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The Police generally must have reasonable grounds to conduct a search of a person without a warrant. See more on police search persons without warrant laws here.
Police do not need reasonable grounds or a warrant to conduct a search of a person who is subject to a Firearms Prohibition Order (FPO) or a Weapons Prohibition Order (WPO). Police have broad powers to search under the firearms an weapons laws of New South Wales.
However, even when a person is subject to an FPO or a WPO, search powers are not unconstrained, and there may be a basis to argue that a FPO or WPO search was unlawful. If a police search is declared by a court as unlawful, it may serve to exclude any incriminating evidence obtained as a consequence of that search pursuant to section 138 of the Evidence Act- known as the discretionary exclusionary provision.
This article contains a breakdown of your rights, the limits on Police powers, and what you can do if you have been served with an FPO or a WPO.
What is a Firearms Prohibition Order?
A Firearm Prohibition Order ('FPO') is a legal order issued by the New South Wales Police Commissioner prohibiting a person from acquiring, possessing or using firearms,firearmparts orammunition. Part 7 of the Firearms Act 1996 (NSW) sets out the Police Commissioner's power to make an FPO, the effect of an FPO, and the power for Police to search a person subject to an FPO.
What is a Weapons Prohibition Order?
A Weapons Prohibition Order ('WPO') is a legal order issued by the New South Wales Commissioner of Police that prohibits a person from possessing or using prohibited weapons. Part 5 of the Weapons Prohibitions Act 1988 (NSW) addresses the Police Commissioner's power to make a WPO, and the effect of an order.
When Can a Firearms or Weapons Prohibition Order Be Made?
The Commissioner of Police can make a firearms or weapons prohibition order against a person if the person in question is considered not fit in the public interest to have a firearm pursuant to section 73(1) of the Firearms Act. There are no criteria for what permits a police officer making such an order against a person. Any ranked police officer is permitted to nominate a person to be subject to an order.
The Purpose and History of Firearms and Weapons Prohibition Orders
Both orders are designed to reduce access to firearms and weapons by organised criminal groups, or people with a history of firearm possession. However, the imposition of FPO's and WPO's on people not affiliated with organised criminal groups or a history of firearm possession is becoming increasingly common.
The Police Commissioner has had the power to make an FPO since 1973. Prior to 2013, the Police Commissioner could make an FPO order if they believed a person was "not fit, in the public interest, to have possession or a firearm." If a person was subject to an FPO, they were prohibited from owning or using a firearm, but the Polie did not have any broad search powers.
In 2013, Firearms and Criminal Groups Legislation Act 2013 (NSW) was passed to amend the Firearms Act 1996 (NSW). The reforms enabled police to search persons subject to an FPO without reasonable grounds and without a warrant.
How Long Can a Firearms or Weapons Prohibition Order Last For?
An Firearm Prohibition or Weapons Order can continue indefinitely, meaning there is no expiration date for the order. This means that Police can continue to conduct FPO or WPO searches even if Police intelligence changes, or if the person subject to the order no longer poses a firearm or weapon related risk. The order takes effect from when a police officer serves a copy of the order personally and can be revoked any time for any or no reason by the Commissioner of Police. These are very broad unquestionable powers given.
Police Search Powers Under a Firearms or Weapons Prohibition Order
When a person is subject to an Firearm Prohibition Order or Weapons Prohibition Order, prior to lawfully conducting a search of the person in question, their home or car without a warrant, police officers are not required to be satisfied subjectively and reasonably that there are reasonable grounds of suspicion that a crime has or is being committed. That is, the state of mind of the Police is an irrelevant consideration in determining if an FPO or WPO search was lawful. The case of DPP v Shaba [2018] NSWSC 811 at [17] set out the law on this point.
This is starkly different from a usual search, where the Prosecution must prove that the search was lawful by establishing that the Police had a reasonable suspicion warranting a search where the search was conducted without a warrant.
Instead, an FPO or WPO search will be lawful if the Court decides that the search was "reasonably required" to investigate if the person subject to the order is in breach of its conditions, which are set out in section 74 of Firearms Act 1996 (NSW). The Court is able to find the search was "reasonably required" even when Police did not hold a suspicion or belief that the person subject to the order was in breach of the conditions of the order.
What are the limitations on FPO and WPO searches?
Although the Police's powers are extremely broad when a person is subject to a FPO or WPO, but this does not mean that they are without any limitation. The search must be "reasonably required" for it to be lawful. The definition of the phrase "reasonably required" was discussed in the South Australian Supreme Court case of R v Ioannidis [2015] SASCFC. In that case, the South Australian Supreme Court was considering a provision which mirrors section 74 of the Firearms Act 1996 (NSW).
The Court decided that a search may be unlawful if it is conducted only for monitoring purposes. This is because the search would be a disproportionate exercise of the power due to the absence of reasons which outweigh the justifiable intrusion on the personal life of the person subject to the order.
The Court used examples of searches that could potentially be unlawful, because they were not "reasonably required". These examples included a search conducted just minutes after an earlier search, a search of someone's house at 3:00am in the absence of any basis for suspecting that the house was being used to store firearms, a search on a person at their place of work, when they are participating in a sporting activity, or while they attend a religious service.
In the case of R v Shaitly [2019] NSWDC 762 at [97] - [98], the Court discussed the importance of ensuring Police comply with legislation exactly, accurately and precisely. This is because the power to conduct a search when a person is subjected to an FPO or a WPO is extremely wide, and given the wide range of power, the courts should not allow Police to avoid strict compliance with the legislation by allowing them to use it for collateral purposes or to mask poor police work.
Click here for the penalties for breaching a firearms prohibition order.
Appealing or Reviewing a Firearms Prohibition Order or Weapons Prohibition Order
If you are subject to a WPO or a FPO, you have the right to request an internal review by NSW Police of the decision to make the order within 28 days of being served with the order. This means that you are asking NSW Police to agree to assess if decision to make the FPO or WPO was legally correct.
If NSW Police agree to conduct a review but find that the FPO or WPO was correctly ordered and will not be lifted, NSW Police must provide you with written reason explaining their position.
It is ideal to have an experienced lawyer prepare your request for an internal review. This is because the Police's written response to your request for an internal review will form the basis for a potential administrative review buy the NSW Civil and Administrative Tribunal (NCAT). The request for an administrative review must be forwarded to NSW Police within the specified time period.
It is important to seek legal advice before filing a review with NCAT, as a criminal history containing certain types of offences or being a respondent to certain civil orders within the last 10 years can mean you are not eligible to file a review with NCAT. An experienced lawyer can advise you on your eligibility to file a review and your prosects of success, which will include requesting relevant evidence and documents from NSW Police.
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.
