Is it legal to carry a knife in New South Wales? - Public Order - Australia (2024)

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

Operation Saber II involved all nine South West MetropolitanRegion commands as well as the Operations Support Group, Trafficand Highway Patrol, Police Transport Command and High VisibilityPolicing Units who conducted 413 personal searches and 40 bailcompliance on individuals in the region.

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

Acting Assistant Police Commissioner Adam Whyte told themedia:

"Operation Saber was initiated by the South WestMetropolitan Region in response to a rise in people possessingknives and bladed weapons in public places and committing violentoffences".

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

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

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

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

To establish the offence, the prosecution must prove beyondreasonable 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 ofcutting instruments, from regular kitchen knives to multi-purposetools and hunting knives.

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

It includes publicly owned property, as well as privately ownedplaces 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 ofthe school.

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

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

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

1. The lawful pursuit of an occupation, education ortraining,
2. The preparation or consumption of food or drink,
3. Participation in lawful entertainment, recreation orsport,
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 ofprobabilities'; in other words, that it was more likely thannot.

The section makes clear that a reasonable excuse does notinclude having custody of the knife solely for the purpose ofself-defence or the defence of another person.

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

Section 29A of the Summary Offences Act provides a mechanismfor police officers to issue those suspected of possessing a knifein a public place or school with a penalty notice (a fine) ratherthan sending them to court, 'if it is not desired to have thematter determined by a court'.

That section makes clear that a penalty notice may be issuedpersonally or by post, and that payment of the fine is not anadmission of guilt. Receiving or paying the penalty notice does notlead to a criminal record.

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

A person who receives a penalty notice may elect to take thematter to court within the prescribed time period, but should beaware that if he or she is ultimately found guilty, the maximumpenalties for the offence apply, including the possibility of acriminal record.

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

The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circ*mstances.

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