A Weapons Prohibition Order (WPO) is an order made by the Commission of Police pursuant to Section 33 of the Weapons Prohibition Act 1998 ('The Act").
When an order is served it means that the person who is subject to the order will be prohibited from being able to have possession of, or from using any prohibited weapon.
A person who is subject to an order must not possess or use a prohibited weapon with a maximum penalty of 10 years imprisonment. In addition, the person must not sell or give possession of a prohibited weapon to another person knowing that the other person is prohibited from possessing prohibited weapons under a WPO.
The Commissioner may delegate to a relevant person any of the Commissioner's functions under this Act. A relevant person being a police officer or any other member of the New South Wales Police Force, a public servant, or any other person prescribed by the regulations.
There appears to be no requirements as to what can substantiate a police officer giving an order nor any requirement of a connected offence. In essence, it appears any level police officer can issue a Weapons Prohibition Order for no reason at all.
A prohibited weapon is defined as any weapon under Schedule 1 of the Act and includes, but is not limited to, items such as:
- flick knife
- ballistic knife
- sheath knife
- trench knife
- bombs, grenades, rockets
- missiles or mines or similar device (including tear-gas canisters), any device intended for military or defence force use that is designed to propel a weapon, a flame thrower
- spear guns of less than 45 centimetres
- crossbow
- slingshots
- hunting slings
- blow-guns and blow-pipes
- whips with metal lashes
- tasers
- knuckle-dusters
- imitation weapons (excluding those produced as children's toys) and handcuffs
However, of concern, unlike Firearms Prohibition Orders, which can be reviewed on a merits basis by NCAT, the Tribunal's jurisdiction under the Weapons Prohibition Act 1998 is set out in Section 35 which provides:
35 Administrative review by Civil and Administrative Tribunal of certain decisions
- A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions -
- a refusal or failure by the Commissioner to issue a permit to the person;
- a condition imposed by the Commissioner on a permit issued to a person; or
- the revocation or suspension of a permit issued to a person.
Therefore, a Weapons Prohibition Order under Section 35 of the Act is not included in the list of decisions able to be reviewed.
This position is further clarified in the Tribunal's jurisdictional decision in relation to an application for the making of a WPO in the matter of Tukel v Commissioner of Police NSPF [2021] NSWCATAD 63.
In summary, as the Tribunal does not have any jurisdiction to deal with applications involving the revocation of a WPO, or any respected stay applications and there is no grounds to appeal a WPO despite it lacking all and any merit.
The making of a WPO is an administrative decision, and given that any challenge is a review of an administrative power, for which NCAT has jurisdiction, there is ultimately no forum on which to appeal any decision issuing a WPO.
It is our opinion that this position is extremely draconian, and despite the apparent need for such orders, the lack of any right to review is of significant concern.
Generally, WPOs are issued alongside FPOs, and the Firearm Prohibition Order can be appealed on merits basis.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.