What is a Firearms Prohibition order?

Firearms Prohibition Orders or FPO’s were recently introduced by the Firearms Amendment Act 2022, which came into effect in late 2022. The amending act introduced a new Part 8 to the Firearms Act 1973, which governs the licensing of firearms and also contains all of the firearms offences in Western Australia. This includes offences of possessing firearms and ammunition.

An FPO is an order that the Commissioner of Police may make against a person, if the Commissioner is satisfied of one of the following three things:

• possession by the person of a firearm, firearm part, accessory or ammunition would likely result in undue danger to life or property;
• the person is not a fit and proper person to possess a firearm, firearm part, accessory or ammunition; or
• it is otherwise in the public interest to make a FPO against the person.

The Commissioner may have regard to any matter in determining if an FPO should be imposed, including any intelligence report or other information held by the Commissioner in relation to the person.

An FPO may be made whether or not the person the subject of the FPO holds or has held a firearms license under the act, including if they are exempt from requiring a license under the act. Even if a person was previously subject to an FPO that expired or was revoked, a further FPO may still be made against the person.

Legal requirements for an FPO

Standard conditions 

An FPO must be in the approved form and specify various matters set out in s 29B(2) of the Firearms Act. This includes the conduct prohibited by the FPO. Standard requirements include:

• An FPO is for 10 years beginning when it is served, unless revoked sooner;
• The person the subject of the FPO must notify the Commissioner within 7 days of any change of their residential address; &
• The person subject to the FPO may apply to the State Administrative Tribunal for a review of the decision to make the FPO.

Service

An FPO must be served personally by a member of the police force on the person the subject of the FPO, by handing it to the person. Only if the person refuses to accept the FPO, may it be left near the person and their attention must then orally be drawn to it.

A police officer can also direct a person to stop, and detain them for up to two hours to serve an FPO.

If the FPO is not served in accordance with the act, it does not come into force.

Consequences of being subject to an FPO

Surrender of all firearms and licenses

Once an FPO is validly served, all licenses, permits, approvals and authorisations held by the person subject to the FPO to possess a firearm, etc under the Firearms Act are revoked.

The person subject to the FPO must immediately surrender all of their licenses under the Act, and all of their firearms, firearm parts, accessories and ammunition to the Police Force. It is an offence to fail to do so.

It then becomes an offence for the person subject to the FPO to subsequently acquire, possess or use any firearm, firearm part, accessory or ammunition. These offences carry serious penalties ranging from 7 to 14 years imprisonment and these offences must be dealt with in the District Court.

Prohibition on attending certain premises

Once subject to an FPO, a person cannot attend various premises including shooting ranges, places where firearms etc are manufactured, paintball clubs or firearms collectors clubs.

It is also an offence to reside at a commercial or residential premises where a firearm, firearm part, firearm accessory or ammunition is stored.

A person subject to an FPO cannot associate with a person in possession of a firearm, etc.

Notify police of change of address

A person subject to an FPO must notify police within 7 days of changing their residential address. Failure to do so is an offence.

Police powers to search person subject to FPO without warrant

Once a person is subject to an FPO, police have significantly enhanced powers to search that person. These include the power to:

• Search a place occupied by or under the care, control or management of the person;
• Stop, detain and search a vehicle occupied by, or in the charge of the person;
• Stop and search the person, or a person in the company of the person; &
• Search any item, package or thing in possession of the person.

Police can use reasonable force to exercise these powers or to overcome resistance to exercising the power. Practically this can mean, for example, police ripping apart a vehicle to try to locate a firearm or other prohibited item under the Firearms Act. 

The only limit to the above search powers is that the powers may only be exercised if ‘reasonably required for the purpose of determining whether a person subject to an FPO has committed an offence under Part 8’. That is, an offence of breaching the FPO such as by possessing a firearm. In practical terms this means the police have almost unlimited powers to search a person subject to an FPO at any time, as long as it is reasonably required to determine if they are in possession etc of a firearm or otherwise breaching the FPO.

Conclusion

Firearms Prohibition Orders, once issued, carry very significant consequences for a person subject to the order. That person, their vehicle or their home may be searched at any time as long as reasonably required in order to determine if they have breached the FPO. The person can no longer possess any firearm and all their licenses previously held under the Firearms Act are revoked. Breaching the FPO is a significant matter which, particularly in the cases of possessing a firearm or other prohibited item under the act, carries more significant penalties than it would otherwise. Further, the person must always notify police if they change address.

If you require expert advice concerning the issue of an FPO, don’t hesitate to contact James Jackson Criminal Defence today.