This article was written by Sally Crosswell
Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.
Intervention Orders and Firearms Licences (Vic)
An intervention order can have serious implications for the holder of a firearms licence. An intervention order – a Family Violence Intervention Order (FVIO) or a Personal Safety Intervention Order (PSIO) – can be made under the Family Violence Protection Act 2008 or the Personal Safety Intervention Orders Act 2010. The impact of an intervention order on a firearms licence in Victoria is determined by these Acts and the Firearms Act 1996.
Family Violence Protection Act
Under this Act, if a court intends to make an FVIO, it must ask whether the subject of the order:
- holds a firearms licence; or
- has a weapons exemption (e.g. for sport); or
- has a weapons approval (e.g. to make or sell weapons).
If the order is an interim one, it can include a condition that the licence, exemption or approval is suspended. If the order is a final one, it can include a condition that the licence, exemption or approval is cancelled or revoked.
Seizure of firearms
A police officer can order the surrender of a firearm if the officer enters a home to investigate a domestic violence offence and there is a FVIO in place, and the officer knows there is a firearm there. The officer can direct the person subject to the FVIO to immediately surrender the firearm, or issue a written notice to the person ordering them to surrender the firearm at a specified place within a specified time. If a person refuses to comply with an order to immediately surrender the firearms, the police officer must seize it. If a person fails to comply with a firearm surrender request, they are liable to a maximum fine of $9913.20.
A police officer also has authority to search a premises or a vehicle without a warrant if there is an FVIO in place, or the officer reasonably suspects there is one in place, and the officer reasonably suspects the person subject to the FVIO possesses a firearm.
Personal Safety Intervention Orders Act
Under this Act, the same rules apply to a PSIO as for an FVIO in regards to the power of the court and of a police officer. A PSIO applies to all relationships that are not domestic ones.
Firearms Act
Under this Act, a FVIO or PSIO can result in the order subject becoming a “prohibited person”.
The Act lists many criteria that classify a person as a prohibited person but in relation to intervention orders, a prohibited person is a person who is subject to a final FVIO or a final PSIO. The classification remains for the duration of the order and for 5 years after it ends. A prohibited person must not possess, carry or use a firearm. The maximum penalty is 1200 penalty units ($198,264) or imprisonment for 10 years. A firearms licence is automatically cancelled when the licence holder becomes a prohibited person.
An interim FVIO or interim PSIO does not classify a person as a prohibited person unless the order contains conditions or rules for firearms.
Appealing a licence decision
Under section 189 of the Firearms Act, a person can apply to be deemed not a prohibited person, but this is only possible where the order does not contain conditions cancelling a firearms licence. In assessing an application, the court will consider factors such as:
- whether a firearm was involved in the circumstances that led to the FVIO or PSIO;
- whether the person has a genuine and healthy interest in firearms and has a legitimate reason for wanting to hold a firearms licence;
- the applicant’s criminal record;
- how people protected by the order feel about the application.
The court can refuse the application, or it can declare the person is not deemed a prohibited person for all purposes under the Act, or for some purposes, or for one purpose.
Interstate orders
Under the National Domestic Violence Order Scheme Act 2016, a domestic violence order or intervention order issued in a state or territory other than Victoria is considered the same as one issued in Victoria. This means a person subject to an interstate order may be considered a prohibited person and be ineligible for a firearms licence or possess, use or carry firearms in the state.
For advice or representation in any legal matter, please contact Armstrong Legal.