Introduction

Firearms are a massively powerful tool, and can be deadly — it is then essential that they are in the right hands. Firearm Prohibition Orders (FPOs) are legal measures in New South Wales that restrict individuals from acquiring, possessing, or using firearms, firearm parts, or ammunition. Established under the Firearms Act 1996 (NSW), these orders are issued by the Commissioner of New South Wales Police when it is deemed necessary for public safety. FPOs significantly impact individuals by imposing strict restrictions on firearm-related activities and granting police extraordinary search and detention powers.

This guide provides a comprehensive overview of FPOs, including their legal framework, the criteria for issuance, police powers, penalties for breaches, and the review process. It also explores the practical implications for individuals subject to these orders and offers insights into challenging their imposition. Whether you are seeking to understand the legal ramifications or navigate the review process, this guide offers essential information and practical guidance.

Understanding Firearm Prohibition Orders in NSW

Definition of a Firearm Prohibition Order

A Firearm Prohibition Order (FPO) is a legal measure issued by the Commissioner of New South Wales Police. Its purpose is to ensure public safety by restricting a person from acquiring, possessing or using:

• Firearms: devices capable of propelling projectiles through explosive means (for example, pistols, rifles and air guns, but excluding paintball markers)
• Firearm parts: components such as barrels, breeches and magazines
• Ammunition: bullets and cartridges

The scope of an FPO extends to any premises, vehicles, or vessels under the person’s control or management, effectively banning these items in such locations. An FPO does not have an expiry date and is governed by Part 7 of the Firearms Act 1996 (NSW).

Criteria for Issuing an FPO

An FPO is imposed at the Commissioner’s discretion when an individual is deemed to pose a risk to public safety. Common grounds include:

• Significant Criminal History: involvement in violent offences, drug-related crimes or organised-crime activities
• Psychiatric Concerns: mental health issues that may impair responsible firearm possession
• No Set Criteria: decisions are not strictly bound by predefined rules, allowing flexibility based on individual circumstances

Once in place, an FPO can be revoked at any time. To enforce compliance, police are granted extensive search powers—without needing warrants—and individuals may seek relief through established legal review processes.

Police Powers & Search Provisions Under FPO

Extraordinary Powers Granted to Police

Under section 74A of the Firearms Act 1996 (NSW), police are granted significant powers when dealing with a person subject to a Firearm Prohibition Order (FPO). These include the authority to:

• Detain the person subject to the FPO.
• Enter any premises occupied by, or under the control or management of, the person.
• Stop and detain any vehicle, vessel, or aircraft occupied by, or under the control or management of, the person.
• Conduct searches of the person, premises, vehicle, vessel, or aircraft for firearms, firearm parts, or ammunition.

Importantly, these powers do not require police to obtain a search warrant or establish reasonable suspicion under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). Instead, searches may be conducted as “reasonably required” to determine whether the person subject to the FPO has committed an offence under the Firearms Act. When deciding whether to exercise these powers, police may consider:

• Intelligence about the person’s access to firearms
• Suspicious behaviour
• Recent firearm-related crimes in the area
• The need to prevent organised crime or recidivism

For example, if officers reasonably believe that an FPO subject is transporting firearms or ammunition without lawful authority, they may detain and search the vehicle. These extraordinary powers are intended to enhance public safety by preventing prohibited firearm possession or use by high-risk individuals.

Limits & Misuse of Search Powers

Despite their breadth, police search powers under an FPO are legally limited. Searches can only target:

• The person subject to the FPO
• Any premises, vehicles, vessels, or aircraft under their control

Officers cannot lawfully search individuals who are merely accompanying someone subject to an FPO, nor may they seize items unrelated to firearms, firearm parts or ammunition during an FPO search. For instance, drugs or knives found incidentally cannot be seized without obtaining a separate warrant or having another lawful basis.

A review by the NSW Ombudsman found that in approximately 30% of FPO searches, police misunderstood these limits, resulting in unlawful searches and seizures. Common misuses include:

• Searching non-FPO individuals
• Unlawfully seizing items unrelated to firearms

Such unlawful actions may lead to evidence being excluded in court under section 138 of the Evidence Act 1995 (NSW), potentially undermining prosecutions. For example, if police search a car occupied by an FPO subject and a friend who is not subject to an FPO, they may only lawfully search the FPO subject and their belongings. Any drugs seized from the friend could be excluded from subsequent proceedings.

These limitations underscore the importance of strict adherence to the scope of powers under the Firearms Act to avoid legal challenges and protect individual rights.

Penalties for Breaching a Firearm Prohibition Order

Penalties for Possessing or Acquiring a Firearm or Parts

Breaching a Firearm Prohibition Order (FPO) carries severe penalties under New South Wales law. If a person acquires, possesses, or uses a firearm while subject to an FPO, they face significant legal consequences. The maximum imprisonment terms vary depending on the type of firearm:

• Pistols or Prohibited Firearms: up to 14 years’ imprisonment.
• Other Firearms: up to 5 years’ imprisonment.

Furthermore, similar penalties apply to acquiring or possessing firearm parts:

• Parts for Pistols or Prohibited Firearms: up to 14 years’ imprisonment.
• Parts for Other Firearms: up to 5 years’ imprisonment.

Penalties for Supplying and Unlawful Possession at Home

Supplying a firearm or firearm part to someone subject to an FPO is a serious offence. The maximum penalties depend on the nature of the item supplied:

• Pistols or Prohibited Firearms (and their parts): up to 14 years’ imprisonment.
• Other Firearms or parts: up to 5 years’ imprisonment.
• Ammunition: up to 5 years’ imprisonment.

Moreover, anyone subject to an FPO must not knowingly have a firearm, firearm part, or ammunition at home. Breaching this requirement may result in:

• A fine of up to 50 penalty units (currently $5,500),
• Imprisonment for up to 12 months,
• Or both.

These penalties reflect the seriousness with which breaches of an FPO are treated under NSW law, emphasising the importance of compliance to maintain public safety.

Review Process & Appeal Options for FPO

Internal Review Procedure Within 28 Days

If you have been served with a Firearm Prohibition Order (FPO), you are entitled to request an internal review of the decision within 28 days. Through this process, you can challenge the order and potentially have it revoked or modified.

To initiate the review, you must:

• Submit a written request to the Commissioner of the New South Wales Police Force.
• Clearly outline the reasons why you believe the FPO should be revoked or amended.
• Seek legal advice to ensure your request is well-supported and articulated.

Once the review is conducted, the police will assess whether the FPO should continue or be lifted. If the review is unsuccessful, you will receive detailed reasons for the decision. This clarity on the rationale behind the order helps you prepare for further legal action if necessary.

Further Appeal via NSW Civil & Administrative Tribunal

If the internal review does not yield a favourable outcome, you can escalate the matter to the NSW Civil and Administrative Tribunal (NCAT). NCAT provides an independent forum to reassess the decision, ensuring that the order is reasonable and necessary in the public interest.

To apply for a review through NCAT, you must meet specific eligibility criteria. For example, if you have certain criminal convictions or are subject to an Apprehended Violence Order, you may be ineligible. It is essential to consult with a legal professional to determine your eligibility and strengthen your case.

The NCAT process involves:

• A hearing where both parties present their arguments.
• The possibility that, if successful, the tribunal may revoke or modify the FPO.

This step is a critical safeguard against arbitrary or unjust decisions, ensuring that your rights are protected throughout the process.

By understanding and utilising these review and appeal options, individuals can effectively challenge an FPO and seek a fair resolution.

Impact of Firearm Prohibition Orders on Daily Life

Restrictions on Accessing Firearms Facilities

A Firearm Prohibition Order (FPO) imposes significant restrictions on an individual’s ability to access certain facilities related to firearms. Specifically, a person subject to an FPO is prohibited from attending:

• Firearms dealers: This includes any premises specified in a firearms dealer’s licence.
• Shooting ranges: These are places where individuals practice shooting or participate in related activities.
• Firearms clubs: Organisations that promote firearm sports, training, and community among members.

Violating these restrictions carries serious consequences. Penalties may include fines of up to 50 penalty units ($5,500), imprisonment for up to 12 months, or both.

These restrictions not only limit recreational activities but also affect professional engagements related to firearms.

Long-Term Ramifications & Social Implications

The imposition of an FPO can have far-reaching consequences beyond immediate restrictions:

• Indefinite Duration: An FPO does not expire and remains in effect unless revoked by the Commissioner, leading to prolonged restrictions on personal freedom.
• Reputational Damage: Being subject to an FPO can lead to social stigma, affecting both personal and professional relationships. It may also impact one’s standing in the community, particularly in circles involving firearms or outdoor activities.
• Future Legal Encounters: An FPO can complicate future interactions with law enforcement and legal processes. For instance, it may affect the ability to obtain certain licences or permissions, as authorities may view the individual as a higher risk.
• Psychological Impact: The loss of freedom and the constant awareness of being under such an order can lead to emotional and psychological strain, impacting overall well-being.

These social and legal implications highlight the profound impact of an FPO on an individual’s life, extending beyond the immediate legal restrictions to broader societal and personal challenges.

Police Misapplication & Legal Challenges of FPO Searches

Examples of Unlawful Search & Seizure

Police misapplication of Firearm Prohibition Order (FPO) search powers is a significant issue in NSW. Despite the broad authority granted under section 74A of the Firearms Act 1996 (NSW), officers often exceed their legal boundaries. Common examples include:

• The unlawful seizure of items unrelated to firearms, such as drugs or knives.
• Misunderstanding the scope of their powers, as revealed by the NSW Ombudsman’s review, which found that in 30% of FPO searches officers conducted unlawful searches and seizures.

For instance, if police search a person subject to an FPO and find drugs, this evidence may be excluded in court if the search was conducted unlawfully.

Legal Remedies & Exclusion of Unlawful Evidence

Individuals subjected to unlawful FPO searches have legal avenues to challenge such actions. Evidence obtained through such searches may be excluded under section 138 of the Evidence Act 1995 (NSW), which allows courts to prevent the prosecution from relying on unfairly obtained material.

For example, if police unlawfully seize drugs during an FPO search, the accused may argue for exclusion of this evidence—potentially leading to the withdrawal of charges or a more favourable plea deal. Additionally, individuals can seek legal remedies through:

• Internal reviews
• Appeals to the NSW Civil and Administrative Tribunal (NCAT)

These legal challenges underscore the need for police to strictly adhere to the boundaries of their search powers under FPOs, ensuring that individual rights are protected while maintaining public safety.

Conclusion

Firearm Prohibition Orders (FPOs) are legal tools used in New South Wales to enhance public safety by restricting access to firearms, firearm parts, and ammunition. Issued by the Commissioner of New South Wales Police, these orders are typically imposed on individuals with significant criminal histories, links to organised crime, or mental health concerns. FPOs grant police extraordinary powers, including detention, entry, and search without a warrant, though these powers are subject to strict legal limits. Breaching an FPO carries severe penalties, including imprisonment of up to 14 years for possession of prohibited firearms. The impact of an FPO extends beyond legal restrictions, affecting daily life, reputation, and future interactions with law enforcement.

Given the complexity and serious consequences of Firearm Prohibition Orders, it is essential to seek expert legal advice if you are subject to or affected by an FPO. At Daoud Legal, our experienced criminal law team in Sydney offers specialised services tailored to your needs, providing trusted expertise to navigate the review process, challenge unlawful searches, and defend against charges related to FPO breaches. Contact us today to secure your rights and achieve the best possible outcome in your case.

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