The Bill seeks to improve public safety by preventing people whose behaviour and actions represent a high risk of violence, or reflect an underlying risk of violence, from being able to access firearms or restricted weapons. The Bill allows a Judge to impose a firearm prohibition order (FPO) when sentencing a defendant in relation to specified offences. An FPO places a number of conditions on the defendant, including restricting their ability to reside in any premises where firearms are stored, attend activities which involve the use of firearms, or be in the presence of any person who has an unsecured firearm with them.
While the Law Society commended the aim of the Bill, it raised concerns as to the extent it would limit the rights of defendants who are made subject to an FPO without sufficient justification. The imposition of an FPO has the potential to infringe on a person’s freedom of movement and association and is likely to disproportionately impact Māori.
“[The Bill] doesn’t identify a rational connection between the convictions to which the scheme applies and the objective of reducing the criminal use of firearms,” says Monique van Alphen Fyfe.
“There is a potential for capturing those who are not likely to use firearms in this way, and it’s quite significant that those people’s rights have the potential to be infringed, and unfortunately this scheme in that regard is unjustified at present.”
Ms van Alphen Fyfe also noted that the Bill has the potential to disproportionately effect Māori. The standard conditions of an FPO prohibit an individual from “residing” at any premises where firearms are stored. ‘Resides’ is defined in the Bill as residing at the premises for at least two days, whether consecutive or not, in any 12 month period. This has the capacity to materially affect the ability of Māori to visit whānau, attend events at marae, or to attend tangi without risking (potentially unknowingly) a breach of an FPO. Ms van Alphen Fyfe also noted that the qualifying offences for imposing an FPO includes participating in an organised criminal group, which has the potential to disproportionately effect Māori.
Professor Finn noted that an FPO can be made against any offender who has been convicted of a serious violence offence (defined in section 86A of the Sentencing Act 2002), which includes a number of offences that do not commonly involve the use of firearms. It was suggested that a discretion should be given to a sentencing judge where there is a risk of future use of firearms arising from the circumstances of the offending. “A tailored solution at sentencing is a much more efficient and economic method,” Professor Finn says.
Professor Jeremy Finn is a member of the Law Society’s Criminal Law Committee. Monique van Alphen Fyfe is a member of the Law Society’s Human Rights and Privacy Committee.