Since the 2016 overhaul of the Restraining Orders Act 1997 (“ROA”) and the introduction of Section 14, the firearms prohibition, the issue of firearms clauses in Restraining Orders has arisen repeatedly in cases throughout the State.

In 2020 there was another series of amendments to the Act, with the focus of this article being on Part 6, known as the Family Violence Legislation Reform Act 2020. Amongst other significant changes, the Reform Act inserted section 14A to the ROA. In addition to the firearms clauses, there was, from then on, a legislative prohibition on a Respondent possession explosives or an explosives licence. Suddenly, a larger cross-section of the community was affected, primarily those in the mining industry.

The terms are such that every Restraining Order, whether interim or final (and including Conduct Agreement Orders) are deemed to incorporate a prohibition on a Respondent retaining their firearms (or firearms licence), as well as explosives (or an explosives licence).

There exists within the Act the mechanism for the Court to order, where appropriate, that a Respondent may retain their Firearms or Explosives or licences therefore. However, this must be made in the form of an express positive order. It is insufficient for the Court to simply omit the terms from the Order – it must make a positive Order in the affirmative.

In our experience since the reforms, there have been numerous situations have arisen were the final Court Order is challenged by the Police subsequent to the completion of a trial or settlement of a Restraining Order matter which permits a Respondent to retain their firearms. This is due to the overlap between the powers of seizure and forced surrender of the Police Firearm Licensing Division and the jurisdiction of the Court to make orders relating to firearms under the ROA.

The Police Firearms Licensing Division were slow to apply the correct interpretation of the positive order section, and in numerous cases handled by our office, refused to return firearms to persons who had settled or finalized their Restraining Orders with these positive orders in place permitting them to retain their firearms.

It took additional time, submissions and legal argument from our office on behalf of our affected clients for the Police to reconsider, accept and apply the correct legal interpretation and return the firearms as Ordered by the Court. The 2020 amendments helped to streamline this process, however, the Police are still hesitant to return Firearms to a Respondent against whom a Restraining Order or Conduct Agreement Order has been made – regardless of the reason for which it was made (whether imposed by the Court, or agreed by the Respondent e.g. to avoid further dispute).

This important distinction between silence in an Order and express positive Order of the court highlights the importance of seeking legal advice and assistance in the first instance, to prevent the need to incur additional legal fees, delay in time and potential risk of job loss later down the road.

At Fraser & Associates Lawyers, we can help you navigate these clauses and work with you towards resolving your Restraining Order matter in a way that best suits you.