Is it legal to carry a speargun in a marine park in Victoria? No. This is an offence carrying up to a year in prison.
Fisheries Victoria have expressed in writing that they would prefer the police not to be involved.
“Spear guns are legal, it’s the area they are in that makes their activity illegal, not the equipment. I would say this is massive waste of police time and resource.” (email received from Regional Operations Manager, Central Victorian Fisheries Authority, Feb 14 2022)
This is untrue. It speaks to a wider issue of negligence on the part of Fisheries Victoria to protect the values of our marine parks.
Fisheries Victoria are instead ‘gathering intelligence’ on illegal use of spears in marine parks. However, it is extremely rare for any offences to be carried forward. But very common for such offences to occur. The result is constant, flagrant and negligent, spearfishing inside marine parks. Fisheries admit they have no capacity to enforce. Further, fishers that are approached, often have no idea of the law. Fisheries is failing in its duty to protect the values of the marine parks and therefore, calling the police is the only remaining option.
I’m going to briefly outline the offence provisions with regard to speargun use. The use of a speargun in a marine park is not just a fisheries offence. It is also illegal under the CONTROL OF WEAPONS ACT 1990 (Vic) and is considered a Criminal Offence which means it carries significant penalties including a potential prison sentence. This makes it an arrestable offence and not just a summary offence under the Fisheries Act.
CALL THE POLICE
If you see anyone illegally carrying or possessing a speargun in a marine park or within 30m of a pier, you should immediately call the local police station or 131 444, and say:
“There is someone carrying a spear gun and we are worried about our personal safety, can you please send an officer?”
If the police aren’t clear, for whatever reason (though they should be able to look up ‘spear gun’), you could let them know that a spear gun is a controlled weapon and that it is being used in a marine park around swimmers.
Dangers of Spearguns in Marine Parks
Spearguns are very dangerous weapons. Marine parks are frequented by swimmers and snorkelers, often with young children. Almost 95% of Victoria’s coastline is available to spearfish. There is no excuse to be anywhere near a marine park spearfishing. Spearfishing has also been responsible for the annihilation of resident reef fish from our parks since the 1950s and this is having untold impact on the entire ecosystemHow ecosystems function An ecosystem is a community of lifeforms that interact in such an optimal way that how ecosystems function best, is when all components (including humans and other animals) can persist and live alongside each other for the longest time possible. Ecosystems are fuelled by the energy created by plants (primary producers) that convert the Sun's heat energy More, leading to plagues of jellyfish, imbalances in sea urchin populations and invasion of noxious weed pests like Undaria.
THE OFFENCE
Referring to the provisions detailed below. Spear guns can only be used with a “lawful excuse” which includes “participation in any lawful sport, recreation or entertainment”.
According to the Victorian Fisheries Authority:
It is an offence under section 6(2) of that Act to carry a controlled weapon unless it is carried in a safe and secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used.
The Victorian Police state clearly that “A person must not possess, carry or use a controlled weapon without a lawful excuse”.
In considering whether there is “lawful excuse”, the courts have to have regard to the circumstances, “such as time and location, of the incident”. This is important. While it could be argued that carrying the weapon is ‘consistent with the lawful excuse for which it is possessed’, when considered alongside the fact it’s used at a time and in a location that is illegal, this would seem to create the offence.
This is why. The FISHERIES REGULATIONS 2019 and the NATIONAL PARKS REGULATIONS 2013 make the “possession” of spear gun in a park, or within 30 metres from any pier, jetty or wharf or the mouth of any creek or river, illegal. For clarity, it is very likely to be unlawful to simply ‘carry’ a spear gun in a marine park.
There are no exceptions in relation to carrying a spear gun in any of these places, unless ‘proceeding by the most direct route to, or from, a boat ramp or mooring to waters in which the use of a spear gun or hand-held spear is permitted’.
Is it legal to carry a speargun in a marine park?
In conclusion, it is not. This is almost categorically illegal. Anyone who carries a speargun through a park, even if they park in the car park and enter the water to ‘swim through’ is committing an offence. Clearly to do so, is not at all in keeping with the values of the park. It is also highly dangerous and intimidating for other water user. Spearfishing does not belong inside any marine park.
Since carrying a spear gun in a marine park is illegal, the spear fisher should not be able to argue that they are participating in a lawful sport or recreation. Nor can they claim the defence of not using it, because the mere act of possessing or carrying a controlled weapon without lawful excuse, is a Criminal Offence – and simply having the spear gun on you, is a Criminal Offence, if you do not have a lawful excuse. In fact, using it in a marine park, within 30m of a public pier or in a shopping centre, would all be equally prohibited.
If there are two of you, and you can provide two independent witness statements (i.e. not members of the same family), you could be asked to provide evidence for a conviction. However, it’s really important you do not approach someone with a spear gun. They are capable of inflicting serious harm at a distance, even underwater.
Maximum possible penalty
Unlike illegal fishing, which imposes summary on-the-spot-fines that are unlikely to exceed about $360, Criminal use of a spear gun can result in up to:
120 penalty units ($21,808*) or imprisonment for 1 year (section S. 6(1)).
*In Feb 2022, one penalty unit was worth $181.74.
Even if there is a “lawful excuse” for carrying a controlled weapon, unless it is carried in a safe and secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used, the accused will face a fine of 20 penalty units.
Background
CONTROL OF WEAPONS REGULATIONS 1990 (Vic)
Controlled weapons
Section 6 of the Act relates to “Controlled Weapons” which are listed in Schedule 2 of the CONTROL OF WEAPONS REGULATIONS 2011, accompanying the Act.
The first item on the schedule is ‘spear gun’.
Offences
S. 6(1) amended by Nos 47/2000 s. 7(1)(a), 1/2007 s. 4.
(1) A person must not possess, carry or use a controlled weapon without lawful excuse.
Penalty: 120 penalty units or imprisonment for 1 year.
S. 6(2) amended by Nos 47/2000 s. 7(1)(b), 53/2007 s. 6(2).
(2) A person must not carry a controlled weapon unless it is carried in a safe and secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used.
Penalty: 20 penalty units.
(3) In this section “lawful excuse” includes—
(a) the pursuit of any lawful employment, duty or activity; and
(b) participation in any lawful sport, recreation or entertainment; and
(c) the legitimate collection, display or exhibition of weapons—
but does not include for the purpose of self-defence.
S. 6(4) inserted by No. 47/2000 s. 7(2).
(4) In considering whether a person has lawful excuse to possess, carry or use a controlled weapon, the court must have regard to the circumstances, such as time and location, of the incident.
S. 3(1)
“possession” includes—
(a) actual physical possession; and
(b) custody or control; and
(c) having and exercising access either solely or in common with others;
‘Carried’ and ‘used’ are not defined in the Act and have their ordinary meanings of an accused having a weapon on their person or using a weapon.
FISHERIES REGULATIONS 2019 (Vic)
Reg 120
Use or possession of spear gun not permitted in certain waters
(3) A person must not use or possess a spear gun in or on waters that are within 30 metres from any pier, jetty or wharf or the mouth of any creek or river.
Penalty: 20 penalty units.
(4) This regulation does not apply to a person who—
(b) possesses a spear gun in a boat that is proceeding by the most direct route to or from a launching point, boat ramp or mooring to waters in which the use of a spear gun is permitted.
NATIONAL PARKS REGULATIONS 2013 (Vic)
Areas where spears or spear guns prohibited or restricted
Reg. 59(1) amended by S.R. No. 125/2018 reg. 23.
(1) Parks Victoria by determination may set aside specified marine waters in which the possession of hand held spears or spear guns is prohibited or restricted.
(2) A person must not possess a hand held spear or spear gun in an area set aside by a determination under subregulation (1) in a manner that contravenes the determination.
Penalty: 10 penalty units.
Meaning of park
In these Regulations, except where otherwise expressly provided, a reference to “park” includes a reference to—
(a) any park within the meaning of the Act;
