6

 

Improving the Present System 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 ownership 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) 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 obligations 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 enforcement 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 process applicants are asked specifically what their intended purpose is 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 years

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 efficiency 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 firearms 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 achieved 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 firearms 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 response 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

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 permitted 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 unless

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:

 

Results 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.

 

Conclusions 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 system 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 is

(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 either

(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."

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 quo 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 labours 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 business administration, vetting, licensing decisions and enforcement 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.

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Notes

  1. The full list is contained in the schedule to the Arms (Restricted Weapons And Specially Dangerous Airguns) Order 1984.

  2. Regulation 22, Arms Regulations 1992.

  3. Section 32(1)(b), Arms Act 1983.

  4. 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.

  5. Weapons Act 1996 (QLD), s 7; Weapons Regulations 1996, reg 73.

  6. 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.

  7. Nugent, "Hunting Firearms in New Zealand A Survey" (appendix E2 to Coote (PNHQ), Arms Amendment Bill, 1992), at 5.

  8. 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.

  9. The 1997/98 year incurs the highest cost under the enhanced system model due to the incidence of many one-off costs.

  10. The Act in effect defines all semi-automatics to be MSSAs unless they fit within the definition of "sporting configuration" as a result, most semi-automatics could technically be considered "MSSAs in sporting configuration".

  11. Forsyth, Mountain Safety Manual 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.

  12. 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".

  13. Supra at note 11, at 4.

  14. See part 4.3 of this report.

  15. 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.

  16. Supra at note 6, at 16 (para 8).

  17. A report commissioned for the Police Association, March 1996.

  18. 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.

  19. Motor vehicle theft in this context includes unlawful taking, theft and interference with a motor vehicle.

  20. 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.

  21. Firearms Act 1996 (NSW), s 12(2).

  22. 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.

  23. 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.

  24. Letter from Dr LA Beltowski (SSANZ), 4 January 1997.

  25. Monahan, "Mental Illness and Violent Crime" (presentation summary), National Institute of Justice Research Preview, 1996 (October).

  26. Lord Cullen, The Public Inquiry into the Shootings at Dunblane Primary School on 13 March 1996, 16 October 1996, at para 5.47.

  27. Written submission to Dunblane Inquiry, at 11- 12.

  28. Supra at note 26, para 1.11.

  29. Ministry of Health, Mental Health Commission, New Zealand Medical Association, Royal Australian and NZ College of Psychiatrists, Privacy Commissioner.

  30. 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.

  31. McCallum (NZPNHQ), Firearms Registration in New Zealand, September 1982, at 26.

  32. Herlihy and Mason, "Firearms Registration: The Controversy Revisited", Australian Institute of Criminology, January 1994.

  33. Supra at note 26, at para 1.11.

  34. Firearms Laws and Use: Proceedings of the First Australian National Conference, Perth Australia, 1981.

  35. Triggs, Interpreting Trends in Recorded Crime in New Zealand, 1997, at para 2.6.2.

  36. Brown, "The Portrayal of Violence in the Media: Impacts and Implications for Policy", 1996.

  37. Ibid, at 5.

  38. See, for example, the Weapons Act 1990 (QLD).

  39. Section 49a provides that:

  40. 49A. Unlawful possession of firearm or airgun after revocation of firearms licence

    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.

  41. 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.

  42. Firearms Import Statistics 1880- 1995, including an update with 1996 figures, and more detailed schedules received by the Review on 3 March 1997.

  43. Langley, Norton, Alsop and Marshall, "Airgun Injuries in New Zealand, 1979- 92", Injury Prevention Research Unit, 1996.

  44. Ibid, at 116.

  45. Ibid.

  46. Firearms (Dangerous Air Weapons) Rules 1969.

  47. Section 2, Arms Act 1983.

  48. Police Executive Research Forum (US Department of Justice), "Toy Guns: Involvement in Crime and Encounters with Police", at 8.

  49. Clarke, "The Right to Bear Arms", thesis, 1995, at 58.

  50. Supra at note 46.

  51. Ibid, at 13.

  52. 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.

  53. Section 46(1), Arms Act 1983.

  54. Section 46(2), Arms Act 1983.

  55. Seven years: s 54(1), Arms Act 1983.

  56. Five years: s 54(2), Arms Act 1983.

  57. Section 55(1), Arms Act 1983.

  58. The Federal Energy Management Improvement Act of 1988, Public Law 100-615, s 4. See supra at note 46, at appendix 1.

  59. Ibid, s 4(b)(1).

  60. Supra at note 46, at 38.

  61. Ibid.

  62. Firearms and Violence in Australian Life, 1981, at 29.

  63. Supra at note 11, at 159.

  64. [1992] 1 NZLR 709, at 718.