Clause 5(1) and (2) of the bill provides that a firearms licence must not be issued to a person who in the opinion of a commissioned officer of Police is a gang member or a person who is subject to a FPO.

We consider that a provision preventing a gang member or person subject to a FPO from holding a firearms licence would be better located in section 22H of the Arms Act, which was inserted on 24 December 2020. That section sets out the circumstances in which a person would be disqualified from holding a firearms licence.

We recommend amending the bill by removing clause 5(1) and (2) and inserting new clause 4B. New clause 4B would amend section 22H of the Act to include gang members and persons subject to FPOs in the list of persons disqualified from holding a firearms licence.

Clause 5(3) of the bill amends section 24(2) of the Act to provide that a firearms licence must not be issued to a person if, in the opinion of a commissioned officer of Police, access to any firearm or airgun in the possession of that person is reasonably likely to be obtained by a person who is not a fit and proper person to be in possession of a firearm, or is a gang member, or a person who is subject to a FPO.

With the above amendment, this clause is no longer required. This is because section 24 of the Act has been replaced since the bill was introduced and new section 24(2)(a) and (c) of the Act now provides for these circumstances.

We therefore recommend deleting all of clause 5 from the bill as it is no longer required.

Section 24A(1)(k) of the Arms Act currently provides that the police may find a person not fit and proper to possess a firearm or airgun if the person is a member of, or has close affiliations with, a gang or organised criminal group. However, our recommended new clause 4B would disqualify a person from holding a firearms licence if they were a member of a gang before any consideration need be given to the fit and proper person test.

Consequently, we recommend inserting clause 4C to replace section 24(1)(k) of the Act so that it refers only to a person having close affiliations with a gang, or being a member of, or having close affiliations with, an organised criminal group. This will exclude a person being a gang member because they are automatically disqualified.

Clause 6(1) of the bill would amend section 27 of the Act to provide for the automatic revocation and surrender of a person’s firearms licence if they became subject to a FPO. Clause 6(2) provides for the revocation and surrender of a person’s firearms licence if they are or seek to become a gang member. Clause 6(3) provides for the revocation and surrender of a person’s firearms licence if access to any firearm or airgun in the possession of the person is reasonably likely to be obtained by a person whose licence is revoked, who is not a fit and proper person to be in possession of a firearm, or who is a member of a gang or subject to a FPO.

Clause 6(1) is no longer required in its present form because section 27B of the Act (inserted on 24 December 2020) provides that if a person becomes disqualified under section 22H from holding a firearms licence, their licence is immediately revoked.

Clause 6(2) is not required to the extent that it refers to a person who is a gang member. This is because, as a gang member will be disqualified under section 22H from holding a firearms licence, their licence will be immediately revoked under section 27B.

Clause 6(3), to the extent it proposes to insert new section 27(1)(b)(iii) and (iv), is no longer required as section 27(2)(c), as inserted on 26 June 2020, now deals with these matters.

Clause 6 is therefore replaced with a new clause 6 that does not include the above amendments that are no longer required.

The bill as introduced would insert new sections 59A to 59E. As a result of amendments made to the Act in June 2020, including the insertion of new section 59A and 59B, the FPO provisions are renumbered as new sections 61 to 61F.

Clause 7, new section 61A, sets out when the Commissioner may issue a FPO against a person.

We recommend amending new section 61A so that a FPO may also be issued against a person who is a gang member and who has been convicted of an offence under the Family Violence Act 2018 within the last 10 years.

We recommend inserting in clause 7 new section 61 to define “firearm or related item” to mean any firearm, pistol, restricted weapon, airgun, blank-firing gun, magazine, part, prohibited item, or ammunition. This will mean that FPOs will apply in respect of all of these items.

Renumbered section 61B(1), to be inserted by clause 7, would prohibit a person subject to a FPO from acquiring, possessing, or using any firearm or related item. Section 61B(2) provides that any person who contravened section 61B(1) would be committing an offence. If convicted, they would be liable to imprisonment for up to 14 years if the firearm or related item was a pistol, restricted weapon, or prohibited firearm. In any other case, the maximum sentence of imprisonment would be 5 years.

The Attorney-General reported on the bill under the New Zealand Bill of Rights Act 1990 (NZBORA). He expressed concerns about the severity of some of the penalties in the bill and stated that they were disproportionate to similar offences.

We recommend amending the bill to provide that the penalty for this offence be a term of imprisonment not exceeding 6 years, or a fine not exceeding $8,000 (or both), in situations where the firearm or related item is a pistol, restricted weapon, or prohibited firearm. We consider that these penalties would be more appropriate and proportionate to similar offences.

Renumbered section 61C, to be inserted by clause 7, would make it an offence to supply a firearm or related item to another person knowing that the other person was subject to a FPO. A person convicted of this offence in any case where the firearm or related item was a pistol, restricted weapon, or prohibited firearm would be liable to imprisonment for up to 14 years.

We recommend changing the proposed maximum term of imprisonment for this offence to 10 years. We consider that this would be more proportionate to similar offences. Where the firearm or related item is not a pistol, restricted weapon, or prohibited firearm, we consider the penalty should remain unchanged.

Renumbered section 61D would prohibit a person subject to a FPO from having any firearm or related item at their residence. If convicted, they would be liable to up to 12 months’ imprisonment.

We consider that the penalty should be more consistent with other offences for breaches of orders. We recommend that the maximum term of imprisonment should not exceed 2 years.

Renumbered section 61E(1) would prohibit a person subject to a FPO from attending, without reasonable excuse, the place of business of a licensed dealer, a shooting range, or the premises of a firearms club.

We recommend that a penalty for this offence be inserted and that the appropriate penalty would be a term of imprisonment not exceeding 2 years.

The bill does not have a provision to allow a person subject to a FPO to apply for the order to be cancelled.

We recommend amending clause 7 to insert a new section 61F to enable a person to apply for their order to be cancelled if it had been in place for at least 10 years. The order could be cancelled by the District Court if it was satisfied that all of the following conditions applied:

• any of the grounds for making the order no longer apply

• the person has not been convicted of an offence in respect of the order

• allowing the person to possess a firearm would not be contrary to the public interest or pose an undue risk to public safety.

The general policy statement of the bill indicates that FPOs will provide new powers for a commissioned officer of Police to search persons, vehicles, and premises of specified serious and violent gang members for firearms at any time.

In his report on the bill under NZBORA, the Attorney-General expressed concern that warrantless searches could take place without reasonable cause. This would constitute a significant intrusion on the rights affirmed by section 21 of NZBORA.

The bill as introduced does not in fact create any new search powers, so the powers set out in section 18 of the Search and Surveillance Act would apply. The Attorney-General said that on this basis he believes the bill is consistent with section 21 of NZBORA. Section 18 of the Search and Surveillance Act provides that a constable may execute a warrantless search of a person, thing, place, or vehicle, where they have reasonable grounds to suspect that a person is in breach of the Arms Act.

Some submitters noted that, if the bill were amended to provide warrantless search powers in the Arms Act, there should be mandatory monitoring and reporting, alongside other protections. They also noted that the Commissioner of Police is required under section 170 of the Search and Surveillance Act to report on the number of occasions on which warrantless search powers are exercised.

We recommend amending the bill to insert subsections (4) and (5) into section 18 of the Search and Surveillance Act so that a constable may execute a warrantless search if they have reasonable grounds to suspect that a person is subject to a FPO made under section 61A of the Arms Act or that a person is in breach of any of sections 61B, 61C, 61D, or 61E. Our proposed amendment would allow seizure of all firearms and related items. The Search and Surveillance Act currently only allows for seizure of arms. This would align with the intention of the bill.

We heard from the New Zealand Police Association that additional search powers are critical to ensure that the legislation can be effectively enforced. The introduction of a provision that provides for police to conduct warrantless searches is a necessity for Firearms Prohibition Orders (FPOs) to achieve their purpose, which is to take firearms quickly and effectively out of the hands of gang members.

The evidence presented by some submitters that warrantless searches conducted in some states of Australia have shown that few firearms are recovered from individuals subject to FPOs demonstrates that FPOs are a successful deterrent, and that individuals subject to FPOs are not associating with people who have firearms or are being found in possession of firearms due to the risk of being searched by police. This is the scenario we seek to achieve in New Zealand.

The National Party supports the power of placing a FPO on an individual vesting with the Commissioner of Police. FPOs are prospective in nature; they seek to prevent further offending. The current criteria of a gang member needing to have committed a serious violent offence within the last 10 years is reasonable and fair and is aimed at preventing firearm violence and protecting the public.

The intent of the bill makes it crystal clear that gang members cannot get firearm licences. The committee heard evidence that some gang members do hold valid firearm licences. The committee also heard from the Police Commissioner during the annual review hearing that the new fit and proper person test adopted in the amended Arms Act would not be sufficient to prevent gang members from acquiring firearm licences, due to the jurisprudence demonstrating that being a gang member in itself is not a sufficient ground to fail the fit and proper test. We believe this bill settles the matter that gang members should not have firearm licences.

The National Party notes that in 2017 FPOs were recommended to the incoming Minister of Police and nearly four years since he received that briefing the Government has failed to take action and implement any form of Firearm Prohibition Order regime. Gang violence is a serious problem facing New Zealand and action must be taken urgently. We note it may well be over a year before the Government’s proposed FPOs will be enacted which is an unacceptable length of time to wait while gang violence continues to escalate.