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8 March 2024
IR-01-24-5275
A Whittle
[FYI request #25734 email]
Request for information
Tēnā koe A Whittle
I am writing to you in response to your Official Information Act 1982 (OIA) request dated
14 February 2024 in relation to firearms legislation.
I have answered each part of your request below. Please note that Police does not
provide legal advice or legal interpretation services to the public and questions about the
law and its effect are not requests for official information. While the below information has
been provided in order to be as helpful as we can, Police recommends that you seek
independent legal advice. For example, the Citizens Advice Bureau and Community Law
Centres provide free legal advice should cost be an issue.
Do the fol owing sections of the Arms Act 1983 (version 24 June 2023) or Arms
Legislation Act 2020 stil apply?
1. Sn 37 (3): The Minister of Finance shal , subject to subsection (4), pay
compensation out of a Crown Bank Account for the value of al weapons in a
serviceable condition, and for all parts, delivered to a member of the Police in
accordance with subsection (2)(d).
- If this Sn no longer applies, when was it repealed?
- If it hasn't been repealed, why are LFO's being told they wil not be
compensated for firearms surrendered to the Police?
Section 37
1 of the Arms Act 1983 applies only to “restricted weapons”. Restricted
weapons (as defined in section 4 of the Arms Act) are weapons declared to be restricted
1 Subject to subsection (2) of this section or an endorsement made under section 30 of this Act, no person shall
at any time be in possession of a restricted weapon, or of any part or parts intended or adapted for use as part
of a restricted weapon.
(2) Before the expiry of 1 month after [the publication under the Legislation Act 2019] of an Order in Council
declaring any weapon to be a restricted weapon, every person in possession of any such weapon or any part or
parts intended or adapted for use as part of such a weapon shall cause the weapon, or the parts, —
(a)To be destroyed; or
(b)To be disposed of to a person approved by the Commissioner; or
(c)To be exported from New Zealand; or
(d)To be delivered to a member of the Police.
Te Tari Pūreke – Firearms Safety Authority
Telephone: 0800 844 431
www.firearmssafetyauthority.govt.nz
Te Tari Pūreke – Firearms Safety Authority is a business unit of New Zealand Police.
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weapons by Order in Council. The weapons declared to be restricted weapons to date
are listed in the Schedule to the Arms (Restricted Weapons and Special y Dangerous
Airguns) Order 1984, and currently include items such as firearms capable of full
automatic fire, grenade launchers, rocket launchers and weapons designed for
discharging a lachrymatory substance (such as oleoresin capsicum spray).
2 Additional
weapons may be added to that Order from time to time under the power contained in
section 4 of the Arms Act.
Should new weapons be declared to be restricted weapons, then section 37 provides a
mechanism for a person in possession of such an item to dispose of or destroy the item
etc or deliver to Police and receive compensation within one month of the new item being
added to the Order in Council.
As you can see from the above explanation, section 37 is narrow in its application and
applies only to weapons which have been declared to be “restricted weapons” by Order in
Council. There has been no change to the Schedule to this Order in Council since 2012,
and before that, there was only one other change in 1992.
2. Sn 60: Improvement Notices
- Does the FSA has the authority to issue an Improvement Notice under sn 60?
Yes. Section 60
3 of the Arms Act gives a member of Police the authority to issue an
Improvement Notice. Section 2 of the Arms Act defines a member of Police as “a police
employee”. Al the employees of the Te Tari Pūreke – Firearms Safety Authority are
Police employees.
- If a LFO is found to unknowingly possess a prohibited firearm, with no malicious
intent (eg a genuine oversight or perhaps when sorting the estate of a deceased
person), can Police issue an Improvement Notice to al ow time for the LFO to
comply and/or modify the firearm to make it compliant?
- If an Improvement Notice cannot be issued, why not?
- Why are firearms ordered to be surrendered and destroyed, or seized, in such
circumstances as described above, instead of being issued an Improvement
Notice?
Please see section 60 of the Act, which is publicly available but is linked in the foot notes
for you.
It is important to note that unlawful possession of a prohibited firearm is a serious
offence, with a possible sentence of up to five years’ imprisonment and is not the sort of
behaviour the improvement notice process was designed to address.
There are mechanisms that may be used by a genuinely motivated person to proactively
surrender unlawful y held firearms to Police.
(3) The Minister of Finance shal , subject to subsection (4) of this section, pay compensation out of the [Crown
Bank Account] for the value of all weapons in a serviceable condition, and for all parts, delivered to a member of
the Police in accordance with subsection (2)(d) of this section.
2 Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984, clause 2 and Schedule.
3
https://www.legislation.govt.nz/act/public/1983/0044/latest/whole.html#LMS440460
Section 59B of the Arms Act expressly gives Police discretion to not prosecute individuals
who voluntarily deliver arms items they are not authorised to possess to Police under
section 59B where:
•
The offence is one of possession only; and
•
There is no public interest in proceeding with a prosecution.
Alternatively, a person may surrender an arms item anonymously through a dealer under
section 59A and they would not be required to provide their name or licence information.
For additional information, please refer to the below website link.
Disposal of il egal y held or unwanted firearms | Firearms Safety Authority New Zealand
- Where does it state in the legislation that modifications can no longer be made
to ensure firearms are compliant with legislation, rather they must be surrendered
for destruction?
Unlawful possession of a prohibited firearm is a serious offence punishable by a term of
imprisonment of up to five years. There is nothing in legislation that states modification of
the class of arms item is al owed (for example a prohibited firearm to a non-prohibited
firearm), except in very few circumstances, which we have outlined below.
Under the compensation regime that was temporarily established to facilitate the 2019
Firearms Amnesty and Buyback programme,
regulation 28U (version as it was when in
force) was introduced. This gave the ability to lawful y modify a prohibited firearm to a
non-prohibited firearm with Police approval and oversight. Modifications were limited to
those where permanently limiting the tubular magazine in an approved way was sufficient
to make the firearm or its magazine no longer prohibited permitted as to empower. This
regulation was timebound and in place for the duration of the buyback and amnesty
period and was revoked on 31 December 2020.
Modification of a lawfully held prohibited firearm to non-prohibited firearm is now an
activating circumstance and registerable event in the Firearms Registry (see event 8, Part
4, Schedule 1B Arms Regulations) as long as Police have given prior approval for this
modification and the modification is certified by a person authorised by Police.
According to the Arms Act, possession of a prohibited item is only permitted in a narrow
number of circumstances. Modification of a prohibited firearm from prohibited to non-
prohibited may only be approved where a person is already lawful y in possession of the
item by holding both the required endorsement and a permit for the item prior to seeking
modification to non-prohibited.
Where someone is unlawful y in possession and are therefore committing an offence
against the Arms Act, they are required to surrender the prohibited firearm (under section
59B/Schedule 1, clause 6(1), (2) and (3)), or it wil be seized by Police.
3. Sn 70 (1): Without limiting the operation of any other provisions of this Act as
to the disposal of any firearm, airgun, pistol, restricted weapon, imitation firearm,
prohibited magazine, prohibited part, pistol carbine conversion kit, ammunition, or
explosive seized or detained under this Act, any such firearm, airgun, pistol,
restricted weapon, imitation firearm, prohibited magazine, prohibited part, pistol
carbine conversion kit, ammunition, or explosive that has been detained for not
less than 12 months may be disposed of in such manner as the Commissioner
may direct.
- Please confirm that any surrendered and/or detained firearm wil be held for a
minimum of 12 months before disposal.
Yes, if section 70 applies, Police wil retain items for a minimum of 12 months before
disposing of them and section 65 provides for an application to be made for restoration of
items that have been seized or detained items under Arms Act.
However, with regard to prohibited items delivered to Police after 21 March 2019,
Schedule 1 and clause 6 of the Arms Act provides that:
•
prohibited items delivered or otherwise surrendered to Police become the
property of the Crown.
•
Other than compensation that could have been paid under the now ended
buyback regulations, there is no right to compensation.
There are also provisions for dealing with property under the Search and Surveil ance Act
where items are seized under a power under that Act (such as under a warrantless
search of a search warrant) – see sections 149 to 163.
- With pending Firearms Legislation changes, wil LFO's have their seized
firearms returned should the status or category of such firearms change and they
no longer be restricted and/or prohibited?
Police including Te Tari Pūreke, wil continue to apply and enforce the law as it exists at
the relevant time. If the law changes, Police (including Te Tari Pūreke) wil uphold the law
and licence holders must do the same. Failure by licence holders to abide by the law can
result in reassessment of their fit and proper status, and compliance and enforcement
actions wil be considered.
For your information, Police has developed a process for proactive release of information,
so the anonymised response to your request may be publicly released on the New
Zealand Police website.
Nāku noa, nā
Matt Boddy
Deputy Director Operations
Firearms Safety Authority
