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Thursday, 8 July 2010

Prohibited persons and section 189 applications

To own a gun or be able to use one in the state of Victoria you need a licence (or be the holder of a relevant exemption). Under the Firearms Act 1996 you can't get a licence or legally acquire a firearm if you are a prohibited person.



Lots of situations can make a person prohibited. In this post I want to focus on s 3(c) which provides a prohibited person is,



(c) a person who is subject to-



(i) a final order under the Family Violence Protection Act 2008 that does not include conditions cancelling or revoking a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or



(ia) a final order under the Family Violence Protection Act 2008 that does include conditions cancelling or revoking a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or



(ib) a final order under the Stalking Intervention Orders Act 2008 that does not cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory; or



(ic) a final order under the Stalking Intervention Orders Act 2008 that does cancel or suspend a licence, permit or authority under this Act, or an order of a corresponding nature made in another State or a Territory;




A prohibition continues 5 years after the expiry of the order, and the consequences that flow from prohibited person status can be severe. The statutory maximum penalties for prohibited people found guilty of possessing firearms are, on average, about twice those for non-prohibited persons. A prohibited person can't be involved in the management of a firearms business. The exemptions from holding a firearms licence that apply to soldiers, police officers and others do not apply to prohibited persons.



Section 189 of the Firearms Act allows an application to be made to the Magistrates' Court for a person to be declared to be a non-prohibited person, either absolutely or for limited purposes. After the application is lodged, notice is served on the Chief Commissioner of Police (in reality a police agency called the Licensing Services Division) that decides whether or not the application to be deemed non-prohibited will be opposed.



Although applicants are allowed (and well-advised) to be represented by a legal practitioner in the Magistrates' Court hearing, many appear to elect not to. Case law on the proper operation of s 189 is rare (particularly when compared with the NSW jurisdiction, where these sorts of decisions are determined by the Administrative Decisions Tribunal).



The Victoria Police have recently put up some extra information on their website about the way the system works.



Has anyone out there had experience of this process?

3 comments:

kerblammo said...

IMHO it does not matter whether the applicant is in person or not. If the incident that led to the order involves violence the application gets refused.

Neil Campbell said...

Could not disagree with the previous comment more.

In my experience each application is taken seriously and dealt with on its merits. A blanket test of whether the intervention order involved violence is not used by any magistrate I'm aware of. How could it be when most orders are made by consent without any concession as to the complaint? I do not know what definition of violence would be applied, anyway. 189 applicants often benefit from having a practitoner appear for them becasue of the emotional circumstances that have led to the making of an order. It's even more imoirtant that they seek legal advice if their are criminal charges which have not resolved. In many cases a person who feels strongly motivated to make an application will not be in a proper position to make it. They may have not yet been the subject of a final order, or may have criminal charges pending.

Unknown said...

Dose anyone have any actual experience with a sec 189 applycation that they are wiling to share as I have been unable to find any court outcomes etc for this it would be much appreciated thank you