Australia: Is it legal to carry a knife in New South Wales?

The NSW Police Force has reported charging 91 people with criminal offences during a two-day operation on 18 and 19 June 2020 which targeted 'knife crime' in Sydney's south-western suburbs.

Operation Saber II involved all nine South West Metropolitan Region commands as well as the Operations Support Group, Traffic and Highway Patrol, Police Transport Command and High Visibility Policing Units who conducted 413 personal searches and 40 bail compliance on individuals in the region.

Police say the operation led to the seizure of 20 knives and criminal charges brought against 91 people for alleged offences ranging from possessing a knife in a public place, to breaching bail, to possessing a prohibited drug.

Acting Assistant Police Commissioner Adam Whyte told the media:

"Operation Saber was initiated by the South West Metropolitan Region in response to a rise in people possessing knives and bladed weapons in public places and committing violent offences".

"We are targeting known violent people within the South West Metropolitan Region."

"We won't tolerate violent or predatory behaviour in the community and police will actively engage and arrest people who possess weapons in public places."

The operation follows Saber I on 6 and 7 February 2020, during which 426 people were subjected to personal searches, 59 were charged with criminal offences, and 16 knives were seized.

Possessing a knife in a public place or school is a crime under section 11C of the Summary Offences Act 1988 which carries a maximum penalty of 2 years in prison and/or a fine of $2,200.

To establish the offence, the prosecution must prove beyond reasonable doubt that the defendant:

1. Possessed a knife, and
2. Did so in a public place or school.

A 'knife' is defined broadly to include a knife blade, razor blade, and any other blade; which extends to all manner of cutting instruments, from regular kitchen knives to multi-purpose tools and hunting knives.

A 'public place' is a place, or part of a premises, that is open to, or used by the public, whether or not for payment, and whether or not only open only to a limited class of persons.

It includes publicly owned property, as well as privately owned places that are open to the public, such as:

1. Shopping centres and stores within them,
2. Restaurants, pubs and clubs, and
3. Sporting venues.

A 'school' includes:

1. A government or registered non-government school,
2. A child minding centre or pre-school, and
3. Any land or building occupied in connection with the conduct of the school.

However, it does not include a building on premises within the bounds of school property occupied or used solely as a residence or for purposes unconnected with the school.

A person is not guilty of the offence if he or she is able to establish they had a 'reasonable excuse' for possessing the knife.

A 'reasonable excuse' includes, but is not limited to, the knife being 'reasonably necessary' for:

1. The lawful pursuit of an occupation, education or training,
2. The preparation or consumption of food or drink,
3. Participation in lawful entertainment, recreation or sport,
4. Exhibition for retail, trade or collector purposes,
5. Wearing an official uniform,
6. Genuine religious purposes, or
7. Travel to or from any of the above.

The reasonable excuse must be established 'on the balance of probabilities'; in other words, that it was more likely than not.

The section makes clear that a reasonable excuse does not include having custody of the knife solely for the purpose of self-defence or the defence of another person.

That said, the traditional defence of self-defence still applies, as well as the defences of duress and necessity.

Section 29A of the Summary Offences Act provides a mechanism for police officers to issue those suspected of possessing a knife in a public place or school with a penalty notice (a fine) rather than sending them to court, 'if it is not desired to have the matter determined by a court'.

That section makes clear that a penalty notice may be issued personally or by post, and that payment of the fine is not an admission of guilt. Receiving or paying the penalty notice does not lead to a criminal record.

Regulation 15 of the Summary Offences Regulation 2015 currently sets the amount of the penalty notice at $550.

A person who receives a penalty notice may elect to take the matter to court within the prescribed time period, but should be aware that if he or she is ultimately found guilty, the maximum penalties for the offence apply, including the possibility of a criminal record.

By operation of 179 of the Criminal Procedure Act 1986, proceedings for possessing a knife in a public place or school cannot be brought later than 6 months after the alleged incident occurred.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.