A Firearm Prohibition Order (FPO) is an order that prohibits a person from bearing a firearm, firearm parts, or ammunition on the basis that it is not in the public interest for them to do so. There is no set criteria for the making of an FPO beyond the necessity for public safety. Persons who are subject to FPOs most commonly fall into the following categories:
- Those with a significant criminal history;
- Those with organised crime links; or
- Those persons with a history of firearm possession who suffer from any psychiatric illness.
Police Powers
Under Section 74A of the Firearms Act 1996 (NSW) a police officer may:
(a) Detain a person who is subject to a firearm prohibition order, or
(b) Enter any premises occupied by or under the control or management of such a person, or
(c) Stop and detain any vehicle, vessel or aircraft occupied by or under the control or management of such a person, and conduct a search of the person, or of the premises, vehicle, vessel or aircraft, for any firearm, firearm parts or ammunition.
Once a person is subject to an FPO, the police have the power to conduct searches at any time without the need for a search warrant. With respect to this power, the police do not need to comply with any of the usual safeguards involved in the exercise of police power. For example, the police are not required to have a ‘reasonable suspicion’ that an individual has actually committed an offence or will commit an offence. Police can simply use their search powers to check that an individual is abiding by the terms of an FPO.
These added powers are not the only consequences of being subject to an FPO. If you were to breach an FPO and possess, acquire or use a Firearm, firearm parts or ammunition, you are subject to strict penalties.
Firearm Possession Penalties
Section 74 of the Firearms Act 1996 (NSW) outlines the following:
- A person who is subject to an FPO who acquires, possesses or uses a firearm is subject to a maximum penalty of 14 years imprisonment if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
- A person who is subject to an FPO who acquires or possess a firearm part is subject to a maximum penalty of 14 years imprisonment if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case.
- A person who is subject to an FPO who acquires or possess ammunition for any firearm is subject to a maximum penalty of 5 years imprisonment.
Supplying Firearms or Ammunition
There are also strict penalties for those people who seek to supply firearms, firearm parts or ammunition to someone knowing that person is subject to an FPO. This is also outlined in Section 74 of the Firearms Act 1996 (NSW):
- A person must not supply or give possession of a firearm or firearm part to another person knowing that the other person is subject to an FPO. This carries a maximum penalty of 14 years imprisonment if the firearm is a pistol or prohibited firearm or if the firearm part relates solely to any kind of pistol or prohibited firearm, or imprisonment for 5 years in any other case.
- A person must not supply or give possession of ammunition for any firearm to another person knowing that the other person is subject to an FPO. This carries a maximum penalty of 5 years imprisonment.
Further, a person who is subject to an FPO can be found guilty of an offence simply if a firearm, firearm part or ammunition is kept or found on premises at which that person is residing. This carries a maximum penalty of 12 months imprisonment and/or a fine of $5,500.
Finally, a person the subject of an FPO must not without reasonable excuse attend:
(a) the premises specified in a firearms dealer‘s licence, or
(b) a shooting range, or
(c) the premises of a firearms club, or
(d) any other premises of a kind prescribed by the regulations.
This also carries a maximum penalty of 12 months imprisonment and/or a fine of $5,500.
Subjecting a person to a Firearm Prohibition Order is a decision taken by the NSW Police Commissioner, made without reference to a Court or any judicial oversight.
Can you Appeal?
After being served with a Firearm Prohibition Order, an individual has 28 days to request that the NSW Police Force review the decision. If the result of the review is unsuccessful, the individual must be provided with reasons why the Firearm Prohibition Order was made, and why the order will not be lifted.
Under certain circumstances, and where the police have refused to reconsider the order, the individual may have the option to apply to the NSW Civil and Administrative Tribunal (NCAT) for a further review. A significant number of individuals may be prevented from accessing this extra step. Examples include if the individual subject to the order has past convictions for certain prescribed offences, such as serious drug or dishonesty offences, or the individual has been subject to an Apprehended Violence Order (AVO) within the last 10 years (except where that AVO was revoked). In these circumstances, an individual will not be eligible to apply for an NCAT review.
Is it Unfair?
One element of this law which creates a significant impact upon the subject individual is that an FPO does not lapse in time. An individual can, at any time after the initial 28-day period, appeal to the Commissioner to withdraw the FPO. There is also no protocol to guide the review of current FPO subjects.
The content contained within this guide is expressed as a general guide as to this area of law and is not intended to contain legal advice specific to an individual’s case. If you, or someone you know is the subject of a Firearms Prohibition Order and requires legal advice, do not hesitate to contact Australian Lawyers and Advocates to discuss any criminal law matters further.
