NZ Council for Civil Liberties

Submission: Firearms Prohibition Orders Legislation Amendment Bill

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About the New Zealand Council for Civil Liberties

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
  2. We wish to make an oral submission to the Committee.

Introduction

  1. The Council condemns this bill in the strongest terms.  What this bill will actually accomplish is the creation of an underclass of people who can be searched by Police without reason.
  2. The Council believes neither that the limiting measure is rationally connected to the bill’s purpose, nor that the limit is in due proportion to the importance of the objective.
  3. The Council further does not believe that there is any chance that the search and seizure amendments from subpart 2 have any chance of surviving a New Zealand Bill of Rights Act 1990 (BORA) challenge in our Supreme Court.

The bill

  1. The bill alters the current Firearms Prohibition Orders regime by:
    • Making it easier to issue an FPO by lowering the threshold for someone who is claimed to be a member of or associated with a gang.
    • Provides a way for someone subject to an FPO to apply to the court for it to be altered or revoked after 5 years of the 10 year term has passed.
    • Allows police to search, without cause and at any time, anyone who they believe might be subject to an FPO. This search can also include their home, vehicle, and anyone else with them in the vehicle.

Te Tiriti o Waitangi

  1. By the government’s own admission “there was no consultation with Māori on the proposals in the bill”.
  2. The government claims that consultations were skipped as there is a need to pass this legislation quickly. The Council does not believe that the government has made the case for this urgency as a justification for abandoning its Tiriti obligations.
  3. The people who belong to associations which Parliament has chosen to label as gangs are “disproportionately Māori”. Therefore, this bill, which contains provisions that further the existing discrimination on the basis of alleged membership of an alleged gang, can easily be seen to enable further discrimination against people on the basis of race.
  4. Paragraph 39.2 of the Attorney General’s BORA Compliance report (BORA report) reads:

If the Bill was discriminatory under the Bill of Rights Act because of the disproportionate representation of Mori in gangs, this would mean all attempts to protect the public from gangs would be discriminatory.

  1. The Council agrees with the Attorney General’s reasoning, but comes to the opposite conclusion, that all of our legislation against gangs is discriminatory on the basis of race.

Freedom of Association

  1. The bill seeks to limit people’s rights based on their alleged association with an alleged gang.
  2. Being a member of a gang is legal in New Zealand. It is protected by BORA s17, “everyone has the right to freedom of association”.
  3. This bill is being considered at the same time as the Gang Legislation Amendment bill. We refer the Committee to our arguments against gang suppression measures in that submission.

Unreasonable Search and Seizure

  1. The Council finds the amendments in clause 14 to insert section 18AA into the Search and Surveillance Act 2012 (SSA) to be an obnoxious infringement on our civil liberties.
  2. The New Zealand Bill of Rights Act s21 – “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.”
  3. A search is a direct intrusion into someone’s life. It will typically involve the person being detained and manhandled, their possessions being rifled through and left in disarray. A search is a significant imposition by the forces of the state, and this is why we have strict rules about when, why, and how the state can search someone.
  4.  Part 4 of the SSA establishes that not only do Police need to have reason to believe (s98(1)(c)) that there are legal grounds for the search, they further have to convince a judge (s98(2)) of those grounds. This bill is an unjustified departure from that well established precedent.
  5. Rather this bill creates a new class of people who have no protections against unreasonable search. There is no need to prove that there is due cause, show that the evidence couldn’t be obtained any other way, and get the search signed off by an appropriate authority. Rather it can be done “…without having reasonable grounds to suspect that any offence has been, is being, or will be committed by the person.”
  6. Furthermore this lack of protection is contagious, applying to any place or vehicle that the person is in, and to everyone in the same vehicle that the person is in.
  7. Even worse, there is no limit on how often this search power can be used. There is nothing stopping police from searching someone and their property daily if they wish to. This is a power that is designed to allow harassment.
  8. The search powers granted to police in section 18AA are unacceptable infringements on civil liberties in a rights-respecting society.

Recommendation 1:

Remove Part 2 – Subpart 2 – Amendments to Search and Surveillance Act in its entirety.

Reason to Suspect

  1. This bill’s BORA report is highly unusual, in that it states that the bill is not compatible with a free and democratic society, but that it could be made compatible. Paragraph 30 of the BORA report agrees that the bill is inconsistent with our BORA rights. Paragraph 31 goes on to recommend that the bill needs to “[introduce] the requirement that the constable have ‘reasonable grounds to believe the person is concealing a firearm .’” That phrase was added to the end of 18AA(1)(d) but only to protect the rights of other people present in vehicles during the search.
  2. While the rights of other people present during the search need to be protected, the BORA report addressed everyone’s right to be protected from unreasonable searches.  Paragraph 26 of the BORA report agrees that this bill departs from precedent, then dismisses that concern without justification in paragraph 29.  The Council believes that this is a serious error in the BORA report.
  3. New section 18AA(2) is unreasonable. The word for Police interactions “without having reasonable grounds to suspect that any offence has been, is being, or will be committed” is harassment.

Recommendation 2:

Change the word “suspect” in the first sentence of new section 18AA(1) to “believe.”

Recommendation 3:

Strike 18AA(2) from the bill

  1. The Council thanks members of the Committee for their time and consideration of our submission.