Firearm Prohibition OrdersStephen Dayeian
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 (“FPO”) 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 FPO?
Once a copy of the FPO has been personally served by a police officer, a FPO subject may be prosecuted under s 74 of the Firearms Act for breaching their FPO, 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 FPO 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 FPO 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  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 FPO 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:
- the power of search and hence the efficacy of the FPO would be reduced considerably if the power of search was restricted to cases where a police officer already suspected non-compliance; and
- 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 FPO be Challenged?
A FPO will continue indefinitely unless revoked by the Commissioner.
Once a FPO has been served, a written request can be 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 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 FPO.
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.
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 FPO 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 criminals making vexatious or frivolous appeals.