One worrying trend in Australia is toward orders prohibiting individuals from possessing firearms. ‘Firearms Prohibition Orders’ (‘FPOs) are the means by which this is achieved in NSW and SA, and in April 2013 the then Prime Minister, Julia Gillard, urged other states to adopt the South Australian model. So, if you live in a state not currently affected by FPOs – watch out!
Strictly speaking there is nothing new about FPOs, in that they existed under the NSW Firearms & Dangerous Weapons Act 1973. What is new are recent ‘bells and whistles’ that have seen Police powers of search increased in respect to people who are subject to them.
This increase in powers in NSW occurred against the backdrop of a gang war between rival groups in Southwest Sydney. The gangs were shooting against one another and, even when someone was the victim, they refused to talk to Police, leaving the crime unsolved and Police looking impotent.
An FPO may be ordered by a delegate of the Police Commissioner, who may be any serving officer above inspector level, even in the absence of a conviction, providing that they are satisfied the subject of the order is ‘not fit, in the public interest to have possession of a firearm’. In NSW, the power is to be found in section 73 of the Firearms Act 1996.
It comes into effect upon issue, but a person cannot contravene it until the order has been personally served upon them.
A person who is subject to an FPO cannot acquire possess or use a firearm or firearms part. Penalties on conviction are a maximum of 14 years for a pistol or prohibited weapon or five years in any other case.
Possession of ammunition attracts a maximum penalty of five years imprisonment.
If they attend a firearms dealers premises, shooting range or club without reasonable excuse, they may be subject to a fine of up to fifty penalty units (a penalty unit is $110) or 12 months imprisonment.
Worryingly, section 74A of the Act, provides Police with the power to search or detain a person who is subject to an order, enter their premises, or stop a vehicle occupied or controlled by them, and conduct a search for firearms, firearms parts or ammunition.
Therefore, if an order is made against you, it is very important that you appeal it within the time period stated on the document.
The Act provides a limited mechanism for review. This is initially via internal review and then, if the outcome of that is not satisfactory, it may be reviewed under s60 Administrative Decisions Review Act.
Section 75(1A) of the Act, prevents a person who would be refused a Firearms Licence under section 11(5) or 23(9) of the Act, from applying for external review. Thus, if you are under 18 years of age, subject to an AVO, a good behavior bond, or have been convicted of a prescribed offence (i.e. one involving drugs, violence, fraud or stealing) within the last ten years, you cannot appeal to the Tribunal.
Ah, I hear you say, FPOs only apply to bad guys, so why should I care?
I was recently consulted by a gentleman who became subject of an FPO 34 years ago, following a failure to produce an Inquiry Agents Licence on demand and possession of a loaded firearm in a public place.
There was nothing sinister about the loaded firearm, it had inadvertently been left loaded in the boot after a hunt.
He was charged with these offences and a fine of $200 recorded.
That the matters were dealt with in a Local Court, and the presence of non-custodial penalties, would suggest that the offences were not considered particularly serious by Police Prosecutors or the presiding Magistrate.
Nevertheless, my guess is that the light penalty upset someone, because Police issued a FPO. This was appealed (note, it was externally reviewable under the 1973 Act, but not the 2006 one).
Unfortunately, his solicitor had made an error in entering the matter in his diary, and he failed to appear, with the result that the Court affirmed the order.
In NSW, under the Criminal Records Act 1991 minor offences become ‘spent’ and drop off a criminal record after a number of years of good behavior, and this has been the case in this case. Notwithstanding this, the FPO remains.
The Gentleman concerned has held Inquiry Agents Licence for almost four decades in Australia. He has completed a law degree in the UK, and has been considered to be a ‘fit and proper person’ for the purposes of being admitted as a Solicitor of England and Wales.
He has been granted a Shotgun Certificate in the United Kingdom and has competed internationally in that sport.
He is now a company director.
He is certainly in my opinion the very example of a model citizen.
Notwithstanding this, he cannot obtain a firearms licence, in Australia and is also deprived of a number of fundamental rights regarding search and detention.
This unfair law can adversely effect any of us at any time.
It is time Parliament stop giving Police everything that they claim a need for on ‘operational grounds’ and start to build in to the system appropriate safeguards to protect individual liberty.
As with all ‘Loose Cannon’ Blogs, the above is general information accurate at the time of publishing. It should not be regarded as legal advice or giving rise to a solicitor –client relationship between the reader and myself. If you become subject to an order it is important that you take immediate steps to obtain competent advice.
If you have any further suggestions for a future BLOG, or require legal advice, contact the writer by Phone on 02 6299 9690 or by email on solicitor@bigpond.com
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