Australia: Firearm Prohibition Order in Victoria

Cosette is based at our Broadmeadows and Melbourne offices and has a strong interest in social justice, human rights, and criminal law reform.

Before joining our firm, Cosette was a Judge's associate in the Criminal Division of the County Court of Victoria where she assisted judicial officers in a variety of legal matters. She is aso experienced in regional courts having attended various circuit locations across regional Victoria including Koori Court proceedings.

Pursuant to Part 4A of the Firearms Act 1996 (Vic) ('the Act'), a Firearm Prohibition Order (FPO) can be made by police. The order prohibits a person over the age of 14 from obtaining, possessing, or carrying a firearm or related items.¹ Per s 112D(3), an order can be made even if the individual has never acquired, possessed, carried or used a firearm or related item, or if a previous FPO has expired or been revoked.²

FPO legislation was introduced as there was a 34% increase in the number of individuals sentenced for  firearm offences between 2012 and 2017. A rise in media attention also called for tougher firearm laws to combat what police viewed to be escalating gun violence associated with organised crime. FPO's were designed with the intention of dismantling organised crime networks by making it more difficult for individuals to associate with FPO subjects.

When Will an Order Be Made?

Under s 112E of the Act, the Chief Commissioner may make a FPO only if they are satisfied that it is in the public interest to do so;

1. because of the criminal history of the individual; or
2. because of the behaviour of the individual; or
3. because of the people with whom the individual associates; or
4. because, on the basis of information known to the Chief Commissioner about the individual, the individual may pose a threat or risk to public safety.

This is a subjective test as it rests on the Chief Commissioner's view of what is in the public interest.

It is important to note that the Act does not define 'public interest', what classifies an individual as being 'associated' with a FPO subject or what behaviour might invoke an order.

Duration

Section 112J indicates that a firearm prohibition order that applies to an adult can remain in force for up to 10 years from the day on which it is served. The order can remain in force for a maximum of 5 years if the individual is a child.

Police Search and Seizure Powers

Sections 112Q and 112R of the Act allows police officers to conduct warrantless searches on prospective FPO subjects and seize items, including searches of the individual or any item, package or thing in their possession at any premises, vehicle, vessel or aircraft related to the individual, if it is reasonably necessary to determine whether they possess that firearm or related items.

Police can detain the individual for as long as is reasonably necessary to conduct a search. Section 112S extends to the detention and search of 'associated individual' for as long as is reasonably necessary, regardless of their involvement. The extensive warrantless search and seizure powers potentially interfere with rights to privacy.

Restrictions

Location restrictions

Any individual subject to a firearm prohibition order can be prohibited from entering or remaining on certain premises where firearms are available or being stored including:

• shooting ranges,
• shooting clubs,
• firearms dealer premises,
• collectors clubs,
• paintball locations, and
• premises where firearms are stored.³

Additionally, there are provisions for designating "prescribed premises" where the FPO subject's presence may pose a risk to public safety, although the specific risks are not defined in the Act.

Section 112D(3) allows for FPOs to be issued without having committed any firearm offenses or having ever possessed, carried, acquired or used a firearm. This significantly limit FPO subjects' movement and participation in legal social activities.

Sections 112O(1)(h) prevents a person from living or remaining at premises where firearms are present, even if they are stored lawfully and the other residents have the relevant qualifications and licences. This can affect an individual's living arrangements and legitimate business operations.

Attending a prohibited location carries a maximum penalty of 12 months imprisonment or 50 penalty units.

Surrendering Firearms

Section 112P mandates immediate surrender of firearms and/or related items by FPO subjects, regardless of whether the subject had the relevant licences and authorities. Surrendered firearms can be used as evidence for other offences, potentially infringing on the privilege against self-incrimination.

A 2019 Victorian parliamentary inquiry found that because of searches conducted under ss 112Q and 112R,

• 54 charges were laid under the Firearms Act,
• 22 charges laid under the Control of Weapons Act 1990,
• 45 charges laid for drug-related offences including traffickable quantities, and
• 40 charges were laid for other offences (i.e. driving, theft, contravene bail,  dealing proceeds of crime).

Licence Disqualification

Section 112H requires all licences, permits or approvals under the Act to be immediately cancelled upon a FPO being made, including if held by a body corporate which the FPO is an officer of. The penalty for failing to do so is five years imprisonment. Private security, weapon and working with children check authorities may also be affected by the serving of a FPO.

Search Powers

Sections 112Q, 112R and 112S provide for warrantless searches, including searches of individuals 'associated' with FPO subjects regardless of how the individual is associated. This potentially interferes with the right to privacy of the alleged associated individual.

Appeals

A FPO can be appealed at Victorian Civil and Administrative Tribunal (VCAT) within 28 days of the order being served. Someone subject to a FPO also has the right to seek a review of the order midway through its duration – i.e. 5 years into the order for adults or 2.5 years for children.

Revocation

Orders can be revoked at the Chief Commissioner's discretion.

Case Study – Police Commissioner v Websdale

Mr. Colin Websdale, a former president of the Geelong Rebels outlaw motorcycle gang, received a firearm prohibition order in July 2018 due to his criminal history and gang associations. He contested this decision at VCAT, where Judge Hampel emphasised the need to balance public interest with individual freedoms. She stressed that restrictions on movement and association should not exceed what is necessary to prevent firearm-related crimes.

Her Honour overturned the FPO, citing insufficient evidence linking Websdale's past conduct and associations to an immediate public safety risk. Her Honour explained;

 
While acknowledging some risk due to his gang affiliation, making a FPO would not abate the risk that Mr Websdale himself would pose to public safety.

The Court of Appeal upheld the Commissioner of Police's appeal, reinstating the FPO, on the basis that Mr Websdale's past associations with a motorcycle club, their propensity for firearm-related violence and Mr Websdale's criminal record showed a history of anti-social behaviour and associations with individuals who pose a high risk of illegal firearm use. Making a FPO would mitigate this risk.

Their Honour's emphasised that while evaluating the risk to public safety is inherently uncertain and imprecise, it requires an assessment of whether the FPO subject would pose a future risk of accessing or coming into contact firearms or related items and what that risk might have on the community, rather than the narrower test applied by her Honour.⁵ This is reaffirmed by the construction of section 112D(3), where those who have never used or possessed a firearm can still be subject to a FPO. Additionally, their Honour's stressed the need to balance the restrictions imposed by FPOs with the legislation's primary objective of protecting the public from firearm-related violence.⁶

Issues

There are several issues related to firearm prohibition orders including:

• The legislation is too broad – The legislation lacks sufficient definitions and clarity as to how 'in the public interest' is to be applied, the nature of the associations, what  criminal convictions enliven FPO considerations and what behaviour might enliven these provisions. Organisations such as Victoria Police believe that not defining these terms allows greater flexibility when addressing individual cases.⁷ While this may be the case, it also invites broad and inconsistent interpretations and applications of the legislation.
• Significant discretion – the lack of clarity surrounding broad aspects of the legislation also results in differing and contradictory interpretations, inconsistent practices, and operational issues within the police force – i.e. there is no legislative requirement by the Police Commissioner to balance the rights and freedoms of the individual with the perceived risk to the community (see Websdale).
• Interference with rights and freedoms – Charter of Human Rights and Responsibilities Act 2006 requires the freedoms and rights of individuals to be protected. As outlined under 'Restrictions', FPO's could restrict where someone lives, their business (if legally selling and/or operating firearms or like equipment including paintball equipment) and could infringe on privilege of self-incrimination, freedom of movement, use of property and privacy rights.
• Misuse of search powers – the lack of warrant to undertake extensive searches of not only the individual but their associates was implemented so that police could respond more rapidly. In the first 22 months of the legislation, 2,500 searches were conducted.⁸ The inquiry determined that the lack of data relating to FPO made it difficult to conclude the effectiveness of the searches and their impact on others.

Conclusion

There are number of concerning restrictions on an individual's rights and freedoms if a firearm prohibition order is ordered. Such an order also allows a police officer to exercise broad discretion and interpretation when implementing these laws, resulting in a broader use of extensive search and seizure powers. 

Footnotes

¹Firearms Act 1996 (Vic), s 112D(1), (2).
²Firearms Act 1996 (Vic), s 112D(3), (4).
³Firearms Act 1996 (Vic), s 112O.
⁴Websdale v Chief Commissioner of Police [2019] VCAT 666, 31.
⁵Chief Commissioner of Police v Colin Websdale [2019] VSCA 305, 4.
⁶ Ibid 55-57.
⁷ Inquiry into firearms prohibition legislation, Report No 24 (Parliament of Victoria, Law Reform, Road and Community Safety Committee, 2020), 39.
⁸ Ibid 51 & 53.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.