I was once on a road trip from Sydney to Melbourne, our bags were packed, heading down the Hume Highway right before Christmas.

I'm driving my dad's Falcon and we were talking about our tickets to a summer cricket match. Somewhere along the trip, one of my friends in the backseat pulls out a small knife to show to the other boys.

I freak out at this point and say, 'You can't have that! It's illegal'

'No it isn't.'

'Yes. It is.'

We had a little argument about this until we later looked up the legislation on our phones.

He was a slightly taken aback at first, then a little embarrassed because he was a lawyer and didn't know it was illegal (he shall remain nameless as with the others in this article).

'Why do you have it?'

'It's just useful to have with you.'

He went into commercial law, so it was fair enough he didn't know. But if he of all people didn't know it was illegal, then how many others are out there that also don't know?

A lot of people will ordinarily hold a gut feeling on whether it feels right or wrong to be carrying a knife, and if it feels wrong, they won't do it.

But you'd be surprised to hear a lot of people get caught up in mishaps when it comes to carrying a knife. These mishaps usually end up in a court case where you're having to defend yourself in the Local Court.

The current law

The laws on carrying a knife in public are governed by the Summary Offences Act 1988 (NSW), and to a lesser extent by the Weapons Prohibition Act 1998 (NSW).

A lot of people caught carrying a knife in public will often say they have it for self-defence, or for their own protection, 'just in case'. Which may be understandable. A person may live in a dangerous neighbourhood and might need it.

But none of the above reasons count as lawful reasons to carry a knife under the Summary Offences Act 1998 (NSW).

This would provide little comfort to say a lady walking back home at night who finds herself being followed by a strange man through a park.

The only resort they would have to defend themselves is to use their own fists or hold tight onto their car keys in case the unthinkable happens.

How about 'pepper spray'?

Oleoresin capsicum spray – also known as OC spray or pepper spray – is not legal to carry either.

That regard, section 7 of the Weapons Prohibition Act 1998 makes it an offence punishable by up to 14 years in prison to possess a prohibited weapon, which includes the substance.

To legally possess pepper spray, you are required to obtain a permit under the Weapons Prohibition Act 1998.

I personally don't know anyone who has applied for a permit or heard of anyone coming out the other end of the permit process.

Pepper spray can also blow back into your own eyes if there's a wind or breeze that blows the wrong way, which might not be the best way to ward off a would-be attacker.

Even with the best training, there are cases of police officers being injured by the deployment of their own OC spray.

Tasers also require a permit under the same legislation.

The idea of just holding a taser however, which can electrocute yourself with its blue arc, is scary and repellent to most people.

The legislation also requires you to establish a 'genuine reason' to obtain a permit for either the spray or taser, along with stringent storage requirements. This effectively means only security guards and police officers can hold a permit.

What is a 'reasonable excuse' to carry a knife?

The lawful reasons to carry a knife in public is set down by section 11C of the Summary Offences Act 1998 (1988), which prohibits a person from carrying a knife in a public place unless they have a 'reasonable excuse'.

These reasonable excuses include if you carry the knife for your work, if preparing food or if you're going out for a recreational activity. Other excuses include if you're a professional knife salesman for example, conducting a religious ceremony or holding it as part of your official uniform (like a King's Guard at Buckingham Palace).

These exceptions or 'reasonable excuses' can create difficulties however for the people charged under this offence.

Case studies

I once represented a homeless woman in court, who was experiencing a rough time after being kicked out of her partner's house, who was charged.

She was let off with a caution the previous time she was found with a knife, but not the second time (as you cannot receive a caution for your second time).

Among her reasons for owning the knife was to prepare food as she has no kitchen. When asked repeatedly by police why she had the knife, she gave an additional answer that it was for her own protection in case she gets attacked.

This additional answer caused major headaches for her own legal defence in court.

Another time I represented a person who was coming back from buying drugs at night (he had a drug issue back then, but has since completed rehabilitation).

He worked as a diesel mechanic and bought a small curve-shaped knife from Super Cheap Auto earlier in the day, so he can keep it in his garage and use is to scrape gaskets when working on engines.

He gave evidence along with his father about his work and occupation, alongside other evidence of the knife itself.

The court however applied a narrow interpretation of what is 'reasonably necessary and incidental to travel' for one of the reasonable excuses and the court later found against him. His father was furious after court – he managed to speak to a producer at A Current Affair to try to get a story done, how unfair it was and how little public information there is on cases like this.

Another time I represented a person who was taking the train across Sydney to meet up with his friends and go fishing. He had a backpack with a fishing reel and a small tackle box inside.

While waiting at the station, he saw an Antifa sticker on a light pole that he didn't like. He pulled out a large hunting knife from his backpack and scraped off the sticker.

At that moment a passenger on a passing train saw him with the hunting knife, was scared he was going to board the train and called emergency services.

My client was very worried this would go onto his criminal record, he'd never committed a criminal offence before, was young, about to finish his university studies, and had no idea what he was doing is illegal.

He'd earlier bought the knife from a recreational store. He thought it was legal to carry as long as it was in a sheath (as told to him by a store clerk).

Towards the hearing we were preparing a defence of reasonable excuse for lawful fishing and recreational activity.

As we're preparing, it turned out our client also sent a flurry of emails to the officer asking for his 'lemon knife' back.

When I asked him about it, he told me he likes eating lemons, as strange as that is, and he was in fact was seen eating a raw cut up lemon on the platform.

He told the arriving officers too about the lemons. He was found not guilty after a contested hearing. Unfortunately for him, he forgot to ask police for the lemon knife back and it was destroyed as per police protocol.

Another time I represented a young eighteen-year old Iranian man who was a refugee to this country. He was working nighttime at a chicken shop to help pay his way through studies and needed help appealing a licence suspension.

As he came into court through the metal detectors, he was asked to step aside in the line. In his wallet, there was a plastic card that has a tiny swivel blade in the corner.

He'd bought it off Amazon and thought it was handy to keep in his wallet in case he needed it.

He didn't think of it as a knife and forgot it was there. But growing up, in Iran carrying tools like this was normal to get by. In context, it was treated very seriously by the police, bringing a knife directly into a courthouse.

Though in reality, the blade was flimsy and was more likely to break apart in his wallet.

After I sat next to him during his interview in the lobby of the police station, he was given another new court date for the knife offence.

This is not to say knife crime is not serious.

Carrying a knife can have horrible consequences, even if you don't intend on actually using it when packing it away in your bag.

NSW Government's knee-jerk response – double the penalties

Following the tragic stabbing death of a teenager at The Royal Easter Show last year, the NSW government announced they will be introducing a new bill to double the maximum penalties for knife carrying offences.

The objective behind the proposed new laws

Among the reasons for introducing the bill, NSW Attorney General Michael Daley has said:

"The tougher maximum penalty will send a strong message about the gravity of knife-related crime.

"The government is acting to address understandable community concern given the high-profile tragic events involving knives that we have seen in NSW over the last couple of years.

"We want to ensure that people in the community are safe and feel safe.

"We believe we have struck the right balance with these reforms, sending an important message to people engaging in criminal behaviour of this kind but also not being overly punitive in its application."

(as published online)

Going further back in time, in the Second Reading Speech when the legislation was reformed in 2009 by the passing of the Crimes Legislation Amendment (Possession of Knives) Bill 2009 (NSW), it was said the reforms were needed to drive down the rates of knife possession, and not to follow trends in the U.S, Europe and UK of what was then a dramatic increase in attacks involving knives.

To this day, there also remains a raft of other offences under sections 11C, 11D, 11E, 11F which involve offences on knives being given to children and being brought into school grounds. In the same reading speech, it was said that Parliament wished to deter intruders trying to come onto school grounds to take out revenge and endangering school students.

The above legislative amendments perhaps didn't arrive in time to save a student two grades above me in primary school, who was robbed at knife point for his Pokemon cards. (The police were called, both students were fine and spoken to with their parents)

Holding a pair of scissors in a public place is not an offence under the Act (see Police v O'Brien [2012] NSWLC 7, per Favretto LCM for a helpful statutory construction). But possessing a flick knife, ballistic knife, sheath knife, Urban Skinner push dagger, trench knife, butterfly knife, a star knife and a zombie knife is an offence under the Weapons Prohibition Act 1998 (NSW). To understand what those knives actually are, your best bet is to do a basic Google image search – they all look very scary.

There is no doubt knife crime is very serious. The legislation was amended to reflect that fact, and the legislation will be further amended still in the coming months.

In that original Second Reading speech dating back to 2009, it was said back then:

"The details of this legislation will need to be publicised through an education program, as there is no point in the Parliament passing legislation and increasing penalties if the information is not conveyed to the wider community."

As the above stories illustrate, perhaps the public information campaign that Parliament envisaged hasn't been so successful.

So, the next you go to your friend's house and see a decorative sword on the mantlepiece, ask them:

"Do you need a permit for that?"

(Ps. The answer may be somewhere inside the list of Schedule 1 of the Weapons Prohibition Act 1998 (NSW))

The new offences for custody of a knife in New South Wales

As touched upon, the New South Wales Government is proposing tough new laws relating to the possession of knives in public.

The laws will repeal (remove) section 11C from the Summary Offences Act 1988 and insert new offences into the piece of legislation which generally contains more serious offences: The Crimes Act 1900.

The new knife offences in New South Wales will be:

  • Section 93IB of the Crimes Act which will replace section 11C of the Summary Offences Act and prescribes a maximum penalty of 4 years in prison and/or 40 penalty units (currently equivalent to $4,400) for possession of a knife in a public place or a school without a reasonable excuse, and
  • A new offence under section 93IC of the Crimes Act of carrying a knife in the presence of another person in a public place or school that is likely to cause a reasonably person to fear for his or her safety, which will carry a maximum penalty of 4 tears in prison and/or 100 penalty units (currently equivalent to $11,000.

Going to court for a knife or weapons offence?

If you have been accused of possessing a knife in a public place, or possessing a prohibited weapon such as pepper spray or a taser, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference and let us fight to produce the best possible outcome, so you can put the episode behind you and move forward with your life.

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.