Unfriendly fire: Are firearms prohibition orders hitting the wrong targets?

December 5, 2022
Person at a shooting range
Orders stopping people from owning or carrying a firearm can be sought by any police officer from any rank. Photo: Tima Miroshnichenko/Pexels

Firearms Prohibition Orders in New South Wales are supposed to target criminal bikie gangs and organised crime. Given reports of numerous illegal arrests and an Ombudsman’s investigation into the misuse of police powers, is it just another way for police to search and detain without cause and accountability?

Former NSW Police Commissioner Andrew Scipione introduced laws in 2013, under the Firearms Act 1996, to give police more stop-and-search powers using Firearms Prohibition Orders (FPOs). It was marketed as taking aim at organised crime after 72 shootings in one year, fuelled by the now infamous Sydney bikie gang war.

Unfortunately, like the draconian anti-protest laws and the racist Suspect Target Management Plan the scope for officer discretion is so dangerously broad it all but guarantees abuses of power.

It is a textbook demonstration of why legislative power must always have equally legislated and enforceable accountability. Allowing police to conduct any search without a warrant or judicial oversight was always going to be problematic.

What is a Firearms Prohibition Order?

Firearms Prohibition Order (FPO) is made by the NSW Commissioner of Police prohibiting someone from owning or carrying a firearm, firearms parts or ammunition. It can be sought by any police officer from any location of any rank, and by unsworn staff within the NSW Firearms Registry.

FPO’s primary use is for persons with a significant criminal firearm and/or organised crime related history. Where there are public safety concerns, it may also be someone who is prohibited from owning a firearm due to mental illness.

This sounds reasonable. But the clearly criminal targets set out in the commissioner’s media releases are not nearly as eloquently articulated in the actual law. Yet again, it all comes down to police discretion, which is a major concern to legal and social justice advocates as non criminals become caught in the crossfire.

What the law says

Astonishingly, there are no set criteria for the making of an FPO beyond the applicants view that its subject may be a threat to public safety.

Under Section 74A of the Firearms Act 1996 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.

The orders have no end date, and grant police the permanent right to search their subject and anyone in their orbit at any time, with or without a reason, without any judicial oversight or court involvement and without a warrant.

While FPOs are nothing new in NSW or nationally, police powers in NSW were significantly increased in 2013.

Similar increased powers have also been given in Western Australia and Victoria with, unsurprisingly, similar results.

Legal groups report that within the first two years of these changes, police searched 227 people, who were not subjects of an FPO, because those individuals were in the company of FPO subjects at the time.

Legal issues

The first issue is that a person does not require a firearm or firearm-related offence in their history to become subject to an FPO.

The order can be issued on the basis of untested police intelligence, or unsubstantiated alleged links — however precarious — to any criminal or criminal group. In fact, there is no need to have any substantial links to any criminal activity, gun related or not, to be made subject to an FPO.

Second, there is no requirement for police to have a reasonable suspicion an offence has been committed, or that an offence is even likely to be committed.

Some call them “shakedown orders” because the absence of a search warrant negates all the usual safeguards and legal rights under the Law Enforcement Powers and Responsibilities Act 2002.

Third, FPOs are a “lifetime order” and have no end date. Additionally, subjects are often not made fully aware of their rights concerning the ability to appeal and/or seek review of the order.

Since there is no protocol or legislation compelling anyone to guide FPO subjects through the process, or ensure they are aware of their rights, many were unaware they have rights of appeal at all, particularly if they have prior offences.

FPO right of review

There are three avenues of appeal for a person served with an FPO.

First, they have a substantive 28 days to request the police review the order after it is served on them. If the police agree but the review is unsuccessful, the police must provide the subject with the reasons why the FPO was made, and why it will not be lifted.

Second — but only under certain and specified circumstances — if police refuse to review the order, the individual may be able to apply to the NSW Civil and Administrative Tribunal (NCAT) for review.

Third, someone subject to an FPO can apply to the Police Commissioner any time after the initial 28 day review period, to have the FPO revoked, noting there is no legal obligation on the part of the commissioner to do so, but it is not impossible either.

Lack of transparency

Sydney Criminal Lawyers noted that in 2016 the NSW Ombudsman’s Office conducted a review of the search powers provided to police under the law and made several key recommendations.

These included: Amending the wording around “reasonably required” to remove the ambiguity that has led to misuse of the powers; That NSW Police develop guidelines for use of searches; FPOs should expire after five years, allowing time to investigate without leaving individuals subject to arbitrary searches for indefinite periods; and a further review of the powers should be undertaken in another five years.

It appears none of these recommendations have been implemented and only add to the list of community grievances, along with Indigenous deaths in custody, sniffer dogs, anti-protest laws and allegations of unfair policing of COVID restrictions.

Robert Borsak of the Shooters, Fishers and Farmers Party lodged a private member’s bill in September to amend the Firearms Act 1996.

The Firearms Amendment (Review of Firearms Prohibition Order) Bill 2022 aims to review firearms prohibition orders. NSW citizens can only hope it will finally address the recommendations in the 2016 Ombudsman’s report into police powers, six years after its publication.

Until then, it is important that innocent people know their rights in the face of ever-increasing state power and rapidly shrinking accountability.

[Suzanne James has a background in writing policy, governance, risk management and regulatory compliance frameworks and in legislative compliance application. This article should not be considered legal advice. Anyone served with an FPO should contact a legal representative for guidance.]

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