By Paul Gregoire and Ugur Nedim
Last week, an ombudsman report revealed NSW police have carried out hundreds of unauthorised searches under increased powers that allow them to search individuals who’ve been served with a firearm prohibition order (FPO) without a warrant.
The new search powers came into effect on November 1 2013 and were introduced under amendments made to the 1996 Firearms Act by the 2013 Firearms and Criminal Groups Legislation Amendment Act.
The new search powers
Under Section 74A of the Firearms Act, police now have the power to search an individual served with an FPO if they believe it’s “reasonably required” to determine whether that person has committed an offence.
It is an offence for a person subject to an FPO to own or use a firearm, part of a firearm or ammunition. They are also prohibited from living in a premises that has a firearm, or attending a premises where guns are available.
The amendment allows police to search an FPO subject, and the premises or vehicle that they occupy or control, without the need for a warrant.
Firearm prohibition orders are nothing new
The NSW police commissioner has had the power to issue FPOs since 1973. Gun ownership is strictly controlled in NSW. If a person wants to possess a gun, they must apply for a NSW firearms licence. But if the commissioner deems a person unfit to own a firearm, he can issue an FPO to prevent this.
Prior to the introduction of the new powers, police could search an FPO subject using ordinary procedures. If they wanted to search their homes, they needed a warrant. When searching the individual or their vehicle, they needed sufficient facts to form a “reasonable suspicion.”
Enhanced police powers
But the FPO search powers allow police to carry out these searches with no requirement to obtain a warrant or to form a “reasonable suspicion.” NSW Police Commissioner Andrew Scipione described the powers as “extraordinary” in an interview with Nine News, just after the amendments came into effect.
Due to the arbitrary nature of the powers, the state parliament asked the NSW Ombudsman to conduct a review of FPOs over their first two years in operation. The NSW Ombudsman report was tabled before parliament last week.
The Ombudsman’s findings
The report found that police had used the enhanced search powers extensively over the first 22 months of operation. It outlines that there were 1,343 interactions where police used the search powers, and that they conducted 2,571 separate searches during these.
As a result of these searches, police only found firearms, parts of firearms and ammunition in 2 percent of cases. In the first two years, police seized 35 firearms, 26 lots of ammunition and nine firearm parts.
Over the first 22 months, 634 people were subjected to an FPO search by police. Of those searched, 407 were people who had been served with an FPO.
However, the remaining 227 searched had not been issued with FPOs at all. These were people searched while in the company of an FPO subject, usually when a vehicle had been stopped. And of these, 95 percent had no prior firearm offence and 41 percent no prior offence at all.
Unlawful use of power
Professor John McMillan, acting NSW Ombudsman, told parliament he was concerned that searching people who are not the subject of FPOs is “probably unlawful use of power.”
In the report, McMillan suggested there was a lack of understanding by police as to when they could conduct an FPO search. In 14 percent of cases, police had conducted a search on an FPO subject only because they had been served an order.
The ombudsman found that this not acceptable, and that a search should only be carried out when it’s “reasonably required” to determine if the individual has committed an offence.
Increase in reported gun crime in NSW
The FPO search powers were brought in at a time when there was a perception that gun crime was on the increase in the state, especially in Sydney’s western and southwestern suburbs.
Over the three years leading up to 2013, an increasing number of drive-by shootings and firearm crimes were being reported in the press. The incidents were attributed to motorcycle gangs and organised crime groups, such as Brothers for Life.
In October 2012, a NSW Bureau of Crime Statistics and Research report found that drive-by shootings had more than doubled over recent decades, from 41 incidents in 1995 to 100 incidents in 2011.
However, the report also concluded that despite the upsurge in drive-by shootings, the long-term trend in firearm-related crimes was actually down.
A spike in FPOs issued
The ombudsman report also found that since the new FPO search powers had been introduced, the number of FPOs issued had dramatically increased.
Over the first 40 years of FPOs being introduced, only 62 were issued. But during the first 12 months that the search powers were in operation, 400 new FPOs had been issued.
And as of October 31 2015, 1,317 people had been served with an FPO in NSW, a third of which had been searched during the previous two years.
The Daily Telegraphy reported on February 19 2014, that police had issued 164 orders since November the year before. On the previous week, police had visited a number of premises as part of Operation Talon and issued 14 new FPOs, and searched eleven properties.
Amongst those recently issued with FPOs were: 44 Brothers for Life members, 42 members of the Rebels motorcycle gang, 39 men associated with Assyrian crime networks, 21 Nomads motorcycle gang members, seven Comancheros and six Hells Angels.
The report’s recommendations
The ombudsman made a number of recommendations regarding FPO search powers. These included amending the wording of the legislation to make it clearer – especially in relation to the phrase “reasonably required” – in order to resolve the ambiguity that has led to the misuse of the powers.
He also recommended that NSW police develop a set of guidelines for using searches.
Another proposed measure is that FPOs expire after a period of five years. This would allow police to investigate current firearms risks, without leaving individuals subject to arbitrary searches for indefinite periods of time. If the commissioner thought an individual needed to continue with an FPO, he could issue another.
The ombudsman called for a further review to be undertaken after the powers have been in place for five years. He believes it is still too early to determine whether FPO search powers have had a substantial impact on gun-related crime.