Legal Beagle by Graeme Edgeler

59

A (non-)submission on the new Arms Amendment legislation

I went back to the office last night, and stayed until after midnight in order to make a submission on some aspects of the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill, the Government's response to the Christchurch Mosque shootings.

Unfortunately, for now, at least, I won't submit it, because the mechansim the Committee has provided to make a submission, automatically and irrevocably ticks the "You do not wish to make an oral submission to the committee" option, and well, I do.

I am not a firearms expert. I do not expect any select committee to hear from me, least of all one forced to conduct such hurried deliberations, but I'm also not going to lie by saying I do not wish to be heard, when, if given the option, I would say I did want to be heard, even if I didn't expect the honour. I am not particularly inclined to lie to Parliament at any time, but I am certainly not going to do so in a manner which would enable the Committee to say in its report that it received submissions from perhaps hundreds of people, and heard in person from all of those who indicated they wished to be heard in person. If Parliament is going to unnecessarily limit the right of members of the public to try to point out where it's hurried law might have missed the mark, it should own it.

I know I cannot find everything that might be wrong with this law in the time I had available, but it's pretty clear from the way it has been drafted that even the professionals who have worked hard over the last couple of weeks to do the best they can don't think they've done a good enough job, because they've included a "Henry VIII" clause which would allow the Government to go back and amend bits of the statute in case they've stuffed it up.

It might be that the submission process is fixed to enable me to honestly submit the following before the process closes at 6pm, but in case it doesn't, I present the following for anyone interested:

[EDIT: PS. I realise this sounds somewhat snippy. I didn't write and post at midnight because I figured it would sound somewhat off. I just got up and was still disappointed, is all. I still very much hope to make my submission through proper channels, and would welcome others who don't wish to be heard in person adopting any concerns of mine they agree with and submitting them on their own. But I'm the guy who paid $600 in High Court filing fees in order to post a tweet containing information that was carried in a live Police Media Conference. This is kinda who I am.]

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The Finance and Expenditure Committee

Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill

Submission of Graeme Edgeler

Introduction

My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in law reform.

I thank the Committee for the opportunity to present a written submission on the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill.

Regrettably, this submission is much shorter than I would like it to be. I hope that the Committee will have received submissions raising the other concerns I would like to have raised. I invite the Committee to include in its report concerns about the time in which it has been required to undertake its consideration of this bill.

I accept that a policy decision has been made to pass a law substantially limiting access to semi-automatic weapons. I have no objection to this, my concern with the process is that I, and others with much more expertise than I have, simply will not have enough time to properly enable the Committee to be sure:

  • that this bill does what it is intended to do;
  • that this bill does not do what it is intended that it not do.

Having said that, I recognise this bill is likely to pass in some form, so I offer the following observations.

This is a Criminal Law

While this bill may look like a law which is about regulating the ownership of firearms, what it really is, is a criminal law.

Given this, the Committee should be clear that the criminal offences it is creating are clear, and capable of being understood by people who will be using the firearms it covers.

In the short time I have had to consider the bill, I do not believe it currently succeeds.

My particular concern (and I cannot say there are not others) is the new offence of possessing or supplying a prohibited part.

Prohibited Parts 

The new definition of “prohibited part” relies on a new definition of “part”. That aspect of the old definition had an important requirement, that something only counts as a part of a firearm if it “while not essential … is designed or intended to be an integral part of” the firearm.

This formulation is included in new paragraph (b) of the definition of part, but is not part of the new definition in paragraph (d). Instead, paragraph (d), which applies “in relation to any firearm,” merely defines part as “any thing, such as [a disparate group of parts of firearms].”

This is not a good definition. I am not a firearms expert, but I cannot see how even those who are can possibly work out whether something counts as a part of a firearm, such that if it is a part of a prohibited firearm, they are breaking the law by possessing it.

There would appear to be two obvious alternative ways of defining part, so that the offences relating to possession of parts of prohibited weapons can be readily understood:

  • Paragraph (d) of the definition of “part” could include the formulation “while not essential … is designed or intended to be an integral part of”, which appears in the current law; or
  • Paragraph (d) of the definition of “part” could be written as an exhaustive list, by deleting the phrase “any thing, such as”. If there are other things Police consider should count as a part of a weapon, they should say so, so they can be added to the list.

Prohibited Ammunition

The law also creates criminal offences around possession of prohibited ammunition in new sections 16A and 43AA) but does not actually prohibit any ammunition, instead leaving this decision up to an order in council process (see the definition in new section 2D).

Criminal laws, especially those carrying significant criminal penalties, should be imposed by Parliament, not delegated to regulation.

If there are types of ammunition the Government, or Police consider should be banned, ask them to list them, and decide whether such bans are justified.

If you or they cannot currently think of any, then remove this criminal offence, and instead include it in the second tranche of firearms regulation we expect in the coming months, when someone has actually worked out what should be banned. That there is a rush to do something is not a good reason for Parliament to abandon its role in deciding what the criminal law should prohibit.

Amended section 74A: New "Henry VIII" power

I object to the new sections 74A(a) and (b), which would permit the Government to amend the Arms Act. If you are concerned that you will not get the definitions right in the time available, the appropriate course is not to surrender Parliament’s authority to amend laws to the Crown, but to be more careful, and if necessary, insist upon being allowed more time to do your job.

Even where so-called Henry VIII clauses are provided, they should never be able to be used in a way which expands the criminal law, and this is what the law would allow.

The Government does not need the power to amend primary legislation in this way. The sections that this amendment would allow the government to amend are important to a number of criminal offences in the Act. Deciding what conduct is criminal is prototypically a matter for Parliament. I urge the committee to remove the power the bill would create to allow the Government to amend the act itself.

Endorsements

Given that no ammunition is actually prohibited in this bill, I do not know what type of ammunition is intended to be prohibited. However, I note that, unlike prohibited firearms and prohibited magazines, there is no procedure for a person to apply for, or be granted, an endorsement that would allow them to sell or possess prohibited ammunition.

This suggests to me that it is intended that the types of ammunition that will be prohibited are very limited, and that it is intended that only ammunition for which there is no legitimate use are intended to be able to be declared to be prohibited ammunition. If this is the intention, Parliament should impose this requirement on the Government.

Alternatively, if there are to be types of ammunition that the Government considers should not be able to be possessed by ordinary firearm owners, but which it considers there may be legitimate uses for exempted persons, the exemption process and related sections should be amended to allow for this.

Conclusion

I regret that I have not had sufficient time to engage with this legislation. I am uncertain whether you will have sufficient time, but in particular encourage you to look closely at the criminal offences this law creates, and the definitions etc. that feed into them.

I am not in a position to know whether this bill actually does what it intends to do, nor to know whether it avoids doing what it is intended it should avoid doing, accordingly, I am not in a position to commend its passage, even with amendments. I wish you well in doing what you can with the time available.

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