Two Steps Back: A Return to the Prohibition Era?

Recently our criminal cases have concerned firearms prohibition orders and weapons prohibition orders.

These are “orders” put in place by Police on a person, with a legislative intent of initially putting that person on notice not to commit an offence regarding firearms. It then gives Police wide powers to prevent such offences. These powers otherwise do not exist at law including the power to search someone’s home or vehicle without a Court-ordered warrant. The catch is Police are supposed to have a reasonable suspicion that an offence has occurred or is being committed. That suspicion has to be based on credible, legitimate intelligence.

What sometimes happens in practice though is Police use these tools to search for unrelated things, such as drugs. This is not legal, as the search must be solely for firearms, firearms parts or ammunition. Usually, a briefing occurs in the morning, and officers are instructed to “stop and search”. The order is then served on a person, them and / or their home or car are searched, something unrelated is found (i.e. steroids or cash). A crime scene warrant is then applied for after entry is already gained, and a whole bunch of drugs are found. What then transpires through cross-examination in Court is that they were looking for drugs the entire time, and there was never anything whatsoever linking the client to firearms. Luckily, in a lot of cases we have managed to have the evidence thrown out as a result, or a very good plea deal negotiated, but not everyone is so lucky.

The problem is far-reaching, and amounts to part of a continual erosion of civil liberties (i.e. the right to privacy in one’s own home). It is not tempered by the oversight of the Court, but rather left to Police, with nobody to Police them unless the resources are spent challenging it at trial.

The next phase in this expansion of Police powers is the new drug supply prohibition orders. While the media touts them as a great step towards the protection of society or the tool that will finally dismantle crime families such as the Alameddines. Closer scrutiny needs to be given to what is really happening to our rights.

Some of the problems with these were highlighted in a submission from the Law Society of NSW to the Attorney General, and can be summarised as follows:
  1. Although applications now need to be made by Police to the Court, they are done in private, without a right of reply;
  2. As such, there is no way for the Court to vet the accuracy of the information relied upon by Police until much later at trial when the damage has arguably already been done; and
  3. Most important is the extremely wide scope for whom these orders can be placed upon. Currently, this can be anyone over the age of 18 with a conviction for a “serious drug offence” in the last 10 years. However, “serious” is defined to include deemed supply of only a trafficable quantity (not even indictable). In effect, a 19-year-old convicted for bringing say five pills into a festival for personal use could become subject to an order at age 28, have their house raided and their car searched without a warrant, with no limit on the number of times this can occur throughout their life.

It is concerning to see the growing increase in unfettered Police powers and the potential or unintended effects that seems to have grown, against traditional property and human rights law. While we have all been distracted with COVID and other things. Oversight and scrutiny cannot be stressed highly enough.

If you or someone you know is facing problems with firearms prohibition orders, weapons prohibition orders or drug supply prohibition orders, get in touch.

At Green & Associates, we are experts in applying for no convictions and have an excellent success rate in achieving this for our clients. Regardless of the charge, we are ready to be in your corner and assist you during this uncertain time. If you or someone you know needs assistance in charges for prohibited items, contact our office or book an appointment today.

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