should be left in place until police are advised and advice is provided in regard to the safe management of such items.”

What the Law Says about Explosives and Fireworks in NSW

As SafeWork NSW advises, fireworks and explosives can cause serious injury or death if not handled properly.

As such, if you make, buy, store, transport or discharge fireworks or explosives you will, in most cases, need a licence.

A range of Australian standards and codes found in the Explosives Act 2003 and Explosives Regulation 2013, work together to regulate explosives, certain security sensitive dangerous substances and fireworks. They also outline a licensing and notification system.

Authorised explosives and categories of prohibited explosives in NSW can be found in the NSW Government’s list of authorised explosives and categories of explosives.

In NSW, a licence is required to manufacture, import, store, transport, supply, handle or use explosives and/or security sensitive dangerous substances. 

What is the meaning of an Explosive under the Law?

An explosive is a substance or article that can cause an explosive or pyrotechnic effect when it is manufactured or mixed or assembled under section 4 Explosive Regulation 2013 (NSW).

It also includes goods considered too dangerous to be transported capable of producing an explosive or pyrotechnic effect within the meaning of the ADG Code or the Australian Explosives Code.

An explosive is also a dangerous good of Class 1 within the meaning of the ADG Code or the Australian Explosives Code.

Penalties for Possessing, Manufacturing or Making an Explosive with Intent to Injure in NSW

There is a maximum penalty of up to 10-years prison in NSW if you knowingly possess, make, or manufacture any of the below with the intention to injure or the intention to commit a crime that carries a maximum penalty of at least 5-years prison (or if you intend to enable someone else to do either of that):

• Gunpowder; or
• Explosive substance; or
• Dangerous or noxious thing; or
• Machine; or
• Engine; or
• Thing.

This is expressed in section 55 Crimes Act 1900 (NSW).

Penalties for Possessing, Making or Supplying an Explosive in NSW

There is a maximum penalty of up to 5-years imprisonment if in NSW you possess an explosive in a public place under section 93FA(1) Crimes Act 1900 (NSW).

However, the maximum penalty is 3-years imprisonment and/or $5,500 fine if you supply, make or possess an explosive in circumstance that give rise to a reasonable suspicion that you did this for an unlawful purpose. (Section 93FA(2) Crimes Act 1900 (NSW)).

A reasonable suspicion is usually made by considering what a reasonable person would think. However, for a reasonable suspicion to arise, it is said that a reasonable suspicion is something less than a reasonable belief but it is more than a possibility. (R v Rondo (2001) 126 A Crim R 562).

You will be not guilty for possessing, supplying or making an explosive in NSW if there was a reasonable excuse for doing it or if you had a lawful purpose under section 93FA(4) Crimes Act 1900 (NSW).

Where these charges are finally dealt with in the Local Court, the Local Court Magistrate is not allowed to impose a penalty exceeding 2-years imprisonment. Only the higher court, such as District Court has the power to impose the maximum 5-years for the offence of subsection one.

Lawful purpose or reasonable excuse could include circumstance you were acted under the ambit of your job, cultural celebrations, scientific research or sporting activities.

There is a penalty of up to 14-years prison for causing an explosive to be put or placed near or in a building, (including a vehicle, vessel, train or public place) if you did it with the intention to occasion bodily harm to a person under section 48(1) Crimes Act 1900 (NSW).

Under this section, it doesn’t matter whether an explosion took place any more than it doesn’t matter whether any bodily harm was caused.

A public place is any area that is open to the public – for example, parks, shopping centres, beaches.

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