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Additionally there is
an anomaly in the proposed penalty regime which proposes a lesser penalty for
the possession of military style semi-automatics.
5.
Recommendations
Police recommends that the Minister of Police:
a)
agree to recommend to your Government colleagues and
Yes/No
coalition partners that the Government opposes the Arms
(Firearms Prohibition Orders) Amendment Bill at the First
Reading Stage; and
Minister’s comments and signature
…………………………………….
/ / 2018
Hon Stuart Nash
Minister of Police
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Arms (Firearms Prohibition Orders) Amendment Bill – Member’s Bill
Purpose
1.
The Arms (Firearms Prohibition Orders) Amendment Bill – a Member’s Bill in the
name of Hon Paula Bennett (to be transferred to Chris Bishop) (the Bill) – was
drawn from the ballot on 3 May 2018.
Provisions - The Bill aims to restrict gang members’ possession of firearms
2.
The Bill as drafted amends the Arms Act 1983 by providing that
i.
A firearms licence must not be issued to a person who in the opinion of a
commissioned officer of Police is a member of a gang or subject to a
firearms prohibition order (FPO).
ii.
A firearms licence may be revoked if the holder is, or is seeking to
become, a member of a gang.
iii.
The Commissioner of Police may make a FPO against a person if:
a. in the opinion of the Commissioner, it is necessary, in the public
interest, to ensure that the person does not have possession of a
firearm; and
b. the person is a member of a gang; and
c. the person has, within the past 10 years, been convicted of—
(i) an offence under the Arms Act:
(ii) an offence under the Domestic Violence Act 1995:
(iii) a serious violent offence.
iv.
It is an offence for a person who is subject to a FPO to acquire, possess
or use a firearm or part, punishable by a term of imprisonment not
exceeding 14 years where the firearm is a pistol or restricted weapon, or
in any other case, 5 years.
v.
It is an offence for a person who is subject to a FPO to acquire or possess
ammunition punishable to a term of imprisonment not exceeding 5 years.
vi.
Every person commits an offence if they supply, or give possession of, a
firearm, part or ammunition to another person knowing that the other
person is subject to a FPO, punishable
a. where the firearm is a pistol or restricted weapon, by a term of
imprisonment not exceeding 14 years:
b. in any other case, by a term of imprisonment not exceeding 5 years.
vii.
A person who is subject to a FPO commits an offence if a firearm, part, or
ammunition is kept or found on premises at which the person is residing,
punishable by a term of imprisonment not exceeding 12 months.
viii.
A person who is subject to a FPO must not, without reasonable excuse,
attend or be present at—
a. the place of business of a licensed dealer:
b. a shooting range:
c. the premises of a firearms club.
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Membership of a firearms club is not a reasonable excuse for the
purposes of this provision.
ix.
A person issued with a FPO has a right of appeal to the District Court.
x.
The Commissioner’s power to make FPOs cannot be delegated.
3.
The two key elements of the Bill are discussed below.
A:
Gang Members/Associates are not fit and proper to hold a firearms licence.
Prohibiting the issue of firearm licences to gang members and associates would
be helpful
4.
Police can already decline an application for a firearms licence if the individual is
considered not a fit and proper person and can revoke a licence on the same
grounds. Police primarily uses an operational process and standards set out in
the Police Arms Manual 2002 for determining whether a person is fit and proper.
5.
Under the Manual, being a member of a gang is one of the factors Police takes
into consideration when determining whether a person is fit and proper to have
a firearms licence. However, courts have not always supported Police refusing
to issue or renew a firearms licence to an applicant solely on the basis that they
are a member of a gang1. This means that the firearms regime is not adequately
tailored to prevent gang members from getting a firearms licence even though
they may be associating with others who have a history of violent offending.
6.
Police sees advantages in providing, for the avoidance of doubt, that the Arms
Act is amended to specifically allow Police to make gang membership on its own
sufficient grounds to determine a person is
not fit and proper to possess firearms.
This has been included in previous advice provided to you
. This
advice was also reflected in one of the recommendations from the Law and Order
Committee
Inquiry into the illegal possession of firearms in New Zealand (2017
Inquiry) which the previous Government supported in its Response.
But relying on the current revocation process, which only enables seizure of the
licence, is insufficient
7.
Individuals are able to acquire their licence before joining a gang or identified as
a prospect and before acquiring a history of serious offending.
8.
Once identified as an associate gang member the revocation process can
commence. This is a drawn-out process and results in only the licence being
revoked. Neither the Arms Act nor the proposed Bill allows Police to immediately
suspend licences and to require any firearms to be surrendered. Delays in this
process allows firearms to be passed to associates prior to the licence being
revoked.
1 see
Police v Cottle [1986] 1NZLR 268;
Fewtrell v Police 14 CRNZ 372;
Jenner v Police
[2016] NZDC 4102;
Innes v NZ Police [2016] NZDC 4538.
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9.
There is no ability in the Arms Act to seize any ammunition that may be
possessed.
10. Successful revocations are generally accompanied by the person declaring that
they do not possess any ‘A category’ firearms.
11. In its response to the 2017 Inquiry
, the previous Government proposed
introducing the power to suspend licences in a proposed Arms (Firearm
Prohibition Orders and Firearms Licences) Amendment Bill. The New Zealand
First minority view report also stated that they would support an amendment to
the Arms Act to specifically prohibit gang members and their prospects from
being granted a firearms licence. They also noted there were other
recommendations that they would naturally support but these were not specified.
12. A Firearms Community Advisory Forum (FCAF) sub-committee supported a
legislation change that would prevent gang members from obtaining a licence as
did the two Ministerial advisers to Minister Bennett (one of whom is a FCAF
member).
13. If the government decides to support this Bill, the weaknesses in the revocation
process, the inability to suspend a licence, or require immediate surrender of
firearms would need to be addressed. Without this it risks giving gangs the
incentive to access firearms through identifying people who are legitimate
holders of firearms licences or encouraging others, without a serious criminal
history, to apply for a firearms licence.
B:
Firearms Prohibition Orders (FPOs)
FPO regimes operate in some other jurisdictions
At-sentencing orders
14. Specific orders prohibiting a person from possessing firearms have been
implemented in Canada and Australia. The Canadian Criminal Code requires a
judge at sentencing to prohibit a person from possessing any firearm, cross-bow,
prohibited or restricted weapon or device, ammunition, or explosive substance if
the person has been convicted of certain offences. Discretionary weapon
prohibition orders are also available to Canadian judges at sentencing. New
Zealand Police has not yet considered formal evaluations of ‘at sentencing’
orders but understands that such orders tend to be used as preventative
measures for offenders convicted of repeat illegal possession. They are not
targeted on violent and high-risk offenders.
Police issued orders
15. FPOs have been introduced in Australia in New South Wales (NSW), South
Australia and Tasmania. The introduction of FPOs in NSW was designed to
manage the risk posed by adult gang members. The NSW Police Force position
is that FPOs (with the necessary search powers) are an effective tool in
combating firearms and gang-related offences.2 Their view is evidenced from
empirical data that shows a reduction in shootings across NSW including
2 NSW Ombudsman (August 2016)
Review of police use of the firearm prohibition order search powers, p. 104
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shootings relating to organised crime and gangs. Electronic interceptions have
also indicated concern from criminal targets about the penalties and search
powers associated with FPOs. NSW had served 1,317 people with an FPO as
at 31 October 2015. Early evaluation of the NSW Police’s use of search powers
has been undertaken by the NSW Ombudsman. The Ombudsman’s Report
notes “that police have largely targeted the cohort of people Parliament intended
when conducting searches under the FPO search powers”.
The possibility of amending the Arms Act to provide for FPOs has been
discussed publicly for some time
16. Police has provided advice over a number of years proposing the introduction of
an FPO regime in New Zeland. The previous Government considered the
introduction of FPOs, in the context of a Whole of Government Action Plan on
Tackling Gangs and Transnational Crime Groups but no policy approvals were
obtained
17. Additionally, in its response to the FPO-related recommendation contained in the
Law and Order Committee’s 2017 Inquiry Report, the previous Government
committed to providing for FPOs in an Arms (Firearms Prohibition Orders and
Firearms Licences) Amendment Bill.
Manifesto and cross-party commitments
18. The National Party included the introduction of FPOs in its 2017 election
campaign policies. FPOs were not part of the New Zealand Labour Party’s 2017
Manifesto. The New Zealand Labour Party and New Zealand First Coalition
Agreement included a commitment to a serious focus on combatting organised
crime but no specific reference to FPOs. The Confidence and Supply Agreement
between Labour and the Green Party only references United Nations’
Sustainable Development Goals which include the goal to reduce violent crime
(SDG 16).
Firearms community
19. The Firearms Community Advisory Forum subcommittee supported the concept
of Firearms Prohibition Order but with caveats. The then Minister Bennett’s
special advisers noted the benefits of a FPO for Police but expressed concerns
around the risk of unintended consequences for the ‘fit and proper’ community.
Similar concerns have been voiced in the wider firearms community.
Contentious Issues
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31. Pistols, restricted weapons and MSSAs are all potentially serious-harm weapons
if misused and therefore all have controls over their import, possession and
procurement in the Arms Act. MSSAs have been the weapon of choice in recent
mass shootings in the United States. A MSSA was used by Quinn Patterson
when he murdered two real estate workers in Northland in 2017.
32. To the extent that penalties influence criminal offending, excluding MSSAs would
encourage the possession of MSSAs over other serious-harm firearms.
33.
Next steps
34. There are three options open to the Government.
34.1.
Support the Bill progressing to the select committee: This would be
consistent with the previous Government’s approach but would fail to take
on board many of the recommendations of the 2017 Inquiry. Police does
not support this approach as the Bill constitutes only partial reform of the
firearms licensing system.
34.2.
The Government take responsibility for the Bill. This approach has all the
limitations of the first option and is therefore not recommended by Police.
34.3.
The Government oppose the Bill at First Reading stage: This would give
time to:
A.
Develop a more comprehensive amendment Bill
; and
B. Progress examination of other legislative options for tackling gangs
and organised crime groups.
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35. Police recommends opposing the Bill at First Reading stage.
…………………………………….
Mark Evans
Deputy Chief Executive: Strategy
First contact
Mike Clement, Deputy Commissioner
Second contact
Jeremy Wood, Director Policy and
Partnerships
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