The Justice Committee has examined the Firearms Prohibition Orders Legislation Amendment Bill and recommends by majority that it be passed. We recommend all amendments unanimously.

Part 7A of the Arms Act 1983 sets out the firearms prohibition orders (FPO) regime. A sentencing court can impose an FPO against an offender who has been convicted of a specified serious offence. The court must be satisfied on the balance of probabilities that the FPO is necessary, reasonable, and appropriate to assist in managing the risk that the offender poses to public safety. An FPO prohibits an offender from obtaining or holding a firearms licence, and from accessing, possessing, or using any firearm or related item. Standard conditions of an FPO include prohibiting an individual associating with people in possession of firearms or related items, and residing at or visiting locations where firearms or related items are held.

The purpose of the bill is to reduce firearms crime and its effects on communities. It seeks to do so by enabling FPOs to be made and monitored against a wider group of people whose behaviour and actions indicate they pose a high risk of violence. The bill would amend the Arms Act 1983, the Sentencing Act 2002, and the Search and Surveillance Act 2012. It would:

• specify new qualifying offences for members and associates of a gang or an organised criminal group

• establish a review process to enable a person who is subject to an FPO to apply to the court to have their FPO varied, modified, or revoked

• give the Police additional warrantless search powers to monitor the persons subject to an FPO.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor or technical amendments.

Clause 7 would amend section 39A of the Arms Act to insert subsection (1A). A sentencing court could impose an FPO against an offender who was:

• convicted of an offence under the Arms Act, the Crimes Act 1961, the Misuse of Drugs Act 1975, or the Psychoactive Substances Act 2013 that is punishable by a term of imprisonment of 1 year or more; and

• aged 18 years or over and a member or associate of a gang or an organised criminal group when the offence was committed.

Some submitters commented that many of the additional offences are potentially minor, and many are not connected to firearms, organised crime, or violent offending, and may not be indicative of the offender posing a risk to public safety. We also think that many of the offences are not serious or violent offences. We sought advice as to whether the expanded offences were appropriate to trigger the potential additional sentence of an FPO. We were advised that the Crimes Act contains numerous offences that are more closely related to gang offending and organised crime. They include assaulting and wounding offences, burglary, robbery, money laundering, threats of harm to people or property, and conspiring to commit an offence. We therefore recommend changing proposed section 39(1A) to include offences against the following provisions of the Crimes Act:

• Part 8 (crimes against the person)

• Part 10 (crimes against rights of property)

• Part 11 (threatening, conspiring, and attempting to commit offences).

We understand that the offences specified by the bill in relation to the Arms Act, the Misuse of Drugs Act, and the Psychoactive Substances Act are connected to gang offending and organised crime. Accordingly, we recommend no change to them.

Clause 8 would insert new section 39FA into the Arms Act to enable the variation, modification, and revocation of FPOs. After an FPO had been in force for 5 years, a person subject to an FPO could apply to the relevant court to:

• vary or modify any of the conditions of the FPO (new section 39FA(1)(a))

• revoke the FPO (new section 39FA(1)(b)).

Proposed new section 39FA(4) would enable a court to revoke an FPO following an application made under subsection (1)(b). The court would need to be satisfied, on the balance of probabilities, that the FPO was no longer necessary, reasonable, and appropriate to assist in managing the risk that the applicant posed to public safety. Proposed new section 39FA(3) applies similar provisions to applications made under subsection (1)(a). It provides that the court could vary or modify any standard or special condition of the FPO. The court would need to be satisfied that the condition was no longer reasonably necessary to prevent the applicant from accessing, possessing, or using any firearms or related items. We note, however, that new section 39FA(3) does not explicitly state the burden of proof—that is, the balance of probabilities. For clarity and consistency, we recommend amending section 39FA(3) to require the court to be satisfied on the balance of probabilities that the condition was no longer reasonably necessary.

Clause 14 would insert section 18AA into the Search and Surveillance Act, to expand the search powers of the Police. A constable who had reasonable grounds to suspect that a person was subject to an FPO made before or after the section commenced could search any of the following without a warrant:

• the person

• any thing in the person’s possession or under the person’s control (including a vehicle)

• any premises in which the person is present, or that the person owns, occupies, or controls

• any vehicle in which the person is present, and any other people present in the vehicle whom the constable has reasonable grounds to believe are in possession of arms.

A constable could also enter a place or vehicle to carry out any activity under the provisions listed above and seize and detain any arms found.

We received advice that when the Police are interacting with the public, they cannot be completely certain that someone is who they say there are. The threshold for exercising the proposed search power must therefore contain a margin of error. However, we consider that the threshold of having reasonable grounds to suspect that a person is subject to an FPO is too low. We recommend amending section 18AA(1) to replace “suspect” with “believe”.

Some submitters expressed concern that the new search power could be exercised without cause to suspect that a person was breaching the conditions of their FPO. They stated that this would be considered unreasonable search and seizure under the New Zealand Bill of Rights Act 1990 (NZBORA). We understand that the purpose of the search is to monitor compliance with the conditions of an FPO rather than locating evidence of offending. The search may be conducted proactively, by visiting a person subject to an FPO to check whether they are complying, or when the person comes to the Police’s attention. To mitigate potential misuse of the search power and address concerns about its purpose, we think that the purpose should be explicitly stated. We recommend amending section 18AA(1) to this effect.

We also discussed whether the provisions in clause 14 are too broad and could result in entire premises being searched. Examples are where the search power could technically extend to include tenanted properties or every room in a hotel. We recognise the general requirement under NZBORA that a search must be reasonable when exercising a search power. Further, a search of an entire hotel because an individual with an FPO was in the bar is unlikely to be considered reasonable. However, we consider that the search power should be limited to places where the person subject to an FPO has influence, control, or direct access to. We therefore recommend amending proposed section 18AA(1)(c) by removing the reference to premises “that the person owns”.

The Labour Party opposes the Firearms Prohibition Orders Legislation Amendment Bill for two main reasons. Firstly, the firearms prohibition legislation passed in 2021 has been enacted for an insufficient period of time to effectively understand whether it needs to be strengthened, or not. This legislation established new criteria for Firearms Prohibition Orders (FPOs), which prevent individuals from possessing, acquiring, or using firearms. These orders have been issued by the courts to prevent high-risk individuals from accessing firearms. There has been no evaluation undertaken of the prior legislation and how it is operating in the preparation of the current bill. Labour considers this legislation needs to fully bed in and then be assessed before we can know whether widening the current Police powers to warrantless, causeless searches is necessary.

Secondly, there is concern that this new search power is too broad and could be exercised without cause to suspect that a person was breaching the conditions of their FPO. The legislation would also mean that someone who is in the company of a person who has an FPO could have their home or vehicle searched, even if they had no knowledge the person they are with has an FPO. We understand the purpose of the search is to monitor compliance with the conditions of the FPO. We are supportive of the mitigating change made to section 18AA(1) by the committee to this new search power but we do not think it goes far enough. We consider that there is potential to misuse this broad new search power and therefore cannot support this bill as it does not clearly define the limits and guidelines for conducting these searches.