In April, the Law Society made a submission on the Firearms Prohibition Orders Legislation Amendment Bill with input from its Criminal Law Committee and Human Rights and Privacy Committee. The Bill seeks to extend the groups of persons against whom Firearms Prohibition Orders (FPOs) may be made, and to widen police powers to allow warrantless searches to check compliances with FPOs. Positively, the Bill also introduces a process to vary, modify or revoke an FPO after five years.

The Law Society’s submission raised concerns about the lack of evidence regarding whether the current FPO regime was working as intended. It was noted that it was still early days since the regime had been implemented and there was not enough data available yet to determine its effectiveness. Further legislation was therefore premature, and the Law Society recommended reconsideration.

The Select Committee reported back last week, recommending the Bill proceed. However, the Select Committee has adopted the following recommendations made by the Law Society:

• Amending the definition of associate to remove the terms ‘a member of.’ As originally drafted, an “associate” of a gang member would have included that person’s parents, spouse, children, wider whānau, friends, counsellor or religious leader, work colleagues and employers, even where those “associates” did not themselves have anything to do with the gang. The Law Society recommended removing the terms ‘a member of’ to avoid this risk.
• Amending clause 6 to include a definition of ‘gang insignia’, which refers to the ‘gang insignia’ definition in the Gangs Legislation Amendment Bill.
• Amending clause 7 to limit the offences included in the Bill under which an FPO may be made. Specific offences related to gang offending are now identified, rather than applying the regime to all Crimes Act 1961 offences punishable by a term of imprisonment of one year or more.
• Amending clause 8 to ensure the same standard of proof is applied to varying, modifying and revoking an FPO. The required standard is that of the balance of probabilities.
• Raising the threshold for invoking a warrantless search to require a police officer to have reasonable grounds to believe the person is subject to an FPO, rather than only requiring reasonable grounds to suspect the person is subject to an FPO.
• Amending the search powers provided for in the Bill to limit a search to only premises that are in the influence or control of the person subject to the FPO.

The Law Society had also urged the Select Committee to consider restricting the search powers to persons believed to be breaching the conditions of an FPO against them. The Law Society commented that the use of a monitoring power for a reason not tied to the underlying purpose of that power - monitoring whether a person subject to the regime was accessing firearms - is unreasonable.

Concerns were raised about the Bill's potential to unintentionally breach rights affirmed in the New Zealand Bill of Rights Act 1990, due to its overly broad powers. In particular, the Law Society considers that the Bill unjustifiably breaches the right to freedom of association, freedom of movement and the right to be presumed innocent. This was in opposition to the finding of the Attorney-General at the time of implementation of the original regime, which found that the limitations on those rights were justifiable under section 5 of the Bill of Rights.

The Bill will now go to second reading, where the House will consider the Select Committee's report and recommended amendments. The House will then decide whether to accept the recommended amendments.

Read the Select Committee’s report on the Bill

Read the Law Society’s submission

Read more about the Law Society’s Criminal Law and Human Rights and Privacy committees