Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of criminal and/or human rights law before acting or relying on any of its content.
The Commissioner of Police may make a Firearms Prohibition Order against a person if in the opinion of the Commissioner the person is not fit, in the public interest, to have possession of a firearm: s 73 Firearms Act 1996 (NSW). To date, hundreds of people in NSW have been served with a Firearms Prohibition Order. The overwhelmingly majority of those issued with such orders are suspected members or associates of outlaw motorcycle gangs and other organised criminal groups.
The effect of a Firearms Prohibition Order is outlined in Section 74 of that the Firearms Act. A person subject to such an order has certain restrictions placed on them, a breach of which constitutes a serious criminal offence. They:
14 years imprisonment (pistols and prohibited firearms)
5 years imprisonment (any other case)
14 years imprisonment (pistol and prohibited firearm parts)
5 years imprisonment (any other case)
5 years imprisonment
Fine (50 penalty units) and/or 12 months imprisonment
Fine (50 penalty units) and/or 12 months imprisonment.
The new “warrantless” search power
One of the more widely criticised elements of the Firearms and Criminal Groups Legislation Amendment Bill 2013 was the introduction of “warrantless search powers” for Police. It is important to note that these powers may only be exercised against persons who are subject to a Firearms Prohibition Order, and only then to determine whether a person has contravened a provision of Section 74.
The powers are contained in the new Section 74A of the Firearms Act. Essentially it empowers police officers to – without first having to obtain a warrant – detain a person, enter their residential premises or stop a vehicle occupied or controlled by that person, in order to conduct a search for firearms, firearm parts or ammunition.
At first instance, a person is required to make an application for internal review of the decision to make a Firearms Prohibition Order. Internal review applications must be lodged in writing with the Case Management Unit of the Firearms Registry. An internal review is usually finalised within 21 days. At the end of the process, the internal reviewer may affirm the original decision to make an FPO, vary it, set it aside or make a new FPO.
If a person is not satisfied with the outcome of the internal review process then, under section 75(f) of the Firearms Act, they can apply to the NSW Civil and Administrative Tribunal (NCAT) for an external review of their Firearms Prohibition Order. Significantly, in certain circumstances, an FPO may be suspended for the duration of the review: s 60 Administrative Decisions Review Act 1997 (NSW)). After reviewing all relevant factual material, as well as the relevant law, the NCAT may do one of the following:
Affirm the Firearms Prohibition Order
Vary the Firearms Prohibitions Order
Cancel the Firearms Prohibition Order; or
Require the Commissioner to make the decision to impose a Firearms Prohibition again.
It is important to note that there is a significant limitation on review rights in the legislation. Where a Firearms Prohibition Order is made against a person who would be refused a firearms licence or permit under section 11(5) or 29(3) of the Act, that person is prohibited from applying for external review to the NCAT: s 75(1A) Firearms Act 1996. Briefly, these provisions state that a licence or permit must not be granted to persons under 18, those who have been convicted of a prescribed offence in the last 10 years (for example, offences relating to drugs, violence, fraud or stealing etc) or are subject to an AVO or good behaviour bond.
In short, if you would not be granted a firearms licence or permit by the relevant issuing authority, your review options in regards to a Firearms Prohibition Order are limited to internal review. According to those responsible for the legislation, this is designed to stop criminals making vexatious or frivolous appeals.
NSW Ombudsman Review
In 2015 the acting NSW Ombudsman, Professor John McMillan, announced that he would be conducting a Firearms Prohibition Order search powers review. The Ombudsman’s Office has put out an Issues Paper examining the key issues around Firearms Prohibitions Orders and the search powers that Police enjoy under them.
Lawyers have expressed concerns about these powers which can be found in section 74A of the Firearms Act 1996, as they permit Police to search, without a warrant, any person subject to a Firearms Prohibition Order and any premises or vehicle that the person occupies, controls or manages. In particular, Police are able to conduct a search at any time if they believe the search to be “reasonably required” to determine whether someone has committed an offence using a firearm, or if they think an individual is acquiring or possessing a firearm or a firearm part or ammunition (Section 74(1)).
Disturbingly, the Ombudsman’s Issues Paper notes that in the first 10 months of the Review 642 Firearms Prohibition Order searches were conducted on people and vehicles.
Despite the number of searches, none resulted in Police finding a firearm. Of the total of 48 charges levelled against 11 people there was only 1 firearms charge of unlawful possession of ammunition.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org