Tuesday, June 16, 2015

Australia: Firearm Prohibition Orders - Sentence First, Trial Later

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.
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