Submission on the Arms Legislation Bill 2019

Submission on the Arms Legislation Bill 2019

Joe Green – Chair of the Firearms Safety Council of Aotearoa New Zealand

  1. My name is Joseph Michael GREEN. I am known as Joe.

 

  1. This submission is made by the Firearms Safety Council of Aotearoa New Zealand (FSCANZ), which I chair.

 

  1. It has been consulted with member organisations. Membership of the FSCANZ includes the following organisations Pistol NZ, NZ Shooting Industries Assoc., NZ Shooting Fed., NZ Pighunting Assoc., NZ Antique and Historical Arms Assoc., NZ Blackpowder Fed., NZ Deerstalkers Assoc., NZ Service Rifle Assoc., Firearms Safety Specialists NZ Ltd., Federated Mountain Clubs, Target Shooting NZ, Sporting Shooters Assoc. NZ, Rural Women NZ, Safari Club International.

 

  1. The formation of the FSCANZ in 2016 was motivated by the deep concern of firearms organisations for continued community safety and firearm user safety training.

 

  1. The objectives of the Council include, among other things, to provide advice to government agencies and other organisations, such as the media, on firearms safety related matters, and, to do other things as may be necessary, incidental or conducive to the attainment of the Council’s objectives.

 

 

  1. As a result this submission focusses solely on the safe use of firearms as proposed in the Amendment Bill. This is more about setting expectations of outcomes than supporting or opposing the Bill. We are mindful of Former High Court Dame Sian Elias’ comment: ‘legislation needs to be based on solid research, not pious hopes’.

The ability of Police to manage safe use and control of firearms.

 

  1. The FSCANZ has noted variable allocation of resources to the safe use and control of firearms, firearms safety training and the promotion of the safe use of firearms on the part of NZ Police. In their 2018 Annual Report (page 50) Police note that ‘due to increased demand in other Police priority areas, fewer resources have been available for firearms licensing activities in the 2017/18 year’.

 

 

  1. High Court Judge Thorp in his 1997 Review of Arms Control in New Zealand (page 120) commented on ‘the arms business being given a progressively lower priority (by Police) and becoming under-resourced’. He thought that this needed to be addressed and said ‘it is accordingly a matter of some importance that, whatever variation on the current arrangements is selected, it incorporates some means of ensuring that competition with other work does not in future result in a similar suppression of the development and maintenance of an efficient arms control system’. FSCANZ submits that this remains a consideration and is pleased to see the proposal to establish the Firearms Advisory Group.

Aotearoa New Zealand – an increasingly safe place, overall

  1. FSCANZ submits that the Select Committee consider that firearms are used in a safe manner in Aotearoa New Zealand, with death and injury, including non-intentional, suicide by firearm and homicide by firearm having reduced significantly over the last 50 years.

 

  1. We do not consider that this detracts in any way from the need to establish controls that minimise the likelihood of events such as those in Christchurch. However, we consider it important that before this Bill is considered the report of the Royal Commission of Inquiry into matters leading up to the Christchurch event should be taken into account.

 

  1. In terms of the speed at which firearms legislation is being amended, we note that in the 17 October 2019 Dom Post is it reported that Treasury advised Cabinet (in relation to changes in legislation proposed by the Minister of Education): “Treasury warns that bypassing the normal process would increase the risk of introducing regulation that could be unnecessary, ineffective or unnecessarily costly, and that the analysis of the bill thus far was manifestly incomplete”. FSCANZ notes that similar characteristics apply to this arms amendment and are hopeful that similar advice has been provided.

 

  1. FSCANZ observes that New Zealand Government and Police seem somewhat enamoured with the Australian model (the 1996 National Firearms Agreement in Australia – NFA). New Zealand and Australia share a strikingly similar downward trendline in terms of suicide and homicide by firearm, a trend that started well before the NFA, with academics generally agreeing that it is difficult to attribute the downward trend solely to the NFA. Similarly, whilst there were no mass shooting deaths of five or more in Australia from 1997 through 2006, some authors noted that it is impossible to prove that the NFA was the cause. There have been three recent incidents that had the potential to be mass shootings in Australia: the Lindz café, the more recent shootings in Northern Territory and the very recent shooting in Sydney. The fact that these did not meet the threshold of ‘mass shooting’ is more directly attributed to the number of victims on site than anything else.

 

We urge Government and Police to be wary of an assertion that due to the NFA Australia is in some way a safer place than New Zealand – this is simply not true.

 

  1. FSCANZ draws the attention of the Select Committee to the finding of the UK Home Office in 2006; ‘longer sentences might bring about counter-productive outcomes, such as offenders trying to “shoot their way out” if challenged by Police’. This conclusion was reached after research involving interviews with about 80 firearms offenders. It suggests that increasing penalties has a tipping point at which the safety of Police officers responding to armed incidents is impacted adversely. The changes in legislation could put members of Police at risk, and this could have a corollary effect on the public.

 

  1. This amendment requires certain actions and certain information to be supplied to ‘the Police’ (general) rather than a specific role holder ‘Arms Officer/er’. FSCANZ would be advising License holders to ensure that in every transaction with Police they obtain a receipt from Police, and suggest that where any transaction in this amendment is done electronically, that Police be required to ensure that their systems provide an electronic receipt. In this regard, FSCANZ draws the attention of the Select Committee to recent failures of relying on on-line systems (training and testing of licence applicants. The downturn in licence applications is possibly also symptomatic of issues with relying on these systems. This impacts on compliance with firearms legislation.

 

 

  1. FSCANZ does not support any amendment that might see a reduction (or compromise) in the vetting of firearms licence applicants (a copy of the current vetting guide is attached).

 

In this regard, FSCANZ also brings to the Committee’s attention the fact that the current New Zealand arms control regime is one of the most intrusive in Australasia, and indeed possibly anywhere in the Western world. Applicants for a firearms licence are subject to extensive interview as is an independent referee, and, most tellingly, face to face with the applicant’s partner, spouse or next of the kin (the person who knows them best when the front door closes). This vetting includes a home visit. So, Police have opportunity to see well within the applicant’s personal space.

 

FSCANZ contends that it is therefore incorrect to speak of the New Zealand arms control regime as “lax”, or “easy”.

 

  1. In terms of the cost of arms control: The overall outcome sought by arms control legislation might be described as a ‘safer New Zealand’. While FSCANZ agrees that firearms users should be expected to contribute to the recovery of the cost of this outcome, however given that all New Zealanders benefit it could be argued that all of New Zealand should also contribute (a private/public mix of cost recovery, so to speak). This would particularly apply to strategies or legislated requirements that have little or no evidential basis in terms of enhanced family and community safety. In this amendment this would include the provisions applying to all ranges, and general registration of firearms.

 

Any consideration on costs needs also to include corresponding benefits, including from pest control, given the economic cost to the country that these impose.

 

  1. Prohibition Orders: Prohibition orders are a mechanism within the law of some Australian States and Territories because those States and Territories have definitive lists as to what constitutes ‘fit and proper’. Once one has a definitive list one needs a mechanism to close the gaps that become apparent in this definitive list – hence the need for prohibition orders against specific individuals. In New Zealand law everyone is prohibited from possessing or using firearms unless they hold a Firearms Licence (or are under the immediate supervision of a licence holder). The criteria of issuing a Firearms Licence is that one has demonstrated themselves fit and proper, and, that includes ensuring that access to firearms will not be obtained by people who are not fit and proper. New Zealand law continues to leave the determination as to ‘fit and proper’ to the discretion of the decision maker (with a review provision). The amendment then lists factors that go toward a person not being ‘fit and proper’. There is considerable merit in this (continued) New Zealand approach. It is a strength of New Zealand law. In this context Prohibition Orders, in effect, prohibit those who are already prohibited.

 

  1. ‘Grey guns’: Thorp (page 24) identifies the issue of ‘grey guns – those not held in compliance with the firearms code (Act and Regulations), due to apathy, lack of conviction or antipathy as to the importance of firearms regulation, but not for criminal purposes’ (my emphasis). The legislation enacted earlier in 2019, and aspects of the current proposed legislation (specifically the proposed general registration of firearms), risk increasing the number of grey guns. Once held outside the law, their disposal becomes problematic and the risk that they leach to the criminal community increases. (Retaining section 10(2) of the current Arms Act is an important mechanism to address this).

 

 

Clause by clause submission

 

  1. Part 1 – purposes of the Act: FSCANZ supports the changes, noting that they highlight that the possession and use of firearms is a privilege, however we contend that this privilege originates with the right to apply for a Firearms Licence provided by law. All who supply firearms to others should bear in mind the interests of personal and public safety.

 

  1. Section 5, Dealers to be licensed: FSCANZ supports expanding the definition of dealer to include those who hire, lend, or otherwise supply firearms by way f business. In a practical sense this enables Police to exercise control over those who do more than sell or manufacture.

 

  1. Section 6: FSCANZ supports this section in so far as it requires dealers to demonstrate levels of competence.

 

  1. Section 9, revocation of a Dealer’s Licence: if the dealer does not immediately surrender the licence, the amendment needs to ensure Police have a power to enter, search and seize the licence.

 

  1. Section 10: it is important that the provisions of current section 10(2) are retained (in effect an ability for dealers to take possession of certain firearms without committing an offence providing they meet certain conditions). This provides an avenue for the surrender of firearms and other weapons without direct contact with Police, something many avoid and allows illegal firearms to be returned to the legal market.

 

  1. Section 22A and 22B: supported by FSCANZ. We do note that as it is currently stated this might create some ambiguity: for example, would an unlicensed person alone in a house where firearms and ammunition are stored be ‘in possession” of the ammunition or firearm?

 

 

  1. Section 22C: supported by FSCANZ.

 

 

  1. Section 22F: supported by FSCANZ.

 

 

  1. Section 22G: FSCANZ generally support the concept of this section. In terms of 22G(b), how might this affect a person who has had the standard condition relating to weapons discharged under sections 157-160 of the Family Violence Act 2018? This links to section 23.

 

  1. Section 23(2A), the requirement to provide health practitioner details, however FSCANZ would be concerned if this led to reduced vetting (spouse, partner, NOK, independent referee).

 

 

  1. Section 24: FSCANZ supports the insertion of section 24(1)(b) – the requirement to have in place security, noting that research indicates this is a key aspect to family safety (notably suicide: Canterbury Suicide Project 2006).

 

 

  1. Section 24A(1)(f), FSCANZ suggests that perhaps the wording might focus more on behaviours, ‘behaving in ways suggesting mental ill health’ – this is less judgemental and based on observable behaviours rather than opinion.

 

 

  1. Section 24B: Noting the importance of security for family and community safety, FSCANZ supports this section, and especially section 24B(1)(c) enabling inspection of firearms ‘at all reasonable times’, and, section 24B(2) placing conditions on when and how this power of inspection might be exercised. Defining ‘give notice’ will be important, as will any provision for the review of the exercise of this power (we refer to the residential tenancies legislation which defines these).

 

  1. Section 25: FSCANZ supports this amendment, but only in light of the following: When fixed term licensing was introduced in 1992 Police sought a shorter term, it was the Government of the day that decided on the 10-year term. The reason FSCANZ supports the reduced term is not so that Police can vet people as fit and proper more regularly, because Police have the capability for ‘live’ vetting and have had this capability for some time (when a person comes to Police attention for certain behavioural codes Police arms control staff are able to be notified electronically). New Zealand could, because of this capability, move back to life time licensing. However, the shorter-term licence forces Police to do something, and that something is inspect the security in place, and having firearms secured is a key to family and community safety. The alternative is to have in place fixed term inspections (rather than impose on Police what will essentially be an administrative process).

 

 

  1. Section 27A: FSCANZ strongly supports the continued application of this section.

 

 

  1. Section 27B: FSCANZ supports the provisions by which a firearms licence becomes statutorily revoked (rather than relying on Police demonstrating the person is no longer fit and proper).

 

  1. Section 27C: Supported by FSCANZ. Assuming a right of appeal from official decisions.

 

  1. Section 34: FSCANZ supports the expansion of notification of change of address being extended to any place at which a firearm might be kept (which would include bachs, cow sheds etc). We assume this section does not refer to a temporary change of address (e.g. attending a competition).

 

  1. Part 6, shooting clubs and ranges (sections 38A to 38V): FSCANZ submits that these amendments impose an unnecessary administrative burden on general firearms users which has not yet been demonstrated as enhancing community safety. We note that generally speaking shooting clubs have in place club structures (many are Incorporated Societies), they have range standards with ranges inspected and certified as ‘safe’ (most based on the ‘Canadian Range Manual’, or the standards outlined in the NZ Police Range Manual) and they have range conducting officers (with the Pistol Association, small bore, service rifle  and Deer Stalkers having range conducting officer qualifications).

 

In 2000 Bob Badland, a leading firearms safety expert convened a meeting of firearms using organisations, encouraging them to put in place range standards. Most, if not all did.

 

In 2005 Police published the New Zealand Police Range Manual. Written by both civilian shooting organisations and Army this document sets the standard for shooting ranges.

 

As written this amendment would have the effect of closing many private clubs and ranges, where owners do not have the resources to meet all the requirements. It thus has an adverse impact on public safety (and especially rural safety) when target shooters or hunters have no designated facility in which to practice or sight in their rifles.

 

These amendments appear to create an administrative layer across clubs, the need for which does not appear to be supported operationally or by safety concerns. Neither is the need apparent in the policy statement.  Police are unable to provide evidence that there is any systemic failures in the administration of shooting clubs or safety issues at ranges.  FSCANZ would review its stance in this regard on seeing the evidence supporting the need.

 

  1. Part 7, direct access by certain government agencies to the registry (sections 38W to 38ZF): FSCANZ  submits that any person approved under 38ZD(e) must be vetted by Police as being fit and proper to the same standard as a Firearms Licence applicant to access and hold that information. Noting that most firearms enter the criminal community by theft, this submission minimises the possibility of information contained in the firearms registry going into the hands of people who are not fit and proper. There should be an offence for the unlawful access or disclosure of information contained in the registry.

 

 

  1. Provision needs to be made for those selling firearms (etc) to access electronically some sort of database that confirms the licence as ‘current’.

 

  1. Section 42: Supported by FSCANZ.

 

  1. Section 43: Supported by FSCANZ, noting very complex wording (persons A, B, C, D). Legislation should be written in plain English such that further explanation should not be necessary. This section needs serious editing.

 

 

  1. Section 43A: FSCANZ suggests an addition to the amendment that specifically excludes the seller having recourse to section 43(2): currently some dealers selling by mail order or internet use this provision to circumvent the mail order process. One mechanism to circumvent mail order provisions is to have the purchaser supply a scanned copy of their licence.

 

 

  1. Section 48: Supported. However, FSCANZ suggests it is necessary to adding something like, ‘based on reasonable grounds, is considered to have endangered, annoyed, or frightened any person’. Complaints of being ‘endangered, annoyed or frightened’ are often very subjective and based on frivolous grounds.

 

  1. Section 55D: provisions against the illegal manufacture of firearms is supported by FSCANZ. We looked for the definition of “illegal manufacture”?

 

 

  1. Section 55E: Supported by FSCANZ, noting that by virtue of section 55H the offence applies to a person who carries out those actions from outside New Zealand.

 

  1. Section 55F: Supported by FSCANZ.

 

 

  1. Section 55G: Supported by FSCANZ.

 

  1. Section 55H and 55I: Supported by FSCANZ, noting that this provision is pivotal for the international protocols around trafficking.

 

  1. Section 60, improvement notices: FSCANZ supports this amendment.

 

  1. Section 66A: Supported by FSCANZ.

 

  1. Section 66B: Supported by FSCANZ. We suggest that the ‘member of Police’ be either a constabulary member of Police, or, a member of Police authorised in writing by the Commissioner (and that they show this authorisation when exercising this power).

 

  1. Section 66C: Supported FSCANZ.

 

  1. Section 66D: FSCANZ supports this amendment. We do query why ‘airside’ at airports is not included, given the potential for aircraft to arrive in New Zealand with armed air marshals on board (for very much the same reason ships have arsenals).

 

 

  1. Cost recovery: FSCANZ agrees that it is timely to review the cost recovery regime. And that it includes services beyond licensing (permits to import, permits to possess, etc).

 

The community needs to be assured that the criteria outlined in section 81 of this amendment are actually met. Care needs to be taken that the costs are only those relating to the activity. Especially in terms of 81(a), indirect costs (to avoid ‘double dipping’).  It is gratifying to see that consultation is required (section 82), however this needs to be true consultation. Not the presentation of a fait accompli.

 

Care needs to be taken that the level of cost attributed to the licence holder does not impact adversely on compliance.

 

  1. Section 87: Guidance notes – FSCANZ supports this amendment. We submit that the guidance notes be required to be published on the Police website.

 

  1. Section 88 – 90, Firearms Advisory Group: FSCANZ supports the establishment of the Firearms Advisory Group as this goes some way to addressing the issues highlighted by Thorp and apparent in Police management of arms control since. FSCANZ submits that the Firearms Advisory Group does not preclude wider consultation, including the Firearms Community Advisory Forum. We suggest that the membership of the Firearms Advisory Group include those able to provide rural, women’s and Maori perspectives. We suggest that the amendment include a mechanism for an organisation or entity to seek a review of the membership of the Firearms Advisory Group.

 

 

  1. Section 91, medical assessments: FSCANZ notes the risk that this provision may deter people from seeking medical help for fear of losing their licence and guns. FSCANZ understands that the legal avenue already exists for this information to be shared.  The amendment seems to assume that the health practitioner knows that the person is a licence holder and is placed to provide a qualified opinion.

 

  1. Sections 92 to 94 – Registration of firearms and dealings: FSCANZ supports the amendment in terms of creating a database to hold licensing (including photographs and conditions), endorsement, import and export permitting, and the possession and storage of so-called high-risk firearms (pistols, restricted weapons and prohibited firearms). We do not support the general registration of firearms for the simple reason, general registration has not been demonstrated as enhancing personal, family or community safety. FSCANZ is concerned that registration becomes an exercise in recording rather than managing the safe use and control of firearms. And, it’s expensive.

 

General registration regimes become a ‘bottomless pit’ in terms of resources (finance, HR) as efforts ever increase to achieve what is in reality unachievable. Canada abandoned its general registration regime for this reason. Australian states and territories continue, in part because the National Agreement on Firearms is funded through central government.

 

Until 1983 arms control in this country was based on the registration of firearms. A sample of the firearms register in 1973 showed that “66% of the entries were inaccurate”. In 1982 Police reported that “there is no evidence to suggest there is any relationship between the registration of firearms and their control” (p. 177 Thorp). The register of firearms had provided no assistance in resolving the 9 cases of homicide in 1981, and for the previous 10 years the register had assisted resolve an average of 1.6 offences per year (ibid). The registration process was expensive, inaccurate and added little to the safe use and control of firearms – characteristics observed in so-called ‘modern’ (i.e. electronic) registration processes in Australia and Canada. With an Evidence Based Policing Unit FSCANZ would have expected to see or hear from Police the evidence refuting the above.

 

Registering firearms does not mean anyone knows “exactly where they are” (and certainly not the firearms of concern – those possessed and used by criminals). This contention is a myth.

No country that registered firearms is able to demonstrate that the place (families, public) is safer because of registration. Australia argues it is safer because of the 1996 National Firearms Agreement (NFA), however academia (Mouzos, Australian Institute of Criminology, Baker & McPhedran) disputes this on the basis that the downward trend in death by firearms began before 1996, so can’t be directly attributed to changes then.

Further, the downward trend in deaths by firearms mirrors that in NZ over the same time period. Which almost conclusively demonstrates the 1996 NFA did not cause directly that trend line. Reviewers in Australia are generally agreed that it is difficult to attribute any reduction in death by firearm directly to the 1996 amendments in that country.

Some academics (Harvard, Marie Russell, Alpers) will argue that “an arms control regime is not complete without registration”. However, they will struggle to explain why exactly that is.

There is a key point that changes in legislation miss: crime is committed by criminals. They, and their firearms are outside the law. They don’t care about these amendments. They have no impact on their behaviour.

So much for the rational argument. There is an emotional side, and that too needs to be addressed.

 

  1. Section 95, Review of the Act: FSCANZ supports this amendment. New Zealand will expect to see tangible benefits, supported by hard evidence. Measurable parameters need to be set against which the success or failure of changes to the Act can be measured. And any change in those parameters need to be agreed through consultative mechanisms (to avoid distortion of reporting through changes in data sets).

 

FSCANZ wishes to appear before the Select Committee.