Recent Law

Section 73 of the Firearms Act 1996 (NSW) (“Firearms Act”) provides that the Commissioner of the NSW Police Force (“the Commissioner”), or their delegate, can make a Firearms Prohibition Order against a person if the Commissioner is of the opinion that the person is not fit, in the public interest, to have possession of a firearm.

What is the Effect of a Firearms Prohibition Order?

Once a copy of the Firearms Prohibition Order has been personally served on a person by a police officer, that person may be prosecuted under s 74 of the Firearms Act for breaching their Firearms Prohibition Order, risking imprisonment, if:

• they acquire, possess or use a firearm, firearm part or ammunition; or
• a firearm, firearm part or ammunition is kept or found in their premises; or
• they, without reasonable excuse, attend:
  • any premises specified in a firearms dealer’s licence;
  • a shooting range; or
  • any premises of a firearms club (regardless of whether they are a member).

Perhaps more controversially, s 74A of the Firearms Act allows a police officer to search a Firearms Prohibition Order subject’s body, and any vehicle or premises that the person occupies, controls or manages, without the need for a search warrant.

Further, such a search may be conducted at any time, providing it is reasonably required to determine if the Firearms Prohibition Order subject has committed an offence by acquiring, possessing or using a firearm, firearm part or ammunition.

The operation of s 74A of the Firearms Act was recently examined by Fagan J in the NSW Supreme Court decision of Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811 (“Shaba”), which was handed down on 1 June 2018.

In Shaba, it was held that a police officer does not have to suspect on reasonable grounds that a Firearms Prohibition Order subject has committed an offence by acquiring, possessing or using a firearm, firearm part or ammunition as a prerequisite to exercising the power of search under s 74A of the Firearms Act.

This interpretation was based on two main grounds:

1. the power of search and hence the efficacy of the Firearms Prohibition Order would be reduced considerably if the power of search was restricted to cases where a police officer already suspected non-compliance; and
2. the power of search has a narrow focus on who or what may be searched and what items may be searched for. By allowing such a power to be exercised without the relevant police officer holding a suspicion as to the commission of an offence, Parliament has not effected any broad or substantial erosion of civil liberties.

Can a Firearms Prohibition Order be Challenged?

A Firearms Prohibition Order will continue indefinitely – there is no expiration date.

When a person is served with an Firearms Prohibition Order, they can either challenge the making of the Firearms Prohibition Order, or request the revocation of the Firearms Prohibition Order.

Administrative Review of the Making of an Firearms Prohibition Order

Once a Firearms Prohibition Order has been served, a written request must made to the Commissioner within 28 days for an internal review of that decision under s 53(2)(d) of the Administrative Decisions Review Act 1997 (NSW). This is best done by a criminal barrister or criminal solicitor.

This internal review will be conducted by, as far as practicable, a suitably qualified employee of the NSW Police Force who was not substantially involved in the process of making the decision to make the Firearms Prohibition Order.

Such a review will ordinarily be conducted by the Manager of the Licensing and Compliance Unit at the Firearms Registry

If the application for an internal review fails, s 75(1)(f) of the Firearms Act provides that an application may be made to the NSW Civil and Administrative Tribunal (“NCAT”) for an administrative review. A criminal barrister or criminal solicitor can appear on your behalf in these proceedings.

However, s 75(1A) of the Firearms Act provides that a person cannot apply to NCAT for an administrative review of a decision to make a FPO if that person:

• is under the age of 18;
• has been convicted within 10 years of an offence listed in cl 5 of the Firearms Regulations 2017 (NSW);
• is subject to an apprehended violence order, or has been in the last 10 years (unless it was revoked);
• is subject to a good behaviour bond in NSW or elsewhere; or
• is on the Child Protection Register.

It would be reasonable to assume that the above categories would apply to most Firearms Prohibition Order subjects, meaning NCAT would rarely see such applications for administrative review. The intention of Parliament in creating s 75(1A) of the Firearms Act was to help ensure that the appeals process is not abused by persons making vexatious or frivolous appeals.

Revocation of an Firearms Prohibition Order

If a person is unsuccessful in challenging the making of their Firearms Prohibition Order, or is out of time to make such a challenge (assuming NCAT would not extend the time period), they can always make a request to the Commissioner for the revocation of the Firearms Prohibition Order.

A Firearms Prohibition Order can be revoked at any time by the Commissioner pursuant to s 73(3) of the Firearms Act.

The Commissioner (through their delegate) will respond in writing to any application for revocation. Ordinarily, the Commissioner will decline to revoke a Firearms Prohibition Order on the grounds of public safety, citing the need to ensure persons convicted or serious firearms related offences do not have access to firearms and that the police have sufficient powers to prevent such access.

If the Commissioner declines to revoke the Firearms Prohibition Order, that decision cannot be reviewed by NCAT: see Holdsworth v Commissioner of Police, NSW Police Force [2019] NSWCATAD 42, [89] (Senior Member Montgomery).

NCAT only has jurisdiction to review the decision to make the FPO: see Taylor v Commissioner of Police, NSW Police [2006] NSWADT 219, [4] (Member Higgins).

Need Assistance?

If you have been served with a Firearms Prohibition Order, or have been charged with a Firearms Prohibition Order or firearm related offence, and are in need of a criminal barrister please contact me for assistance.

As a criminal barrister, I regularly appear in all Local Courts in NSW, including Burwood Local Court, Downing Centre Local Court, Parramatta Local Court, Penrith Local Court, Mt Druitt Local Court, Blacktown Local Court, Hornsby Local Court, Manly Local Court Waverley Local Court, Sutherland Local Court, Mt Druitt Local Court and Windsor Local Court.

I also regularly appear in all Children’s Courts and District Courts in NSW.