Friday, March 08, 2024

National's firearms law is authoritarian, intrusive, and unreasonable

On Wednesday night the National government rammed its new Firearms Prohibition Orders Legislation Amendment Bill through its first reading under urgency. The bill expands the existing FPO regime to apply it to gang-members convicted of non-firearms offences, and introduce a novel search power, allowing police to search any person (and their home, car, or anywhere they happen to be and anyone who is with them in a vehicle) if they have reasonable grounds to suspect that they are subject to an FPO. Just in case that wasn't clear enough about being warrantless and suspicionless, it explicitly says that there is no need to suspect that any offence has been or will be committed.

To call this "intrusive" is an understatement. The explicit lack of reasons required makes it the very definition of "unreasonable". And given that the NZBORA affirms the right to be free from unreasonable search and seizure, you'd expect the Attorney-General to have had something to say about it. But she didn't. No section 7 report of inconsistency was issued, and at the time of writing the usual analysis published where a bill has been found to be consistent with the BORA has been withheld (other bills passed at the same time or later have had theirs published, so its very definitely being deliberately hidden). So I think that tells us how seriously Judith Collins takes her statutory role under the BORA, and is another argument that politicians cannot be trusted to oversee or even report fairly on our human rights, and that the job should be taken off them.

But the police did publish a Supplementary Analysis Report, a sort of mini-RIS, in which they identify a significant risk that the bill could result in the entire FPO regime being considered to be inconsistent with the BORA by the courts. And that's not just about the risk of a formal Declaration of Inconsistency - it could also mean evidence obtained by the new search power being thrown out, and the crown being liable for damages where police exercise their powers unreasonably. And its easy to see why: we know how police abuse their existing search powers, and its easy to see how such a weak grounds for a search is going to combine with police institutional racism to increase such abuse. In the face of that, the police's claim that they will mitigate the risk by "develop[ing] internal guidelines to apply reasonableness limits on when and how searches are conducted" is just fucking laughable.

The police already have quite intrusive warrantless search powers where they suspect there are illegal guns, but the problem here is that the police explicitly regard the standard requirement of reasonable grounds to suspect that there are guns and a violation of the Arms Act to be an insurmountable barrier (which tells us something unpleasant about both their attitude to fundamental human rights, and their competence at their job). I expect a lot of effort is going to be spent at select committee to restrict that power, for example by limiting it only to where someone is actually subject to an FPO (which is currently only 30 people, and might, might, just manage to be BORA-consistent, but I'd need to look hard at what the courts and past Attorney-Generals had said about other regimes allowing automatic search after a court order). But even if that is done, there is a bigger problem: if any automatic search power is retained, the courts may issue fewer FPOs:

There is a risk that the imposition of new search powers may have a perverse effect if it results in a reduced willingness of Courts to issue FPOs. Courts may only issue FPOs where satisfied an FPO is necessary, reasonable and appropriate to assist in managing the risk the offender poses to public safety. If Courts consider that expanded search powers reduce the circumstances when an FPO is reasonable, this may result in fewer FPOs being issued and therefore reduced public safety benefits from the regime.
Basically, if an FPO means the police can kick in your door and terrorise your family and community constantly, whenever they want, then that significantly changes the equation on whether that is reasonable and appropriate. In fact, I'd think that the courts are unlikely to think that that is appropriate for any but the most severe firearms offenders, if even them (because, again, there are existing search powers). They are certainly not going to want to apply them to lower-level, non-violent offending by "gang members", as the police want (especially when one suspects they want that precisely so they can terrorise those families and communities; the Minister certainly seems to speak as if that is the goal). So, by demanding warrantless search powers to save them from having to do the basics of their fucking job, the police may end up shooting themselves in the foot on any benefits that might be gained from an FPO regime. Dicks.

But I guess if that happens, they'll just whine to National to overturn the courts and the BORA. And National would probably do it for them.

Anyway, the bill is currently open for submissions. If you'd like to express your revulsion at National's authoritarianism, you can do so here.