The circumstances which result in Apprehended Violence Orders (AVO) being issued in NSW (whether a Personal AVO or a Domestic AVO) vary significantly from minor and largely trivial complaints which perhaps should not be brought before the Court, to serious criminal behaviour that needs to be restrained. Regardless of the seriousness of the complaint, the effect on the holder of a firearm licence could be dire.
Defendants to an Application for an Apprehended Violence Order, i.e. the person alleged to be committing the violence, are often given the option of ‘consenting’ to an order being made against them on a ‘without admissions’ basis. This means that they need not make any admissions to any of the matters alleged in the complaint but merely agree to an order being made against them. Others seek to contest the allegations based on their belief that a Magistrate would not be satisfied, on the balance of probabilities, that an order should be made.
Consent to an Apprehended Violence Order or having an Apprehended Violence Order made against a person is not a criminal charge or conviction in itself, although a breach of an Apprehended Violence Order is a criminal offence. There are a number of consequences when an Apprehended Violence Order is made against a person, many of which are not likely to be known or understood by the accused. In particular, the effect of an AVO on the holder of a firearm licence is particularly onerous given the combination of alleged violence and possession of a lethal weapon.
One particular consequence to the issue of an AVO which may have significant ramifications on the person restrained by the AVO is the possibility of a 10-year prohibition on possessing a firearm licence. The person does not have to be charged or found guilty of any offence for this prohibition to operate.
Defendants are often unaware of the consequences of being served with an Application for an Apprehended Violence Order, let alone the effect of having an Apprehended Violence Order made against them. For Defendants with an existing firearm licence, an application for an Apprehended Violence Order can result in (a) their firearms being seized; and (b) their firearm licence(s) being suspended, even if there is only an interim order in force pending resolution of the application by the Court. An interim order is commonly made effective from the initial court date and will often run until the conclusion of the proceedings.
On a practical level, this could mean that a Defendant who is defending an order, and is reliant on possession of the licence, would be unable to work while the court proceedings are ongoing. Depending on the relevant court’s availability, this could be some months after the initial court appearance in which they indicate their intention to defend the allegation.
Some Defendants may not possess a firearm licence at the time of having an order made against them but discover years later that they are ineligible for a firearm licence because they had an Apprehended Violence Order made against them.
Some of the occupations and pursuits that may be affected include:
Many farmers require a firearm licence in order to control pest or vermin on their property. If a person intends to purchase a farm or to work in the farming industry, they may find that pest control is a key duty that they are unable to fulfil without a firearm licence. It is a serious criminal offence for a person to breach this condition even if they work in remote locations well away from the person who originally made the allegations against them.
Armed guard positions are common in the security industry and an appropriate firearm licence is an imperative condition of employment for these types of roles. AVO subjects will be unable to work as an armed guard should an Order affect their ability to obtain an appropriate licence.
Recreational and Sport Shooters
Other Defendants may want a firearm licence for recreational reasons. Unfortunately, being the subject of an Apprehended Violence Order will mean that will be unable to obtain a licence for the purpose of any recreational shooting, including popular sporting activities such as target or clay shooting.
In addition to a requirement of being able to possess a valid firearm licence, section 96B of the Police Act 1990 (NSW) requires all applicants to the NSW police force to undergo significant vetting checks. This means that if an Apprehended Violence Order has been made against an applicant, the police service will need to determine whether that person is suitable for employment with the Force.
For many people in the above groups, the long-term consequences of an Apprehended Violence Order are overlooked or unknown. For other people, they may find that the issue of an AVO is inconsequential to their circumstances at the time it is made. It is however important that a Defendant fully understands their rights when deciding whether to consent to an AVO being made against them. For people such as those in the above professions, or young people who may be unsure of their future career path, the consequences could amount to a 10 year period of extra-curial punishment.
Firearm Licence Legislation
In accordance with Section 11 of the Firearms Act 1996 (NSW), a firearm licence must not be issued to a person who is subject to an Apprehended Violence Order or who has, at any time within the 10 years prior to date of application, been the subject of an AVO.
In addition to this, Section 23 of the same Act states that a valid firearm licence will be automatically suspended on the making of an interim Apprehended Violence Order against a person. The effect of this suspension is referred to in Section 25 which states that the Defendant will be ordered to immediately surrender their licence and any firearm in their possession to the police.
While this article focuses on the above provisions within the Firearms Act as a consequence for those who are subjected to an Apprehended Violence Order, it is important to remember there are many other consequences which can have a serious impact on the lives of those against whom the order is made.
What Can Be Done?
It is vital that anyone subject to an Apprehended Violence Order Application obtains early, competent legal advice prior to attending court so they can inform themselves of the full range of consequences.
In most cases, the Court will make an Interim Apprehended Violence Order on the first court date should the Defendant either not consent to the order or seek an adjournment of proceedings. If a person is already employed in a field that requires them to bear a firearm, this interim measure will likely have immediate and severe ramifications with respect to their ability to work as their ‘licence to carry’ will be suspended.
Given the length of time that an Apprehended Violence Order can remain in force, it is important that both the Defendant’s current circumstances be taken into account by the Court and the likely effect on their future personal and professional lives. It is this understanding that reinforces the need for such people to get immediate legal advice from a competent legal professional.
A person who been the subject of an Apprehended Violence Order at some time in the past who requires a firearm licence for employment purposes should contact a lawyer for advice as soon practicable. In some cases, where for example an Apprehended Violence Order has expired, the Court may consider an application to allow the issue of a firearm licence. To accomplish this, the Court must be presented with a well-formed brief of facts, which may include strong evidence that there has been some change in circumstances between a Defendant and/or the person originally believed in need of protection.
It should be noted that this will not mean that any exclusion or cancellation of a firearm licence will automatically be lifted. Police must consider a wide range of matters with respect to the applicant, including whether the issue of a licence is in the public interest.
As with any serious legal issue, it is critical that people receive advice as early as possible in their matter to fully understand their rights and the consequences of any action so that they can make an informed decision regarding what is in their own best interests.
Get Legal Advice
Any person who faces an Application for an Apprehended Violence Order could find themselves in a highly distressing legal position and should contact the GTC Criminal Hotline Lawyers on 1300 636 846 immediately for advice on how to proceed.
By Daniel Hawkes, GTC Lawyers