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Arms (Firearms Prohibition Orders) Amendment Bill (No 2) (Inconsistent) (Sections 17, 25(c)) [2020] NZBORARp 42 (23 June 2020)
Last Updated: 12 September 2020
J.4
Report of the
ATTORNEY-GENERAL
under the New Zealand Bill of Rights Act 1990 on the Arms (Firearms Prohibition
Orders) Amendment Bill (No 2)
Presented to the House of Representatives pursuant to
Section 7 of the New Zealand Bill of Rights Act 1990 and Standing Order 265
of
the Standing Orders of the House of Representatives
- I
have considered whether the Arms (Firearms Prohibition Orders) Amendment Bill
(No 2) (‘the Bill’) is consistent with
the rights and freedoms
affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights
Act’).
- I
have concluded the Bill limits s 17 (freedom of association) and s 25(c) (right
to be presumed innocent) of the Bill of Rights Act
and that those limits cannot
be justified under s 5 of that Act.
- As
required by s 7 of the Bill of Rights Act and Standing Order 265, I draw this to
the attention of the House of Representatives.
The Bill
- The
Bill amends the Arms Act 1983 (‘the principal Act’) to allow the
Commissioner of Police (‘the Commissioner’)
to make a Firearms
Prohibition Order (‘a FPO’) against a person if:
- 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;
- the
person is a member of a gang;1
and
- the
person has, within the past 10 years, been convicted of:
- an
offence under the principal Act;
- an
offence under the Domestic Violence Act 1995; or
- a
serious violent offence.2
- There
are a number of offences associated with a FPO being imposed. In particular, a
person who is subject to a FPO must not:
- acquire,
possess, or use a firearm or part;
- acquire
or possess ammunition;
- reside
at premises where firearms, parts or ammunition are present;
or
- attend
the place of business of a licensed dealer, a shooting range, or a firearms
club.
- Further,
it is an offence for any other person to knowingly supply firearms, parts or
ammunition to a person who is subject to a FPO.
- The
Bill also provides that a firearms licence cannot be granted to a person who, in
the opinion of a commissioned officer of Police,
is a member of a gang. Further,
a commissioned officer of Police may revoke a firearms licence if its holder is,
or is seeking to
become, a member of a gang.
1 As defined in s 4 of the Prohibition of
Gang Insignia in Government Premises Act 2013.
2 As defined in s 86A of the Sentencing Act
2002.
Inconsistency with s 17 — Right to freedom of association
- Section
17 of the Bill of Rights Act affirms that everyone has the right to freedom of
association. The right recognises that people
should be free to enter into
consensual arrangements with others and promote the common interests of the
group.
- The
freedom of association can be limited in a number of ways, including where
legislation treats people differently on the basis
of their membership of an
association, or prohibits or creates disincentives towards membership.
- The
Bill treats gang members differently from other persons, namely by specifying
that:
- a
firearms licence must not be given to a gang member and allowing an existing
firearms licence held by a gang member or a person
seeking to join a gang to be
revoked; and
- a
person must be a gang member to be eligible for a FPO.
- The
differential treatment means that the Bill prima facie engages s 17 of
the Bill of Rights Act.
Is the limitation justified under s 5 of
the Bill of Rights Act?
- Where
a provision appears to limit a particular right or freedom, it may nevertheless
be consistent with the Bill of Rights Act if
it can be considered a reasonable
limit that is demonstrably justified in a free and democratic society under s 5
of the Bill of
Rights Act. The s 5 inquiry may be approached as
follows:3
- does
the provision serve an objective sufficiently important to justify some
limitation of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the
objective?
Is the objective sufficiently
important?
- The
express objective of the Bill is to make sure the most dangerous gang members do
not have access to firearms. Clearly this public
safety objective is
sufficiently important to warrant some limitation on the freedom of
association.
Is there a rational connection between the limit and
the objective?
- There
is a clear rational connection in respect of the requirement not to allow, or
the ability to revoke, a firearms licence for
a gang member. Gang membership
has
3 Hansen v R [2007] NZSC 7 at
[123].
repeatedly been found to pose an appreciable risk of firearms coming into the
possession of another person who does not meet the ‘fit
and proper
person’ test to obtain a firearms licence.4
- The
rational connection in respect of the FPO regime is less clear, however, as it
is already an offence under the principal Act to
possess a firearm without a
licence. The primary effect of the Bill as drafted is, effectively, to provide
for more severe penalties
for unlawful possession of firearms and to place
restrictions on where a gang member can be without becoming liable on conviction
to those penalties.
- Reliance
on law enforcement efforts to suppress gangs has been largely unsuccessful, both
in New Zealand and internationally.5 FPO regimes have,
however, been introduced in other jurisdictions, including Australia, which may
help to shed some light on the efficacy
of such regimes. The New South Wales
Ombudsman, for example, though noting it was too early to draw specific
conclusions about the
effectiveness of FPOs, highlighted that firearms, parts or
ammunition were found in only two percent of the approximately 1,343 uses
of the
search powers under the regime.6
- However,
to the extent the overseas’ experience indicates the potential for even a
marginal benefit to the policy of reducing
the risk of unlawful firearms, this
must be taken into account. I therefore conclude there may be a rational
connection to a sufficiently
important objective, albeit not a strong
one.
Is the impairment on the right greater than reasonably
necessary?
- The
question of whether the right is impaired no more than reasonably necessary
involves consideration of whether the objective might
be sufficiently achieved
by another method involving less cost to the freedom of
association.7
- Making
gang membership a sole ground for declining or revoking a firearms licence might
be seen to limit s 17 more than the status
quo, where gang membership is but one
factor to consider. However, Parliament is entitled to appropriate latitude to
achieve its
objectives.8 Moreover, as noted above, the
Bill largely confirms an accepted position in case law that gang members holding
firearms licences may
be seen to pose an undue risk to the
community.9 Further, gang members without firearms
licences who wish to engage in responsible firearms use under the responsible
supervision of
a licence holder, may continue to do so (provided they are not
subject to a FPO).10
- In
respect of FPOs’ impact on the freedom of association, there are some
relevant safeguards included in the Bill that may help
to lessen the severity of
the regime and, thus, the cost to s 17, including:
4 See, for example Fewtrell v Police
[1996] NZHC 1241; [1997] 1 NZLR 444; Innes v Police [2016] NZDC 4538.
5 Office of the Prime Minister’s Chief Science
Advisor (2018), pg. 22.
6 New South Wales Ombudsman, ‘Review of police
usof the firearms prohibition order search powers: Section 74A of the Firearms
Act 1996’ (2016) pg. 34.
7 Hansen at [126] per Tipping J.
8 Ibid.
9 See, for example, Fewtrell and
Innes.
10 Arms Act 1983, s 22 refers.
- the
need for the Commissioner to be of the opinion that it is necessary, in the
public interest, to make a FPO;
- that
the Commissioner is not able to delegate the ability to make a
FPO;
- the
ability to appeal the Commissioner’s decision to the District Court under
s 62 of the principal Act; and
- that
FPOs are revocable at any time.
- Conversely,
there are factors that suggest the impairment on the right of freedom of
association is more than reasonably necessary
to achieve the objective,
including:
- that
while the Commissioner may revoke a FPO, they are potentially indefinite as
there is no mandatory statutory expiry period for
the order;
- the
lack of an explicit link in the FPO criteria between a person’s gang
membership and the relevant offence for which they
were
convicted;11
- disproportionately
severe offences and penalties for breach of a FPO;
- the
restrictions on where a person subject to a FPO may reside and be present
at;
- that
a FPO takes effect from the point it is served and will apply notwithstanding
that an appeal may be pending.12
- I
consider the objectives of the Bill could still be met were the factors outlined
above addressed. Specifically, the inclusion of
a time limit for a FPO,
proportionate penalty levels, and judicial scrutiny prior to the imposition of
the order would help to impair
s 17 less. I am not aware of any evidence such
changes would imperil the functioning of the regime.
- Moreover,
the Inquiry into the Illegal Possession of Firearms in New Zealand
recommended a suite of actions that could help to address the issue of
unlawful possession and use of firearms that would come at
less or no cost to
the freedom of association.13
- Given
the availability of alternatives that could still achieve the objective, I
conclude the impairment on the freedom of association
is more than reasonably
necessary.
Is the limit in due proportion to the importance of
the objective?
- In
considering due proportionality, the balance is between social advantage and
harm to the right.14
11 See, for example, Dawson v Delaware
503 US 153 (1992) at [165 – 166]. Similar issues have arisen in New
Zealand in the context of proposals to punish gang members more severely
for an
offence.
12 Arms Act 1983, ss 62 and 72A refer.
13 House of Representatives, Inquiry into the
Illegal Possession of Firearms in New Zealand: Report of the Law and Order
Committee (2017).
14 Ibid at [134].
- For
the reasons outlined above, I believe the limit on s 17 in respect of gang
members’ ability to obtain or retain firearms
licences is in due
proportion to the importance of the Bill’s objective.
- However,
I do not consider the limit on s 17 imposed by the FPO regime to be in due
proportion to the importance of that objective.
- The
freedom of association is an important building block of a free and democratic
society. It may be more justifiable to place limits
on s 17 in the context of
gangs.
- While
there is evidence indicating that unlawful firearms possession is an integral
aspect of gang culture in New Zealand,15 it is unclear
that the scale of the issue is such that it would warrant the severity of the
FPO regime as proposed by the Bill. In
the absence of clear evidence of social
advantage resulting from the limit and efforts to impair the right no more than
reasonably
necessary, I am not of the view that the limit on freedom of
association imposed by the FPO regime can be viewed as
proportionate.
Conclusion on s 17 of the Bill of Rights
Act
- For
the reasons above, I consider the Bill appears to be inconsistent with the
freedom of association affirmed by s 17 of the Bill
of Rights
Act.
Inconsistency with s 25(c) — Right to be presumed innocent
- Section
25(c) of the Bill of Rights Act affirms that everyone who is charged with an
offence has, in relation to the determination
of the charge, the right to be
presumed innocent until proved guilty according to law.
- The
purpose of s 25(c) is to protect the fundamental liberty and dignity of those
accused of offences in light of the grave consequences
a criminal charge and
conviction may entail.
- Section
66 of the principal Act creates a rebuttable presumption that, once the
prosecution has proved that the defendant was in occupation
of any land or
building where a firearm has been found, the defendant was in possession of that
firearm.16 In this respect, therefore, new s 59B in the
Bill creates a reverse onus offence.
- Reverse
onus provisions raise a prima facie issue of inconsistency with s 25(c)
because, once the prosecution has proven the defendant committed the act in
question, the defendant
must prove a defence, or disprove a presumption, on the
balance of probabilities in order to escape liability. In the case of reverse
onus offences, a defendant who is unable to prove a defence, or disprove a
presumption, could be convicted even if reasonable doubt
exists as to their
guilt.
15 See, for example, Inquiry into the
Illegal Possession of Firearms in New Zealand, pg. 13 – 14.
16 See, for example, R v Coultas [2009] NZCA
71; R v McKeown [1988] NZCA 337; (1988) 3 CRNZ 438 .
Is the limit rationally connected to an important objective?
- It
is arguable whether the limit on s 25(c) is rationally connected to the
overarching objective of the Bill. It is, after all, already
an offence under
the principal Act to possess a firearm without a licence.
- However,
the objective of the offence introduced by s 59B is, logically, to enforce
compliance with a FPO.17 The reverse onus imposed by s
66 of the principal Act likewise logically makes enforcing the terms of a FPO a
simpler prospect for
law enforcement. To the extent that this lends
effectiveness to the regime, the limit may be seen as rationally connected to a
sufficiently
important objective.
Is the limit no more than
reasonably necessary and in due proportion to the objective?
- In
my view, the right to be presumed innocent is impaired more than reasonably
necessary to achieve the objective. The limit is also
not in due proportion to
the importance of the objective.
- The
offences in the Bill are "truly criminal", rather than being in the realm of
"public welfare regulatory offences" for which a
reversal of the onus of proof
is generally considered to be more easily
justifiable.18
- A
reverse onus offence is also likely to be of less concern where the penalty is
relatively low and therefore has a less significant
impact on the defendant.
However, the maximum penalties of up to five or 14 years’ imprisonment are
severe and appear to be
highly disproportionate to similar offences; for
example, a breach of an extended supervision order carries a maximum of two
years.19 The maximum penalty of 14 years’
imprisonment is equivalent with, for example, sexual conduct with a child under
12,20 aggravated wounding or
injury,21 or attempted
murder.22
- Lastly,
I am not aware of any evidence to persuade me that the objective could not be
served by a lesser impairment on the right to
be presumed innocent, such as an
evidential onus on the defendant instead of a persuasive
burden.23 An evidential burden would give rise to less
risk that an innocent person may be convicted and imprisoned, while still
requiring the
defendant to adduce evidence calling into question whether or not
they indeed possessed the firearm or part.24
- As
noted above, while the public safety objective is sufficiently important to
warrant some limit on the right, there are reasonable
alternatives available
that would place a person in less jeopardy of wrongful conviction. The Bill
appears to create just such a
risk and, further, carries significant penalties
as a consequence.
17 Note that the new s 59B proposed by the
Bill has no relation to the extant s 59B contained in the principal Act.
18 Civil Aviation Authority v MacKenzie
[1983] NZLR 78
19 Parole Act 2002, s 107T refers.
20 Crimes Act 1961, s 132.
21 Crimes Act 1961, s 191.
22 Crimes Act 1961, s 173.
23 A persuasive onus requires the defendant to
affirmatively prove a specified standard (here the balance of probabilities) of
a position.
An evidential onus, meanwhile, requires the accused to satisfy the
judge that there is sufficient evidence before the court to raise
a triable
issue; see Hansen at [96].
24 See, for example, Hansen at [126 –
131].
Conclusion on s 25(c) of the Bill of Rights Act
- For
the reasons given above, I conclude that the Bill appears to be inconsistent
with the right to be presumed innocent affirmed in
s 25(c) of the Bill of Rights
Act.
Consideration of consistency with other sections of the Bill of Rights Act
- I
also considered the consistency of the Bill with s 21 of the Bill of Rights Act,
which affirms that everyone has the right to be
secure against unreasonable
search or seizure, whether of the person, property, correspondence or
otherwise.
- The
right to be secure against unreasonable search or seizure protects a number of
values including personal privacy, dignity, and
property.25
- The
explanatory note to the Bill states that the Bill provides for new powers for
Police to search persons, vehicles and premises
of specified serious and violent
gang members for firearms at any time.
- Warrantless
searches without a requirement for reasonable cause would constitute a
significant intrusion on the rights affirmed by
s 21 of the Bill of Rights Act.
It is difficult to see how such a power could be justified.
- However,
no provision in the Bill appears to create such powers. In the absence of
bespoke search provisions, the Search and Surveillance
Act 2012 would apply.
Specifically, s 18 of the Search and Surveillance Act authorises warrantless
search of a person, thing, place
or vehicle where a constable has reasonable
grounds to suspect a person is in breach of the principal Act.
- On
this basis, I consider the Bill appears to be consistent with s 21 of the Bill
of Rights Act.
Conclusion
- For
the above reasons, I have concluded the Bill appears to be inconsistent with s
17 and s 25(c) of the Bill of Rights Act and these
inconsistencies cannot be
justified under s 5 of that Act.
Hon David Parker
Attorney-General
March 2020
25 See, for example, Hamed v R [2011] NZSC 101; [2012] 2 NZLR
305 at [161] per Blanchard J.
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