Firearm Prohibition Order (NSW)

A Firearm Prohibition Order (FPO) prohibits a person from acquiring, possessing or using a firearm, firearm parts or ammunition, in the interests of public safety. A police officer of any rank and NSW Firearms Registry staff can nominate a subject for an FPO, which is made by the Commissioner of New South Wales Police.

There is no set criteria for the making of an FPO but those made subject to an order are often people with a significant criminal history, links to organised crime or psychiatric illness. An FPO does not have an expiry date.

FPO Legislation

FPOs are governed by Part 7 of the Firearms Act 1996.

A firearm means a gun or other weapon that can propel a projectile by means of an explosive. This includes a blank fire firearm and an air gun but not a paintball marker. A firearm part means a barrel, breech, pistol slide, frame, receiver, cylinder, trigger mechanism, operating mechanism or magazine that can form a firearm. Ammunition means bullets and other cartridges, and air gun pellets. A firearm is taken to be in a person’s possession if it is in, or on, any premises owned, leased or occupied by, or in the care, control or management of, the person.

If a person subject to an FPO acquires, possesses or uses a firearm, the maximum penalty is imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or imprisonment for 5 years in any other case. The same penalty applies if the person acquires or possesses a firearm part. For acquiring or possessing ammunition, the maximum penalty is imprisonment for 5 years.

A person must not supply a firearm or firearm part to someone they know is subject to an FPO. The maximum penalty is imprisonment for 14 years if the firearm is a pistol or prohibited firearm, or if the firearm part is for a pistol or prohibited firearm, or imprisonment for 5 years in any other case. Supply of ammunition carries a maximum penalty of imprisonment for 5 years.

A person subject to an FPO must not knowingly have a firearm, firearm part or ammunition at their home. The maximum penalty is 50 penalty units ($5500) or imprisonment for 12 months, or both.

A person subject to an FPO is barred from visiting a firearms dealer, shooting range or firearms club. The maximum penalty is 50 penalty units ($5500) or imprisonment for 12 months, or both.

Police powers

Under the Act, a police officer can:

• detain a person subject to an FPO; or
• enter any premises occupied or controlled or managed by the person; or
• stop and detain any vehicle, boat or plane occupied or controlled or managed by the person;

and search for firearms, firearm parts or ammunition. The search powers may be exercised as “reasonably required” to determine whether a person subject to an FPO has committed an offence. The Act does not define “reasonably required” but there is a range of factors police could consider in determining this, such as:

• intelligence about the person’s access to a firearm or involvement in firearm-related crime;
• suspicious behaviour by the person, including fleeing from police;
• the time of day and location of recent firearms crime, or recent conflict between crime groups;
• deterrence, such as whether the person has been searched and the number and frequency of the searches;
• prevention, including that the person is suspected of dealing with organised crime groups;
• actions that increase the risk of recidivism, including anti-social behaviour.

Review of decision

After being served with an FPO, a person has 28 days to lodge a written request with the Commissioner for an internal review. If a review is granted, it is usually conducted by a police employee who was not substantially involved in the making of the FPO. If the order is confirmed after the review, police must provide reasons the order was imposed and why it will not be lifted.

If an internal review is denied, a person can apply to the NSW Civil and Administrative Tribunal for an administrative review of a decision to make an FPO against them. A review may not be granted when a person has been convicted in the past 10 years of certain offences, such as serious drug or dishonesty offences, or when they have been the subject of an Apprehended Violence Order, of if they are listed on the Child Protection Register.

If a person unsuccessful in challenging the making of the FPO, they can still make a revocation request to the Commissioner, who has the right under the Act to revoke an FPO at any time. Usually, however, such a request is denied on the grounds of public safety.

If you have been served with a Firearms Prohibition Order, or need advice or representation in any legal matter, please contact Armstrong Legal.