10 / 10 / 2023

A Trojan Horse: The use of Firearms Prohibition Orders to conduct unlawful searches

A Firearm Prohibition Order (FPO) prohibits a person in NSW from acquiring, possessing or using a firearm, firearm parts or ammunition. The Commissioner of New South Wales may make a FPO against a person if the Commissioner is of the opinion the person is not fit, in the public interest, to have possession of a firearm. FPO’s are made against people who usually have significant criminal histories, criminal associates, links to organised crime and other health related conditions.

Once a FPO is made against a person, Section 74A of the Firearms Act 1996 (NSW) (Firearms Act) provides police with an extraordinary power to “detain a person, enter any premises occupied or under the control or management of the person, or stop and detain any vehicle, vessel or aircraft occupied or under the control of the person and conduct a search for any “firearms, firearm parts or ammunition”.

In 2014 the then NSW Commissioner of Police Andrew Scipione said:

Police [have] the right to stop, to search, to enter premises to ensure that they don’t have a firearm, they haven’t got ammunition or parts of a firearm. All of that without warrant. Now they’re extraordinary powers.

Like many laws that provide police with extraordinary powers, police often misunderstand the limits and extent of their powers. On occasion those extraordinary powers are abused and used unlawfully.

In August 2016 the NSW Ombudsman published a review of section 74A of the Firearms Act. The Ombudsman found that in 30% of s 74A searches, the police misunderstand the limits of the search power. Despite the Ombudsman making various recommendations for police to receive additional education and training manuals, police continue to conduct FPO searches in circumstances where they have no power.

A search can only be conducted by police on a person who is subject to a FPO and can only empower police to seize “firearms, firearm parts or ammunition”. This strict interpretation of section 74A of the Firearms Act has been considered and limits the occasions of such searches.

By way of example, if police conduct a search of a person whom a FPO is made they cannot:

  1. Conduct a search of the person’s house and seize drugs.
  2. Conduct a search of the person’s car and seize a knife.

By way of further example, if police conduct a search of a person against whom FPO is made and they are in the company of a person who does not have a FPO, they cannot conduct a search of that person.

This does not mean that if during a FPO search police unintentionally or by chance discovery come across drugs or a knife they cannot seize them. Police, if they applied for a warrant or relied on some other power they may be able to seize those items lawfully. However, my experience is police often misunderstand their powers and seize various items unlawfully.

If, for example, drugs or a knife are seized unlawfully under the Firearms Act, and you are charged with a criminal offence you may be able to exclude that evidence (the drugs or knife) and it will be inadmissible in any prosecution against you, pursuant section 138 of the Evidence Act 1995 (NSW).

Practically speaking, where police conduct a FPO search and seize drugs or a knife unlawfully and you are charged with a criminal offence you may be able to defend the charge by excluding that evidence. You may be also able to use the unlawful search to negotiate the withdrawal of the charge without the need to proceed to hearing.

What several judicial findings make clear is that to use the authority of a FPO to seize by chance discovery or actively search for items other than “firearms, firearm parts or ammunition”, is unlawful.

If you have been charged with a criminal offence because of an unlawful search under the authority of an FPO you may be able to negotiate the withdrawal of the charge or successfully defend the charge.

Tom Taylor, Partner

1 Simon Bouda, Interview with Andrew Scipione (NSW Commissioner of Police), Nine News – Saturday Extra, 13 December 2014
2 NSW Ombudsman, Review of police use of the firearms prohibition order search powersSection 74A of the Firearms Act 1996, August 2016, 75.
3 Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811.
4 Such as under 36 and in accordance with their requirements under s 202 of the Law Enforcement (Powers and Responsibilities) Act 2002.
5 R v Davis [23] QSC 112, R v Shaitly [2019] NSWDC 762 and Director of Public Prosecutions (NSW) v Shaba [2018] NSWSC 811.