The Kiwi Party Incorporated v Attorney-General
[2020] NZHC 1062
•20 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-761
[2020] NZHC 1062
UNDER the Declaratory Judgments Act 1908 BETWEEN
THE KIWI PARTY INCORPORATED
Applicant
AND
THE ATTORNEY-GENERAL
Respondent
Hearing: 2 December 2019 Counsel:
G E Minchin for applicant G Taylor for respondent
Judgment:
20 May 2020
JUDGMENT OF KATZ J
This judgment was delivered by me on 20 May 2020 at 4:00pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Solicitors: Crown Law, Wellington
Thomas & Co, Auckland
Counsel: G E Minchin, Barrister, Auckland
THE KIWI PARTY INCORPORATED v THE ATTORNEY-GENERAL [2020] NZHC 1062 [20 May 2020]
Introduction
[1]Following the Christchurch Mosque shootings on 15 March 2019, the
Government moved quickly to reform the law relating to semi-automatic firearms.
[2] As an interim step, on 21 March 2019, the Governor-General issued an Order in Council declaring, for the purposes of the Arms Act 1983 (“Act”), all semi-automatic firearms to be “military style semi-automatic firearms”, provided they were capable of being used with a detachable magazine with a capacity of more than five cartridges.1 The Order had the effect of widening the definition in the Act of military style semi-automatic firearm. Thereafter, a person with a standard firearms licence could not buy or possess such a firearm. Only persons with a Category E endorsement on their firearms licence could possess such firearms.
[3] The Order in Council was only in force for 22 days. On 12 April 2019, the Act was amended by Parliament. The Order in Council was repealed2 and almost all semi-automatic firearms3 (except pistols) were classified as prohibited firearms, unable to be possessed by anyone regardless of their endorsement.4 An amnesty and buyback scheme followed, where gun owners could return their now prohibited firearms for compensation.
[4] The Kiwi Party Incorporated was formed by a group of licensed firearms holders. It brought this proceeding to challenge the lawfulness of both the Order and the subsequent amendments to the Act. All the Kiwi Party’s causes of action, however, were struck out on the application of the respondent, with one exception. The remaining cause of action seeks a declaration that the Order exceeded the powers granted to the Governor-General by s 74A of the Act (the relevant empowering provision) and was therefore invalid.5
1 Arms (Military Style Semi-Automatic Firearms) Order 2019.
2 Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019, s 75.
3 Except for semi-automatic firearms capable of firing only 0.22 calibre rimfire cartridges with a magazine of no more than 10 cartridges, and semi-automatic shotguns with a non-detachable tubular magazine that is capable of holding no more than 5 cartridges, Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019, s 5, now integrated into the Arms Act 1983, s 2A.
4 Unless they were granted an exemption as an “exempt person” under s 4A(1) for very limited
purposes.
5 The Kiwi Party v Attorney-General [2019] NZHC 1163.
[5] There is no dispute that s 74A does not permit the Governor-General to declare semi-automatic pistols to be military style semi-automatic firearms. Pistols are governed by a separate regime in the Act. The issue, therefore, is whether the Order, correctly interpreted, purported to include pistols within its ambit. If it did, it was ultra vires.
[6] If I find that the Order did include pistols, and was therefore ultra vires, the respondent submitted that no relief should be granted to the Kiwi Party. That is because the Order was only in force for 22 days and has now been repealed. Therefore, the respondent submitted, the issues raised by this proceeding are now moot.
Legislative history
[7] The Act abandoned previous registration requirements for most rifles or shotguns (the most common firearms in New Zealand). The legislative focus shifted to controlling firearm users, rather than individual firearms.
[8] As originally enacted, the Act did not differentiate rifles and shotguns on either their appearance or on their capacity for rapid fire. All a person required to own any rifle or shotgun was a firearms licence. The firearm could then be used (other than in a public place) for any lawful purpose, including the common activities of target-shooting, hunting and pest control.
[9] From the outset, however, special restrictions applied to restricted weapons and pistols. These firearms (unlike rifles and shotguns) were required to be registered. A specific endorsement was required to possess pistols or restricted weapons and they were only able to be used in narrowly prescribed settings.6
[10] After the 1990 Aramoana massacre, which at the time was the deadliest mass shooting in New Zealand’s history, sweeping changes were made to New Zealand’s firearms legislation. These included the introduction of photographic licences and
6 Restricted weapon is defined in s 2 as “any weapon, whether a firearm or not, declared by the Governor-General, by Order in Council made under section 4, to be a restricted weapon” and pistol is defined as “any firearm that is designed or adapted to be held and fired with 1 hand; and includes any firearm that is less than 762 millimetres in length”.
restrictions on military style semi-automatic weapons. A licence holder had to obtain a specific endorsement (a Category E endorsement) to possess a military style semi-automatic firearm. A Category E endorsement permitted possession and use of such firearms as before but required more stringent background and character checks.7
[11] In 2010 the statutory definition of military style semi-automatic firearm was further amended. The new definition expressly listed the various features that would make a semi-automatic firearm a military style semi-automatic firearm. In addition, provision was made for the Governor-General to add further categories to the definition of military style semi-automatic firearms, by Order in Council.
[12] At all times, however, pistols were expressly excluded from the definition of military style semi-automatic firearms. They remained subject to a separate, and very stringent, endorsement regime in the Act. This regime limits possession of pistols to certain narrow categories of people (such as members of police approved pistol clubs or bona fide collectors). An applicant must be assessed by police as being a fit and proper person to be in possession of a pistol. Further requirements are linked to the capacity in which the pistol is held. For example, where the endorsement permits a person to have possession of a pistol in his or her capacity as a member of a shooting club, that person may only use the pistol for target pistol shooting on a pistol range that is approved by the Commissioner of Police for that purpose. Further, the person has to actively participate in the affairs of the pistol shooting club by taking part in its activities, on the pistol range used by that club, on at least 12 days in each year. Any person who has a pistol endorsement in a capacity other than being a member of a pistol club cannot use live ammunition in the pistol.
[13] The Act was further amended in April 2019, following the Christchurch mosque shootings. The Order in Council was repealed, and military style semi-automatic firearms were re-categorised as “prohibited firearms.” Again, pistols
7 See for example the Arms Amendment Act 1992, s 13, as integrated into the Arms Act 1983, s 30B, providing that the Police must be satisfied that the person is a fit and proper person to be in possession of the particular firearm before granting a category E endorsement.
were specifically excluded from the definition of military style semi-automatic firearms. The 2019 amendments did not change the regulation of pistols.8
[14] As a result of the 2019 amendments, most semi-automatic firearms became prohibited firearms and it became unlawful to possess one. Category E endorsements formerly held for military style semi-automatic firearms were revoked. A new Schedule 1 to the Act introduced a temporary amnesty for persons in possession of prohibited firearms, to give them time to surrender them to Police, and empowered regulations to authorise compensation for prohibited items that were surrendered.
[15] Only an exempt person, as defined in s 4A, may apply for an endorsement to possess a prohibited firearm, and the police may only grant such an endorsement if satisfied that the applicant is a fit and proper person, and it is appropriate for the applicant to possess the prohibited firearms in their capacity as an exempt person. Exempt persons include licensed firearms dealers, collectors, persons to whom the prohibited item has special significance as an heirloom or memento, museum curators, film-makers, or people involved in certain types of regulated wild animal or pest control.
Was the Order in Council lawful?
[16] The Kiwi Party submitted that the Order exceeds the delegation of authority to the Governor-General in s 74A of the Act. That section empowers the Governor-General, by Order in Council, to declare any semi-automatic firearm (other than a pistol) to be a military style semi-automatic firearm. The Kiwi Party argued that the Order, correctly interpreted, purported to designate semi-automatic pistols to be military style semi-automatic firearms and was therefore ultra vires the empowering provision.
[17] The Order must be considered and interpreted in its full statutory context, with regard to the legislative history I have outlined above.
8 Except to clarify a requirement in the existing s 35 that a pistol endorsement holder also holds a permit to import or a permit to possess before they are lawfully entitled to possess a pistol.
[18] The full definitions in the Act of “military style semi-automatic firearm” and “semi-automatic firearm,” as at the time the Order in Council was made, are set out in the attached Schedule.
[19] For the purposes of interpreting the Order, the key passages of the definition of military style semi-automatic firearm are as follows:
military style semi-automatic firearm means a firearm (other than a pistol) that is –
(a)a semi-automatic firearm having 1 or more of the following features [the full list of features is set out in the definition in Schedule 1]; or
….
(c) a semi-automatic firearm of a description declared by an [Order in Council] under section 74A to be a military style semi-automatic firearm for the purposes of this Act; …
[20]Section 74A, the empowering provision, relevantly provided:
74A Orders relating to military style semi-automatic firearms
The Governor-General may by Order in Council do any or all of the following things:
….
(a)declare semi-automatic firearms (other than pistols) of a stated description to be military style semi-automatic firearms for the purposes of this Act: …
[21]The key passages of the Order are:
For the purposes of the Arms Act 1983, the following firearms are declared to be military style semi-automatic firearms:
(a)a semi-automatic firearm that is capable of being used in combination with a detachable magazine (other than one designed to hold 0.22-inch or less rimfire cartridges) that is capable of holding more than 5 cartridges:
(b)a semi-automatic firearm that is a shotgun and that is capable of being used in combination with a detachable magazine that is capable of holding more than 5 cartridges.
[22] The Order therefore had the effect of adding new criteria to the definition of military style semi-automatic firearms.
[23] The Order does not expressly exclude pistols. It was not in dispute that, if the Order is interpreted on a standalone basis, the term “semi-automatic firearm” described in (a) of the Order is worded broadly enough to include pistols. The Kiwi Party accordingly submitted that the Order purported to extend the definition of military style semi-automatic firearm to include pistols, in clear violation of the empowering provision (s 74A) which expressly includes an “other than pistols” proviso. It necessarily followed, the Kiwi Party submitted, that the Order was ultra vires and therefore invalid.
[24] The Order is not, however, a standalone document. The effect of an Order made under s 74A is to add criteria to the definition of military style semi-automatic firearms in s 2 of the Act. Read in the context of that definition, the Order cannot apply to pistols, as pistols are already excluded from the definition of military style semi-automatic firearms in its opening words. Those opening words, or “chapeau” of the definition, apply to every criterion that follows: “military style semi-automatic firearm means a firearm (other than a pistol) that is…”
[25] The Order, and the new descriptive criteria it introduces, is limited by the opening words of the definition, which expressly excludes pistols. There is therefore no need to exclude pistols from an Order declaring certain firearms to be military style semi-automatic firearms, as they are already excluded from the definition. The Order simply adds two additional sub-paragraphs to the existing definition of military style semi-automatic firearm.
[26] The point can be illustrated by inserting the two new descriptions from the Order into the definition, in place of the words “a semi-automatic firearm of a description declared by an [Order in Council] under section 74A to be a military style semi-automatic firearm for the purposes of this Act”. This results in the following amended definition:
military style semi-automatic firearm means a firearm (other than a pistol) that is –
(a)a semi-automatic firearm having 1 or more of the following features [the full list of features is set out in the definition in Schedule 1]; or
(b)a semi-automatic firearm that is capable of being used in combination with a detachable magazine (other than one designed to hold 0.22-inch or less rimfire cartridges) that is capable of holding more than 5 cartridges; or
(c)a semi-automatic firearm that is a shotgun and that is capable of being used in combination with a detachable magazine that is capable of holding more than 5 cartridges.
[27] The definition in (a) above was pre-existing. The definitions in (b) and (c) above were inserted by the Order in Council. All three alternative limbs of the definition, however, are qualified by the opening words that define a military style semi-automatic firearm as a firearm (other than a pistol) that meets certain criteria. There was accordingly no need to insert the words “other than a pistol” into the Order, as they are already in the statutory definition.
[28] Including the words “other than a pistol” in the Order would have been duplicative. For example, the inclusion of such a proviso in the Order would have resulted in the first new category of military style semi-automatic firearm being:
A firearm (other than a pistol) that is…a semi-automatic firearm (other than a pistol) that is capable of being used in combination with a detachable magazine (other than one designed to hold 0.22-inch or less rimfire cartridges) that is capable of holding more than 5 cartridges…
[29] The interpretation advanced by the respondent (which I have accepted) is consistent with not only the express wording of s 74A and the definition of military style semi-automatic firearm, but also the scheme of the Act as a whole.
[30] First, the definition of a pistol as a military style semi-automatic firearm would be inconsistent with the legislative regime. Pistols and other firearms are regulated completely differently, with different licensing requirements and usage requirements. Including semi-automatic pistols within the Order would have made such pistols easier to access, in critical respects. The context of the Order, as a stopgap response to restrict firearm access following a terror attack, makes this putative intention inherently unlikely.
[31] Second, the 2019 amendments, which were enacted shortly after the Order was made, are inconsistent with any intent that the Order include pistols. The 2019
amendments did not change the regime for pistols, only for semi-automatic firearms that are not pistols. Indeed, for its entire history, the Act has differentiated between pistols and other firearms and subjected them to a different licensing and endorsement regime. Parliament’s intent was (and still is) clearly that pistols be governed by their own legislative regime. Any potential overlap between the definitions of military style semi-automatic firearms and pistols (such as semi-automatic pistols which might have qualified as both) was dealt with by explicitly excluding pistols from the definition of military style semi-automatic firearms in s 2, and from the types of firearms that could be declared a military style semi-automatic firearm under s 74A.
[32] In conclusion, when the Order is interpreted in its legislative context, it is plain that it does not include pistols. There is no ambiguity. Further, this interpretation is consistent with the legislative history of the Act and its underlying structure and purpose. The 2019 amendments also point to the inherent improbability of the interpretation advanced by the Kiwi Party.
[33]The Order was therefore intra vires s 74A of the Act 1983 and lawful.
The issue of mootness
[34] As I have noted above, the respondent submitted that if I found that the Order was ultra vires, then no relief should be granted in any event, as the Order was only in force for 22 days and has now been repealed.
[35] Given my finding that the Order was intra vires and lawful, it is not necessary to consider the issue of mootness.
Result
[36] The applicant’s claim is dismissed. The respondent is entitled to costs and reasonable disbursements on a 2B scale basis.
Katz J
SCHEDULE – DEFINITIONS IN THE ARMS ACT 1986
The complete definitions for military style semi-automatic firearm and semi-automatic firearm in the Arms Act 1986, at the time the order was made, read as follows:9
military style semi-automatic firearm means a firearm (other than a pistol) that is—
(a)a semi-automatic firearm having 1 or more of the following features:
(i)a folding or telescopic butt:
(ii)a magazine designed to hold 0.22-inch rimfire cartridges that—
(1) is capable of holding more than 15 cartridges; or
(2) is detachable, and by its appearance indicates that it is capable of holding more than 15 cartridges:
(iii)a magazine (other than one designed to hold 0.22-inch rimfire cartridges that—
(1) is capable of holding more than 7 cartridges; or
(2) is detachable, and by its appearance indicates that it is capable of holding more than 10 cartridges:
(iv)bayonet lugs:
(v)a flash suppressor:
(vi)a component of a kind defined or described by an order under section 74A as a pistol grip for the purposes of this definition; or
(b)a semi-automatic firearm of a make and model declared by an order under section 74A to be a military style semi-automatic firearm for the purposes of this Act; or
(c)a semi-automatic firearm of a description declared by an order under section 74A to be a military style semi-automatic firearm for the purposes of this Act; or
(d)a semi-automatic firearm that has a feature of a kind defined or described in an order under section 74A as a feature of military style semi-automatic firearms for the purposes of this Act.
semi-automatic firearm means a firearm that (if it is loaded), with each pull of the trigger,—
(e)fires a cartridge and ejects its case; and
(f)(unless all cartridges loaded have been fired) chambers another cartridge
9 Arms Act 1986, s 2, as at 21 March 2019.
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