Firearms Prohibition Orders too broad, giving police too much power for warrantless searches – select committee

The Government’s moves to crack down on gang associates and their firearms would potentially capture innocent people and give police too much power for warrantless searches, according to the Justice Select Committee.

It has recommended several changes to soften the Firearms Prohibition Orders Legislation Amendment Bill, restricting what can be the subject of a warrantless search. All the rooms in a hotel owned by someone suspected of being under a Firearms Prohibition Order (FPO) would be a step too far, for example.

The committee has also narrowed the type of people that an FPO could be applied to so anyone with a link to an associate of a gang – such as counsellors or religious leaders – aren’t potentially captured.

The bill is part of the Goverment’s crackdown on gangs, which Prime Minister Christopher Luxon has not resiled from, despite accepting the state’s responsibility for those who were abused in state care – which for many was a pathway into gang life.

FPOs are meant to place restrictions on high-risk individuals by reducing the likelihood of them accessing firearms.

Someone who is the subject of an FPO – ordered by a court – cannot hold a firearms licence, use firearms or related items, or associate with anyone with a firearm (under standard conditions). This would ban them from living in or visiting a house with firearms inside. Breaching an order is punishable by up to five years’ jail.

FPO orders are already possible under legislation from the previous Government, which made them applicable for someone convicted of serious offences; 30 FPOs had been issued in the first 15 months of the law taking effect, eight of which were to gang members.

The Government’s new bill would give police new warrantless search powers, and pivot FPOs more towards gang members and their associates. They would also be applicable to a much wider range of people - up to three and half times as many under the current law - because lower-level offences would be included.

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Crown Law characterised the search powers that Cabinet initially approved as at “risk of being exercised unreasonably”. They would have allowed police without a warrant to search a person they suspected of being under an FPO, as well as the property they owned or had control over (including a vehicle or property), and any vehicle or venue they were in.

Police told the committee there is always a degree of uncertainty involved, so the committee strengthened the threshold: police have to reasonably “believe” an FPO is at play, rather than simply “suspect” that is the case.

The committee also wanted to limit any warrantless search to monitoring compliance with FPO conditions, which would help ensure the power wouldn’t be misused to check for any offending, without cause to believe conditions were being breached.

Police would also have the ability to search property that the person occupied or controlled but not owned. “A search of an entire hotel because an individual with an FPO was in the bar is unlikely to be considered reasonable,” the committee said in its report.

Associate Minister of Justice (Firearms) Nicole McKee has announced new measures that will enable police to crack down on gangs through Firearms Prohibition Orders. Photo / Mark Mitchell

Labour members of the committee opposed the bill, saying the new warrantless search powers were still too broad “and could be exercised without cause to suspect that a person was breaching the conditions of their FPO”.

“The legislation would also mean that someone who is in the company of a person who has an FPO could have their home or vehicle searched, even if they had no knowledge the person they are with has an FPO,” Labour members of the committee said.

“We consider there is potential to misuse this broad new search power and therefore cannot support this bill as it does not clearly define the limits and guidelines for conducting these searches.”

Avoiding capturing innocent people

The original bill would make FPOs applicable to people who weren’t necessarily a risk to public safety, including those with links to someone associated with a gang (such as a gang member’s relatives, colleagues, counsellors, or religious leaders), the committee said.

It recommended making FPOs applicable only to those in a gang or associated with a gang.

The new offences that could trigger an FPO were also too broad, capturing convictions that the committee said were potentially unconnected to “firearms, organised crime, or violent offending”, or not connected to any risk to public safety.

The original bill wanted any offence under the Crimes Act punishable by a year in jail to qualify someone for an FPO. The committee instead recommended particular offences such as crimes against the person (such as kidnapping or assault), and crimes against property (such as theft or burglary).

The bill will now be returned to the House, and is expected to pass into law later this year with support from the governing coalition parties.

It follows the Government’s anti-gang laws, which the committee has also recommended softening because of the likelihood of being applicable in situations that were not a threat to public safety.

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery team and is a former deputy political editor.