FACTS ABOUT FIREARM PROHIBITION ORDERS IN NSW
The New South Wales Ombudsman initiated a review into the authority of Police to enforce Firearms Prohibition Orders.
Most believe that the reason for this is due to the significant public concern of late, about the escalation of violent crimes involving firearms and the way Parliament chose to solve this problem.
The rates of crimes involving guns is particularly high in certain areas of South Western Sydney. In November 2013, the Firearms Amendment Prohibition Orders Bill was implemented in an attempt to deter such behaviour and stop criminal gang members from acquiring illegal weapons.
Although statistics indicate that crimes with firearms have been decreasing overall throughout the past several years, media coverage of such offences has reached an all-time high. This resulted in numerous legislative changes, which included but were not limited to the following:
Expanded Search Powers
Police do not have the authority to search vehicles or premises unless a warrant can be provided to the owner. Police cannot simply enter a home or search a motor vehicle. If Police do not have a warrant, Police require at least a reasonable suspicion to either search a vehicle or a home.
If a Firearm Prohibition Order has been made Police do not need a warrant or a reasonable suspicion to search a home, motor vehicle or person. In other words, a Firearms Prohibition Order gives Police the authority to conduct searches of this kind without any oversight of the court. In addition, people can be stopped in the street and searched upon the command of the Police, regardless of whether or not they were engaging in specific criminal activity.
This power to search extends to a premises that the person who is subject to a firearm prohibition order is visiting.
New Legislation Under Review
The Firearm Prohibition order laws have been in operation for some time, the laws and the circumstances in which they were used are under review by the Ombudsman. Part of the reason for the review is statistics indicate that there were 1500 interactions where Police used the powers to conduct searches. In those interactions police conducted over 2500 separate searches. Police found firearms, ammunition and firearm parts in 2% of the interactions. In the two years, they seized 35 firearms, 26 lots of ammunition and 9 firearm parts.
Police also searched over 200 people who were not subject to an order. Police conducted these searches on what appears to be an erroneous application of the firearm prohibition search powers and the searches may have been unlawful.
The report found a lack of clarity in police understanding of the circumstances in which they are authorised to search a firearm prohibition order. The law permits a firearm prohibition order search only when reasonably required to determine if a firearm prohibition order offence has been committed. It is not a roving search power to be used randomly on firearm prohibition order subjects.
The report recommends changes be made to powers of Police in relation to firearm prohibition orders.
Legislation Fails to Reach its Goal
When Parliament reconsider the legislation, there may be a strong argument that the search powers are indeed having the intended effect of deterring individuals from committing crimes.
However there may also be strong argument that changes need to be made to the legislation to ensure Police act within power and in accordance with certain restrictions when deciding to do a search of a person, premises or vehicle who is or has within in a person subject to a firearm prohibition order.
The report in relation to firearm prohibition orders was completed in August 2016. Please see the link;
In spite of the controversy surrounding the legislation, many people want to know how these laws will affect them. Below are some frequently asked questions;
What Are the Rights of Police Under the New Amendment?
Police no longer need to obtain a search warrant if they want to search the homes or motor vehicles of individuals or stop someone in the street to search their person.
What is a Firearms Prohibition Order?
Under the new legislation, the ownership of firearms is strictly regulated, and those who wish to possess firearms and ammunition must apply for a license and participate in specific safety training courses as ordered by Parliament. When a person is issued a Firearms Prohibition Order, it means that person is not allowed to own or use a firearm, possess ammunition, or own any parts that can be used to assemble a firearm. Such individuals are also prohibited from living in premises where guns are located. They are also prohibited from even visiting premises were firearms may be readily available.
What is Involved in the Background Check?
As part of the application process for a license to own a firearm, one must undergo a strict background and criminal record check. A person may be prohibited from acquiring a firearm if he or she has been issued in an–Apprehended Violence Order–AVO during the past 10 years. Those who fail any part of the background check cannot legally possess a gun and if it is discovered that they do, criminal charges are likely.
Who Can Be Given a Firearms Prohibition Order?
Any person the Police believe is not fit to own a firearm may be given a Firearms Prohibition Order.
What are the Laws Concerning Gun Confiscation or Licensed Revocation?
In certain cases, a person’s firearms license may be revoked. This means that an individual is automatically prohibited from owning a gun. The reasons for revocation include being the subject of an AVO, being convicted of a particular criminal offence, or failing to participate in mandatory training and safety classes.
What Can a Person Do After Being Issued a Firearms Prohibition Order?
Anyone who has had his or her firearms license revoked or has been issued a Firearms Prohibition Order should surrender any guns in his or her possession to the Firearms Registry. Otherwise, the Police can seize such weapons and search the premises where the individual lives or search his or her person for additional guns. If an individual is found in possession of a gun or other weapon that has been prohibited or he or she does not have the appropriate license, that person will most likely face criminal charges. Anyone found to be in possession of a firearm after being issued a Firearms Prohibition Order can expect to face criminal charges.
In certain circumstances, depending on the reason for the refusal, a firearms license revocation or suspension can be appealed. However, if one has been issued a full Firearms Prohibition Order, there is no right of review or avenue of appeal. Nevertheless, it is a wise course of action to speak to a lawyer experienced in firearms cases if one finds himself or herself in any of these scenarios.