6
Improving the Present System¾
Options for Reform
6.1 Limiting the Availability of Firearms
for Misuse
6.1.1 Restricting the availability of high-risk firearms
Some classes of firearm present a greater risk to
public safety than others. As a matter of principle, legal restrictions should be
proportionate to that risk, and balanced against potential benefits from legitimate use.
The risk created by a particular type of firearm is derived principally
from its usefulness for criminal purposes, and its dangerousness or lethality if misused,
which in turn is related to:
Ÿ magazine capacity;
Ÿ rate of discharge; and
Ÿ the size and speed of its
projectiles.
Applying these criteria it is possible to devise a general ranking of
lethality for firearms, with restricted weapons, MSSAs and pistols at the top of the list,
and single-shot .22s and air rifles at the bottom of the list. Such a ranking falls well
short of any mathematical progression, but is nonetheless a useful tool to aid thinking
and policy-making.
The relevant question in this section of the report is whether further
restrictions are warranted for any additional class of firearm. That question is best
addressed by considering in turn those classes of firearm which rank most highly in
dangerousness or lethality.
Restricted Weapons
The class of weapons with the highest lethality in
New Zealand is restricted weapons. These include automatic guns ("machine
guns"), automatic pistols, rocket launchers, grenades and grenade launchers,
anti-tank projectors, and various other similar weapons. Under present law restricted
weapons may be possessed only by a bona fide collector, the director of a bona fide
museum, approved employees of a broadcaster, theatre, film or television production
company, those to whom the restricted weapon has special significance as an heirloom or
memento, or licensed dealers. Live ammunition must not be used in any restricted weapon,
and a vital part must be removed to render the weapon inoperable.
In the case of machine guns their lethality flows primarily from the
capacity for uninterrupted high-powered fire. Most other forms of restricted weapons are
essentially military
armaments, with obvious potential lethality. This is balanced against only slight social
utility it is hard to imagine any legitimate civilian use for anti-tank projectors or
grenades.
There is currently no evidence of the widespread illegal use of
restricted weapons in crime in New Zealand, but the potential for misuse is real. The most
frequent prosecutions relating to restricted weapons appear to involve Molotov cocktails
rather than firearms, but there is increasing evidence that other forms of restricted
weapons are coming into the hands of criminals. A police raid on a cannabis plot in
Wanganui this year located four automatic firearms and two MSSAs. This sort of firepower
in the hands of criminals was unheard of until quite recently, and is disturbing.
As for the possession of restricted weapons by collectors, the
principal danger flows from the fact that no matter what security measures are put in
place, it is impossible to guarantee that the weapons will not be stolen. A recent
reminder of this fact occurred in Waverley when armed men broke into the home of a
collector and then demanded and were given access to the collection of approximately 70
firearms. Other similar incidents have occurred, and no citizen can be expected to deny
access to firearms at the cost of his or her own safety or that of his or her family. This
means that as long as such weapons remain in private ownership there will be a risk of
their theft. There has also been anecdotal evidence from a number of people that
collectors do on occasion operate restricted weapons illegally. While this is simply
anecdotal evidence, I do not doubt that such use occurs.
In my view the lethality and potential for misuse of restricted weapons
combine to make a powerful case for the banning of their private ownership¾ as is the case in Western Australia. The one factor which could
make private ownership potentially viable is the fact that these weapons can be made
permanently inoperable.
The need to ensure that restricted weapons are rendered inoperable
is currently recognised in New Zealand legislation. Section 32 of the Arms Act requires
that restricted weapons are " … maintained … in an inoperable
condition" by the removal of a vital part. However, disabling is hardly more than
academic if the vital part is stored with the firearm, so allowing quick reassembly, and
enquiries made of six District Arms Officers showed no consistent practice in relation to
the storage of the vital part. While some were of the view that the law is observed
faithfully, others indicated widespread ignorance or non-compliance.
The New Zealand position may be contrasted with that in Australia,
where the APMC resolved on 17 July 1996 that "Category D firearms, be permitted in a
firearms collection provided they have been rendered permanently inoperable". The
Queensland Act and regulations provide an example of the way in which this is achieved:
(2) If the firing pin can be removed as a separate item, the pin must
be removed and the end of the pin hole nearest the chamber must be closed with weld.
(3) If the firing pin cannot be removed as a separate item, the pin
must be ground or cut so it can not strike a round of ammunition in the chamber.
(4) The chamber must be made incapable of taking a round of ammunition
by welding a steel insert into the end of the chamber or welding a steel rod vertically
across the chamber.
(5) The firing mechanism must be immobilised by welding its internal
components together and to the trigger.
The Queensland Act also requires that restricted weapons which are not
firearms be rendered "inert".
In Australia it is arguable that after such procedures are carried out
the weapon is no longer technically a firearm since it is incapable of discharging a
projectile. In New Zealand even a permanently disabled firearm is likely to come within
the definition of a firearm in s 2 of the Arms Act, which includes:
Anything which is not for the time being capable of discharging any shot, bullet, missile,
or other projectile but which, by its completion or the replacement of any component part
or parts or the correction or repair of any defect or defects, would be a firearm within
the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph.
The only two alternatives which would give the necessary
assurance that restricted weapons are inoperable are:
Ÿ banning private ownership
outright; and
Ÿ allowing limited ownership of
weapons that have been permanently disabled.
Both alternatives recognise that the aim of the law is, and must be, to
prevent such weapons becoming available for misuse.
The first alternative has the advantage of simplicity and, by removing
any market for such weapons, might long term further reduce the chances of restricted
firearms becoming available for misuse.
By contrast, the second alternative would allow collectors to continue
to hold restricted weapons, something which clearly offers them pleasure and may offer
monetary gain; it would also allow them to acquire firearms which are illegally held, thus
reducing the number of illegal firearms in society; and would not raise the question of
compensation, which would at least need to be considered if there were an outright ban.
On balance I believe that the second alternative would provide an
effective and sufficient means of preventing misuse. No doubt for many collectors even
that option will be not merely inconvenient, but distasteful. However, it is the only
realistic alternative to banning these weapons, and many thousands of collectors around
the world currently comply with similar requirements.
The permanent deactivation requirement should apply equally to
collectors, museums and those falling within the "heirloom or memento"
provisions. There may be a case for a different regime for military museums, which are
probably presently exempted by s 3(2) of the Arms Act 1983 which excuses possession of
restricted weapons:
By any person in the course of that person’s duties as ... [a]
member of the New Zealand Defence Force …
If that exemption is to be continued in new legislation, that should
follow the receipt of assurances from the Army that it will adopt suitably stringent
measures to secure any restricted weapons and other firearms in army museums against
theft.
n
Recommendation
2 That all restricted weapons be permanently disabled
Handguns
The particular risk arising from handguns is that
their portability and ease of concealment make them useful for a variety of criminal uses,
particularly armed robbery.
As against this, pistol shooting in New Zealand has several thousand
adherents, is well organised, well disciplined and has an exemplary safety record which
few sporting bodies could match. There is no record of any firearm injury occurring on a
range under an NZPA affiliated club’s control.
As to the use of handguns in crime, the conclusion reached in part 4.3
(namely that there is a positive link between the availability of firearms and the level
of gun crime) applies in relation to handguns, which have historically, and correctly,
been seen as potentially the most dangerous of all firearms (leaving aside restricted
weapons). In those countries where handguns are easily available, notably the United
States but to a lesser extent Canada and the United Kingdom, they are the weapon of choice
of criminals because of their ease of concealment and portability. These factors operate
in this country also, where handguns are used in robberies in numbers significantly more
than proportionate to their share of the total national armoury.
In addition, there is the evidence summarised in part 2.3 suggesting an
increasing tendency for criminals to carry handguns for security or self-protection during
their criminal activities. If this development is not contained, it will bring with it the
risk of armed gang warfare and similar conflicts which are endemic in the United States.
The problem would be aggravated if handguns became freely available at
a competitive price. At the moment handguns can be bought on the black market without
difficulty, but only by those with sufficient money to pay for them. A common alternative
for the armed robber is the shotgun, which is either purchased "sawn off," or is
sawn off by the criminal purchaser. These are available for a small fraction of the price
of a handgun $100 to $200 for a shotgun, compared to $750 to $2,000 for a handgun. The
more handguns there are in the country the greater must be the likelihood of the numbers
reaching the black market increasing and their price on the black market reducing. It
would clearly be undesirable to have the present total handgun population of 25,000 to
30,000 continuing the past rate of increase over the next decade.
A further matter to be kept in mind is that while the process of
vetting applicants for pistol endorsements (which involves both club and police input) is
of a reasonably high standard, it cannot guarantee that no unsuitable person will slip
through the net, nor that a person who was suitable may not become unsuitable. For those
reasons the risk of a Hamilton/Dunblane type disaster incident can never be totally
discounted.
Those factors point to the desirability of avoiding a proliferation of
handguns, of eliminating surplus handguns, and of seeking to improve the security of the
others.
Surplus Handguns: Some of the increase in
handgun numbers has been traced back to the substantial increase in the number and types
of competitions conducted by NZPA and its affiliated clubs. The argument which persuaded
the then Commissioner in 1989 to approve a maximum of 12 handguns was that this number
might be needed to achieve a high level of competence in different competitions. It is
difficult to
accept that the size of the handgun armoury should be governed by the number of different
competitions available to pistol shooters. That view and the general desirability of
endeavouring to control increases in total pistol numbers was conveyed to the NZPA during
hearings with its officers. The Association was invited to consider whether lower limits
per endorsee could be determined which would still permit reasonable enjoyment of its
members’ sport.
This resulted in a supplementary submission advising that the NZPA had
considered the practicability of changes and believed that it would be appropriate that a
B endorsee "own up to six handguns before a dispensation from a club committee is
required, which could only be for competitors who can justify the need for more". It
asked that muzzle-loading handguns not be counted in the proposed total, and pointed out
that the limit on handgun use imposed by the UK Parliament after Dunblane specifically
excluded such guns from its provisions.
With that advice the Association forwarded a paper explaining the
extent of the need for numbers of pistols for different types of NZPA activities. This
explained that:
The most basic pistols you can have are a .22 lr semi-automatic pistol,
and a .38 Special revolver. The .22 lr semi-automatic is the proper pistol to use for UIT
Standard and Sport Pistol matches, and the .38 revolver is a basic Centrefire handgun with
which many matches can be shot. With these you can shoot a large number of matches at
basic level. We generally encourage people to start with a low cost model of each of
these, and try a variety of matches. When they find which matches they enjoy most, or are
best at, they can buy specialised pistols for those matches.
The same paper explained the particular needs of top shooters in the
different disciplines if they are to compete at the top levels of the sport, advised that
most club members like to shoot in more than one discipline, and added:
As a generalisation, one might expect anyone who has been shooting long
enough to regard it as a permanent interest would probably shoot one discipline (ie group
of matches) seriously and have several specialised pistols for this discipline. They would
also probably shoot another as a less serious event, and either use one of their existing
pistols or acquire less than the optimum number or models. The longer you stay in the
sport, the more matches you are likely to want to shoot either regularly or occasionally,
and so the more pistols you are likely to want.
The NZPA is to be congratulated on its endeavour to achieve a voluntary
limitation of the number of handguns used by its members. Further, I accept that the
suggested basic limit of six handguns is a significant reduction from the maximum which
has stood now for a considerable number of years. At the same time it would in my view
further assist the avoidance of any proliferation of handguns, and not significantly
affect members’ sporting activities, if the number of handguns owned by any endorsee
were limited to two for a period of one year after the granting of a B endorsement.
n
Recommendation
3 That no handgun endorsee be permitted:
a) to own more than two handguns during the first 12
months after gaining his or her endorsement; or
b) to own more than six handguns (not in-cluding muzzle-loading
handguns) at any time unless his or her club and the NZPA certify that the standard of
performance attained by that endorsee and the nature of the competition(s) in which he or
she has attained that standard warrant approval of the purchase of additional handguns up
to a maximum of 12.
The intention of the second recommendation is that a maximum of six
shall operate, except for the shooter of outstanding ability who can show a need for
additional firearms.
Military Style Semi-Automatics
The suggestion that MSSAs should be banned was
raised many times in submissions to the Review. Support for this course of action came
from a broad range of people, including both shooters and firearms dealers. On 23 January
1997 the Firearm Advisory Committee of the Mountain Safety Council confirmed a resolution
of May 1996 that "large magazines and semi-automatic guns are not welcome in New
Zealand".
The principal risks in relation to MSSAs are their capacity for
repeated and high-powered fire and their attractiveness to those with an unhealthy
fascination for violence (as to which see part 3.1.4). They have a high potential for harm
if misused.
As with restricted weapons, the concern with MSSAs is not that they are
used frequently in crime, but that when they are the consequences are disastrous. MSSAs
were used in the mass killings at Port Arthur, Aramoana, Strathfield, Queen Street
(Melbourne), Hoddle Street (Melbourne), Hungerford, Montreal and Top End (Northern
Territory)¾ in which a total of 104 victims were killed. This
list is not exhaustive; MSSAs have been used in many more mass killings in the United
States and in other countries. Australian government figures show that over the last
decade MSSAs killed 74 percent of the victims in mass killings in Australia and New
Zealand. Another relevant attribute of MSSAs is that a considerable number can be
converted to fully automatic fire. Many of these firearms were originally designed to be
fired in fully automatic mode and the civilian models are essentially the same gun
modified to semi-automatic status.
The value of MSSAs for target shooting was very much in contest. I met
with representatives of the Wellington Service Rifle Association and the International
Military Arms Society, two groups who represent many MSSA users. The members of both
organisations clearly have a significant commitment to and involvement in their hobbies
and a sincere desire to continue in their chosen form of target shooting. However MSSAs
have been used for target shooting only reasonably recently, and this is not a purpose for
which they are designed, or particularly suited. Others can take their place. As to their
use for hunting, submissions from a sizeable number of shooters have contended that MSSAs
have no place in the collection of the sporting shooter, and Nugent’s 1989 study
showed that MSSAs "comprised only about one percent of all the centrefires listed,
suggesting they are not widely used as hunting weapons". The one exception to that
view was advice from those engaged in helicopter deer recovery and animal pest control
work that in some circumstances the convenience and destructive power of the MSSA made it
a valuable tool for their purposes. That contention was supported by DOC and by the Forest
Research Institute, and would support an exemption for such business. That issue apart, I
am satisfied that the potential consequences of MSSA misuse clearly outweigh any benefit
to society in permitting their ownership.
The next question is whether the current distinction between MSSAs and
sporting configuration ("sporterised") MSSAs should continue. On this I am of
the view that MSSAs and sporterised MSSAs must stand or fall together and that it is not a
viable option to attempt to ban one without the other. The distinction has proved to be
problematic at best since 1992, and the potential for evasion of the law is too great.
Accordingly I would support any ban on MSSAs extending to sporterised MSSAs.
Considering next the form of any ban, the view which prevailed in both
Australia and the United Kingdom that justice requires that the banning of property
previously lawfully acquired should be accompanied by a buy-back to compensate owners for
their loss, seems equally valid in New Zealand. To enable this option to be considered on
an informed basis Coopers & Lybrand were asked to provide cost estimates in relation
to a buy-back of various classes of firearm. Based on an estimated 25,000 to 30,000 MSSAs
and sporterised MSSAs, Coopers & Lybrand estimated the cost of their buy-back at
between $16.4M and $19.8M for the firearms, and a total of $21M including administration
costs. The estimate of administration costs cannot be regarded as final, but in any event
the sum of nearly $21M must be seen as considerable, particularly in the context of past
government expenditure on firearms control. In comparative terms, it is very close to the
estimated total cost of firearms administration for 1997/98 under the "enhanced"
system proposed in May 1996.
No simple cost-benefit analysis is possible, and there can be no
guarantee that banning MSSAs will prevent further mass killings. However there is enough
of a possibility that a ban may inhibit the frequency and consequences of such events,
with minimal interference with the legitimate interests of shooters, to persuade me that a
ban should be recommended.
The next question is whether, and to whom, exemptions should be
granted. There is a meritorious claim for an exemption from the ban for those
professionally engaged in animal pest control who are able to establish that no other type
of weapon would be equally effective for their particular business and who are prepared to
provide security for their weapons of a sufficiently high standard. In terms of the four
grades of security suggested in appendix 7, security should not be less than Grade 3.
Similar exemptions were provided by the Australian reforms following strong submissions by
rural interests. To date very few applications have been received in Australia for those
exemptions. Provided it is known that exemptions will be granted only when good and
sufficient reason is established the number of exemptions here can also be expected to be
quite small.
There remains an issue of definition. Because MSSAs are defined by
exclusion rather than inclusion in the Act, the only satisfactory method of definition
will be to produce a list of banned weapons by make and model. The starting point would be
the list of MSSAs produced for the Select Committee in 1992.
n
Recommendations
4.1 That MSSAs, including those in sporting
configuration (as defined by a list of makes and models), be banned and made the subject
of a buy-back.
4.2 That an exemption be extended to those professionally engaged in
animal pest control who can establish that no other firearm would be equally effective for
their particular business.
4.3 That a technical committee be formed to settle the list of makes
and models of firearm within the MSSA class.
Sporting Centrefire Semi-Automatic Rifles
The next two classes of weapons on a lethality
ranking would be (i) sporting centrefire semi-automatics and (ii) semi-automatic and
pump-action shotguns. Both were included in the Australian ban and buy-back, as were
semi-automatic .22s.
As to the first of those groups, these are semi-automatics which have
been designed purely for sporting purposes and which are not produced with the features of
an MSSA. There is no known instance of a semi-automatic sporting centrefire rifle
featuring in a mass killing in New Zealand, a fact which supports putting MSSAs in a
separate class. To this date the sporting semi-automatics have been subject to a magazine
limitation of seven shots. There is no reason to lift that requirement. Provided it
remains, there is not a clear or strong case for a ban and buy-back of these weapons, a
step estimated by Coopers & Lybrand to cost in the order of $13M.
n
Recommendation
5 That all other centrefire semi-automatics be
limited to a magazine capacity of seven cartridges.
Semi-Automatic and Pump-Action
Shotguns
While there is evidence of the use of shotguns in
domestic homicide and of sawn-off shotguns in robbery, there is currently no evidence of
any large-scale use of semi-automatic or pump-action shotguns (which for simplicity are
called "semi-automatic" in this section) in crime. No such weapon has been used
in a mass killing in New Zealand.
Semi-automatic shotguns with magazine capacities of more than two
cartridges do, however, present a risk which is greater than that of other shotguns,
primarily because of their capacity for sustained and rapid fire. At close range these
weapons have very high lethality, and a random killing involving a large-capacity
semi-automatic shotgun could be catastrophic.
As for legitimate use, shotguns have been used in hunting and
recreation for well over a century, though semi-automatics are a development of this
century. Game-bird hunters are the largest single group of shotgun users in New Zealand,
and Forsyth notes that the Acclimatisation Society movement "was a central and
influential feature of this country’s colonisation and development". More
recently clay bird and skeet shooting have become popular sports with several thousand
adherents. Semi-automatics have the advantages of some attenuation of recoil and a
particular suitability for target shooting. Although accurate figures are not available to
estimate the total number of semi-automatic shotguns, it is quite clear that they are
popular and make up a significant proportion of the total number of shotguns in this
country.
Most shooters assert that there is seldom a need for a magazine
capacity greater than two cartridges in the sport of game shooting. Indeed the Wildlife
Act 1953 prohibits the use of any shotgun with a magazine holding more than one cartridge
for game shooting, although very recently quite broad exemptions from that restriction
have been announced, purportedly under a special exemption provision.
In Australia the issue of restrictions on semi-automatic shotguns was
hotly debated prior to the APMC resolutions of 10 May 1996. In the result the APMC
resolved to allow only single-shot and double-barrel shotguns for ordinary shooters.
Semi-automatic shotguns with a magazine capacity of up to five cartridges may be permitted
on a category C licence, available only to primary producers with a genuine need for the
firearm. Clay target shooters affiliated to the Australian Clay Target Association may
also gain an exemption allowing the use of a semi-automatic or pump-action shotgun loaded
with no more than two shots at a time.
The Australian position resulted from advice from the Australian Army
Technology & Engineering Agency that crimping of shotgun magazines could be reversed
in a "relatively easy" manner, contradicting earlier advice from the Australian
Federal Police that such crimping was "technically irreversible". In New Zealand
advice was sought from an ad hoc committee comprising: Mr Robert Ngamoki, the Chief
Armourer of the New Zealand Police; Mr John Howat, a firearms dealer and consultant; and
Warrant Officer John Berry, Senior Armourer Instructor, New Zealand Army. It advised that
while it is always possible, given the will and sufficient time and money, to reverse any
alteration to a firearm, means are available to limit the capacity of the magazines of
semi-automatic shotguns which would be irreversible for all practical purposes.
Given that advice, and the past practice of limiting the number of
cartridges used in shotguns for a number of their more common uses, it is difficult to see
the cost-benefit equation supporting a ban and buy-back of semi-automatic shotguns in New
Zealand. The cost of a buy-back of these guns is estimated by Coopers & Lybrand to be
$35M. When the minimal use of semi-automatics in crime is compared with the legitimate use
of these firearms it is hard to justify spending the State’s money on a blanket ban
and buy-back. This is particularly so given the availability of the option of magazine
limitation, which appears to provide a sensible balance between the interests of shotgun
shooters in continuing to enjoy their sport and the public interest in avoiding the severe
consequences which could flow from the criminal misuse of high-capacity semi-automatic
shotguns.
I was advised by several people that allowing the magazine to contain
two cartridges is a safer option than permitting only one, because in the latter case some
shooters would carry a second cartridge in the breech.
I do not favour remaining with the status quo. When the option of
magazine limitation can be achieved with such little impact on the legitimate shooter
there is little justification for continuing to accept the risk created by larger
magazines.
In order to avoid penalising those who have purchased semi-automatic
shotguns legally, it would be reasonable for the State to meet the costs of reducing the
magazine capacity of semi-automatic shotguns. This step would no doubt also increase
compliance with the law.
n
Recommendations
6.1 That semi-automatic and pump-action
shotguns be limited to a magazine capacity of two cartridges.
6.2 That the cost of limiting their magazine capacity be met by
Government.
6.3 That a technical committee settle an approved method or methods of
magazine limitation.
Other Semi-Automatic Firearms
Next in the order of lethality is the remaining
class of semi-automatic firearms: the .22 rimfire semi-automatics. These make up around
half of all .22s, which are the largest single class of firearm in New Zealand. They
feature significantly in all forms of firearm misuse, simply because they are present in
the community in such large numbers, a point made by Forsyth in relation to accidents in
1985:
The .22 calibre rimfire rifle is probably involved in more incidents
each year than any other firearm type. The main rea-sons for this are that it is the most
popular first firearm, and that more .22 rifles are in circulation than any other firearm.
In similar vein Philip Alpers has observed that the .22 is "the
gun most commonly used in suicide, homicide and accidental shootings". While neither
of these comments is specifically related to semi-automatics it is a safe assumption that
those firearms figure in a significant number of the incidents of misuse in this country.
Unlike MSSAs and handguns however, there is nothing about the semi-automatic .22 which
makes it more attractive to criminals, or more likely to be misused, than any other
firearm.
As against those risks, semi-automatic .22 rifles are widely used for
target shooting, killing pests such as rabbits and possums, and many other general
purposes. A large proportion of the good work done with firearms in New Zealand is done
with these firearms, and much would be lost if they were banned.
Currently .22 semi-automatics in New Zealand are subject to a
restriction on magazine capacity. Those with a capacity above 15 cartridges are treated as
MSSAs and must be held on an E licence. All others may be held on an ordinary A licence.
Australia and the United States have both restricted these firearms to
a greater extent than New Zealand. In Australia they are treated as category C weapons
which may be held only by primary producers with a genuine need for the firearm. For all
other shooters they are banned. In the United States the Federal Crime Control Law,
enacted in 1994, prohibits the transfer or possession of all magazines above ten rounds,
and all new .22s sold must have a magazine capacity of no greater than ten.
To adopt the Australian position would require a ban and buy-back
subject to quite substantial exemptions to meet the needs of rural gun owners. Coopers
& Lybrand costed a buy-back of these firearms at $41M.
Such a ban could not be relied on to produce a substantial reduction in
the levels of firearm crime, suicide, or accidents. While there is some relationship
between the general availability of firearms and crime and suicide, this is not a direct
and strong relationship such that removal of say 150,000 or 200,000 semi-automatics
(around 15 to 20 percent of the total armoury) would reduce levels of misuse by 15 to 20
percent or anything approaching those figures. Balancing the significant benefits
currently derived from the use of these firearms against the high cost and dubious benefit
of banning them, I would recommend against that action, and do not see any sufficient
reason to alter their present magazine capacity limitation.
Details of Proposed Buy-Back
To this point the report has recommended a ban and
buy-back of MSSAs, has recommended against similar action in the case of .22
semi-automatics, and has expressed doubts about the justification for banning sporting
semi-automatics and semi-automatic shotguns provided magazine limitations are imposed in
both cases.
It will, of course, be for Government to decide how far it desires to
travel down the scale of lethality with any programme of bans or purchases of firearms.
That being acknowledged, it seems not inappropriate to re-iterate that in my view more
value is likely to be obtained from setting up a system capable of responding to the
country’s needs on the basis of adequate information than by buying in weapons, with
the sole exception of the MSSAs, which have little legitimate use.
In relation to any buy-back, New Zealand should be able to learn from
the Australian experience which suggests:
Ÿ That the duration
and administrative process of the buy-back must be related to the number of firearms
banned. For a limited buy-back it may be possible to use police stations as collection
points, with an independent contractor to oversee destruction, and a duration of
approximately six months.
Ÿ That an expert panel should be set
up to determine the compensation to be paid for each banned firearm, based on current
market value.
Ÿ That a process similar to that
used in Australia should be adopted to deal with non-list or "reserve list"
firearms and with appeals.
Ÿ That an amnesty should accompany
the buy-back to enable illegally-held firearms to be surrendered without fear of
prosecution. (The role of an amnesty is discussed further in the next section.)
Compensation should be paid for illegally-held firearms of the banned varieties since on
balance the benefit in taking these firearms out of circulation outweighs the consequences
of paying for them.
Also accompanying the buy-back should be a publicity campaign targeted
principally at the owners of the types of firearm which are called in. An advertising
campaign also presents an opportunity to place appropriate messages about firearm reform
before the pubic. In the United States the publicity that accompanies a buy-back has been
identified as a considerable collateral benefit.
n
Recommendations
7.1 That the duration of the buy-back of MSSAs be
approximately six months.
7.2 That compensation be paid at market value for banned firearms and
accessories which can be used only with banned firearms.
7.3 That compensation be paid to firearms dealers for any proven loss
of profits.
7.4 That a procedure be settled for assessing, paying and dealing with
disputes over compensation.
6.1.2 Recovering surplus guns
It was a common assertion by those who appeared to
support their written submissions that a considerable number of guns are presently held by
people who no longer have a use, or a regular use, for them.
The same view is indicated by the police support for amnesties to
"recover unused firearms". Similarly the Police Response advised that:
The Australian experience suggests … many owners have limited
reason for retaining their firearms and the offer of a cash payment attracts a
considerable number of unused arms.
There has not been any sufficiently large-scale survey of gun owners
and their use of firearms to enable a sound estimate to be made of the size of the New
Zealand pool of unused or under-used guns. This is an area where a properly conducted
study, which would necessarily involve personal interviews with the owners, should be
carried out.
Meantime anecdotal evidence and the downward trend in firearms and
game-bird licences all point to the existence of such a pool, even though they provide
little help in estimating its size.
To date the standard procedure in this country for recovering any
surplus weapons has been an amnesty. The relevant table in part 2.3 sets out the results
of amnesties over the past 21 years. The May 1996 Review supports a further general
amnesty. That must be appropriate, particularly having regard to the time since the last
amnesty and the present heightened public interest in gun safety. Indeed there is no
obvious reason for the decision only to hold one amnesty in the past 13 years, and sound
arguments for much more regular use of amnesties.
Section 10(2) "Amnesties"
In addition to these "formal" amnesties,
dealers have for many years operated "informal" amnesties by giving a generous
interpretation to s 10(2) of the principal Act. This provides that dealers may take
possession of pistols or restricted weapons without ensuring that they come from an
authorised person:
[I]f, on obtaining possession of any pistol or restricted weapon from
any person, the licensed dealer immediately surrenders the pistol or restricted weapon to
the nearest Arms Office for inspection and inquiries.
Section 10 plainly relates only to restricted weapons and pistols. It
was not extended to cover MSSAs in 1992, although that may have been a legislative
oversight. It has never extended to ordinary firearms for which no special endorsement is
needed. Its principal purpose must have been to permit those who for any reason did not
wish to surrender a weapon to the Police to hand it to a dealer. Unless it were a stolen
weapon recorded as such by the Police, it could then be sold by and re-enter the system
through the dealer.
In practice many dealers accept all types of weapons (ie. not just
restricted weapons and pistols) without requiring particulars of the deliverer’s
entitlement, advise the Police of their receipt of the weapons, and ask whether the Police
have any interest in them. In the absence of any comprehensive register of lost and stolen
weapons, the answer is almost always "No". That answer is then treated by the
dealer as sufficient authority to sell the weapon to a qualified purchaser.
Provided the registration system is re-introduced and prevents the
process from developing into a trouble-free method for converting stolen weapons into
cash, the overall interests of society should benefit from extending the s 10(2) procedure
to cover all types of weapons.
Buy-Back of Unwanted Firearms
The next question is whether or not it is desirable
to pursue the suggestion in the Police Response of some kind of general purchase of
weapons, presumably at their market value. On this point the Response says that:
The Australian strategy extends to buying back all those weapons that
become surplus to their owners following the tightening of security standards, and the
further reductions on the type of guns permitted in the various locations and occupations.
There are of course major cost implications.
By contrast my enquiries in Australia found only one State (Victoria)
which was buying firearms other than those which were banned, and the numbers which it was
buying were small, as was the consideration being paid to the owners of those weapons.
Part 6.1.1 concludes that buy-backs should be focused upon those
firearms which constitute the greatest threat to public safety.
Part 6.2.1 expresses the view that more benefit is likely to come from
establishing a system which will offer a real prospect of obtaining more effective overall
control of firearms than in spending money buying a relatively small part of the existing
armoury. The costs involved in maintaining an appropriate standard of security for
firearms and meeting periodic licensing/registration fees will in any event encourage the
owners of unused or under-used firearms to put these up for sale or surrender them.
In my view no sufficient case has been shown for entering into any
general purchase of firearms.
Public Armouries
One other arrangement directed at limiting the
availability of surplus firearms may, however, deserve consideration. A number of
submissions suggested that owners be required to keep their firearms in public armouries.
While that proposition has obvious attractions, upon examination it can be seen to have
considerable limitations, particularly for rural firearms owners and most particularly for
those rural firearms owners who have regular need of a firearm. Armouries would need to be
built to a very high standard of security, at least as high as that to be required of
dealers. If they are to contain substantial numbers of firearms they will need to be
staffed 24 hours a day. In New Zealand most ranges are situated at a distance from
security firms, and so providing an effective response to alarms would be difficult.
All in all, the proposal that all firearms should be held in armouries
is in my view unsustainable, both on cost and convenience grounds, save for those who have
only limited use for their weapons. For those people there could well be a case for
adopting the Western Australian practice of providing safe custody for firearms at police
stations for a moderate fee. As an alternative it would be worth considering establishing
two armouries, one in each of two metropolitan centres, into which those persons with only
occasional use for their firearms, and those others who by reasons of holidays or other
circumstances, such as have caused the Western Australian system to become popular, could
remove their firearms. Experience of the actual use of such facilities over a period of
say two years would indicate whether they should be made more widely available.
n
Recommendations
8.1 That a general amnesty be declared for a period
of 12 months commencing at the earliest convenient date.
8.2 That the authority presently given to dealers by s 10(2) of the
Arms Act be extended to cover all types of firearm.
8.3 That consideration be given:
a) to police providing firearm storage
facilities for a moderate fee; and
b) to the establishment of prototype armouries in two metropolitan
centres for a trial period of up to two years.
Improved security
A principal reason for setting up this Review was
the concern of the PCA, arising from its examination of the Gellatly and Radcliffe
shootings, about dealers’ security. The justice of that concern was recognised in the
May 1996 Review, which proposed nine amendments either to the current dealers’
security conditions or to the manner in which they are monitored. Its most significant
proposals were that dealers’ premises be alarmed, that ammunition be secured, and
that all firearms on display either have a vital part removed or a breech plug or trigger
lock inserted.
Other defects in current security arrangements were noted in the
submissions to this Review. The most common complaints were that the security rules were
not interpreted uniformly and that they were inadequately monitored and enforced.
In Locking Up Guns Mr Philip Alpers reported a series of
statements by police officers and others which suggested widespread disregard of security
requirements, especially in rural areas. These led to his investigating 88 cases of gun
theft which had been reported in the press, and finding evidence that in 46 (52 percent)
the firearms had not been stored in compliance with the Arms Regulations.
In the nature of things, those cases reported in the press are the more
newsworthy incidents. To try to find whether the average licensee was similarly remiss,
two separate series of spot checks were conducted by the Police at my request, three in
February 1997, two in the following month. All checks were made without prior notice. Each
set of inspections was carried out within the one day. Some telephone communication to
other licensees may have been made by those first inspected, but the officers carrying out
the checks were of the view that their visits were not expected.
The overall results appear in the following table:
| Licence class |
Attempted checks |
Completed checks |
Compliance with security
regulations |
Compliance rate (%) |
| Urban A |
123 |
84 |
73 |
86.9 |
| Rural A |
126 |
83 |
64 |
77.1 |
| C Class |
29 |
21 |
19 |
90.5 |
| D Class |
20 |
15 |
13 |
87 |
| E Class |
27 |
16 |
16 |
100 |
| Totals |
|
219 |
185 |
88.3 |
The second series of checks was undertaken because there
were marked differences between the rates of compliance by the Rural A licensees in the
three districts first checked. In the result the further checks, made in different
districts from those first checked, gave compliance rates similar to the average of the
first three, and went some way towards confirming the general reliability of the results
being obtained.
Consideration was given to the circumstance that these checks produced
significantly better results than those examined by Mr Alpers. The most likely
reasons are:
Ÿ that the vetting process involved
in the still continuing 1992 Relicensing Programme has increased licensees’ awareness
of security obligations¾ this was a view expressed by DAOs at
a meeting held in December 1996; and
Ÿ that that increased awareness may
have been accentuated by the publicity arising from the Review itself and from the Raurimu
shootings, which shortly preceded the first series of tests.
One unexpected dividend from the spot checks was that, far from
expressing displeasure at being subjected to unannounced inspections, most of those tested
considered the spot checks a good idea, and probably overdue.
Given that the extent of non-compliance proved to be less than had been
expected, and that there is evidence of a more careful attitude towards security
requirements than in the past, it remains the case that far too many breaches of security
conditions are occurring. In particular the extent of non-compliance by collectors and
dealers, whose collections make them the first targets of criminals, must cause concern.
I asked a small ad hoc committee of police and security experts for
help in determining the appropriate course from that point. The result of our
collaboration was agreement:
Ÿ that the present security
provisions (in s 32 of the Arms Act 1983 and regs 8, 19 and 28 of the Arms Regulations
1992, augmented by PNHQ instructions to DAOs on uncertain authority) are undesirably
complex, are not based on principle, and should be rewritten;
Ÿ that any new code should determine
levels of security proportionate to the hazard requiring reduction;
Ÿ that the principal factors in
assessing hazard are
the attractiveness of the weapons in question to criminals
the number of weapons, and
the degree of public access to the weapons;
Ÿ that while levels of security for
A, B and C licensees and endorsees are relatively easy to settle, appropriate arrangements
for dealers, which raise quite complex technical issues, are not; and
Ÿ that further progress would best
be made by establishing a standing committee, including representatives of the Police, the
NZ Security Industry Association and the NZ Insurance Council, initially to advise, after
discussion with the relevant user groups or their representatives, on the form of new
firearms security regulations, and later to review those regulations from time to time and
recommend such alterations as it considers necessary to take advantage of changes in
technology and keep abreast, if not ahead, of criminal intelligence.
Although remaining of the view that the final redrafting of new
security provisions should be done by a suitably qualified committee, the ad hoc committee
proceeded to agree in principle that there should be four grades of security, graduated in
relation to the degree of hazard in each case, namely:
Ÿ Grade 1: for licensees with not
more than ten class A firearms;
Ÿ Grade 2: for B endorsees with not
more than ten pistols;
Ÿ Grade 3: for any licensee with
more than ten firearms of any type; and
Ÿ Grade 4: for dealers with premises
open to the public.
Again, while leaving final redrafting to the special committee, the ad
hoc committee reached agreement about its present preferences for the nature of the
security appropriate to each grade. These preferences are set out in appendix 7.
The four grades of security specify minimum standards for each class.
It would be open to a licensee to use a higher grade of security than the minimum
specified for the particular class and number of firearms. For example a strongroom or
safe could be used in lieu of a steel box.
The likely effect upon licensees of such conditions would vary
considerably. For a considerable proportion of Class A licensees, who constitute well over
95 percent of the total licensee population, the new Grade 1 standard would involve
purchasing a steel box in lieu of an existing wooden cupboard or similar structure, and
the expenditure of some hundreds of dollars. However, those who have worked in arms
offices are generally of the view that most present Class A security would not withstand a
reasonably determined attack by a person of average strength.
The NZPA representatives thought it unlikely that a large proportion of
pistol shooters would be greatly affected by the new requirements, which are thought
already to be observed by a considerable number. To the extent that others will have to
upgrade their security, that is considered only appropriate in view of the attractiveness
of these weapons to criminals and the need to avoid augmenting the pool of illegal
handguns.
The suggested conditions for licensees with more than ten firearms,
requiring appropriate monitored alarms, and even more the proposed security conditions for
dealers, will in many cases involve significant expenditure. However it was considered
that anything less would be inadequate to prevent continuing augmentation of the pool of
illegal guns. Even though the absence of records of the number of stolen guns prevents
direct proof of the importance of this factor, there is no doubt either of the high levels
of burglary and car theft, or of the low rate of clearance of those offences, as
demonstrated by the graph below:
Source: NZ Police
Firearms owners and dealers may have to be
prepared to accept change in the methods of dealing with firearms to counter such threats.
The banking industry has succeeded in reducing its handling of cash both by electronic
funds transfers and the use of Automatic Teller Machines. One member of the ad hoc
committee, who had experience of security arrangements in Singapore, advised that its
firearms retailers do not have firearms on display, and customers select from a brochure
in the first instance to reduce the risk of unauthorised possession. The suggestions made
above are clearly less radical, and are intended to respond to existing risks.
However carefully new security conditions may be drawn, they will be of
limited value unless they are more frequently and consistently monitored than in the past.
Consideration should be given to monitoring dealers’ premises by means of a small
group of people with specialist qualifications or training. The complexity of
dealers’ security requires a higher level of expertise than is required for other
security monitoring and than could realistically be expected of most DAOs.
There must also be a new provision making it an offence to breach the
security conditions of licences—on which see part 6.2.3.
Because of the pressure upon DAOs to endeavour to keep up with their
re-licensing and other obligations, and because of recognition that the re-licensing
project was falling into arrears, authority was given to DAOs to accept declarations that
an applicant for a licence would comply with security requirements instead of requiring an
inspection of security before granting a licence. The original intention was that physical
checks would follow within a reasonably short period. A survey conducted for the Review
showed that 21.1 percent of new licensees in the four districts selected had obtained
licences on this basis and without physical inspection of their security. There is no
record of the extent to which licences granted on this basis were followed up by physical
inspection of security, but there was no suggestion that this had occurred in a
substantial number of cases. That is plainly an unsatisfactory procedure. It should be
discontinued.
n
Recommendations
9.1 That the present security regulations be replaced by provisions
which fix levels of security proportionate to levels of hazard.
9.2 That a standing committee, including representatives of the Police,
the security industry, the NZ Insurance Council, firearms users and firearms dealers, be
set up to recommend new security standards, review these annually and recommend
appropriate amendments.
9.3 That adequate provision be made in any new firearms control system
for regular and consistent monitoring of security conditions.
9.4 That the practice of granting licences on the basis of assurances
of compliance with security conditions without inspection of security be discontinued.
6.1.4 Ensuring the suitability of firearms licensees
There are currently two main processes by which the
Police attempt to exclude those who are unsuitable from holding firearms licences: the
vetting of applicants and the revocation of licences. This section considers four possible
methods of improving these processes:
Ÿ setting out in statutory form
those characteristics: (a) which are necessary to obtain a firearms licence; and (b) which
make a person unsuitable to possess a firearms licence;
Ÿ setting out characteristics which
disqualify a person from possessing a firearms licence for a minimum period of time;
Ÿ improving the information flow to ensure police are aware of people who may be
unsuitable to possess firearms; and
Ÿ
requiring a minimum delay period to prevent impulse purchases.
Statutory Criteria for Assessing
Suitability
A frequent criticism of the current system is that
the grounds for assessing whether someone is a fit and proper person to possess firearms
are not set out in the Act and are instead left to police discretion. Although this has
the advantage of allowing some flexibility, it can also lead to uneven enforcement¾ a point returned to in part 6.2.5. It also means that the general
public has no easy way of knowing what criteria are applied by the Police in making the
critical assessment of fitness.
Several Australian States now set out a list of "minimum
circumstances" in which licence applications are to be refused, following a
resolution to that effect by the APMC in May 1996.
No statute can provide a definitive list of circumstances which either
qualify or disqualify someone from possessing a firearms licence, and "minimum
circumstances" must be just that. However there is some merit in the claims for more
explicit statutory criteria. The law should be as accessible to the public as possible,
and such criteria could promote greater consistency of application.
There are two relevant sets of criteria or characteristics: those which
a licensee must possess, and those which a licensee must not. These characteristics apply
equally to the "refusal" and "revocation" processes.
In respect of the mandatory criteria, it is clear that any licensee
must:
Ÿ have security for his or her
firearms to the required standard;
Ÿ have shown the required capacity
for safe handling of firearms; and
Ÿ be of the required age.
These requirements currently appear in the Arms Act 1983, but it may be
helpful to have them set out in one section as minimum eligibility requirements.
It has also been suggested that the Arms Act should require each
applicant to show a genuine reason for owning a firearm. This is currently implicit in the
New Zealand vetting process¾ applicants are asked specifically
what their intended purpose is¾ but has never been elevated to
a formal requirement needing proof. The Australian States have each adopted such a
requirement following another resolution by the APMC in May 1996. Among the various
"genuine reasons" it approved were:
Ÿ sport or target shooting;
Ÿ hunting or recreational shooting;
Ÿ primary production;
Ÿ occupational requirements; and
Ÿ pest control.
Applicants are typically required to provide evidence of such a
purpose, such as proof that they belong to an approved shooting club or written permission
to hunt on someone’s land. Section 12 of the New South Wales Firearms Act 1996
expressly states that neither personal protection nor the protection of property will be
considered sufficient.
Rebecca Peters, Chair of the National Coalition for Gun Control in
Australia has questioned the effectiveness of these provisions, suggesting that it is not
difficult to establish a "genuine reason" as in practice membership of shooting
clubs and permits to hunt can be bought for a small price. Such concerns recognise that a
condition requiring a genuine reason for a licence cannot be relied on as an effective
method of screening out unsuitable persons. While the inclusion of such a condition in
place of the present informal consideration of the same subject-matter would give the
appearance of a more intensive enquiry, and could serve to underline the fact the a
firearms licence is a privilege not an absolute right, the difference would be cosmetic,
and might well lead to such artificial situations as are reported by Ms Peters.
In respect of characteristics which make a person unsuitable to possess
a firearms licence, the Police Arms Manual currently stipulates that
a person is not fit and proper if he or she has:
1 shown no regard for the Arms Act or Arms Regulations;
2 been involved in substance abuse;
3 committed a serious offence against the Arms Act;
4 committed a serious offence against any other Act;
5 committed a series of minor offences against the Arms Act;
6 committed crimes involving violence or drugs;
7 affiliations with a gang involved in committing violent offences or
in conflict with another gang;
8 been or is involved in matrimonial discord involving violence or
threats of violence;
9 exhibited signs of psychological disturbance;
10 attempted to commit suicide or other self-injurious behaviour; or
11 for some other reason [been] considered not fit and proper.
There would be some benefit in making such criteria explicit in
statutory form if they could be sufficiently clearly defined. However, the task of
definition would not be an easy one. Further, the process of assessing the suitability of
a licensee is not as scientifically precise as a neat checklist might suggest. If the
criteria are to be defined in statutory form, representatives of the Police,
psychiatrists, firearms users and family violence workers should have some input. Previous
endeavours to fix statutory criteria have not succeeded, but another effort would be
justified. This would be an appropriate task for the proposed Firearms Authority to
oversee.
Disqualification Periods
In addition to general criteria which make a person
unsuitable to possess firearms, some characteristics are of sufficient seriousness to
justify disqualifying a person from obtaining a licence for a specified period. Many
Commonwealth jurisdictions now define periods of disqualification for such events as:
Ÿ convictions for violent offences;
Ÿ convictions for firearms offences;
Ÿ domestic violence; and
Ÿ convictions for alcohol or drug
offending.
The advantage of defining a period of disqualification is that it
encourages uniformity. The risk is that the regime operates in too blunt a fashion. It is
necessary to consider each potential class of disqualifying characteristic in turn.
Domestic Violence
The Arms Act has recognised since 1992 that a person
is not fit and proper to be in possession of firearms if he or she has been responsible
for domestic violence. As the Act now stands, police have the power to revoke a licence
whenever grounds exist for the making of a protection order under the Domestic Violence
Act 1995. These grounds are quite wide, and include psychological abuse as well as
physical violence. In addition, firearms licenses are automatically revoked when a final
protection order is made, and suspended on a temporary order. The making of a protection
orders should accordingly lead to disqualification.
Convictions for Violence and Firearms
Violence
While those who have convictions for violence are
unlikely to be suitable to possess firearms, it may be too blunt to disqualify a person
from possessing firearms upon any conviction for an offence of violence. Experience shows
that there are frequently mitigating and aggravating factors which differentiate between
offenders and offences, and there is a need to find a balance which provides as much
flexibility as possible while remaining practical.
A straightforward starting point is the group of offences defined as
"serious violent offences" in the Criminal Justice Act 1985, such as aggravated
robbery. There is a strong case for these offences to carry mandatory disqualification. An
equally strong case exists for violent offences involving firearms, and those which
involve family violence.
In the case of other violent offences, however, such as simple common
assault (which may be no more than a touching), it is quite possible that a person may
remain suitable to possess firearms despite a conviction. For this reason a conviction for
such an offence should carry a presumption of disqualification, but reserve a discretion
to the Court to permit the possession of firearms in appropriate circumstances. An
application to the Court should be less onerous in those cases where the Police support
(or at least do not oppose) the application, and the Courts should be encouraged to treat
such cases with appropriate expedition.
Breaches of the Arms Act
Many serious firearms offences are contained in the
Arms Act rather than in the Crimes Act, and it can be assumed that many of those convicted
of Arms Act offences will be unsuitable to possess firearms. Once again potential
exceptions would be those people convicted of minor offences, such as failing to notify a
change of address, who are in all other respects responsible firearms owners. As with the
less serious violent offences, there ought to be a presumption of disqualification for
those convicted of Arms Act offences carrying penalties of imprisonment, unless a Court is
satisfied that despite the conviction and taking into account the circumstances of the
licensee, he or she is suitable to possess firearms.
Convictions for Other Offences
Currently more than 65 percent of refusals are
influenced by driving offences involving alcohol, drug offences or long criminal records.
While these matters may be relevant to a person’s suitability to possess firearms, it
is not easy to devise any formula which defines with precision the nature of the
disqualifying characteristic. This points to the continued need for discretionary
provisions enabling refusal and revocation of licenses.
Poor Mental Health
This topic is dealt with in part 6.1.5, which
proposes the suspension of licenses upon the making of a Compulsory Treatment Order and
provides a procedure for lifting suspensions if and when the condition which led to the
making of the order has passed.
Alcohol or Substance Abuse
As with general convictions, the difficulty with
alcohol and substance abuse is that they are not easily susceptible of concrete
definition. Having said that, chronic alcohol or substance abuse are certainly factors
which may render a person unsuitable to possess a firearm. Again a discretionary provision
permitting the refusal or revocation of a firearms licence is the most satisfactory
solution, rather than a defined disqualification. The continued use of the
"unsuitable flag" also allows such matters to be recorded and taken into account
in any application for a firearms licence.
Unsafe Firearms Use
Although less serious than the above
characteristics, demonstrated unsafe behaviour with firearms would generally be of
sufficient concern to warrant a disqualification or revocation. However, the difficulties
in defining the disqualifying factor make it inappropriate to provide for automatic
disqualification.
Applications After the Disqualification Period
If disqualification periods are introduced, there
will be a need for a procedure to deal with the granting of licences after the expiry of
such periods. An application to the Court appears appropriate. As in the case of
applications for a "suitability declaration" it is possible that the Courts will
choose to treat as little more than formalities those applications which are positively
supported by the Police. However, the Act should make it clear that the expiry of a
disqualification period is not in itself evidence of suitability to possess a firearm.
The Unsuitable Flag
As described in part 5.1 the Police currently use
the unsuitable flag to record information about people who have not applied for a firearms
licence, but who through their actions have been judged potentially unsuitable to possess
firearms. This ensures that if a person so flagged applies for a licence, the relevant
information will come to the notice of the officer considering the application.
The continued use of the unsuitable flag, or an equivalent mechanism,
is a desirable way to fill the gaps which would still be left by an automatic
disqualification system.
Prohibited Persons Register
One submission which received some support, in
particular from the Sporting Shooters Association of New Zealand, was that a
"Prohibited Persons Register" (PPR) should be created, listing high-risk
persons. This measure was promoted as a stand-alone system capable of replacing both the
licensing of users and the registration of firearms. The Association stated:
[A] PPR conforms to that most important legal and constitutional tenet,
namely that citizens should be considered law-abiding and innocent until they demonstrate
by their behaviour that they are not, and thus warrant the attention of authority.
In order to implement such a system, it was suggested that legislation
be enacted prescribing the circumstances which warrant registry notification, but that
"as a guide":
[A]ll indictable convictions, all police attended cases of serious
domestic violence, all suicidal/homicidal and unstable mental cases diagnosed by medical
practitioners (referred to a specialist for confirmation of diagnostic assessment) and all
inmates of mental institutions, should be made notifiable to the PPR.
Although the system of disqualifications previously described goes some
way towards the concept of a prohibited persons register, it encompasses a narrower class
of persons than that envisaged by the SSANZ. With respect to the Association, the breadth
of its proposal presents practical difficulties which are probably insurmountable.
Further, for the reasons discussed in part 4, it is unrealistic to contend that such a
system could replace both licensing and registration.
Minimum Delay Periods
Several overseas jurisdictions have introduced minimum delay
periods, typically 14 or 28 days, between the receipt of applications for licenses or
permits and their issuing, to allow for a "cooling off", and to avoid impulse
buying by persons in an unbalanced mental or emotional state. These provisions were said
to have particular significance in avoiding access to firearms for the purposes of
suicide, commonly an impulsive action, particularly in the case of younger persons.
While the concept seemed sound, in practice the enquiries which precede
the grant of licenses in New Zealand already provide a longer de facto deferral than any
required by the special overseas provisions. In addition, none of the suicide cases in the
literature available to the Review instanced the purchase of a firearm for the purpose of
suicide. Enquiries of the Coroners in the three largest New Zealand cities disclosed that
none had any recollection of such a case. Further, such a provision would only be of
practical value when there would otherwise not have been a firearm available for that
purpose. There would be little point in delaying a second or third purchase.
For those reasons no recommendation is made.
n
Recommendations
10.1 That the new Firearms Act specifically require every applicant
for a firearms licence to produce evidence of:
a) satisfactory security arrangements; and
b) the successful completion of an approved course in firearms safety.
10.2 That the Firearms Authority endeavour to define, in consultation
with representatives of the Police, psychiatrists, firearms users and family violence
workers, a list of characteristics which are likely to make a person unsuitable to possess
firearms, such list to be used to guide the exercise of the discretionary powers to refuse
and revoke firearms licenses.
Disqualification Periods
11.1 That:
a) any person convicted of a "serious violent offence" be
disqualified from holding a firearms licence for five years;
b) any person convicted of a violent offence involving a firearm,
including the threatened use of a firearm, be disqualified from holding a firearms licence
for three years;
c) any person convicted of a violent offence against someone with whom
he or she is in a domestic relationship, within the meaning in the Domestic Violence Act
1995, be disqualified from holding a firearms licence for two years;
d) any person against whom a final protection order under the Domestic
Violence Act has been made be disqualified from holding a firearms licence for two years.
11.2 That:
a) any person convicted of a violent offence other than one in any of
the above categories be disqualified from holding a firearms licence for two years;
b) any person convicted of an offence against the Arms Act punishable
by imprisonment be disqualified from holding a firearms licence for three years¾
unless the Court declares the person to be suitable to hold a firearms
licence.
11.3 That in any case the expiration of a disqualification period not
in itself be taken as evidence that the person is suitable to possess a firearm.
Improving the Vetting Process
Effective exclusion of those who are unsuitable to
possess firearms depends on the availability of relevant information, both when a licence
application is first considered, and on an ongoing basis. As far as the initial
application is concerned, the current sources of information include:
Ÿ the Wanganui computer;
Ÿ the applicant himself or herself;
Ÿ the referee(s) provided by the
applicant;
Ÿ any independent referee(s);
Ÿ the opinions expressed by the
vetter; and
Ÿ local police intelligence.
Although these sources generally provide a reasonably good picture of
applicants, a number of improvements to current practice have been suggested. The Ministry
of Women’s Affairs and the Police Association both expressed concern that in some
circumstances the partner of an applicant may feel pressured if she is the only referee
consulted. In an abusive relationship such a partner could fear repercussions if it became
clear that her report had led to refusal of a firearms licence. For this reason it is
desirable that whenever possible two referees are consulted.
It was also suggested that the police family violence database and the
local women’s refuge should be consulted in every case. While the first of these
suggestions is capable of immediate introduction, the second will require further
investigation which has not been possible in the course of this Review. If an arrangement
which is suitable to both the refuges and the Police can be worked out, this would no
doubt be a helpful development.
Independent referees emerged from the analysis of refusal files as a
more reliable source of information than referees supplied by the applicants themselves.
There is no easy way to require the consultation of an independent referee. However, the
Police should be encouraged to locate independent referees whenever there is some doubt
about an applicant.
The ever-present possibility of rapid changes in health and emotional
stability mean that even after thorough vetting there is a need for information on an
ongoing basis. A shorter re-licensing period should ensure a more systematic
identification of unsuitable licensees. However there is still a need for a mechanism to
ensure that as far as is practical the Firearms Authority is in possession of the most up
to date information. This would be helped by procedures for automatic notification of
important disqualifying characteristics, and for action on the receipt of such
notification. Currently the Police are automatically notified of every protection order
under the Domestic Violence Act 1995 and a procedure is in place whereby police respond
appropriately to those involving firearms. There is a case for such notification to extend
to compulsory treatment orders (as to which see part 6.1.5 below). Consideration should
also be given to extending notification to convictions for violence and for breaches of
the Arms Act, so that appropriate action may be taken.
There is also scope for a procedure to ensure that every licensee who
changes address has the security checked at his or her new home. This may simply be an
extension of procedures to maintain the accuracy of address information.
n
Recommendations
12.1 That in all but exceptional cases two referees be consulted as
part of the vetting process.
12.2 That the police family violence database be consulted in relation
to each firearms licence applicant.
12.3 That the Firearms Authority confer with the National Collective of
Women’s Refuges as to the practicality of including a check with the local
women’s refuge in relation to each firearms licence applicant.
12.4 That in those cases where there are concerns about the suitability
of a firearms licence applicant, the Police endeavour to consult an independent referee.
12.5 That the Firearms Authority seek to develop a procedure for the
automatic notification of relevant convictions.
6.1.5 Reducing the risk of misuse by the mentally disordered
This is another area in which there were not merely
different views, but conflicting views, proceeding from different basic premises, which
need consideration.
Part 4.2, which considered "Conventional Methods of Control",
and "Reducing Availability to High-Risk Users", noted that:
Almost without exception gun control systems seek to limit the
availability of firearms to criminals, children and mental incompetents.
What was not noted there, but needs to be kept in mind, is that
controls over those not able through disability to exercise reasonable control are not
just for the benefit of the public at large, but also for those suffering from disability.
If examples are needed to support that contention they can be found in the two incidents
which most immediately led to this review, in each of which a man with a history of mental
disorder, who had obtained firearms and was firing them and clearly out of control, was
himself shot and killed by police officers. And statistically the greatest danger by far
arising from the mentally ill getting access to weapons is the risk of suicide.
The New Zealand arms code contains provisions specifically directed at
distancing criminals and children from firearms, but only indirect controls of the
mentally disabled. They are of course affected by the requirement that applicants
must be "fit and proper" persons. They may also be affected by s 60, which gives
the Police power, if they have reasonable grounds for believing that a person is "by
reason of physical or mental condition, however arising, incapable of having proper
control of [a] firearm", to enter and search premises and seize firearms.
The Police questioned the sufficiency of those provisions. Part 9 of
their May 1996 Review expressed concern about a perceived reluctance by doctors and other
health workers to give the Police information about patients "until it is too late
for remedial action to be taken". The Police attributed this reluctance in part to
concerns about privacy rules, and in part to concerns about doctor/patient confidentiality
and medical codes of ethics. They accordingly recommended:
Ÿ "That Principle 11, Privacy
Act 1993 be amended to allow a health professional to advise the Police of any patient who
that health professional believes on reasonable grounds, is no longer a fit and proper
person to be in possession of a firearm"; and
Ÿ "That Police and the
Department of Health work on establishing protocols to enable the sharing of information
regarding persons with a mental disability and their possession of firearms."
The public’s response to those recommendations, so far as this
could be gauged from the submissions received, was wholly supportive. Indeed, in the case
of some firearm user groups, the submissions went beyond mere support to the point of
contending that mental health problems were of central importance. The issues requiring
attention, these submissions said, were "not so much arms control problems as mental
health problems". Steps should first of all be taken to identify those who by reason
of mental disability constituted a risk to public safety, and then procedures introduced
to ensure they did not get a licence. Many submissions also referred to the changes in
mental health policy which have increased the numbers of mental health patients discharged
back into the community. They declared strong support for the views expressed in the Mason
Reports that, if the new policy were to be successful, more resources should be provided
for the support of those so discharged.
By contrast, mental health professionals challenged the assumption that
there is any relevant relationship between mental health and criminal violence. They also
said that, if such a relationship did exist, their professional expertise gave them only a
limited ability to identify in advance the high-risk individuals and to predict the
likelihood of their becoming violent. To those concerns the Privacy Commissioner added his
concern to avoid any undue or unnecessary publication, or retention, of mental health
information.
It is necessary to look first at present knowledge about the extent and
nature of any linkage between mental disorder and violent crime, for while it has long
been believed that the two are strongly inter-related, that view has been under attack by
mental health professionals for most of this century.
The most extensive recent research into this question is that being
carried out by a group led by Professor Monahan of Virginia University. Its work had by
last year proceeded to the stage of declaring support for the conclusion that a link does
exist, but at a modest level: "3 percent of the variance in violent behaviour in the
United States". Other findings reported were:
Ÿ that some major mental disorders
result in 11 to 13 percent greater than average violence, but others result in lower than
average violence;
Ÿ that, by contrast, alcoholic
addiction produces a 25 percent increase above average violence, and drug addiction an
average 35 percent increase (which suggests that an area requiring further consideration
when appropriate data are available may be the introduction of provisions authorising the
suspension or revocation of gun licenses on proof of alcohol or drug addiction); and
Ÿ that danger to others is related
more to current psychotic symptoms than to any static diagnosis of mental illness.
The combined effect of the weak linkage between mental disorder and
violence, the possibility of major fluctuations in risk over brief periods of time, and
the impracticability of achieving optimum levels of prediction save by examination over
several days by a qualified professional who has been able to gain the confidence of the
subject, has persuaded mental health professionals to discount the value of any general
requirement of professional testing of applicants for firearms licenses.
The question whether psychiatric or psychological assessments should be
made part of the licensing process was considered at length in the Cullen Report. The
Inquiry had closely examined the history, personality and conduct of Hamilton. This showed
him (in Lord Cullen’s words) to have been a scheming, obstinate, devious and
deceitful person, who could not be trusted. However the health professionals were agreed
that although Hamilton had suffered from a personality disorder, there was no evidence of
mental illness. Their evidence was summed up as follows:
Both Professor Cooke and Dr Baird expressed the view that it was
unlikely that any psychological or psychiatric examination of Thomas Hamilton would have
alerted the examiner to his dangerousness. Professor Cooke emphasised that extreme
violence was very rare and was virtually impossible to predict. A person assessing Thomas
Hamilton would probably not have regarded him as a high risk. Dr Baird pointed out that
the various actions and statements of Thomas Hamilton when taken together gave strong
suggestions as to what was being planned by him "but it is only after the event that
it has been possible for these all to be linked. Each on its own and at the time was
trivial and unremarkable".
An analysis which appears to have gained Lord Cullen’s support was
given by the English psychologist Mr Michael Yardley. He saw the most common
characteristic of serial killers as "social impotence". In his view:
[T]he average person today feels more isolated and alienated than ever
before as society becomes more centralised and less personal. The average position has
changed, so one may expect a shift in the whole normal distribution of human behaviour. On
one side of the curve one may expect ever more bizarre and aggressive behaviour. Unless
this fundamental problem is addressed—the problem of personal empowerment in mass
society—more Dunblanes and Hungerfords are not only possible but likely along with a
variety of less dramatic but equally destructive behaviour such as road rage and substance
abuse. The increasing use of guns by British criminals may also be connected with the
perceived empowerment/status achieved by firearm acquisition and use.
Lord Cullen’s conclusions about the relationship between mental
illness and violence, which closely match those of Professor Monahan’s group, were as
follows:
[T]here are significant limitations in what can be done to exclude
those who are unsuitable to have firearms and ammunition. There is no certain means of
ruling out the onset of a mental illness of a type which gives rise to danger; or of
identifying those whose personalities harbour dangerous propensities. On this ground alone
it is insufficient protection for the public merely to tackle the individual rather than
the gun.
It is against this consensus of opinion that the submissions urging
that better diagnosis and treatment of mental disorders are the key to gun control issues
must be assessed.
On the question of better diagnosis I am convinced, as was Lord Cullen,
that professional assessment of all applicants for firearms licenses is neither a
practical proposition nor likely to be effective if somehow the necessary professional
resources could be assembled.
The argument that mental health deserves more recognition as a factor
in gun crime is stronger in relation to mass killings than the other and far more numerous
gun homicides and gun-related crimes, for as a matter of commonsense one can say that
there will not be many mass killers who do not, with the benefit of hindsight, display
some form of mental abnormality. But even in the case of the mass killers, while such a
case may yet appear, there is so far no convincing evidence that routine psychiatric or
psychological examination would have avoided those tragedies. The Dunblane report
expressly so held in relation to Hamilton. The Police Complaints Authority reached a
similar conclusion in relation to David Gray.
The claims for the better support and treatment of those suffering from
mental disorders generally proceeded from stated beliefs that most recent mass killings,
and also the Radcliffe and Gellatly shootings, were examples of mentally disordered men
being allowed by an inadequate mental health system to gain possession of firearms they
were not competent to manage.
Brief details of recent mass killings are included in appendix 3
to this report. Those details do not support the belief that any significant number of the
mass killers had previously been in receipt of mental health care. To that extent the
predominant importance sought to be given to mental health issues is not justified. It is
however clear enough that mental issues do come up for consideration from time to time,
and indeed appear to have done so in each of the last three events listed in the appendix.
It cannot have been intended that this Review should make yet another
assessment of the merits and demerits of current mental health arrangements, and I have
noted the recent public announcements that additional resources are being made available
to provide assistance to mental patients in the community who are in need of it. That
being said, it cannot be doubted that further recognition of the need for support
identified in the Mason reports would assist the cause of gun control.
In any event, the conclusion that mental disorder is not of
significance in the general run of cases does not mean it may not be of major significance
in some cases. Nor does acceptance that mental health professionals cannot classify the
whole gamut of applicants for licenses into those likely to be affected by mental
disorder, and those who are not, mean that they do not from time to time observe patients
whose mental states clearly indicate that they are at the time unfit to possess firearms.
And while the number of such instances may not be large, the significance to public safety
of the formation of such a view means that a failure to disclose its existence is likely
to involve grave risk of serious consequences.
There is already precedent in New Zealand for imposing a duty on health
professionals to disclose information considered to bear directly on public safety.
Section 45a of the Transport (Vehicle and Driver Registration and Licensing) Act 1986
directs that any doctor or optometrist who forms the opinion that a patient’s mental
or physical condition is such that "in the interests of public safety the [patient]
should not be permitted to drive" shall give written notice to the licensing
authority of that opinion and the grounds for it. The section then provides that persons
who give such notice in good faith shall not thereby incur any civil or professional
liability.
Enquiries were made of the Land Transport Safety Authority regarding
the extent to which that provision is used, and the proportion of notices which are given
on mental health grounds. The Authority advised that examination of a sample of the past
two years’ notices suggested that about 11 percent of the 400 to 500 notices received
each year were given for "psychiatric" reasons. That proportion closely
approximated the proportion of revocations of firearms licenses made by the Police for
"mental health" grounds, as disclosed by the examination of revocation files for
the purposes of this Review. The total numbers of revocations presently run at between 500
and 600 a year. It is reasonable to infer from those figures that, while mental disorders
are far from the most important factor in arms control, they are sufficiently important to
justify action to remove unnecessary impediments to the flow of relevant information from
the mental health area to the arms control authorities.
Enquiries about the Australian firearms reforms revealed that proposals
to introduce into the arms control area a mandatory compulsory disclosure regime similar
to that contained in s 45a, by defining risk factors which would trigger the
obligation to make disclosure, were abandoned in favour of provisions which support the
making of voluntary disclosures by health professionals and declare that they shall not be
liable to any penalty for doing so.
Most States already had legislation along those lines, but a meeting of
their Police Ministers on 11 April 1997 endorsed a form of model legislation which it
asked the States to introduce as part of the objective of obtaining uniform gun laws
countrywide. A copy of their resolution is attached as appendix 4.
Armed with that background knowledge, I sought from those organisations
most directly interested in such issues in this country agreement to the introduction of
similar legislation in New Zealand.
I also suggested that consideration be given to ensuring that arms
controllers get advice of the making of Compulsory Treatment Orders (CTOs) under the
Mental Health (Compulsory Assessment and Treatment) Act 1992 and that such orders operate
to suspend any firearms licence held by the person concerned. There is no present protocol
ensuring that the Police obtain advice of the making of a CTO, although such orders must
be strong evidence that the licensee is at the time incapable of having proper control.
These suggestions produced mixed responses. As to the first, the
Privacy Commissioner agreed that statutory protection should be provided in a suitable
voluntary disclosure regime, but sought to limit the ambit of the provision from
"health professionals" to a narrower category, such as medical practitioners and
registered nurses. As to the second, he asked that consideration be given to limiting the
holding of information about CTOs where those had expired or been lifted.
The Ministry of Health thought it "reasonable, if not
desirable", to permit voluntary disclosure by a clinician, but opposed mandatory
disclosure. It considered that the Privacy Code’s "serious and imminent
danger" threshold for disclosure might be too high. It favoured the development of
protocols by the Ministry in cooperation with the Police and professional bodies.
The Mental Health Commission contended that legislation "targeting
disclosure of information regarding people with
a mental illness" was neither necessary or desirable. It suggested that s 22c of the
Health Act 1956 and Privacy Principle 11 are sufficient to meet the Police’s needs.
If this were not so, it contended, the position might be rectified by legislation (the
Whistleblowers Protection Bill), recently under consideration. The Commission expressed
"less objection" to the CTO proposal, provided the Police were required to use
that information only for the purposes of arms licensing and the suspension could be
lifted when the mental condition underlying the CTO no longer existed. It opposed police
and health authorities developing protocols, and thought it "infinitely more
preferable for medical professionals to receive information about individuals holding
firearms license [sic], than it is for the Police receiving information about the
mentally ill".
The Medical Association, when asked whether there were any provisions
in its Code of Ethics bearing on the issues, initially advised that it did not think so. A
second inquiry, made following press publicity that a medical practitioner who had
answered a police inquiry about the fitness of one of his patients had been disciplined by
the Medical Disciplinary Committee, produced advice that that decision had been made
pursuant to Rule 10 of the Association’s Code of Ethics, which declares the
patient’s right to have information derived from him kept in confidence and divulged
only with the patient’s permission except when the law requires otherwise.
No other views on the proposed reforms were received.
The above history in my view confirms the present absence of any common
position on the issues as between the different mental health professionals, and justifies
police concerns that without clear legislative direction the present poor level of
communication of relevant mental health information will continue.
On the voluntary disclosure issue I would accordingly support an
amendment to the Arms Act generally along the lines of the Australian model legislation
but with an additional requirement that the disclosure be made not only bona fide, but for
reasonable grounds. I do not accept that present legislation meets the position. I do
accept, of course, that if legislation concerning disclosure of medical information is
enacted which covers the special position of the mentally disabled, it would be
unnecessary for special legislation to be further considered.
On the second proposed reform, it is my view that no sufficient reason
has been shown against the Police receiving advice of the making of CTOs, or against
orders effecting an immediate suspension of arms licences. There is a case for a further
provision whereby the suspension could be lifted upon the licensee establishing that the
condition underlying the making of the order no longer operated and that he or she was
again capable of having proper control of firearms. As the order would only have been made
upon the advice of a "responsible clinician", it would seem appropriate to
provide that fitness could be established by a certificate to that effect by the clinician
concerned.
The disclosures authorised by such reforms would be significantly less
extensive than those mandated in the case of motor vehicles by s 45a. It is at least
arguable that the public interest is as much affected by unfitness on the part of a
firearms licensee as it is by unfitness on the part of a licensed driver. I accept,
however, that the arguments which persuaded the Australians that clear parameters for the
conditions which would trigger a mandatory reporting system were likely to be settled only
after further research and professional collaboration must apply equally in New Zealand.
That circumstance alone would justify support for the second police proposal, that they
continue to work with the relevant professional bodies "on establishing protocols to
enable the sharing of information regarding persons with a mental disability and their
possession of firearms".
There is one further area in which some advance on current practices
may be possible and should receive consideration.
Included in the material provided from Australia for the purposes of
this Review were reports on a project undertaken by the Victorian Police following a
series of shootings by police of persons later found to be suffering from mental disorders
under the title Project Beacon. Six out of nine people shot by police in Victoria in 1994
fell into that category. As a result over the next year 8,657 police officers underwent a
five-day course designed to enhance their skills in dealing with violent, or potentially
violent, situations. A review of the programme, dated November 1996, reported a
significant reduction in police shootings, and strong support from within the Victorian
Police force for the continuance of the programme.
I am informed that our police have some knowledge of the Victorian
programme. It must be desirable that its possible application in New Zealand be carefully
considered.
n
Recommendations
13.1 That the new Firearms Act include provisions:
a) permitting voluntary disclosure by health professionals, generally
along the lines of the model legislation recently approved by the APMC, but in addition
requiring that any opinion so disclosed be formed "on reasonable grounds"; and
b) directing that the making of a Compulsory Treatment Order under s 28
of the Mental Health (Compulsory Assessment and Treatment) Act 1992 be notified to the
Police forthwith and have the effect of suspending any firearms licence during the
continuance of the order, such suspension to be lifted on proof that the condition
underlying the making of the order no longer exists and that the person concerned is again
a suitable person to possess a firearm, and that in considering suitability for the
purpose of that procedure consideration be given to the certificate of a "responsible
clinician".
13.2 That within six months the Police:
a) take appropriate steps to set up, in collaboration with the Ministry
of Health and other governmental and professional organisations involved in the mental
health system, a working party to establish protocols to enable the sharing of information
regarding persons with a mental health problem who have possession of or access to
firearms; and
b) consider introducing a training programme for police along the lines
of that introduced in the State of Victoria as Project Beacon.
6.2 Promoting Responsible Attitudes to Gun Use
and Ownership
6.2.1 Combined registration and licensing system
The 1982 Case for Abandoning Registration
The steps which led to the abandonment of
registration of individual firearms in 1983 are described in part 2.2.
The submissions to this Review included a considerable number of
statements by shooters questioning the wisdom of that decision. The extent of this
uncertainty was confirmed by the DAOs, who reported that most shooters could not
understand why particulars of their weapons were not recorded.
However the case for abandonment made in the McCallum paper still
deserves careful consideration, and would have been much more persuasive in 1982. It was
based on five propositions:
Ÿ the mechanical difficulties of
converting the existing corrupt and incomplete records into an accurate register were
beyond the resources available to the Police;
Ÿ shooters were unlikely to comply
with the obligations involved in registration in sufficient numbers to make the system
effective;
Ÿ registration would not assist
crime prevention or detection;
Ÿ a licensing system with more
intensive vetting would provide adequate arms control; and
Ÿ the cost of a registration system
would be very high, and the money could be better spent on other essential police duties.
The Practicality of Establishing a
Registration Database
In 1982 the difficulty of converting the paper-based
registers of the time, which were spread through 16 district offices and riddled with
error, must indeed have been daunting. Even today there will be mechanical problems
setting up an adequate register. One of the more intractable is the identification of
individual firearms. However, this is a problem common to all jurisdictions, which has
received considerable attention both in Canada and Australia in the past two years. The
basic options are known and are being worked through. Both countries are aiming for
simple, modern, cost-effective systems which will provide shooters, dealers and arms
controllers with on-line access to all licensing and registration data. They have also
been working with a UN committee endeavouring to agree a template for the unique
identification of individual firearms which would have international application. Any New
Zealand system should await progress with those investigations, which are expected to be
completed within a year. Although New Zealand conditions may make some variation on any
UN-approved system appropriate, the central problem must at least be similar in all three
Commonwealth countries. Certainly any registration system which can operate efficiently
countrywide in Canada should provide a useful base for an effective system here.
Recent difficulties with public sector databases show the need for due
caution in setting up even as relatively simple a system as that which would be required.
But the successful establishment of more complex databases in a variety of fields over the
years since 1982 removes any question that mechanical difficulties can be overcome,
provided use is made of overseas experience and the new systems are not introduced until
all appropriate checks and tests have been carried out.
Obtaining Compliance
Obtaining a sufficient degree of compliance must
still be a central concern.
Those whose general aversion to arms control led them to a particular
dislike of the concept of registration have, here as abroad, asserted that any attempt to
introduce registration of firearms will be met by massive non-compliance. Similar
assertions were made as emphatically in Australia prior to the Australian reforms. It was
of interest to find in Australia that most of those who had opposed the reforms, and still
expressed doubts about their wisdom, were publicly accepting an obligation to comply. The
submissions I have received give no ground for anticipating a different response from New
Zealand shooters provided the new scheme and the manner of its introduction are made as
user-friendly as possible. The Western Australian experience, discussed later, at the
least shows that registration systems can work, and can achieve appropriate compliance
rates.
Benefits of Registration to Crime
Prevention and Detection
Although the 1982 Police Report concluded that
"[t]here is no evidence to suggest there is any relationship between the registration
of firearms and their control", and appendix R to the report noted that in none of a
series of nine cases of homicide in 1981 had the existence of a register assisted the
police, it also listed 16 cases from the preceding ten years in which the old registers,
poor though they were, had assisted in apprehending offenders.
The report’s authors were aware that in the United Kingdom
Greenwood’s studies had led him to the firm view, which he reported to the 1981
Wellington Symposium, that registration had no value for crime control. In 1994 an
Australian study by Mason and Herlihy discussed Greenwood’s study and an earlier
Australian study by Fine. It concluded that registration had proved "a valuable
investigative tool" for the Australian Police, and supported this by reference to
specific cases drawn from different Australian States during the period 1981 to 1992,
finally concluding that "examples currently available of effective use of a
registration system even when it is administratively clumsy and reputedly operating at
less than maximum efficiency¾ indicate that the conclusions of
Greenwood (1972) and Fine (1988) are probably now outdated".
Another benefit sometimes attributed to the availability of a firearms
index is that it would give additional information to police called to domestic violence
situations. Once again, some benefit might ensue, but it is likely that in most cases the
most accurate information would be that given by the complainant.
In my view the Mason and Herlihy study and the New Zealand studies
which preceded the 1983 Act establish that registration, even at the relatively
ineffective levels so far achieved either in Australia or New Zealand, can provide
assistance to the police in their front-line duties, but at a low level. Mason and Herlihy
contended that a comprehensive, efficient and accessible registration index would provide
greater benefits. That seems likely. However, at this time there is insufficient evidence
to conclude that the assistance which registration would provide to crime prevention and
detection would in itself support the costs involved in establishing it.
Sufficiency of Licensing Controls
Experience since 1983 has shown that, while personal
vetting is a useful and necessary part of any arms control system, it cannot effectively
eliminate the unfit at the time of vetting, nor provide predictions which will ensure that
changes in fitness will be identified before they have led to misuse. It is this fact
which led Lord Cullen to conclude, in the passage previously cited, that "it is
insufficient protection for the public merely to tackle the individual rather than the
gun".
Experience since 1982 has shown that the expectation at that time that
"plac[ing] the responsibility of safe firearms use squarely on the shoulders of the
user" cannot be achieved by licensing alone. Further, continuance with a
licensing-only system would necessarily involve acceptance of substantial limitations on
the controlling authority’s ability to achieve control, and in particular:
Ÿ An inability to know who has what.
The Auckland Police reported a few years ago a burglary of an Onehunga residence
containing over 400 Class A firearms. The law placed the owner under no obligation to tell
the Police of his collection.
Ÿ An inability to ensure that
dispositions of firearms are made only to authorised licensees. The purchases from
advertisements in Trade & Exchange reported in part 2.3 emphasise the need for
tighter control over dispositions.
Ÿ The absence of incentives to
develop more general acceptance of the personal responsibility which should be associated
with firearm ownership and possession. Registration would make it possible for the Police
to trace the origins of guns used in crime which are later recovered, and check how they
reached the criminal. This in turn should increase appreciation by gun owners of the need
to maintain security. It is believed that gun theft is under-reported when the theft was
facilitated by non-observance of security conditions. It would also be helpful to be able
to check that licensees who do not renew their licences no longer have any firearms in
their possession.
Ÿ The loss of the benefits which
registration would provide to crime prevention and detection, and to police engaged in
domestic violence investigations. While those benefits are unlikely to be of such
magnitude as in themselves to justify registration, they can be important in a limited
number of cases.
Ÿ The absence of information needed
to formulate gun control policy and to keep policy in tune with changing circumstances.
It must also be of some significance in considering the question
whether New Zealand should return to a mixed licensing/registration system that
international opinion now seeks to identify registration of firearms as one of five basic
characteristics of adequate firearms control systems (see part 4.4).
Cost
The 1982 paper estimated the hours which would be
involved in validating a register, but did not convert these into dollars. The May 1996
Review made two estimates, one putting the cost of registration at "between $8M and
$16M", and a second at "a minimum of $20M".
A costing exercise for firearm-specific licensing at three-year
intervals was undertaken by Coopers & Lybrand at my request. That exercise estimated
that the annual costs of such a system would average $7.3M per annum more than the present
system for the first six years, or $4.5M per annum more than the cost of the present
system plus the May 1996 enhancements, but that the annual cost would stabilise thereafter
at a similar level to the current cost.
In addition there would be approximately $10M in one-off establishment
costs. In Coopers & Lybrand’s estimation the "significant infra-structure
investment … [required] to deliver the improved functionality" would add
approximately $51M to current costs, or $31M more than the cost of the enhanced, still
"licence only", alternative proposed by the May 1996 Review.
Those estimates can only be indicative as it was impossible to define
precisely the relevant numbers of firearms or transactions, or to foresee accurately which
aspects of the possible reforms might be approved for implementation. However, taken as
indicative costings they do assist in considering the relative cost-benefit of system
reforms as contrasted with other possible reforms, such as buy-backs. In that context I
have little doubt that the expenditure of an additional $31M to establish firearm-specific
licensing on a three-year cycle would be likely to produce substantially greater benefits
for New Zealand society than the expenditure of $13M on the buy-back of 20,000 centrefire
semi-automatics, plus $35M on the buy-back of 45,000 semi-automatic and pump-action
shotguns, which operations would diminish the total national armoury by no more than 7 to
8 percent.
Moreover, it is important to note at this stage that of the total $31M
the registration component is said by Coopers & Lybrand to be "modest"— of the order of $2M per annum for the first seven years. Most
of the additional $31M cost comes from increasing the frequency of licensing. It is
reasonably clear that ten-year licensing is not effective by reason of its failure to deal
adequately with changes in address, dispositions, deaths not notified, and changes in
fitness between the licensing and renewal dates. All those factors point strongly towards
a shorter term of licence. The maximum practicable term appears to be five years, but a
much preferred maximum term would be three.
It follows that on current estimates the cost factor cannot be decisive
on the question whether or not to reinstate registration of individual firearms.
In the final result, although the case made against continuing with
registration of firearms seemed powerful in 1982, it appears much less persuasive in the
light of the changes which have occurred since. These include not only the major advances
in information technology, but also the changes in the public attitude towards gun
controls, which must bear on the likelihood of achieving an appropriate rate of compliance
with a combined licensing/registration system.
The Western Australian Example
The most attractive, and apparently the most
successful, overseas firearm control system of those for which particulars are available
to the Review, both in terms of its effect on levels of gun crime (see part 2.4) and its
acceptance by gun users, is that used in Western Australia. This combines the following:
1. Annual licensing.
2. A requirement that every firearms licence specify the particular
firearms which the licensee is entitled to use.
3. A requirement that persons who wish to use a firearm not noted on
their licence must apply for the notation of the additional firearm on the licence, or
obtain a temporary permit, which can be provided for a period not exceeding three months.
4. An exemption in favour of the employees and families of primary
producers in relation to the use of firearms for pest control or farming purposes.
5. A provision for "corporate licences" to be held by
approved governmental agencies or corporations, allowing them to possess the firearms
identified in their licences and to permit named employees or agents to use those firearms
for specified purposes and in specified places.
This system is conveniently described as a "firearm-specific
licensing system". It is the second and third of the five listed characteristics
which provide its special character.
In Western Australia, licensing in that form goes back to 1973, and
licensing in simpler forms to 1931. I was advised that the present situation had developed
in a pragmatic way rather than in response to particular events or to the adoption of some
new firearms control policy.
A firearm-specific system requires conscious consideration by gun
owners of the use which may be made of their weapons. This was demonstrated in two
different ways.
The total number of licences in Western Australia is 113,000, covering
270,000 firearms. (As the State population is 1.2 million, this represents a rate of gun
ownership within the parameters previously suggested for New Zealand’s gun
ownership). There are no fewer than 49,000 joint registrations in which two or more people
have been nominated and licensed as persons authorised to use a particular firearm.
The second procedure which indicates a heightened sense of
responsibility on the part of owners (and a sound relationship between the Police and the
shooters) is that under which owners can store their firearms at police stations for a
modest fee. The guns are taken into the local station in the first instance, but
transferred to police armouries if the proposed storage period warrants that action.
Licensees who are going on holiday, or have particular concerns about the custody of their
firearms (as for example if a member of the household has demonstrated suicidal
tendencies) can take advantage of this arrangement. The advice in the AGB McNair survey,
that on average there are 1.8 users of each New Zealand firearm, suggests that joint
registration could also have a place in New Zealand. It is an arrangement having some
similarity with the provision for nominated drivers which is an accepted part of motor
vehicle insurance in this country.
Speakers at a Perth Firearms Symposium in 1981 cited Western Australian
firearms controls as an example of bureaucratic excess which should be corrected. However,
such information as I was able to gather in Western Australia, not only from the Police
but also from others interested in firearms control in that State, suggested a relatively
harmonious relationship between arms control officers and user groups. Despite the
strictness of its arms control arrangements they include such further user-friendly
features as swift pro-cessing of licence and permit applications and registration of
dispositions, and a system of reminders to licensees who are late with applications for
renewal. This last feature has kept the number of prosecutions for licensing/registration
defaults at very low levels.
Accepting that this end result may be due as much to the gradual
establishment of a culture of responsible gun ownership as to the nature of the
State’s arms control laws, those arrangements must have assisted in developing the
present level of responsibility.
Apart from those basic features of the Western Australian model, there
could be advantages to New Zealand in adapting its primary produce exemption and corporate
licence provisions to our conditions. It is anomalous that our system still does not
recognise the corporate character of much of our modern state.
Assisting the Re-Introduction of
Registration
No doubt the setting up of an equivalent system in
New Zealand would be affected by the special difficulties of introducing "yet another
system" to a community of shooters who have become accustomed to minimal controls. It
follows that, if such a system is to achieve an appropriately high rate of compliance, its
introduction must involve as little effort and expense to shooters as can be arranged.
One respect in which a useful saving of effort on the part of shooters
should be attainable would be by reducing the present three-stage dealings to two. At
present the acquisition of a firearm which must be registered involves:
Ÿ obtaining a permit to acquire from
an arms office;
Ÿ purchasing the firearm, generally
from a dealer; and
Ÿ returning with the firearm and the
permit to the arms office.
It should be considered whether the third step is necessary, and
whether an obligation could not be placed upon dealers, who are already under obligations
to record all sales, to give notice of individual sales to the Firearms Authority, perhaps
by returning an endorsed copy of the permit. The registrar could then forward appropriate
certificates to the dealer and purchaser.
Decisions on the manner of implementation of any new scheme and how its
cost is to be borne will have an important bearing on the degree of compliance with, and
accordingly the overall benefits of, such a scheme. For unless a compliance rate of not
less than 90 percent can be achieved, the benefits derived from registration would be
significantly reduced.
Shooters were angered when the lifetime licences which it had been
agreed in 1983 should be the basis of licensing were required by the 1992 Amendment to be
handed in and replaced by ten-year licences, for which shooters had to pay an additional
fee. Numbers of shooters still express feelings of injustice at that change. A concern has
to be that those shooters still aggrieved about losing their lifetime licences in 1992 may
be sufficiently aggrieved by a further reduction in their privileges, particularly if they
are again required again to pay for the rearrangement, that they decide not to comply with
the new regime in the numbers necessary to make it effective. If the Government considers
the benefits likely to flow from the proposed rearrangement warrant its introduction, it
should in my view be prepared to carry the cost of the reconstruction and limit the
application of user-pays to maintaining the new system after its establishment.
Australia has chosen to spend $A500M of taxpayers’ money on its
gun reforms. Most of this is being spent on a buy-back of the total range of
semi-automatic and self-loading firearms, of both small and large calibres. Only quite
small parts of the total sum are being applied to set up the new licensing/registration
systems.
If, as is proposed in this report, New Zealand undertakes a more
focused and selective banning and buy-back, the total cost of that operation and
establishing new systems should be able to be carried out at a relatively lower cost than
that accepted in Australia, even including provision for a higher standard of monitoring
and enforcement of the new scheme than the Australians have provided in their planning.
The new system should be introduced in a staged fashion to avoid peaks
and troughs in the work-load. It would be appropriate to introduce one-third of the new
licenses in each of three consecutive years, and would also be convenient to accelerate
re-licensing in the case of persons still holding a 1992-style licence who wish to acquire
a further firearm. They could be required to register and re-licence at that point.
It is gratifying to note that submissions from many firearms users
indicated support for the registration of firearms. By contrast, some users see
registration as simply a precursor to the confiscation of firearms¾
a Trojan horse for the eventual banning of guns. This fear is indicative of a distrust of
the government which reinforces the need to ensure that shooters are involved in the
administration of any new system, and that whatever form that administration takes, a
relationship of trust is developed as the basis for future progress.
Summary
The fact that a number of people with considerable
experience of firearms control have opposed and still oppose the re-introduction of
registration makes it desirable to restate the central conclusions of this section in
brief form.
First, the reasons which led to the abandonment of firearm registration
in 1983 no longer present compelling obstacles in 1997. Not only have technology and
methods of administration moved forward since then, but experience has shown that the
alternative of total reliance on personal vetting does not meet the reasonable needs of
our society.
Second, the benefits of a well-run registration system should be
sufficient to justify the estimated additional cost of $2M per annum. The principal
benefit would be greater personal responsibility for firearms. Each firearm owner would
know that he or she was responsible and accountable for those firearms listed on his or
her licence. If he or she wanted to allow others the use of those firearms, other than
under direct supervision, this would require a joint registration or a temporary permit.
Any firearm stolen or used in crime, and later recovered, could be traced to the owner.
Selling or lending a firearm to an unlicensed person would carry with it a risk of
detection much greater than under the present system.
Registration would also provide more information about firearm
ownership for management and policy decision-making, assistance in solving crimes, and
better protection for front-line police when attending incidents involving firearms.
If this new system is to succeed it will be essential that an adequate
level of compliance is achieved¾ and 90 percent should be the
minimum target. Considerable energy and commitment will be needed to achieve this.
Measures to that end should include:
Ÿ modern, efficient and
user-friendly management (see part 6.4);
Ÿ government funding of the
establishment costs;
Ÿ the involvement of firearms users
in the planning processes (see part 7);
Ÿ technical systems to enhance the
integrity of the data; and
Ÿ effective publicity and
educational programmes (see part 6.3.7).
n
Recommendations
14.1 That the present licensing system be replaced by a combined
licensing/registration system based upon three-year firearm-specific licenses, the new
system to be introduced over three years, commencing on 1 July 1999.
14.2 That after the introduction of the new system any person who
wishes to acquire a firearm and who still holds a 1992 licence be required to re-register
under the new system.
Deaths of Licensees
A particular defect in the present licensing system
is the absence of adequate provision to ensure that deaths of licensees are notified to
the arms authorities so that the register of licences can be corrected and steps taken to
ensure that the licensees’ firearms do not pass into the hands of persons not
authorised to possess them.
The only provisions in the present code which bear on this issue are:
Ÿ section 43 of the Arms Act 1983,
which requires persons who "sell or supply" a firearm to satisfy themselves that
the purchaser is the "holder of a firearms licence"; and
Ÿ regulation 18 of the Arms
Regulations 1992, which provides that:
Where the holder of a firearms licence in respect of a pistol, military
style semi-automatic firearm, or restricted weapon dies, the personal representative of
the holder of the firearms licence or any other person who obtains possession of the
pistol, military style semi-automatic firearm, or restricted weapon, shall forthwith
notify the Police of:
a) The death; and
b) The location of the pistol, military style semi-automatic firearm,
or restricted weapon.
The DAOs advised that the obligations created by reg 18 are generally
observed by the families of B (pistol) and E (MSSA) endorsees and that this enables them
to correct the B and E registers and ensure that the relevant firearms are surrendered or
transferred into appropriate custody. By contrast, the absence of any provision requiring
notification by A licensees, who comprise 95 percent of the total pool, together with the
effective abandonment of a pre-1983 practice under which DAOs were expected to read death
notices and try to check the disposition of deceased licensees’ firearms, has meant
that only a small proportion of deaths of A licensees become known to the DAOs.
On those occasions when trustees or family members do advise the DAOs
that an A licensee has died, the DAOs’ usual practice has been to ask what is being
done with the estate’s firearms, and to accept any assurance that they have gone or
will go into proper hands without further check or enquiry. No instance was reported of
any physical check on the security that would be provided by the recipient of the
firearms.
Inquiries were made from solicitors and trustee companies in Auckland
who had recently obtained grants of administration of the estates of 47 firearms
licensees. They disclosed that:
Ÿ only one had made a practice of
inquiring about the existence of a licence for firearms¾
firearms were generally regarded as part of the deceased’s chattels to be disposed of
by the trustees according to any directions given them by the deceased;
Ÿ most thought the issue deserved
more attention than it had previously received; and
Ÿ there is a wide variety of views
about the appropriate response¾ the least intrusive was the
suggestion that notification by the New Zealand Law Society and others of the need for
inquiries would ensure that these were made in the future, the most radical proposed that
the obligations in reg 18 be extended to A licensees.
Approximately 3,000 to 4,000 people who have held licences die each
year. It is not known what proportion of these still possessed firearms at the date of
their death. Informal inquiries suggest that many, perhaps most, would no longer have had
firearms. It is likely that that proportion would increase if licensing were (as is
proposed) a three-yearly event involving the payment of fees on each renewal. However,
without some protocol which ensures that the arms authorities are notified of deaths of
licensees it is likely that the record will deteriorate at the rate of 1,000 to 2,000
entries per annum and that considerable numbers of persons who have neither the authority
of an appropriate licence, nor appropriate security arrangements, will take over the
deceaseds’ firearms.
The nature of an appropriate response must take into account the
frequency of licensing. Its importance if licensing continues to be a ten-yearly event
would be much greater than if licences were renewed more frequently. If a ten-year licence
continues, there will be a clear case to extend the obligation in reg 18 to A licensees.
In that event it would be reasonable to allow say six months for notification instead of
requiring notification "forthwith", but to specify that evidence of transfer to
a named licensee with a current licence number should accompany notification, or that the
firearms should then be surrendered to the Police or a licensed dealer. If the proposal
for three-yearly licensing is approved, the problem will be much less. It might then be
sufficient to restrict mandatory notification to the holders of endorsed licences, but
seek the assistance of the New Zealand Law Society and the trustee companies in developing
some new practice rule aimed at supporting the basic obligation not to dispose of firearms
to unauthorised persons. This could take the form of a practice note adding to the
inquiries already made by persons administering estates a further inquiry concerning the
holding by the deceased of a firearms licence or firearms.
The language both of s 43 and of reg 18 is awkward and should be
reconsidered as part of the redrafting of the firearms code recommended in part 6.2.5. The
obligation in s 43 should be to ensure "that the purchaser is the holder of an appropriate
firearms licence". Regulation 18 leaves uncertain which of the persons named has
primary responsibility. It is also open to question whether both provisions should not be
in statutory form.
n
Recommendation
15 That further provision be made for notification of the death of
licensees, this to take into account the length of licenses under any new system.
6.2.2 Training of shooters
It has already been observed that the work of the
Mountain Safety Council and its large band of volunteers in training applicants for
licences in safe firearms methods has long been one of the strengths of the present system
of arms control. More recently the Open Polytechnic of New Zealand in Wellington has
offered a course which, for a fee, provides training in firearms law and safety. Both
institutions have done a commendable job of administering their training programmes as
presently structured, and have undoubtedly reduced the number of accidental deaths and
injuries which would have occurred without such programmes.
Looking to the future there are two options which appear to offer some
potential for improvement in the training of new shooters. These are the introduction of a
practical component to training, and an investigation into the possible role of
polytechnics in providing an infrastructure to support this. Both developments have been
shown to work successfully in South Australia, where the TAFE network (the equivalent to
the polytechnics in New Zealand) operates a number of successful firearms safety courses.
In the New Zealand situation both options should, if possible, build on the strengths of
the current system.
In South Australia the basic firearms safety course consists of four
hours of theory and two hours of practical instruction, each assessed. In addition there
are specific courses for semi-automatic firearms and firearms collectors, as well as
vocational programmes (for those who use firearms in employment) and an instructor
accreditation programme. The cost of the basic course is $A94 to the user, which allows
full cost-recovery for the Institute. The practical component of the course covers both
rifles and shotguns and emphasises safety over target accuracy, although a certain
standard of accuracy is required for a pass. Since the introduction of the course in 1993,
South Australia has observed a reduction in hospital admissions for gunshot injuries and a
major reduction in fatal gunshot accidents. Although it cannot be proved that the
improvement in firearm accident results has been caused by the practical training
programme, these results are encouraging.
The advantages of using the TAFE network relate principally to the
infrastructure they provide. These benefits apply both to the instructors and the
students, as well as providing accountability and quality assurance. According to the
coordinator of the programme in South Australia, the benefits include:
Ÿ contracts of employment for
instructors;
Ÿ professionally trained and
accredited instructors;
Ÿ work-cover and indemnity for
instructors;
Ÿ professional accountability of
instructors;
Ÿ pre-existing student management
system;
Ÿ indemnity for participants;
Ÿ equitable fee structure;
Ÿ maintenance of teaching standards
across South Australia;
Ÿ impartiality from vested club
interests whilst retaining extensive club involvement;
Ÿ broad coverage of almost the
entire State; and
Ÿ special provisions for remote
areas (correspondence and distance learning).
If such a model is to be applied in New Zealand, it is highly desirable
that those many enthusiasts currently engaged in voluntary training for the Mountain
Safety Council be encouraged to become instructors for the new courses. As the list above
suggests, not only would this mean that the instructors would be paid, they would also
enjoy the protection of employment contracts and indemnity through their employer.
The apparent success of the South Australian model and the fact that it
is presently being considered by other States for their training programmes must warrant
consideration by an appropriate committee in this country, including representatives of
the Firearms Authority, Mountain Safety Council, police, shooting organisations and the
Association of Polytechnics in New Zealand, reporting to the Firearms Authority, with the
task of examining the practicality of establishing a safety course providing both
theoretical and practical training and using the South Australian system as a model. The
committee may be assisted by obtaining the results of the business of the working party
established in Australia following the APMC agreement of 10 May 1996 to investigate the
adoption of a model similar to that in South Australia for the entire country.
n
Recommendation
16 That a steering committee be formed, including representatives of
the Firearms Authority, Police, Mountain Safety Council, Association of Polytechnics in
New Zealand, and shooting groups to develop an approved syllabus and delivery method for a
firearms safety course, which would include a practical training component.
6.2.3 Sanctions for the misuse of firearms
One in five of the submissions received from the
public favoured tougher penalties. Numbers proposed that mandatory sentences, commonly for
four years, be imposed for the use of firearms for criminal purposes, and be cumulative
upon penalties appropriate to the offences for which the firearm was used.
Similar arguments have been put forward on many other occasions in many
other countries. They are unlikely to be silenced, partly because they have an obvious
appeal to the law-abiding shooter who has accepted the cost and inconvenience of gun
controls and wants a greater share of the pain to be born by those who have not done so,
and partly because it is not possible to prove or disprove deterrence in any clear and
conclusive manner. At the best one has to talk in terms of probabilities.
However, at that level the following can be said.
Ÿ In general increased penalties
have little deterrent effect. The most recent New Zealand findings on this point are in
the publication Trends in Reported Crime in New Zealand which concluded that
increased severity of punishment had not shown any deterrent effect over the period 1979
to 1995 for any class of offending.
Ÿ Studies of the particular
significance of increased penalties in the case of arms offences give little support for
any different conclusion. The nearest thing to support came from the last in a series of
studies of the effect of mandatory sentences for arms offences made by Colin Loftin and
his associates at the University of Maryland over the period 1981 to 1992. Separate
studies of six cities had found no discernible deterrent effect from mandatory sentencing
but the last report found that by combining the results of all six studies a case could be
made for a reduction in gun homicide, though not in gun robberies or gun assaults.
A particular difficulty facing arguments for additional penalties for
firearms offences is the need to ensure that a criminal is not punished so harshly for
carrying a gun that the additional penalty he risks if he injures or kills his victim is
relatively small.
All in all, however appealing the case for mandatory sentences for
firearm offences may be, offering as they appear to do a means of reducing gun violence at
moderate cost to the public and no inconvenience to lawful gun users, there is a clear
preponderance of informed opinion against their producing the desired result, and no
evidence of moment the other way.
Some submissions also contended that insufficient use is being made by
the Courts of existing sentencing powers. It proved difficult to obtain statistics
concerning the length of sentences for firearm offences, but some statistics were obtained
of sentences for four types of arms offences in 1983, 1987 and 1995. So far as they went
they showed a slight upwards trend in effective penalties, but these remaining well within
the statutory limits.
It may have been that, had the Courts been informed of the increased
volume of such offending, the sentencing would have been different. The prevalence of a
particular type of offending is a factor bearing on penalty, and there has been little
information available to sentencers about the frequency of firearms crime.
Certainly the increases in 1987 and 1992 of the penalties for breach of
s 95 (carrying or possession of a firearm save for lawful proper and sufficient purpose),
which took them from imprisonment for up to three months and a fine not exceeding $1,000,
to imprisonment for up to four years and a fine not exceeding $5,000, have given the
Courts adequate power to impose penalties appropriate to the nature of that offending.
Two areas which do require attention are the present absence of any
penalty (short of revocation of the licence) for breach of conditions of security in
firearms licences, and the need to introduce new offences for breach of the obligations
arising from the combined licensing/registration system if the proposals for introduction
of registration of firearms are adopted. In the first case, penalties by way of instant
fines may be appropriate for first offences. In the second case, if the registration
regime is to obtain the necessary level of compliance, significant penalties must be
provided.
n
Recommendations
17 That the new Firearms Act create offences for:
a) the breach of any security provision in a firearms licence; and
b) the breach of the obligations created by any combined
licensing/registration system
¾ and provide a range of penalties
appropriate to the seriousness of such offending.
6.2.4 Media portrayal of firearm violence
It was commonly asserted in submissions that
excessive media attention to violence and excessive exposure to violence in movies and
television should be recognised as a principal cause of violent behaviour, and of gun
violence in particular.
Overseas research into the relationship between media violence and
actual violence stops short of any such straightforward conclusion.
A review of recent international research, which pays particular
attention to Australian studies, is that published last year by the Australian Institute
of Criminology. Its conclusion is that the research to date has been able to
"identify an association between exposure to violence in entertainment and violent
behaviour, but [does] not prove that exposure causes violent behaviour".
The paper then identified the two most significant variables in
determining the extent of the impact of media violence as:
Ÿ the age of the viewer, children
being most affected; and
Ÿ the context in which the violence
is portrayed, as to which it suggested a need to educate young people to discriminate
between fantasy and reality, and between justified and unjustified violence.
As to the second of these the paper suggested that:
This could take a similar format to traditional literature classes, or
drug and sex education classes, as it is another part of modern life which can be
potentially damaging if approached with a lack of relevant knowledge. Education such as
this is already occurring in Canada …
The paper also reports concerns about the concentrated attention given
to shootings by newscasters, and notes cases which may have been imitation or
"copycat" actions.
In this country too, "researchers argue about causality, while
policy makers search for some evidence which will form the basis for sound policy
decisions". It is a topic which is already monitored by the Broadcasting Standards
Authority, and no doubt will continue to be. However, while it would be difficult to
dispute the Australian conclusion that media portrayal of violence has some relationship
to actual violence, or the view that media attention to firearm crime is at a level which
must cause some concern, there is no basis in the material before me which would justify
my making any specific recommendation at this time.
6.2.5 Clear and comprehensible law
It was noted in part 5.2 that the 1983 Act is:
[I]n itself difficult to construe, and its construction is certainly
not helped by the circumstance that the 1992 Amendment was clearly compiled in haste and
relates uneasily to the principal Act.
The Act was written before the advent of plain language drafting, and
is structured in a way which does not assist the reader to understand its scheme or the
location of the key sections. In contrast, many of the new Australian Acts are simple,
logical and well-structured, and take advantage of modern drafting techniques to increase
the accessibility of the law.
The New Zealand Act frequently uses archaic language, for example s 36
provides:
No person shall carry a pistol or restricted weapon in any place beyond
the curtilage of his dwelling, save under and in accordance with the conditions endorsed
on his firearms licence by a member of the Police.
Leaving aside the fact that many women hold firearms licenses, the
term "curtilage" is no longer in common usage, and even the word
"dwelling" is not often heard in common speech.
Many sections in the Act leave important points unclear. For example it
is not obvious whether someone whose licence has been revoked may continue to use firearms
under supervision. Nor is it clear whether it is legal to use an MSSA under supervision,
although the preferable interpretation seems to be that this is not permitted¾ even if the MSSA is used by an A or B endorsement holder on a
shooting range. This aspect of the law has been interpreted in different ways by different
police districts.
The Police did what they could to overcome these problems by including
in the Arms Code, a safety manual compiled with assistance from the Mountain Safety
Council, a statement of basic points of firearms law in simple language. No doubt most
shooters turn first to the Code or to fellow shooters or dealers for advice about
the law rather than reading the Acts and Regulations themselves.
However, the Code, as it specifically recognises, is not a
complete statement of the law. Readers are advised that this can be obtained from the
local arms office. Not surprisingly, numbers of shooters have expressed concern to me that
when inquiries were made, they received different advice from different officers.
Even if major reform is not made at this time, there is a need for the
legislation to be rewritten in modern form to overcome the present shortcomings of the
legislation. If major reforms are to be made, it must be even more important that these be
made part of a new Act and that they not simply add another layer of complexity to what is
already complex and obscure legislation.
n
Recommendation
18.1 That the Arms Act 1983 and Arms Amendment Act 1992 be repealed and
replaced with a new Firearms Act.
18.2 That the new statute be drafted in plain language with the goal of
making the law in relation to firearms as clear and accessible as possible.
6.3 Additional Proposed Reforms
6.3.1 Airguns
For the purpose of the following discussion the term
"airguns" is used to encompass air rifles, airguns and air pistols.
In para 10.2 of the May 1996 Review the authors described five
"main features" of the proposed Australian reforms and supported only the fifth,
the requirement that:
Air rifles require a licence and air pistols can only be held on a
handgun licence.
The reasons for that proposal were stated as follows:
High powered air guns are now available, some of which have the
velocity of a .22. In addition air pistols have been used in robberies and other criminal
acts. There is currently no requirement the owners of such weapons to have a firearms
licence. It is also believed that persons who have been refused a firearms licence are
buying such weapons.
It is not known how many airguns there are in New Zealand. The most
detailed study of the topic is in Appendix A to the 1982 police report, which advised:
It is impossible to estimate with any degree of accuracy the number of
airguns in New Zealand at present but it is safe to assume it would be in the hundreds of
thousands. The only measure available is statistics provided by the Customs Department
which outlines the number of airguns imported into this country since 1978. On average
approximately 10,000 airguns are imported each year.
Since that date airguns have continued to be imported at the rate of
approximately 11,000 per annum, but any calculation of their total numbers must be
affected by their relatively short life.
A significant development in recent years has been an increase in the
numbers of high-powered airguns, some of which are capable of causing significant injury
at distances of up to 50 metres, though very few have even 25 percent of the power of .22
rimfire rifles. High-powered air rifles are being increasingly used for pest control in
suburban and "10 acre block" situations where the use of .22 rifles or shotguns
would be inappropriate.
The current legal provisions governing possession of airguns are in s
21 of the 1983 Act which provides that:
No person shall have an airgun in his possession unless¾
a) He is of or over the age of 18 years; or
b) He is between 16 years and 18 years of age and is the holder of a
firearms licence.
However, s 28(3) excludes "specially dangerous airguns" which
are airguns declared by the Governor General by Order in Council to be specially
dangerous, and thereby become "firearms" requiring licensing.
A useful examination of the extent of injuries caused by airguns in New
Zealand over the period 1979 to 1992 was published in 1996 by the Injury Prevention
Research Unit at the Otago Medical School. Its results and conclusions are accurately
summarised in the headnote as follows:
Results¾ There were 718 airgun
related injuries resulting in 1.56 injuries/100,000 population/year. Males and 10- 14 year olds had higher than average rates of injury. The majority
of the incidents were unintentional. There has been a marked decline in injury rates since
1989.
Conclusions¾ Airgun injuries, while not
as serious as powder firearm injuries, account for a significant personal and societal
burden. The results suggest that strategies aimed at controlling these injuries,
especially those pertaining to children, are in need of review.
The report showed the rate of airgun injuries falling from 1.9 per
100,000 population in 1979 to 1.1 in 1992. Unfortunately later statistics were not
available to the IPRU, nor to me. It is desirable that this information gap be filled, as
any action to be taken in respect of airguns must be affected by the question whether or
not what was already quite a modest rate of injury has or has not fallen further since
1992.
The authors noted that half the injuries involved children under 15
years, from which they inferred:
[E]ither supervision of persons under 18 has been inadequate, or …
persons over 18 have been discharging airguns in an irresponsible manner, or both.
There is sufficient anecdotal evidence of quite young children using
airguns without any supervision to support the first of the IPRU’s inferences. Indeed
it is likely that many New Zealand children have their first experience of gun use in
circumstances outside the law, by using airguns in the company of young contemporaries and
completely without adult supervision. It may be desirable to recognise that fact.
A major dealer in airguns advised that most are sold to adults for use
by children. This appears to be merely the continuation of a long-standing practice. Back
in 1981 the Police found that 278 permits to procure airguns had been issued for over
11,000 airguns imported. It was concluded that older people were buying the airguns for
younger friends or family.
The UK air rifle provisions require a licence for airguns whose
projectiles have kinetic energy in excess of 12ft lb (or in the case of air pistols 6ft
lb). It has been suggested that airguns with muzzle velocities higher than the following
be treated as firearms:
Ÿ .177 calibre 1,000 feet per second
and over;
Ÿ .20 calibre 900 feet per second
and over;
Ÿ .22 calibre 900 feet per second
and over; and
Ÿ .25 calibre 800 feet per second
and over.
Whether or not that formula is appropriate to modern armaments and
circumstances should be the subject of consideration by a firearms technical committee.
Wherever the appropriate level may be, it would be logical to specify a limit beyond which
an airgun would be classified as a firearm, in addition to retaining the present
discretion to declare a particular airgun specially dangerous to cover any future
developments in this class of weapon.
If those amendments are made it is difficult to see a sufficient case
for bringing the majority of lower-powered airguns within the proposed
licensing/registration system, especially if regard is had to the large numbers without
serial numbers or other identifying characteristics. The proposal for compulsory licensing
of all airguns is accordingly not supported.
There is nevertheless a case for some arrangement which would encourage
more responsible control and use of airguns. This should commence by recognising that the
use of low-powered airguns by 14 year olds is a high probability, and permit this, subject
to conditions designed to encourage safe use.
Two alternative arrangements deserve further consideration:
Ÿ Requiring vendors of airguns to
deliver to each purchaser a safety brochure, of the type already prepared for other
purposes by the Mountain Safety Council, setting out basic safety rules in language
appropriate for juvenile users, and obtaining an undertaking from the purchaser that no
child under the age of 14 will be permitted to use the airgun except under direct
supervision and that the purchaser will ensure that any child 14 or over permitted to use
the airgun will first be instructed in its proper use and required to read and study the
safety brochure provided.
Ÿ A system be devised for granting
junior licences to the users of airguns aged between 14 and 18 years, requiring their
completion of a junior licence application, their attendance at a safety course structured
for that purpose, and the carrying of a junior licence certificate. Such an arrangement
would be a more formalised and educational version of the old permit to acquire procedure.
It would not carry with it any registration obligation, nor involve any renewal.
n
Recommendations
19.1 That the discretion controlling specially dangerous airguns
presently contained in s 4 of the Arms Act 1983 be retained, but in addition an
appropriate level be fixed above which high powered airguns be classified as firearms.
19.2 That less powerful airguns not be classified as firearms.
19.3 That the minimum age for the use of low-powered airguns be reduced
to 14 years, but that the minimum age for the purchase of such guns remain at 18 years.
19.4 That provision be made for either:
a) requiring vendors of airguns to deliver to purchasers a safety
brochure and to obtain an undertaking from the purchaser that no child under the age of 14
will be permitted to use the airgun except under direct adult supervision, and that any
child aged 14 or over given control of the airgun will first be instructed in its proper
use and be required to read and study the safety brochure; or
b) a "junior licence" category for persons 14 years and over
who wish to use airguns.
6.3.2 Controls on imitation firearms
The potential for misuse of imitation or
"toy" firearms arising from their threatening potential has been recognised by
the Arms Act controls on imitation firearms. The Act defines an "imitation
firearm" as:
[A]nything that has the appearance of being a firearm capable of
discharging any shot, bullet, missile, or other projectile, whether or not it is capable
of discharging any shot, bullet or missile, or other projectile.
That definition is wider than that of "replicas", which
feature in Australian and some other overseas arms codes.
Toys
These are imitation weapons designed
specifically for play. An American study undertaken in 1990 suggested that market forces
and responsible manufacturers were reducing the degree to which toy guns resembled genuine
firearms. Similarly, there is some suggestion that there has been a move amongst New
Zealand retailers away from stocking realistic toy guns following the Aramoana incident in
1992. Notwithstanding these changes, realistic imitation guns have remained in
retailers’ inventories and in the possession of many who bought the toys before the
manufacturing changes went into effect. Visits by Review staff to a number of toy stores
confirmed that most toy guns are easily distinguishable from real firearms, being made of
either transparent or brightly coloured plastic. There are however a number of Smith and
Wesson style toys on the market, made of black or brown diecast metal, which could be
mistaken for genuine firearms.
Airguns
The subject of airguns has been dealt with in part
6.3.1. Several models of these guns, which "transgress the toy gun and real gun
distinction", are manufactured to look like real firearms. Of particular concern, due
to their realistic appearance are soft-air guns, and some BB and pellet pistols.
The Size of the Problem in New Zealand
The use of imitation pistols in robbery is
relatively common. The study conducted by Reece Walters is expected to indicate a
relatively high use of imitations and toys by juveniles, who are committing an increasing
proportion of aggravated robberies.
Although there is evidence that imitation firearms are used in robbery
it is not currently known what categories of imitation are most frequently used, and such
information is desirable before any assessment is made of the need for further controls.
Penalties
Penalties for the misuse of imitation firearms are
included within both the Crimes Act 1961 and the Arms Act 1983. Among the principal
provisions are:
Ÿ section 235 of the Crimes Act,
which provides a penalty of up to 14 years’ imprisonment for aggravated robbery,
irrespective of whether any firearm used is real or an imitation;
Ÿ section 46 of the Arms Act, which
provides for imprisonment of up to two years and a $4,000 fine for carrying an imitation
firearm except for lawful, proper and sufficient purpose, and places the onus on the
defendant to prove the existence of such a purpose;
Ÿ section 54 of the Arms Act, which
provides substantial terms of imprisonment for using an imitation firearm with intent to
resist arrest, or for possessing such an imitation firearm at the time of committing an
offence punishable by imprisonment for a term of three years or more;
Ÿ section 55 of the Arms Act, which
provides up to five years’ imprisonment for carrying an imitation firearm with
criminal intent.
These penalties, which are generally as great as those for the use of
real firearms, sufficiently recognise the hazard arising from criminal misuse of
imitations or replicas, and there is no present need for further penalties.
Controls on Importation and Manufacture
The remaining question is whether any steps should
be taken to limit the manufacture or importation of imitations. One suggestion which
deserves consideration is that manufacturers and retailers be restricted from selling
replicas and imitations unless these are sufficiently dissimilar to genuine firearms.
This option has been trialed in the United States, where the
involvement of imitation firearms in crimes and confrontations with police prompted
federal legislation requiring that toy guns have a "blaze orange" marking. As
part of that legislation, Congress funded a study into the number of incidents involving
imitation guns and the effectiveness of the marking requirements. Care must of course be
taken in applying US experience to the New Zealand context because of our vastly different
circumstances and levels of gun crime. That said, the US study included useful
observations as to the effectiveness of coloured markings in distinguishing imitation
firearms from the real thing. The legislation provided that
"… each toy, look-alike or imitation firearm shall have as an integral part,
permanently affixed, a blaze orange plug inserted in the barrel of each toy". This
was found to be insufficient to distinguish the toys from real guns for a number of
reasons. One was the ease of altering coloured markings by painting the toy or removing
coloured appendages. Moreover, police doubted whether coloured markings would be
sufficient to dispel the belief that the weapon brandished was a real firearm, because of
the threat inherent in "armed" incidents.
This raises the question whether citizens or police should attempt to
distinguish imitations from genuine firearms in such situations. Evidence from the US
study suggests that even when imitations brandished during encounters appeared to be toys,
victims did not feel assured that the guns were not real, and were sufficiently fearful to
comply with the offenders’ demands. There is a considerable risk involved in making a
distinction during an ostensibly armed encounter. For this reason police in the United
States are trained to assume that all weapons are real. This issue is further complicated
by the practice of colouring the front sights on real firearms as an aid to aiming them.
For these reasons the colouring of imitations will not be enough to
distinguish them from genuine firearms. Rather, a more dramatic alteration to the
configuration of these guns which would eliminate the possibility of confusion with real
guns would be required. Such a restriction would probably completely close the market for
toy guns, as an imitation which bears no resemblance to the real thing is no imitation at
all.
The extent of penalties provided for the criminal misuse of imitations
and the difficulty of formulating effective additional measures point against any positive
recommendation. As far as toys are concerned, it is likely that changing public attitudes
will in themselves maintain the trend of decreasing consumer demand for toy guns.
6.3.3 Controls on the sale of ammunition
A number of submissions argued for the use of
controls over the purchase of ammunition as a less intrusive and more effective method of
limiting the misuse of firearms than controls over the firearms themselves.
While the relative anonymity of ammunition, and its transferability,
prevent effective control by such methods, those circumstances do not prevent control over
ammunition purchase from having a useful part in overall gun control.
If a firearm-specific licensing system is established, there would be
advantages, in limiting purchases of ammunition to that appropriate to the firearms
covered by the licence. Such a restriction would be aided by the introduction of
electronic licence checks at dealers’ premises (as to which see part 6.3.7). This
restriction would place one further hurdle in the way of unauthorised shooters seeking to
obtain ammunition through the agency of a licensed friend or associate.
n
Recommendation
20 That purchases of ammunition be limited to those types of
ammunition appropriate to the firearms licensed to the purchaser.
6.3.4 Limiting the size of collections
In 1981 Harding noted that:
Firearms can be valuable investment items; indeed, this aspect of
firearms ownership is significantly increasing.
The recollection of senior arms officers is that before the 1983 Act
created a special C endorsement for collectors there was only a small group of a few
hundred people unofficially regarded as collectors. By 1989 their numbers had grown to
2,626 and by 1996 to 2,980. The largest single collection known to the Police was said to
number approximately 500. Numbers of other collectors were said to have between 200 and
300 firearms. Forsyth’s 1981 study advised that in 1973 a sample group of 39
collectors had between them about 1,300 firearms, or approximately 33 firearms per
collector.
Enquiries from the representatives of collectors’ organisations at
hearings produced advice, tendered on a "rough estimate only" basis, that the
average member’s collection was likely to be about 30 firearms. As that estimate
would have put approximately 10 percent of all firearms in the hands of the collectors the
Police were requested to check the numbers of firearms held by 100 C endorsees selected at
random. This check disclosed that they held 2,338 firearms, or effectively an average of
23.3 firearms each, 55 percent of those being rifles, and a further 33 percent being
handguns.
If that result were extrapolated over the whole group, and there is no
reason for thinking the sample atypical, this would mean that collectors among them hold
approximately 70,000 firearms, ie. between 7 to 10 percent of the national armoury.
Because of the effective abandonment by 1989 of the keeping of records
of firearm burglaries and thefts, the latest estimate of thefts from collectors is in a
report completed by Commissioner Jamieson in 1989 which advised that in the period 1986 to
1989 collectors lost 73 pistols and four restricted weapons in nine burglaries. One of
those burglaries resulted in the loss of 34 ordinary rifles, one SLR, five pistols and one
machine gun.
The Police have expressed increasing concern at the growth of
collections and the risks they represent as sources of firearms for criminal use. This
concern was stated in appendix I to the May 1996 Review as follows:
Subject to an endorsement the Act permits private individuals who
aspire to collect firearms such as pistols, restricted weapons and combat rifles to make a
collection. If he appears to be "bona fide" there are no grounds to stop him yet
he [sic] social value of this is questionable and the security risks in large
collections of modern weapons are appreciable. There are now too many of that type of
collection. Aspiring applicants for a collectors endorsement are required to state their
interest, i.e. what type of firearm they are collecting or intend to collect, e.g. pre
1920 Remington revolvers. They thereby meet the requirement to be bona fide collectors.
Many collectors however seem to have an obsession with modern weaponry and once the
endorsement is given they extend their range towards more recent models and before long
some private collectors accumulate large collections of state of the art mass produced
weaponry. This is not what the collectors endorsement was intended for. Therefore the
Police propose to redefine "collection" to include only "collectable"
weapons, i.e. those having historical interest, of unusual mechanism, design or beauty, or
those that are rare or old etc. Modern and mass produced weapons will be excluded.
Those proposals were hotly contested by the New Zealand Antique Arms
Association and the International Military Arms Society and by a considerable number of
individual collectors. They argue that the question what is "collectable" is in
the end a subjective one; that a person who wishes to collect examples of a particular
type of firearm should be able to collect recent as well as earlier examples of it; and
that older weapons (for example from 1900) in good order are as lethal as modern weapons.
The principal arguments for permitting collection are that:
Ÿ it provides a recreation and form
of investment which has proved a major interest for some thousands of people and in itself
causes no harm to anyone;
Ÿ collectors have provided a means
of recovering into the system guns which would otherwise have stayed outside the system¾ it is not possible to check the merits of that contention, but it
is a view supported by a number of police officers who have experience of the arms
business, and also by a number of experienced dealers who say that collectors operate a
second and relatively informal market, seldom purchase from dealers, and actively seek out
specimens to fill their collections; and
Ÿ if the class C endorsement were
discontinued those who wanted to continue collecting, and were prepared to meet the
additional costs, could do so by becoming dealers.
Clearly a continued proliferation of sizeable collections cannot be
accepted unless security proportionate to the risk involved in such collections is
provided. However, that is proposed in part 6.1.3.
Although there is only anecdotal evidence of restricted weapons being
test-fired by collectors, it would have been sufficient to require consideration of
stricter controls over such weapons in their hands. However, if the recommendation in part
6.1.1 that restricted weapons be deactivated is accepted that would answer that concern.
If both those amendments are approved, the remaining risk involved in
collections (and no security can entirely eliminate risk) should be offset by the
advantages which collectors provide as an informal agency bringing into the system
firearms which would otherwise remain outside it.
n
Recommendations
21.1 That, provided Recommendations 2 and 9 are approved, no
restriction be placed on the size of firearms collections.
21.2 That, if those recommendations are not approved, the role and
purpose of C endorsements be reconsidered.
6.3.5 Amendments proposed by NZ Customs Service
The Customs Service took the occasion of the Review
to seek in all 12 amendments to those portions of the present code which affect the
Service.
Several of those amendments were minor alterations designed to avoid
difficulties in the language of the code as presently drafted. Since it is a principal
recommendation of this Review that the present legislation be redrafted in plain language,
and in a form comprehensible to those who may wish to use the code, those technical
proposals are not further discussed.
Putting those aside there remain five proposed amendments of a more
substantial nature which do call for consideration, and these are now considered in turn.
Definition of "New Zealand" for the purposes of determining
the occurrence of importation
Section 16 makes it an offence to import firearms or
parts of firearms without a permit and provides that:
In this section "New Zealand" does not include the harbours
and other territorial waters of New Zealand
By contrast to s 2 of the Customs and Excise Act 1996 defines "New
Zealand" as:
[T]he territory enclosed by the outer limits of the territorial sea of
New Zealand (as described in section 3 of the Territorial Sea and Exclusive Economic Zone
Act 1977)
The effect is that firearms which remain on board a ship or a yacht,
even though this be moored against a wharf, are outside arms control. A further effect is
that firearms are placed in an entirely different category, in terms of importation, from
drugs, which are within the general provisions of the Customs and Excise Act 1996.
It is an unsatisfactory limitation of police and Customs control of
firearms from our domestic point of view that no immediate steps can be taken to seize and
remove firearms discovered on the inspection of a vessel in New Zealand territorial
waters. It is also unsatisfactory, from the point of view of meeting New Zealand’s
obligation to assist in preventing international trafficking in firearms, that when
Customs or the Police have information of a shipment of firearms believed to be intended
for illegal importation into a friendly country they can take no steps to intervene and
remove these weapons from a ship in New Zealand waters.
The request by the Customs Service that the Arms Act provisions be
aligned with the Customs and Excise Act provisions is accordingly supported.
Ships and Yachts
The current practice is that Customs request
overseas ships and yachts to declare whether or not they carry firearms. In the case of
ships, firearms which are declared are locked in the master’s safe or other secure
place during the ship’s stay in New Zealand, and in most cases the safe or store is
sealed with a Customs seal. In the case of visiting yachts the master or other person in
charge is asked to surrender the firearms for safe keeping by the Police while the yacht
is in New Zealand waters. Police return the firearms when the yacht leaves New Zealand.
That action is taken to ensure that they are stored in a secure area and not landed and
sold illegally, or stolen, while the yacht is in New Zealand.
If s 16 is amended to include harbours and territorial waters in the
term "New Zealand", it will be necessary to make some provision which will
ensure that ships and yachts do not commit an offence merely by entering territorial
waters with firearms on board. The amendment discussed with the officer who appeared in
support of the Service’s application was as follows:
Nothing in s 16 of this Act makes it an offence to import a firearm
where such importation is¾
(a) made by the arrival of a ship in New Zealand territorial waters
from a point outside New Zealand; and
(b) such firearms are included in an Inwards Report made in accordance
with s 26 Customs and Excise Act 1996: and either¾
(i) remain secured on that ship in the place and manner directed by a
customs officer or member of the Police; or
(ii) are removed to a place of security in accordance with s 141(b)
Customs and Excise Act 1996.
There will be a recommendation that a further amendment be made to s 16
in those general terms, the precise nature of which should be settled as part of the
drafting of a new Firearms Act.
Seizure of Firearms
The Customs Service suggested a further amendment
under which the provisions of the Customs and Excise Act as to seizure and forfeiture
should be made to apply to seizures under s 19 of the Arms Act.
The two statutes have separate codes as to seizure and forfeiture. In
my view the proposed amendment would create a real risk of conflict between those two
codes. In the absence of any evidence of practical difficulties arising from the present
provisions, I am not prepared to support this proposal.
Controls over Importation of Ammunition
The Customs Service advises that there is currently
no restriction on the importation of small arms ammunition, although the supply or sale of
it directly or by mail order is restricted to licence holders and dealers by s 43a and s
43b of the Arms Act.
Occasions have arisen where firearms have been detained because no
permit to import has been granted, but the accompanying ammunition has been released
because of the lack of available controls. The Service suggests that this is a plain
anomaly, which is no doubt correct. It next suggests that it might be appropriate to
prohibit the importation of ammunition except by the holder of a firearms licence or by a
licensed firearm dealer.
It is at least doubtful whether any such provision would be effective
to remove the anomaly which the Service has identified. The anomaly would be overcome by
amending s 16 to require permits for all imports of ammunition. That, however, would
create a considerable amount of additional paperwork and cost for police and for dealers
to overcome a problem which appears to have caused very limited practical difficulty.
Granted that the present situation is anomalous, I am not prepared to recommend an
amendment which may cause more disadvantage than the advantage gained by removing the
anomaly. There will be an opportunity for the Service to suggest to the appropriate Select
Committee an alternative amendment, if it can devise one.
Proposed Amendment to s 3(2)(a)
This provision allows members of the Police and
Armed Forces and employees of the Institute of Environment Health and Forensic Sciences
Limited to carry or be in the possession of firearms during the course of their duties. It
was suggested that this section should be extended to include customs officers, as this
would authorise Customs officers to transport and store firearms which they have detained
or received.
It may well be that the authority which is sought is already implied in
the powers of seizure granted to the Customs Service, but there can be no objection to
putting the question beyond doubt, and the proposal is accordingly supported.
n
Recommendations
22.1 That the new Firearms Act incorporate the present effect of s
16 of the Arms Act 1983 after deleting s 16(2) and adding a proviso to the following
effect:
"Nothing in s 16 of this Act makes it an offence to import a
firearm where—
a) such importation is made by the arrival of a vessel in New Zealand
territorial waters from a point outside New Zealand; and
b) all firearms are included in an Inwards Report made in accordance
with s 26 Customs and Excise Act 1996; and either
i) remain secured on that vessel in a place and manner directed by a
customs officer or member of the Police; or
ii) are removed to a place of security in accordance with s 141(b)
Customs and Excise Act 1996."
¾ with consequential amendments to the
legislation by including in the definition clause the following definitions:
"Importation" means the arrival in New Zealand of a firearm
or part of a firearm in any manner whatever, whether lawfully or unlawfully, from a point
outside New Zealand; and "to import" and "imported" have corresponding
meanings.
"Ship" means a vessel used in navigation not being a vessel
propelled only by oars; and includes a hovercraft or submarine.
22.2 That the new Firearms Act incorporate the present effect of
s 3(2)(a) of the Arms Act 1983 with the additional words:
"(v) An officer or agent of the New Zealand Customs Service."
6.3.6 Importation of undesirable weapons
In 1990 the Commissioner of Police purported to ban
the importation of all MSSAs, relying upon s 18(1)(b) of the 1983 Act which provided that
any member of the Police might refuse to grant a permit to import firearms with respect to
any firearm. Section 18(2) provided that, without limiting the discretion conferred by ss
(1)(b), no application for a permit in respect of a pistol or restricted weapon should be
granted otherwise than by the Commissioner who should satisfy himself that there were
special reasons why the weapon to which the application related should be allowed into New
Zealand.
In Practical Shooting v Police the High Court held that the
Commissioner was not entitled in effect to widen the category of restricted weapons by
imposing an absolute ban on some class of weapon. The Court observed:
If Parliament wishes the commissioner to have the power absolutely to
ban the entry of certain firearms into New Zealand, whether they be restricted or
non-restricted, Parliament should now give the commissioner that power in clear terms or
itself legislate for such a ban.
The legislature responded by enacting a special code for MSSAs in the
1992 Amendment Act. At the same time it amended s 18 by extending the discretion to cover
the importation of parts of firearms as well as the firearms themselves and by giving the
Commissioner specific powers to control the importation of MSSAs, but not otherwise
materially altering the nature of the Police’s discretion to refuse a permit for
"any other firearms".
The May 1996 Review asks that:
[T]he Act be amended to allow the Commissioner of Police to refuse the
importation of undesirable firearm types except where a "special reason" can be
shown.
The explanation given for that request was that:
Currently the Commissioner of Police has the authority to refuse a
permit to import a specific firearm that is considered undesirable. While there is
authority for the Commissioner to ban specific firearms, the same cannot be said of
firearm types.
Such weapon types that should be banned include shotguns with a barrel
less than a certain length, firearms that discharge a bullet of a size greater than .50
calibre, and "bullpup" firearms of any type.
It is considered that the Commissioner should have the power to refuse
the importation of undesirable firearm types except where a person can show a special
reason. Special reason could be defined at a high level ie, "a truly exceptional and
compelling need".
That explanation created a wave of objections, especially from the
Black Powder gun enthusiasts who shoot large-calibre muzzle-loading weapons which are for
the most part replicas of nineteenth-century firearms. Those weapons are at the opposite
end of the scale of lethality from MSSAs, and it is difficult to found a case for banning
or even restricting their use on any special risk they might pose to the public.
There was accordingly an understandable concern that giving the
Commissioner power to determine when a firearm was "undesirable" could produce
an arbitrary result. I am sympathetic to that view.
The power sought by the Commissioner must only be required to avoid the
importation into this country of weapons which could, given time, be added to the category
of restricted weapons by Order in Council.
If the Commissioner were given the power to refuse the importation of
"specially dangerous" weapons except when the applicant were able to show
a special need which could not reasonably be met save by the use of such a weapon, that
should meet his concerns and avoid the problems foreseen by the objectors.
n
Recommendation
23 That the new Firearms Act provide the Commissioner with a
discretion to refuse the importation of any specially dangerous weapon unless the
applicant for the permit can show a need which cannot reasonably be met save by the use of
such a weapon.
6.3.7 Communication with the public, and the use of technology
Effective communication with the public, and in particular with
firearms owners, will be an important task for the new Firearms Authority. Similarly, the
Authority should make use of modern technology to increase both its customer service and
overall levels of effectiveness.
Publicity Campaigns
It would be desirable for the new Authority to
manage a range of publicity and educational campaigns on an ongoing basis. These could
take many forms, and their precise nature would need to be worked out by the Authority in
consultation with professionals. It would, however, be appropriate for publicity to be
targeted towards, among other things:
Ÿ increasing public awareness of
firearms laws;
Ÿ encouraging compliance with the
firearms buy-back, and with licensing and registration requirements;
Ÿ encouraging safe firearms-handling
practice;
Ÿ informing medical practitioners of
their powers to disclose information to the Firearms Authority; and
Ÿ complementing suicide and family
violence campaigns.
Specific campaigns could be targeted to younger users, "reluctant
compliers" and other appropriate groups. It would be desirable for the Authority to
monitor and track the response of target audiences to its publicity material.
Toll-Free Number and Internet Home Page
The provision of a free-call service and an internet
home page would each assist the Authority to enable easy public access to information
about the new law and the Authority. The Australian and Canadian reforms have both been
presented to the public on the internet, and home pages are provided by organisations as
diverse as the Sporting Shooters Association, the Coalition for Gun Control and
"Dunblane Against Guns". Toll-free telephone lines have also been provided in
Australia and Canada to help inform people about the new laws.
Once the Firearms Authority was established, there would be a
continuing need to provide shooters, dealers and the public with up to date information
about the law and other matters such as the licence status of individuals. For example it
would be desirable to enable the seller of a firearm to check via a free-call line (as
well as by sighting the licence) whether the purchaser of his or her firearm was licensed
before transferring possession of the firearm. Such a service could also enable callers to
check whether a particular firearm had been reported stolen. An internet home page would
allow up to date information of a more general nature to be conveyed.
The Use of Technology
New technology has the potential to benefit both the
Firearms Authority and firearms users in a number of ways. For the Authority, a computer
database would obviously be necessary to maintain the register of licensees and firearms,
and such a database would ideally interface with others, for example a
"template" database to verify firearm details. In addition, technology may be
used in several ways to enable better customer service and overall effectiveness in the
work of the Firearms Authority. Two such options are:
Ÿ on-line checks of licence details;
and
Ÿ the imaging of file documents.
On-Line Licence Checks
The Authority may wish to consider linking firearms
dealers to its licensing and registration system electronically. Such a link, plus the
addition of a magnetic strip to the firearms licence, could allow:
Ÿ dealers to check the current
licence status of each customer with the swipe of a card;
Ÿ the confirmation of a
licensee’s address at each visit to a dealer;
Ÿ dealers to restrict ammunition
sales to those licensed for firearms of the relevant type without the need for complex
lists; and
Ÿ the electronic transfer of firearm
details from the dealer’s records to the purchaser’s licence at the point of
sale.
Some dealers could choose to use the opportunity to develop their own
software to link with the on-line system, providing them with additional stock-control,
accounting and auditing functions.
Imaging of Documents
The Queensland Police are currently introducing a
system whereby all documents associated with a licensee’s file, from the initial
application forward, are scanned into a computer for easy access and storage. Such a
system has the potential to allow any police station in the country to retrieve in seconds
a full copy of a shooter’s file. Quite apart from the potential policing benefits,
such a system would reduce the need for large physical storage facilities, and would
reduce problems with missing files.
Many other developments are possible, and it may be expected that a
dedicated Authority would continue to adopt whatever means are available, technological or
otherwise, to improve its levels of service and effectiveness.
n
Recommendations
24.1 That the Firearms Authority coordinate publicity and educational
campaigns on an ongoing basis.
24.2 That the Firearms Authority consider the use of:
a) a free-call telephone service;
b) an internet home page;
c) an on-line system linking its database to firearms dealers; and
d) an electronic imaging system to manage licensees’ files and
associated documents.
6.3.8 Miscellaneous police recommendations
Search and Seizure Powers
Recommendation 23 in the May 1996 Review suggests an
amendment to the search and seizure sections, which are described as "generally
adequate" but "too restrictive", by extending the ambit of the power to
search without warrant on suspicion of carrying or possession of a firearm in breach of
the Act from "any public place" to "any place".
Recommendation 24 then proposes that the Police have authority to
search for and seize a firearms licence at the same time and under the same conditions as
relate to the search and seizure of firearms and ammunition.
In general, of the search and seizure powers commonly used, only the
powers of the Misuse of Drugs Act 1975 and the Sale of Liquor Act 1989 are in
significantly broader terms than those in the Arms Act. Both those statutes are
necessarily affected by the speed with which evidence of breaches of their provisions
(either the existence of prohibited drugs or of unlawful manufacture or sales of liquor)
can be destroyed, and the consequential importance of the Police being able to act with
the minimum of delay.
The first of the extensions now sought would be a major extension, and
in my view should only be granted if the present provisions are shown to be prejudicing
the proper administration of the law. This was not shown by any evidence put before me.
By contrast the extension proposed in Recommendation 24 is a restricted
and specific one which is warranted and desirable. The accompanying explanation notes that
"this is now more important as the new style licence, which includes a photograph and
a number of security features, make it less likely to be questioned by a seller".
n
Recommendation
25 That the search and seizure provisions be amended to authorise
police to search for and seize a firearms licence under the same conditions as relate to
firearms and ammunition.
Firearms Dealers
Appendix I to the May 1996 Review proposes that
applicants for dealers’ licenses should be required to satisfy the Police "that
they can rely on them to uphold the spirit of the Act, comply honestly with all its
requirements, and not put personal gain or interest above the public interest". It is
doubtful whether such a provision, the language of which is hortatory rather than
definitive, would have the effect which its promoters seek. The solution must lie rather
in redrafting the provisions setting out dealers’ obligations in plain language, and
then monitoring and enforcing those obligations.
n
No Recommendation
Range Safety
Appendix I to the May 1996 Review correctly notes
the absence of any specific power to set criteria for ranges. It must be desirable to have
control over ranges vested in the arms authority to ensure uniform safety standards. The
terms of any such provision should be settled after adequate consultation with the
shooting bodies which, till now, have generally managed to keep standards at an
appropriate level. The definition of "range" will also need to be drawn so as to
exclude private or family facilities.
n
Recommendation
26 That the new Firearms Act include power for the Firearms Authority
to fix conditions for the establishment and operation of ranges, and to monitor and
enforce such conditions.
6.4 The Administration of Firearms Control
The examination of the past administration of arms control by the
Police made in parts 2 and 5 concluded that there were faults not only in the existing
code, but also in the way that code had in the past been administered by the Police.
My understanding of the cause of the administrative shortcomings was
communicated to the Commissioner in a letter dated 7 April 1997 (set out in Part 2.7
"Police Attitudes") which suggested that:
[A] principal reason for present inadequacies has been that over the
past three or four decades, during which period I accept that the demands on the Police to
meet other commitments increased greatly, they accorded arms control a progressively lower
priority in their overall planning.
The letter asked whether this analysis was "really in
contest" and, if not, invited the Police to consider the three alternative
administrative arrangements for the future which had then been considered namely:
Ÿ retention of administration by the
Police, with oversight by a consultative committee having advisory powers only but
empowered to make representations to government on the implementation and functioning of
the new systems;
Ÿ establishing an implementation
authority to oversee the introduction and progress of the reforms over a stated number of
years, as had been done in Canada, with administration then reverting to the Police; and
Ÿ setting up an independent Firearms
Authority, reserving appropriate access to the Police.
The Commissioner’s letter in reply and the accompanying response
did not address my analysis of the reasons for past maladministration, but acknowledged
"a considerable change" in police attitudes.
As to future administrative arrangements, the Response advised police
willingness "that some of the activities relating to the registration of our firearms
be out-sourced to a contractor", but on the condition that control remain with the
Police "as its lead customer and its most dependent user".
Future administration was addressed briefly in the Commissioner’s
letter. On "the question of some independent or overriding authority", this
advised that "[i]f there is to be such a group I am inclined to the view that that
proposed for Australia is probably the most viable one", a reference to advice in my
letter to the Commissioner regarding Australian intentions to set up advisory committees
to work with their police forces.
In short, while the Police have accepted the need for radical reform,
they consider that the process of change, and the future control of firearms, should be
led and managed by them.
It is convenient to look first at the question of contracting out, or
"outsourcing", parts of the arms control business.
It is hardly if at all in contest that the establishment and
maintenance of databases and the fees collection work involved in a combined
licensing/registration system are not core police business. Whatever overall
administrative arrangements are thought appropriate in the future, it seems unanswerable
that that work should be contracted out to firms with expertise in such business. Far from
that change being likely to create additional cost and expenses, the transfer of that
business to firms specialising in such work is likely to result in useful cost saving.
The key issues for consideration at this stage go beyond that type of
rearrangement, which should in my view be implemented whether or not any other
administrative reform is made.
So far as the rest of the arms control business is concerned, it can
next be noted that there are strong arguments for leaving vetting and enforcement
functions with the Police.
The case for leaving enforcement where it is was put in the Response as
being that "the skills associated with enforcement are classic policing skills of
safe practice, interviewing skills, evidence management and documentation". The case
can equally be put on the basis that the Police are the body most directly involved in
issues arising from the misuse of firearms, and the most appropriate body to investigate
serious criminal offending. Shifting the responsibility for enforcement would raise
significant safety issues.
As to the control of personal vetting, the investigations made for the
Review into the way in which revocations, refusals and "unsuitable" decisions
have been reached showed that in New Zealand the Police’s ability to gather
information about licensees and applicants for licences from local as well as national
intelligence sources is a valuable resource. It cannot be replicated, and in my view
should continue to be part of the decision-making process. I agree with the Police that it
would be undesirable to shift the personal vetting work.
But those conclusions leave very much open for consideration how the
remaining administrative functions can best be arranged.
In my view the critical issue is whether, if administration as a whole
is to remain with the Police, means can be devised to ensure that competition with other
police work does not once again result in the suppression of the development and
maintenance of an efficient arms control system.
The past effect of "the competition of arms business with other
Police business" was discussed in part 5.2.3, which concluded that this factor had
dominated the Police’s conduct of the arms control business.
The Police Response makes the points that the 1992 Relicensing Project
was inadequately funded, and that the Police had made available resources additional to
those provided for arms work, though "not sufficient additional policing to ensure a
greater compliance". That explanation fails to recognise the length of time over
which arms control work has not kept up with current needs. Police records show that ever
since the 1930s they have had insufficient resources to carry out in an adequate manner
their statutory obligations in terms of arms control. The same records contain more than
one acknowledgement of the need to avoid accepting responsibility for arms control work
for which no sufficient resource is available. Yet time and again the absence of adequate
resourcing in combination with the pressures of front-line police work has led to arms
work being down-graded and deferred until other responsibilities were met. I believe it
would be difficult for the Police to change those ingrained attitudes and to implement
major changes in arms control policy with the energy, enthusiasm and persistence which
successful implementation would require.
Questions of the appropriate method of administering arms control
systems have arisen in relation to the reforms of their arms control arrangements in
Canada, Australia and England.
The Canadian reforms are to be implemented by a consortium of federal
and provincial partners called the Canadian Firearms Centre. This was set up in 1996 to
design and supply the systems and support services needed to implement those reforms. It
has a seven-year life, that is to say it has a sunset clause operative on 1 January 2003.
It has gathered together experts from a variety of disciplines including law, law
enforcement, research, training and computer system design. It is presently endeavouring
to settle modern and cost-effective systems to implement the legislated requirement for
nationwide registration of firearms.
The Australian reforms generally leave administration of arms control
with the State police forces, but also propose the establishment of firearms consultative
committees with representation of the different parties who have taken part in the debates
over firearms control in Australia. Numbers of the States already have or have had such
committees. Some have developed into bodies which receive complaints about police
administration of licensing, and review those decisions, generally with a further right of
access to the courts if the complainant or the Police is dissatisfied with the
committee’s determination.
The appropriateness of police control of firearms also received some
consideration in the Cullen Report, though relatively briefly, as Lord Cullen did not
consider his brief extended to making an overall review of arms control business. The
point was discussed at para 8.2, where he considered and disapproved a Home Office
proposal for a separate national arms authority. In his view it would be unwise to
separate administration, including vetting inquiries, from enforcement. He considered the
Police were best placed to inquire into and assess fitness to have and to hold firearms
licences. To these extents the arguments which persuaded Lord Cullen also have weight in
New Zealand.
The submission made to me by the Police Association supported the
separation of administrative functions from vetting and enforcement functions, and
favoured the transfer of registration and financial responsibilities to third parties. It
spoke of a general "police aversion to handling cash". It also made plain that
in its view the overall control of licensing should remain with the Police, both "as
a matter of public safety and security" and because it believed it was important that
vetting should be carried out by a police officer in uniform.
Individual submissions ranged from proposals for (i) the
re-establishment of technical advisory committees to assist the Police on technical
firearm issues, to (ii) the setting up of consultative committees to seek to develop and
promote policies which recognise the different interests and to try to put these into
acceptable balance, and (iii) a totally separate authority with police having access to
its records. One of the most experienced lay commentators thought a single independent
authority was needed both to overcome "a problem with country police and their
comradeship with the customers" and to avoid variations in standards in different
areas.
These submissions required an understanding of the different structural
options for governmental agencies, an area in which I have no expertise. I accordingly
sought advice from Mr Ian Miller of the Hamilton Miller Partnership, who has had
experience of such issues. He was informed of my findings as to the strengths and
weaknesses of the present system and the significance of the enhancements proposed in the
May 1996 Review. He was brought into discussions with Coopers & Lybrand about the
costs of various proposals. In the result he provided a discussion paper for my assistance
which identified five structural options for the implementation of the proposed reforms.
The paper, which is attached as appendix 5, looks in turn in turn at each option, lists
its strengths and weaknesses, gives examples of its previous use in this country, and
gives indicative cost estimates if it is adopted.
The five options, as briefly described at the commencement of the
discussion paper, are:
Ÿ the status quo¾
the Police retain sole responsibility;
Ÿ police administration overseen by
an independent advisory board;
Ÿ an independent implementation
authority with a sunset clause, administration then reverting to the Police;
Ÿ a permanent independent arms
authority; and
Ÿ integration with another
government agency.
For the reasons previously stated in my view the present system is not
viable, and would remain unacceptable even if the enhancements proposed in May 1996 were
implemented. For that reason the first of the five options is not further considered.
I am also of the opinion that the fifth option, integration into
another government agency, is not a viable option at this time. There is no other
government agency as well suited as the Police, let alone better suited to manage the arms
business, if regard is had to their necessary involvement in vetting and enforcement
activities. It follows that the matter for consideration is the relative advantages and
disadvantages of options 2, 3 and 4.
Option 2: Police responsibility overseen by an
independent advisory board
"An independent advisory board is
established to oversee and advise on the development and implementation of the response to
the recommendations of the Review with the Police retaining accountability for resourcing
and managing the activity."
While the different "strengths" listed in the discussion
paper could reasonably be expected to be obtained from the appointment of an advisory
board of appropriately qualified persons independent of the Police, and while such a board
would provide an injection of fresh intelligence from people who are not required to
balance the relative needs of arms business and other police business, I would regard this
option as the least effective of the three now being considered.
One "weakness" to be added to those listed in the
discussion paper is that the long history of police under-estimation of and
under-provision for arms work is bound to carry with it an in-built resistance to change.
Option 3: Independent sunset agency reverting to the Police
"An independent agency is established under
a sunset clause to manage the development and implementation of the recommendations over a
specified term, after which ongoing responsibility reverts to the Police."
The discussion paper proposes a five-member board, and for my part I
should consider it appropriate to give the agency a five-year term. This would allow time
to obtain the requisite New Zealand data and the benefit of overseas developments,
particularly in Australia, but also in Canada and the United Nations Councils, which the
agency should attend as New Zealand’s representative to at least regional workshop
level. A five-year term would also continue beyond the period of the establishment of the
new systems, and allow not less than three years’ experience of the operation of
those systems in New Zealand and their modification to meet local conditions.
It must be particularly important to get the benefit of the work being
done in Australia and Canada in establishing registration systems. Considerable amounts of
time and money are being expended in both countries settling cost-efficient, simple,
modern systems which will encourage an appropriate level of compliance with the
registration obligations. There is no point in New Zealand duplicating that work. If the
systems are sufficiently developed and tested in Canada and Australia, they would be
useful in New Zealand. Equally there seems no reason to doubt that both countries would
continue to be entirely willing to provide us with the benefit of their labours¾ a willingness which greatly assisted this Review. However, the
circumstances of each country are sufficiently distinct from ours, and the areas of
factual uncertainty sufficiently extensive, to call for a careful and continuing
evaluation of any new arrangements and a willingness to rectify shortcomings when these
appear.
One of the duties of the Authority should be, as proposed in the
discussion paper, to advise on "the re-integration process and subsequent management
arrangements", and if thought fit to "recommend a continuing role for an
advisory board".
Reintegration could no doubt be assisted by secondments from the Police
to positions with the Authority. The Canadian literature shows that numbers of Royal
Canadian Mounted Police are working with the Canadian Firearms Centre.
The major problem which seems to arise from option 3 is assessing the
risk that after integration the old problems will reappear, and devising strategies which
can reasonably be expected to eliminate any real risk that once again the arms work will
be submerged by other police business.
As to this, while detailed programming is difficult until the new
systems have been settled and bedded in, some steps can be suggested as worth
consideration, namely:
Ÿ it must be important to obtain a
separate and independent budget for the arms control work;
Ÿ it would help later oversight if
the Authority were required to settle performance standards for the licensing,
registration and monitoring functions; and
Ÿ after re-integration there should
be some independent body, perhaps an advisory committee, reporting to Parliament on the
continued performance of the arms control work in police hands, and of the success or
otherwise of the police administration in avoiding a recurrence of the past mistakes.
Such arrangements should go some distance towards ensuring that the new
way is maintained, and that appropriate consideration is given to further reforms needed
to meet changing circumstances.
The advantage of option 3 is that the whole of the arms business¾ administration, vetting, licensing decisions and enforcement¾ would come within the one agency, and effective communications
between the different sections of the arms control business should be made easier by that
situation.
Option 4: Permanent independent authority
"An independent agency is established as the
permanent authority for the development, implementation and maintenance of the
recommendations."
This would become the preferred option if it were thought that
re-integration with the Police after say five years of option 3 would still involve a
serious risk that competition between the different parts of police business would result
in the same problems as in the past.
The weakness in this option described in the discussion paper as the
risk of a "them and us" tension deserves careful consideration. It may be
unrealistic to expect the Police to give as much of their time and resources to assisting
a separate entity as they would if effective control and decision-making remained with
them, or was known to be likely to revert to them after a specified period.
n
Recommendation
27 That Government set up a Firearms Authority either:
a) with a five-year sunset clause, administration then reverting to the
Police; or
b) if it be thought that competition with other police business after
re-integration would involve unacceptable risk of the problems which have affected arms
control in the past recurring, on a permanent basis.
Return to the Project Table
of Contents
Return to the Project Table of Contents
Notes
The full list is contained in the schedule to the Arms
(Restricted Weapons And Specially Dangerous Airguns) Order 1984.
Regulation 22, Arms Regulations 1992.
Section 32(1)(b), Arms Act 1983.
Firearms Regulations 1974 (WA), reg 26. I understand
that if a firearm is permanently disabled so that any attempt to use it is impossible, the
Western Australia Police treat it as no longer coming within the definition of a firearm.
Weapons Act 1996 (QLD), s 7; Weapons Regulations 1996,
reg 73.
See p. 4 of appendix A of the Operations Support Group
(PNHQ), A Review of Firearms Control in New Zealand ("the May 1996
Review"), where it quotes a "recent study of 78 firearms incidents", 11
percent of which involved handguns.
Nugent, "Hunting Firearms in New Zealand¾ A Survey" (appendix E2 to Coote (PNHQ), Arms Amendment
Bill, 1992), at 5.
This estimate was based on a larger scale buy-back
which would involve more extensive administration than that likely to be necessary for the
class proposed.
The 1997/98 year incurs the highest cost under the
enhanced system model due to the incidence of many one-off costs.
The Act in effect defines all semi-automatics
to be MSSAs unless they fit within the definition of "sporting configuration"¾ as a result, most semi-automatics could technically be considered
"MSSAs in sporting configuration".
Forsyth, Mountain Safety Manual¾
Firearms in New Zealand, July 1985, at 104. The work carried on by these societies has
now been taken over by the New Zealand Fish and Game Council, which is made up of
representatives of 12 regional Fish and Game Councils who manage game hunting and fishing
throughout the country.
These exemptions were made pursuant to s 18(1) of the
Wildlife Act 1953, which gives the Minister of Conservation a discretion to declare an
exception "in such circumstances and at such times, areas and places and subject to
such conditions as may from time to time be authorised pursuant to a notification given by
the Minister".
Supra at note 11, at 4.
See part 4.3 of this report.
See Rosenfeld, "Gun Buy-Backs: Crime Control or
Community Mobilization?". In Plotkin (ed), Under Fire: Gun Buy-Backs, Exchanges
and Amnesty Programs, 1996, at 1.
Supra at note 6, at 16 (para 8).
A report commissioned for the Police Association,
March 1996.
Where the licence holder’s premises was visited
(or a visit was attempted) but the security of their firearms could not be checked because
licence holder was not home, could not be located or was no longer in possession of
firearms.
Motor vehicle theft in this context includes unlawful
taking, theft and interference with a motor vehicle.
See Firearms Act 1996 (VIC), s 10; Firearms Act 1973
(WA), s 11a; Firearms Act 1996 (NSW), s 12; and Weapons Act 1990 (QLD), s 11.
Firearms Act 1996 (NSW), s 12(2).
National Coalition for Gun Control, Australia, media
release, 11 May 1997. For example in Tasmania an applicant may buy a permit to shoot on
Crown land for $A5, and in Victoria may buy a membership of the Sporting Shooters
Association for $A45.
The class of "violent" offences will need to
be specified as a list. Such a list is currently in use by the Police for the purposes of
planning and policy.
Letter from Dr LA Beltowski (SSANZ), 4 January 1997.
Monahan, "Mental Illness and Violent Crime"
(presentation summary), National Institute of Justice Research Preview, 1996
(October).
Lord Cullen, The Public Inquiry into the Shootings
at Dunblane Primary School on 13 March 1996, 16 October 1996, at para 5.47.
Written submission to Dunblane Inquiry, at 11- 12.
Supra at note 26, para 1.11.
Ministry of Health, Mental Health Commission,
New Zealand Medical Association, Royal Australian and NZ College of Psychiatrists,
Privacy Commissioner.
Systems are being developed in both Australia and
Canada to verify electronically the accuracy of firearm details. Such systems may assist
to enhance the integrity of data on the register, as well as reducing the need for
physical inspection of firearms.
McCallum (NZPNHQ), Firearms Registration in New
Zealand, September 1982, at 26.
Herlihy and Mason, "Firearms Registration: The
Controversy Revisited", Australian Institute of Criminology, January 1994.
Supra at note 26, at para 1.11.
Firearms Laws and Use: Proceedings of the First
Australian National Conference, Perth Australia, 1981.
Triggs, Interpreting Trends in Recorded Crime in
New Zealand, 1997, at para 2.6.2.
Brown, "The Portrayal of Violence in the Media:
Impacts and Implications for Policy", 1996.
Ibid, at 5.
See, for example, the Weapons Act 1990 (QLD).
Section 49a provides that:
49A. Unlawful possession of firearm or airgun after revocation of
firearms licence¾
Every person commits an offence and is liable on summary conviction
to imprisonment for a term not exceeding 1 year or to a fine not exceeding $4,000 or to
both who, being a person whose firearms licence has been revoked, is in possession of a
firearm or airgun at a time when that person is not the holder of a firearms licence, and
is not a person authorised, expressly or by implication, by or pursuant to this Act, to be
in possession of that firearm or airgun.
The question is whether a person is
"authorised" by the Arms Act, expressly or by implication, to be in possession
of a firearm while using it under the supervision of a licence holder. The difficulty is
that the provision relating to use of firearms under supervision, s 22, is not phrased as
an affirmative authorisation but as a defence to a prosecution for possession of a firearm
or airgun without a licence. Despite the wording of the Act, it would seem that the
preferable interpretation is that this does, in reality, amount to an authorisation by
implication.
Firearms Import Statistics 1880-
1995, including an update with 1996 figures, and more detailed schedules received by the
Review on 3 March 1997.
Langley, Norton, Alsop and Marshall, "Airgun
Injuries in New Zealand, 1979- 92", Injury Prevention
Research Unit, 1996.
Ibid, at 116.
Ibid.
Firearms (Dangerous Air Weapons) Rules 1969.
Section 2, Arms Act 1983.
Police Executive Research Forum (US Department of
Justice), "Toy Guns: Involvement in Crime and Encounters with Police", at 8.
Clarke, "The Right to Bear Arms", thesis,
1995, at 58.
Supra at note 46.
Ibid, at 13.
Ibid, at 16. A soft-air gun is a copy of a firearm
with a small spring piston or air propellant capable of shooting only lightweight plastic
projectiles at low muzzle velocity.
Section 46(1), Arms Act 1983.
Section 46(2), Arms Act 1983.
Seven years: s 54(1), Arms Act 1983.
Five years: s 54(2), Arms Act 1983.
Section 55(1), Arms Act 1983.
The Federal Energy Management Improvement Act of 1988,
Public Law 100-615, s 4. See supra at note 46, at appendix 1.
Ibid, s 4(b)(1).
Supra at note 46, at 38.
Ibid.
Firearms and Violence in Australian Life, 1981,
at 29.
Supra at note 11, at 159.
[1992] 1 NZLR 709, at 718.