Firearms Prohibition Orders Legislation Bill

Thank you, Mr Chair. I’d like to say it’s a pleasure to take a call on the Firearms Prohibition Orders Legislation Bill in committee stage and, as we’ve already indicated to the Minister, we will be supporting the legislation because I guess you could take the approach that something may be better than nothing.

But as the Minister knows, this bill does not go nearly far enough in a whole range of areas to actually—what we feel and actually supported by the Police Association—give the front-line police officers the tools that they actually need to make a genuine and a quick impact on the massive rise in gang-related, gun-related violence that, unfortunately, although we were told that it was a spike it will carry on. It’s carried on. I see in the New Zealand Herald today there was a report of a bail reintegration centre—and I certainly hope it’s not getting Government funding. But apparently the police had signalled that it was a facility that they weren’t very happy about and they executed a search warrant and recovered three military-style weapons, from what I understand some armour piercing - type rounds, some cash and some drugs, and one King Cobra gang member arrested and charged—from what I understand—with drugs.

The problem’s not going away, Minister, and so if you’re going to bring legislation and you’re going to take the time of the House and you’re going to say that you’re a Minister that’s going to get serious about supporting our front-line police officers and ensuring that the public are safe, then bring a firearms prohibition order (FPO) to the House that actually is going to do that.

The first thing that I’d like the Minister to get up and speak to is just explain to us and talk us through the time frames, how he sees the bill being implemented, whether or not he has received any advice from police in terms of what they anticipate in terms of charges, convictions, and the sentencing regime—so, i.e., how many offenders, or defendants, are going to actually have an FPO? Then how are they going to operationalise it and how is it actually going to work, so that we get a sense that in the next six months, how is this firearms prohibition order actually going to make a tangible and substantial impact on what it’s been brought to the House for and that is dealing with illegal firearms; gang members, organised crime members carrying them, willing to use them; drive-by shootings—every day putting members of the public in harm’s way, creating fear, and, by the will of God I don’t know how, we’ve avoided a member of the public being seriously injured or killed in one of these inter-gang drive-by shootings.

We’ve seen in the last few weeks domestic violence cases where people have been killed with firearms by gang members. So we feel on this side of the House that actually if an FPO, a firearms prohibition order—which, by the way, the police have been asking for quite some time, and it was in the briefing to the incoming Minister when Labour took over as Government in 2017. We’ve had two bills that we’ve brought to the House that have both been voted down by the Government. We think this is important but it shouldn’t just be lip service. Bringing a bill to the House that’s actually pretty weak probably isn’t really going to do much—how are you going to operationalise it, what actually tangible effects, impacts, is it going to have on the front line in terms of what they’re dealing with in their desire to keep the public safer?

So I’d like the Minister to actually stand and take us through in this committee exactly how this bill is going to work and the advice he’s got in terms of what impact it’s going to have on the current situation in New Zealand in relation to illegal firearms and gun violence.

I too congratulate you, Mr Chair, on your appointment to the Chair.

Minister, I have a couple of questions I’d like to start off with, and one of them is in regard to clause 7, where we’re going to amend section 24A(1)(c)(ca), where those excluded from ever being “fit and proper” to hold a firearms licence will include those people who have had a firearms prohibition order placed on them at some stage in their life.

I read that, Minister, as not really being a 10-year penalty; it’s a lifetime penalty. I wonder, Minister, whether you can speak to that and the intent and what proposals the Government foresees in the ability for someone who may be 30 years on from having a firearms prohibition order, who wishes to hunt and gather for their family—would they be able to do so under the immediate supervision of a licensed firearms holder or would they be expelled from being able to do so at all?

My second question to you, Minister, is in regard to clause 8, where we introduce new Part 7A, specifically new section 39A(1)(a)(ii). Minister, there has been a change where “serious violent offences” becomes “specified violent offences”, and, of course, we were looking at section 86A of the Sentencing Act, but I notice that your Supplementary Order Paper 212 now refers to section 4 in the Victims’ Orders Against Violent Offenders Act 2014. Section 4 actually refers back to section 86A of the Sentencing Act.

So I’m wondering if you could please clarify, for those at home who don’t understand, why we’re going around about the difference between the “specified” offence and the “serious” violent offence, because that does mean quite a bit to those that are at home. I’ll start off with those two. Thanks, Minister.

Can I thank the member for her very specific questions. In terms of the cross-referencing in the legislation, that actually relates to the Three Strikes Legislation Repeal Bill that was just passed by the House and has yet to receive the Royal assent. It will receive the Royal assent before this bill does, and, therefore, that makes changes to the relevant clauses in this bill, effectively. It reorganises the way things are represented in the legislation that this bill amends. So this bill has had to be amended to reflect the amendments that the House has just passed. That’s the reason why some of those cross-references are different now in this bill to the ones that were previously referenced.

In terms of the earlier question around the “fit and proper” person test, I do think it’s a very fair question. The fit and proper person test—the factors that are considered, they’re not hard and fast rules. So the fact that someone’s had a firearms prohibition order (FPO) against them is something that the police or the person renewing or granting a firearms licence would consider. But it doesn’t mean that the fact that they’ve had an FPO means that they’re absolutely disqualified. It becomes a factor that can be considered in processing the licence application, but it doesn’t bar someone from having either a new licence or a licence renewal successfully processed.

In terms of Mark Mitchell’s question about the extent to which the legislation might be applied, that will really come down to the courts. So if we look at the offences that it can be applied for—serious offences against the Arms Act, serious violent offences including murder, attempted murder, conspiracy, manslaughter, discharging a firearm, aggravated robbery and sexual violation offences with intent to cause harm or grievous bodily harm, violent sexual offences, strangulation, suffocation, terrorism offences, and organised crime offences—that’s a pretty extensive list. It covers quite a wide range of offenders, and the extent to which the courts apply FPOs, at this point, is unknown.

Obviously, the police will make their views to the courts known about where they think that is justified. I think it would be too early to tell, frankly, how many people are likely to be the subject of FPOs at this point. Ultimately, it will be up to the police to determine when they seek, from the courts, a firearms prohibition order to be applied.

Thank you, Mr Chair. Speaking here at the committee stage of the Firearms Prohibition Orders Legislation Bill. Just to remind people who are tuning into this debate: the Government has introduced this bill to try and more effectively deal with the problem of firearm crime that we are facing and general violent crime across the community.

We’ve been calling for some sort of firearms prohibition order to be placed on convicted criminals who have been active in using firearms, as well as committing serious other crimes, for quite some time. We’ve failed on a couple of bills. The Government has finally brought in its own bill, which we on this side support, but we do so noting the fact that there are some significant missed opportunities in the bill that we are confronting, primarily around the search provisions, which are addressed in Part 2, as I understand it. And we’ll come to that debate at the appropriate time, Mr Chair, and I’m sure you will be vigilant in your concern and care about that.

So what we’re dealing with here in the first part is the introduction of these firearm protection orders for, as the Minister outlined, a series of very serious offences, such as murder and attempted murder and discharging a weapon and aggravated robbery. So it’s a very high threshold of violent crime which would mean that a firearm protection order could be passed as part of their sentence, which would stop them from owning a firearm and doing a whole bunch of other things for 10 years.

Interestingly, the bill as introduced doesn’t allow one to be introduced if the offender is under the age of 18. And we could ask the Minister just to remind us why, if a 17-year-old shoots and murders somebody, this wouldn’t be an option to consider for them? He might be able to make some comments on that.

Also, I’d be interested to know whether he is confident that the standard conditions of the firearm protection order around association of places and people where firearms are kept will be, effectively, enforced and able to be enforced. We think of people driving around in cars. I’m just conscious of the fact that in Auckland in the last few months there’s been more than 30—I think it’s probably up to 40 now—shootings in the city, just in the last few months. This is not Chicago that we’re talking about. This is not Miami in the 1980s or anything like that; this is Auckland. And we’re seeing an enormous number of shootings in our city. And so the public is rightly very concerned about that, and keen that we can have an effective response.

Now, obviously, the most important part of that is effective policing, backed by the Government with the resources and legislation that they need to fight back against the perpetrators of this, which does seem often, but maybe not always, to be connected with gang activity. So the question I have for the Minister is, is he confident, running through new Part 7A, section 39C(1)(a) down to (f), that those standard conditions of a firearm protection order are sufficient to achieve the goal that he sets out to achieve?

I think I only noted two questions out of that contribution: one is why 16- and 17-year-olds shouldn’t be the subject to firearms prohibition orders, and the second being whether I think that this is sufficient legislation.

In answer to the second part of the question: on its own, no, it’s not. There are other things that we need to be doing as well, and there is further legislation in the pipeline that the Government will be bringing before the House. And that will no doubt be subject to scrutiny during the select committee process and considerable debate, and I will welcome the opportunity to participate in that debate. This is not a magical solution to every problem we face around gangs—or, in fact, firearms offences—but it is an additional useful tool for the police.

In terms of the other issue that the member raised, which I’ve now suddenly forgotten, having—

💬 Hon Paul Goldsmith: Young offenders.

The 16- and 17-year-olds. I think the position that we have taken is that there are other avenues for pursuing 16- and 17-year-olds who have undertaken offending which are designed to get them back on to the straight and narrow, and that they should be pursued first.

Thank you, Mr Chair. Just a question to the Minister in relation to Part 7A, section 39A(2): “The court may make an FPO against the offender if the court is satisfied, on the balance of probabilities, that the imposition of the FPO is necessary, reasonable, and appropriate to assist in managing the risk that the offender poses to public safety.” And I just bring the Minister back to his last comment that this firearms prohibition order (FPO) is meant to be a tool that is used by the police and helps them deal with gun-related crime.

But one of the greatest frustrations, certainly—and it’s not a new one—often for the police is an opposition to bail in front of the courts. The judge by no means is in a position, nor is he compelled, to support police opposition to bail, and unfortunately we’ve seen some tragedies unfold in this country with homicides where there’s been an opposition to bail by the police that has not been upheld by the court.

I’m concerned that the police now are going to have to make an application to the judge to try get an FPO. It’s another hurdle for the police to jump over to try get an FPO in place for what is a violent offender, because, as the Minister laid out, these offences are serious. And I’m wondering what advice the Minister has received in relation to section 39A(2) from the police and how they think that that will work—whether there were any concerns raised, whether any of these other issues were discussed around the fact that the police, effectively, can’t have an FPO applied to someone that they see as a danger to the public or with gang affiliation or a gang member or even just a lone wolf. And so I’d like the Minister to sort of discuss with the committee and share any information with the committee in relation to that advice that he got.

And also the other point is whether or not there’s any sort of measure of success: what targets, what goals has the Minister set with advice from the police in terms of being able to measure the success of this FPO, when it is actually operationalised.

A couple of things in that. First of all, these days there are women on the judiciary as well—they’re not all just men.

The other thing, in terms of the issue that the member has raised in terms of how we would measure the success of firearms prohibition orders, that, of course, is a challenging one, because preventing crime means that there isn’t something to measure in the first place, and ultimately that’s what this is designed to achieve. If you stop someone who has been a previous offender using a firearm to offend again, or to do a different type of offending, that would be quite difficult to be able to measure that, but it’s a successful outcome none the less.

In terms of whether or not the courts are the right people to make the decision about whether or not someone should be subject to a firearms prohibition order, the Government’s view is that they should be. If you took the member’s implied argument in that question to its logical conclusion, the judges would have no discretion and there would be mandatory sentences in legislation. But we don’t do that as a Parliament, by and large, because we acknowledge that, you know, the judges have a difficult job to weigh up all of the circumstances of a case and to make sure that the sentence is proportionate.

Thank you, Mr Chair. Minister, I’m looking at section 39C, where the standard conditions for a firearms prohibition order (FPO) have been set out, specifically (1)(d) of section 39C where it prohibits a person with an FPO upon them from attending a shooting range or a gallery. I had asked through the select committee: what determines a shooting range? The reason why I ask this, Minister—you probably know about Remutaka Forest Park yourself. It’s an area—along with TECT Park in Tauranga is another example—where you have not only a shooting range but other public facilities happening at that same place.

At Remutaka Forest Park, for example, there’s gliding—aeroplane gliding—there’s also walking tracks, there’s also a go-kart facility there as well. And where the range actually is, some people cannot access the range, and a kilometre away is where they have to park their vehicles and take their firearms from their vehicles down to the shooting range.

I had asked the question during select committee: what is being defined as the shooting range? Because we don’t want people going go-karting and because they’ve parked their car where the guns are, they then are deemed to have gone against their FPO or their order.

And what I was told during the select committee process, Minister, was that the regulations regarding clubs and ranges were still in process and that it will be determined exactly what this means after that process has been finished and then a judge can decide what or whether that person was breaching their FPO.

I’m a little bit unhappy with that, because we have these areas where people could inadvertently breach them and not realise. So I’m hoping, Minister, that we can have recorded in Hansard the intent here to ensure that we don’t have people accidentally happen upon an area where there is not just only the go-kart or the gliding but there happens to be a shooting range there, as well. Thank you.

Again, I thank the member for a very pertinent and reasonable question. Perhaps if I refer her to page 6 of the bill, section 42A(1), in clause 10, basically “a person commits an offence if the person breaches a firearms prohibition order … (b) by failing, without reasonable excuse, to comply with any condition of an order.”

I think the point that the member raises would, in my view, be a reasonable excuse. So if someone didn’t know, for example, that someone was going to be walking past carrying firearms in order to access a range that was some distance away that, to me, would be a reasonable excuse. The fact that someone happened to be in a car parking building where somebody else had firearms in a car, for example; again, they wouldn’t know that they were there. It fails on the reasonableness test for someone to be pursued or to be deemed in breach for those things. But I think it’s absolutely a legitimate point, where clarity is useful for those things; happy to put that on the record.

Thank you, Mr Chair. I’m on a roll now!

Clause 9 of this bill is moving current section 41A in the Arms Act and renumbering to section 59AAA and placing it after the Part 9 heading. It’s a tidy-up clause there. I have produced a Supplementary Order Paper (SOP) where I have suggested that perhaps subclause (3) could be removed, and that is regarding the marking of certain types of firearms where the Crown absolves itself from having to pay any compensation for the devaluing of those items by this directive. I wonder whether or not the Minister would be prepared to support ACT’s SOP, which would make the Government—or the Crown—have to pay compensation for the devaluing of goods having to be marked?

I thank the member for her honest attempt there in her Supplementary Order Paper, which is rather opportunistic, if I could put it that way. I do think it’s wide of the intention of this bill, which doesn’t really deal with those issues at all.

The renumbering and repositioning done under clause 9 is a direct result of the other amendments that this legislation progresses to make sure that the legislation as a whole continues to be coherent and have a logical structure to it. The provisions in clause 41A, which is now being renumbered and repositioned, haven’t actually been changed; so there’s been no policy intention to change any of that with this bill.

Thank you, Mr Chair. Just going back to the part which refers to when a firearms protection order (FPO) might be made, and new section 39A(2) in clause 8, which says, “The court may make a [firearms protection order] against an offender if the court is satisfied,” about a whole bunch of things—“if the court is satisfied, on the balance of probabilities, that the imposition of an FPO is necessary, reasonable, and appropriate to assist in managing the risk that the offender poses to public safety.”

I suppose the question I have is to try and get into the mind and the intention of the Government in passing this, because judges will be trying to decipher that, I suppose, when they make these decisions. If you took the example of somebody who had shot somebody else, and perhaps killed them—or perhaps didn’t kill them, but tried to kill them—would it be the expectation of the Government, in passing this bill, that that person would get a firearms protection order placed against them? Can he think of anything that would make it not necessary or not reasonable or not appropriate for somebody in that circumstance to have an FPO brought against them, or does he think it’s possible that somebody could shoot to kill somebody and maybe have the desire not to shoot anybody else, and therefore they’re not a risk to the public?

I’m not sure, but I’d like to get a sense from the Minister of what the expectation is, because he’s chosen to draft a very light-touch provision, which the court may, if a whole bunch of things flow from that—and sometimes it would be useful just to get a sense of what his expectation would be in those examples that I gave for somebody that used a firearm to shoot and kill somebody else or to shoot and not kill somebody else but intended to, or even if you took the example of somebody who just discharged a firearm recklessly, for example. How high is the Government’s expectation that these FPOs would be used, and what is the intention that he and the Government have on this matter?

The Government’s expectation is that a firearms prohibition order will be put in place where it’s necessary, reasonable, and appropriate, and that, ultimately, is the decision of the judiciary. That is one of the fundamental premises—“premises”, if that’s the right language; it’s probably not, actually. That’s one of the fundamental components of our current approach to law and order in New Zealand, that we still rely on the judiciary to apply discretion and to apply judgment.

In other jurisdictions where much of the discretion and judgment has been taken away from the judiciary, they, in fact, have had to impose sentences and restrictions upon people that they themselves have said at sentencing they felt were disproportionate and that they disagreed with. Thankfully, that’s not a path that New Zealand has, by and large, gone down, and this Government doesn’t intend to start on it.

Thank you, Mr Chair. A question to the Minister around new section 42A “Offence to breach firearms prohibition order”: “(1) A person commits an offence if the person breaches a firearms prohibition order by—(a) accessing, possessing, or using any firearm, pistol, pistol carbine conversion kit, restricted weapon …”—and the rest of them—“or (b) failing, without reasonable excuse, to comply with any condition of the order.” How is a front-line police officer going to detect whether or not a person with a firearms prohibition order is in breach of either (a) or (b)?

My question is in relation to clause 12 which amends section 69 relating to forfeitures. New subsection 69(1A) will read that any person, with an FPO upon them, found breaching an order and in possession of a firearm will have, upon sentencing, an order that those items will be forfeited to the Crown.

I had asked the question in select committee: “Well, what if those firearms were stolen?” What if it’s Billy-Bob Joe with Uncle Bob in the vehicle, and Uncle Bob’s going off hunting—what if there is legitimate reason for those firearms actually not to be confiscated and forfeited to the Crown, but returned to their owners? I understand that section 69(2) does give an exemption where the Crown doesn’t have to forfeit if they feel it’s unjust to do so.

But I wonder, Minister, what provisions will be in place where it is found later that the firearm can be identified as belonging to a legitimate owner where it’s been stolen, after the court has decided it’s going to be forfeited? What response are we giving to those firearm owners who will be expecting that registration will mean the return of their firearms, not the confiscation and forfeiture of them?

I’ll get a little bit further information to answer Nicole McKee’s question, and I’ll endeavour to do so in a moment. But I do want to pick up Mark Mitchell’s question.

I have to say, I did take pause with this question because the answer seems so obvious. The police generally are pretty bright. And so if someone is possessing a firearm, for example, and they are found to be in possession of a firearm, then clearly they are in breach of the legislation. If they are using a firearm, then they are in breach of the legislation. So I’m not entirely sure what he’s kind of getting at where he’s trying to determine whether or not the police would be bright enough to determine that someone possessing a firearm might be in breach. I think they make those sorts of judgments all day, every day.

Thank you, Mr Chair. Quite simply what I mean, Minister, is that if an offender or defendant has had a firearms prohibition order (FPO) against them and they are in violation of either paragraphs (a) or (b) of subclause (1) of 42A, how is a police officer meant to detect that breach? If the police officer asks that person and inquires of them and says, “Are you compliant with your FPO?”, and the person says, “Yes”, but they have a handgun tucked into their belt or concealed somewhere on them, how is the police officer actually meant to check and ensure that they’re being compliant with the FPO?

If the police officer has reason to suspect that someone is not in compliance with that, then they have an ability to search in order to determine that. They can do that warrantlessly.

In terms of the—coming back to Nicole McKee’s question, which, again, I think is a reasonable question, this is an issue that the police grapple with already at the moment in terms of the lawfulness of the ownership of stolen firearms or even firearms that are perhaps “borrowed” without the consent of the owners of those firearms. There is a process that police go through to investigate that, to investigate the circumstances under which they came to be in the possession of firearms from the lawful owners of the firearms, and, where necessary, they can be returned to the lawful owners if they have been taken without consent—they’ve been stolen or, again, borrowed without consent, in the case of, say, a family member, for example.

Thank you, Mr Chair. Minister, again I’m going to ask you because you responded by saying—first of all, you sort of had a go at the intelligence of a front-line police officer, but, actually, you’ve brought legislation here that, in my view and in my experience, police officers will always stay within the spirit of the law and the laws and the legislation that they have to operate inside. And I asked you and I said to you, “If a front-line police officer happened to be on the beat and came across someone that they knew had an firearms protection order and a history for carrying firearms, and they stopped and spoke to the person, and they inquired and said, “Are you being compliant with paragraphs (a) and (b) of subclauses (1) and (2) of 42A?” and the person said, “Yes.”, how is the police officer meant to actually check and ensure that they are being compliant with that firearms protection order if they have no reasonable excuse?

The issue here is very clearly that if they have a reasonable suspicion that someone is not in compliance with the legislation, then they can conduct a search, and they can conduct a search without a warrant. We’ve covered this ground several times before. The issue is that their firearms prohibition orders are in place for 10 years, and if the member is suggesting that someone who’s subject to a firearms prohibition order should be able to be randomly searched as many times—well, in an unlimited way—for the entirety of that 10 years, then I think that that is a bridge too far.

Thank you, Mr Chair. It’s always good to see an O’Connor in the Chair.

A quick question, Minister. It really is around expected workload and time frames, or, actually, mainly just workload capacity for the police and the courts. So, obviously, I support firearms prohibition orders (FPOs). As you’ll know, National feels you could have gone further, but has any work been done around—well, potential work—obviously police officers and the courts, with the context being they’re already busy? I can obviously accept FPOs are just another standard piece of business, or will become so, for the police, but they’re already stretched, they’re already busy, so too the courts. Have you or any of your officials done any work around how much time or workload this may cause?

That would be a very difficult thing to model, because, of course, it would suggest that we could separate this out from the other work that police are doing. In fact, in many instances, this will just be one component of an investigation or one component of the work that police are already doing. It is an additional tool for them to use where it is appropriate for them to do so.

Thank you, Mr Chair. I’m coming back, Minister, to new section 42A, because what you say in this House matters and it’s important and it will be used as a reference point.

So I just want to be clear with the Minister that he seemed to have intimated to the committee that with the example that I gave—which is the most common one—where police officers stop someone who is known to them. In having a firearms prohibition order (FPO), if they speak to that person and ask them if they are in compliance with that FPO, and if they’re in compliance with section 42A(1)(a) and (b), how have they got any way of actually checking and making sure—because he keeps putting up the reasonableness test, and I’d like him to lay out to this committee what is the reasonableness test. How are they able to check and make sure that that person—and let’s use a gang member as an example—is in compliance with the law in terms of the firearms prohibition order that’s been put against them?

The reasonableness test is already something that police are well familiar with. In fact, there are several judgments that have set out the reasonableness test. I’m happy to quote a couple of them for the member, and I’m just making sure that I quote them accurately.

So in terms of one that was specific around warrantless searches when it comes to firearms, Ward v R from 2016, the Court of Appeal described the test as—and I’ll quote it directly—“We are satisfied that the power to conduct warrantless searches under section 18 continues to be subject to the requirement that, one, a constable exercising a warrantless power of search actually believes that there are reasonable grounds to suspect a breach of the Arms Act, and, two, the grounds for suspicion are objectively reasonable.”

If the Parliament wants to start to define what is objectively reasonable in a very specific statute, it will be tying the police’s hands behind their back, because, ultimately, it will increase the number of loopholes that will allow offenders to get off.

The question is that the Minister’s amendment to Part 1 set out on Supplementary Order Paper 212 be agreed to.

Amendment agreed to.

Supplementary Order Paper 216 in the name of Nicole McKee is ruled out of order as being outside the scope of the bill. The question is that Part 1 as amended stand part.

Part 1 as amended agreed to.

Part 2 Amendments to other Acts