I’ve only recently become interested in the gun law reforms. I used to think that guns were dangerous and the less the better. However after witnessing the positive energy at the Sika show, acting for diverse interests promoting public good law reform and undertaking some research on gun related issues, I’ve realised that the government’s approach to guns is as ad hoc and unprincipled as its approach to many other important issues.
The underlying issue is not guns. Guns are no more dangerous that poison baits, cars, knives or 4W bikes. Its how they are used that is important.
We all needed time to reflect after the horrors of the Christchurch terrorist attack. Reflection is a good thing. However unravelling the background reveals that the aspect that let us down was not the gun laws, but the police’s failure to properly apply the “fit and proper person” test that underpins the NZ gun laws. Why would the police exempt someone who had no NZ friends to vouch for their character, from the well thought out requirements? Then, having exempted that person with the resulting horrific outcome, why blame the guns and the laws. It does not make sense. Why dont the police put their hand up, admit their own error and commit to ensuring the law is correctly applied in future?
The response of changing the law to make historic collectors guns illegal and then demanding they be handed in and destroyed because of political expedience, has unfortunate parallels with crazed international leaders destroying ancient monuments in Syria and other places. https://www.parliament.nz/en/get-involved/topics/topic-archive/changing-new-zealand-s-gun-laws-expanding-the-types-of-firearms-that-are-banned-and-an-amnesty-on-surrendering-guns-to-police
A parliamentary report of April 2017 states: https://www.parliament.nz/en/pb/sc/reports/document/SCR_72851/inquiry-into-issues-relating-to-the-illegal-possession
“New Zealand has a very low crime rate with firearms, at about 1.4 percent of all violent crime. The Police believe that most illicit firearms in New Zealand have entered the illicit market through theft of individuals’ firearms or firearms from dealers’ premises, illegal transfer from a licensed owner to an unlicensed owner, or illegal importation into New Zealand.
In 2014/15, there were 242,056 licensed firearm holders in New Zealand. We note that the overriding majority of firearms users in New Zealand are law abiding. Thus, our recommendations aim to reduce the flow of firearms to criminals, gangs, and those who do not have a licence, without unfairly impinging on law-abiding firearms users.”
The recent and ongoing gun law reforms are an arbitrary, divisive and disproportionate reaction.
What can now be done?
I’ve read the second stage of the proposed gun law reforms and been asked to consider a legal challenge. I’m my view the prospects of a successful legal challenge to an amended Act of Parliament is low. Instead what is required is a show of people power to reassert democracy and remind our elected representatives that they are there to represent the people and they must do so in a principled rather, than an arbitrary way.
Under New Zealand’s unwritten constitution “Parliament is Supreme“
Parliament is “supreme” in New Zealand, so it can theoretically pass or reform any statute, provided the reform gets the majority of votes. In New Zealand no laws are absolutely protected. In recent years a 51% majority vote has been enough to change even important constitutional legislation. For example in 2006 New Zealand passed the Supreme Court Act to remove our access to the UK based Privy Council, replacing it with the Supreme Court on a 51% majority vote.
New Zealand has no overriding constitution
New Zealand is unlike the USA, Canada and Australia which have overarching constitutions to restrict the abuse of power, at least on topics of fundamental importance. In contrast we have few checks and balances on our NZ Parliament, and even less on the actions of our executive (who make regulations and implement our laws).
At law school we were taught that the separation of powers between the legislature (which passes new laws), executive (which implements the laws) and the judiciary (which interprets the laws) provides checks and balances on the abuse of power. This is however severely compromised because Ministers of the Crown are part of both the legislature and the executive, and because most individuals and communities do not have the resources to engage the judiciary, so executive powers largely go unchecked.
The Treaty of Waitangi, Magna Carta and NZ Bill of Rights Act are underutilised and tend to be read down by our courts.
The many challenges the public face in seeking accountability from our representatives and the protection of the public interest are further compromised by many other factors, including the way our judges are appointed and promoted, the lack of transparency in crown legal advice, our ineffectual public watchdogs and the absence of critical media.
A) Appointment and promotion of judges:
NZ judges are appointed and promoted by the Governor General on the recommendation of the Attorney-General (a member of both the legislature and executive), rather than from an independent panel;
This is in contrast with the advice from the law commission: http://r126.publications.lawcom.govt.nz/Chapter+5+-+Appointment+of+judges/Introduction in its Issues paper 29
“...we suggested that the comment in April 2002 by the Advisory Group on the Establishment of the Supreme Court, that “all judges should be appointed by a transparent process, with clear criteria, and adequate and appropriate consultation”,37 is still apposite.38 We made certain preliminary proposals as to how this general principle could best be achieved in contemporary New Zealand circumstances, and for the foreseeable future.“
B) Transparency of advice from Crown Law
Crown law operates without any legislative mandate or constraints. It reports to the Solicitor-General (its CEO) who reports to the Attorney-General, and advises all branches of government. Its advice is typically “secret” due to its reliance on legal privilege.
When I worked for DoC I tried hard to encourage transparency in the reasons for decisions, so affected persons could understand the rationale. This opportunity for accountability was blocked by instructions from the Attorney-General.
Extract from the Cabinet manual: “Legal advice and legal professional privilege
4.62 Legal advice in departmental documents and Cabinet papers should be protected from disclosure in a manner consistent with the law. The guidance in paragraphs 4.63 – 4.72 sets out the required approach to the release of legal advice. Guidance on the release of draft government legislation outside the Crown can be found in Cabinet Office circulars.”
C: Ineffectual and under-resourced watchdogs
Ineffectiveness and under-resourcing of the Ombudsmen, Auditor-General, Health and Disability Commissioner and other authorities which can overview government actions. These authorities are constrained by their mandate and by their resources. Leaders can easily be chosen for their compliance with government will. Motivated officers become frustrated and leave.
D: Lack of objective media
Our media, is largely privately funded, so focused on easy populist stories rather than addressing complex issues. Many journalists are enthusiastic about covering stories about harm from 1080 poison, the lack of safety assessment of 5G , and the lack of constitutional rigour in New Zealand, however editors rule what is actually published. Coverage of the complex issues is largely left to bloggers or small independent publications.
What can we do?
The public is increasingly frustrated about their exclusion from important decisions. Nearly 20 years ago we had a Commission of Inquiry into GMOs, allowing experts and the public to share their views before a decision was made to postpone the introduction of this new technology due to the environmental and economic risks.
In recent years the only matter we have been asked about it a new flag. Meanwhile our government has decided to commit NZ to the TPPA, adopt John Key’s Predator 2050 strategy and promote the rollout of 5G, all without any social licence and with no public discussion about the public health, environmental or economic risks, why we need them, or even the lawfulness of the implementation.
Medicinal cannabis law reform has made some progress. However it seems to have become captured by vested interests. Public access to this herb which has been used as food, medicine and for textiles for over 4000 years by almost all great civilisations, has been restricted until it can be proven to be “safe”, licences are still required and the fees, delays and red tape have increased significantly. Police are still prosecuting medicinal users and altruistic Green Fairies.
Similarly the gun law reform has bypassed the usual limited but important public interest checks on new legislation, such as public consultation and a principled analysis of the need for the reform which is supported by robust evidence and can withstand scrutiny.
In contrast, the NZ government has consistently overlooked the obvious risk from the mishmash of poison laws and their almost total lack of enforcement, even though its own advisors admit that even a single 1080 poison bait can kill a toddler. There has been no apparent inquiry about how its own approved poisoner, Jeremy Kerr, accessed and posted enough 1080 poison to kill 13-33 toddlers without anyone in the government being alert. Even the massive police inquiry and economic harm did not stimulate any awareness in government about the risks.
Refer Queen v Jeremy Kerr 2016] NZHC 512 “ Enclosed with the letters in each case was a small, self sealing plastic bag containing a sample of infant formula contaminated with 1080. The collective volume of the 1080 if ingested was sufficient to prove fatal to between 13 and 33 infants.”
Nor has there been any official response to the clear evidence that four tuataras were killed in Natureland zoo, Nelson from secondary brodifacoum poisoning after eating “blue ” cockroaches poisoned with rat bait.
Another big challenge for communities is the rollout of 5G which threatens celltowers 100m apart in our streets, the amputation of tress (as trees and their leaves block their high energy microwave radiation) without any public consultation. A series of regulatory amendments have deemed RFEMR emissions which comply with dated industry promoted standards (NZS2772:1 1999) to be “safe” even though the WHO and IARC classify these microwave emissions as a possible carcinogen.
The overarching issue is our government’s apparent determination to follow its own opaque agenda and its lack of respect for the public it represents. If cockroaches and other insects eat cereal bait laced with brodifacoum it seems inevitable they will also eat rat bait laced with 1080 or other poisons, contaminating the food chain through secondary poisoning.
The solution is for the people to find common ground, unite and make the biggest possible fuss to remind our government why they are there and who they represent.
The March 2020 Festival of People Power to be held in Turangi and Tokaanu from 18 to 23 March is one opportunity to help build this movement and force the change we all urgently need.