Firearms Prohibition Orders in New South Wales are supposed to target criminal bikie gangs and organised crime. Given reports of听听and an Ombudsman鈥檚 investigation into the misuse of police powers,听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听, to give听police听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听.
鲍苍蹿辞谤迟耻苍补迟别濒测,听like the draconian anti-protest laws听and the听racist听Suspect Target Management Plan听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.听Allowing police to conduct any search without a warrant or judicial oversight was always going to be problematic.
What is a Firearms Prohibition Order?
础听听(FPO)听is made by the NSW Commissioner of Police prohibiting someone from owning or carrying a firearm, firearms parts or ammunition.听It can be sought by any police officer from any location of any rank, and by unsworn staff within the听.
FPO鈥檚 primary use is for persons with a significant criminal firearm and/or organised crime related history.听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鈥檚 media releases are not nearly as eloquently articulated in the actual law.听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听听a police officer may:
(a)听Detain a person who is subject to a firearm prohibition order, or
(b)听Enter any premises occupied by or under the control or management of such a person, or
(c)听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听听and听听with, unsurprisingly, similar results.
Legal groups report that within the first two years of these changes, police searched 227 people, who were not听subjects of an FPO,听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 鈥 however precarious 鈥 to any criminal or criminal group.听In fact, there is听no听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 鈥渟hakedown orders鈥 because the听听negates all the usual safeguards and legal rights under the听.
Third, FPOs are a 鈥渓ifetime order鈥 and have no end date.听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听have听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 鈥 but only under certain and specified circumstances 鈥 if police refuse to review the order, the individual may be able to apply to the听 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
听noted that in 2016 the听NSW Ombudsman鈥檚 Office conducted a review听of the search powers provided to police under the law and made several key recommendations.
These included: Amending the wording around 鈥渞easonably required鈥 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听听lodged a听听in September to amend the听Firearms Act 1996.
The听Firearms Amendment (Review of Firearms Prohibition Order) Bill 2022听aims to review firearms prohibition orders. NSW citizens can only hope it will finally address the recommendations in the 2016 Ombudsman鈥檚 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.]