IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-000866 [2013] NZHC 1813

BETWEEN	RICHARD LINCOLN Applicant	

AND	
COMMISSIONER OF POLICE Respondent	

Hearing:	19 June 2013	

Appearances:	
Applicant in person
M Coleman and L Inverarity for Respondent	

Judgment:	
18 July 2013	

JUDGMENT OF PANCKHURST J

Declarations pertaining to the Arms Act

[1]      In this proceeding, Mr Lincoln seeks wide ranging declarations under the Declaratory Judgments Act 1908 relating to issues concerning procuring, importing, possessing and using military style semi-automatic firearms (MSSA’s) under the Arms  Act  1983.     His  amended  statement  of  claim  sought  12  declarations. Fortunately, the list of declarations was later revised to a more manageable number.

[2]       Mr Lincoln is a firearms enthusiast and actively involved in hunting, and range and competitive shooting.  He is also the President of the National Shooters Association of New Zealand.

[3]       The Commissioner of Police questions whether most of the issues raised by Mr Lincoln are suited to resolution by way of declarations.   Counsel for the Commissioner  submitted  that  there  was  no  proper  factual  context  to  enable  a
declaration to be made in some instances, disputed or hypothetical facts in others, or

LINCOLN v COMMISSIONER OF POLICE [2013] NZHC 1813 [18 July 2013]

that some issues were best left for resolution in another, and more appropriate, forum.

[4]       It follows that resolution of the proceeding will require an examination of the factual circumstances disclosed in five affidavits filed in support and two in opposition, a decision concerning whether declaratory relief is appropriate and, if so, the terms of the declaration to be made will require formulation.

The declarations sought

[5]       Prior to the hearing Mr Lincoln and counsel for the Commissioner conferred in an endeavour to agree upon the issues for determination. Agreement did not prove possible.   Ms Coleman, however, identified seven substantive questions which appeared to her to cover the issues identified in the claim. At the hearing Mr Lincoln helpfully advanced submissions by reference to the classification of issues at which Ms Coleman had arrived.  He also accepted that certain issues fell away as a result of the reformulation exercise. Accordingly, I heard submissions directed to these seven
issues.

[6]

quest	In  my  vie ions, two of w

(i)	w,  however,  relief  can  be  considered  with  reference  to  five hich contain two propositions. They are:

Is a permit to procure required for the conversion of a firearm	
		to a MSSA firearm?	
	
(ii)	
When the statutory criteria are met do the police still have a residual discretion to refuse to issue a permit to procure a	
		MSSA firearm?	
	
(iii)	
In considering an application for an endorsement to authorise	
		the possession of a MSSA firearm may the police:	
		
a.   impose	a	pre-condition	that	firearm	security	
precautions must first be in place, and

b.   adopt a blanket policy to this effect.

(iv)	In considering an application for a permit to import a MSSA

firearm, do the police:

a.   have an implied power to impose conditions in relation to the permit, and

b.   if so, may the police impose a condition requiring the surrender of an unserviceable MSSA firearm or an unserviceable part thereof?

(v)	Is it an offence against the Arms Act 1983 for a non licensed person to possess a MSSA firearm under the immediate supervision of a licence holder?

These questions will, I think, enable the spread of declarations sought by Mr Lincoln to be considered.  Whether each question is suitable for declaratory relief in light of the affidavit evidence is another matter.

[7]       Before I turn to the individual questions it is helpful to mention some themes which underpin the Arms Act 1983 (the Act).  Then, with reference to the individual questions, it will be necessary to refer to particular sections of the Act and any associated regulations in more detail.

The Arms Act 1983

[8]       The long title of the Act is:

An Act to consolidate and amend the law relating to firearms and to promote both the safe use and the control of firearms and other weapons.

[9]       In general terms the Act introduced a system of licensing gun owners, as opposed  to  licensing  firearms  themselves  as  had  been  the  approach  under  the previous Arms Act.  This means that if a person holds a firearms licence there is no restriction on the number of firearms that person may own, nor a record of the

firearms possessed by them.  If, however, a person wishes to import a firearm into

New Zealand, a permit to do so is required.

[10]    Certain firearms, however, are subject to stricter controls.  Section 2, the interpretation section, provides that certain firearms may be declared to be restricted weapons by Order in Council.  Pistols are grouped with restricted weapons and provisions in the Act stipulate that the procurement and carriage of a pistol or a restricted weapon is only permitted pursuant to a permit or licence.  These same provisions (sections 35 to 38) also apply to MSSA firearms by virtue of an amendment to the Act in 1992 in response to the Aramoana tragedy two years earlier. Hence, in respect of this special category of firearms, a special regime exists.

[11]     Administration of the Act is the responsibility of the Commissioner of Police who delegates day to day decision-making to arms officers stationed throughout New Zealand.  Typically they are non-constabulary employees of the police who possess firearms expertise.  Enforcement of the Act is of course the responsibility of the police force at large.

[12]     I note that Mr Lincoln has previous experience in arguing technical issues under the Act.  In Lincoln v Police1 he challenged a police advisory which specified that the existence of a pistol grip that allowed a full hand grip to be effected placed a firearm within the definition of a MSSA firearm.  Mallon J agreed with Mr Lincoln’s contrary argument and granted a declaration to that effect.

Is a permit to procure required for the conversion of a firearm to a MSSA?

Factual background

[13]     On 14 September 2011  Mr Lincoln emailed Inspector Joseph Green,  the national co-ordinator of firearms control, asking whether fitting a “normal capacity magazine” to his semi-automatic rifle would require a permit to procure.  A normal capacity magazine was capable of holding more than seven cartridges, meaning that
the rifle would become an MSSA.  Mr Lincoln referred to another instance involving

1	Lincoln v Police HC Palmerston North CIV-2009-454-473, 1 March 2010.

another licence holder in 2009 when a permit to procure was required, and asked whether the police were now adopting a different approach.

[14]     On 15 September 2011 Inspector Green responded by email stating “a permit to procure your SL8 as an MSSA” is required.  He added that an arms officer was not able to issue the permit, so it would be forwarded to Inspector Green.

[15]     On 30 September 2011 Mr Lincoln applied for an endorsement.  This was a statutory requirement whereby the holder of the firearms licence must have an endorsement to their licence confirming their authority to possess an MSSA firearm. However, no further steps were taken to finalise matters.  Instead, Mr Lincoln filed this proceeding seeking a declaration that the police are wrong in requiring a permit to procure to authorise conversion of a firearm to an MSSA.

[16]     Counsel accept that it is appropriate to make a declaration relating to this issue.  There is a question concerning the interpretation of the relevant statutory provisions and the issue is one of general importance.

The statutory scheme

[17]    Inspector Green has sworn an affidavit in which he explains the permit to procure system.  It is convenient to refer to some aspects of his evidence while describing the statutory provisions.

[18]     The   Arms   Regulations   1992   enable   the   Commissioner   to   prescribe endorsements to relate to firearms licences.2    An ‘E’ endorsement is required to authorise possession of a MSSA firearm.   To obtain an ‘E’ endorsement a licence holder must make written application to the police and demonstrate that he or she is a fit and proper person to be in possession of a MSSA firearm.3   It is a condition of an ‘E’ endorsement that the licence holder will comply with security precautions
prescribed by regulations.4   In addition, an ‘E’ endorsement may be subject to further

2	Arms Regulations 1992, reg 23.
3	Arms Act 1983, ss 30A and 30B.
4	Section 33A(1).

conditions regarding the use or custody of any MSSA firearm.5    Should it emerge that a licence holder is no longer a fit and proper person to have an ‘E’ endorsement, or if the conditions attaching to the endorsement have not been observed, the endorsement may be revoked.6

[19]     Against this background, Inspector Green deposed:

The lettered endorsement, shown on the holder’s licence is only a general endorsement.   It does not purport to identify how many, or what specific arms that person is entitled to possess.  The permit to procure or import is what makes the endorsement specific to the firearm contained in that permit
...

[20]     Turning to the permit provisions a permit to import is required to bring any firearm, or firearm parts into New Zealand.7  An application for a permit to import is made to the police who may require the production of a sample of the firearm, or parts, and may as a matter of discretion refuse to grant a permit.8     In relation to pistols, restricted weapons and MSSA firearms, including parts, permits may only be granted if the Commissioner has determined there are ‘special reasons’ justifying the importation.9   Where a permit to import is issued it is personal to the holder and may
not be transferred to anyone else.10

[21]     With regard to firearms already within New Zealand a permit to procure is required in relation to only some firearms.  Section 35 of the Act relevantly provides:

Issue of permit to procure pistol, military style semi-automatic firearm, or restricted weapon

(1)        A permit to procure a pistol, military style semi-automatic firearm, or restricted weapon may be issued only by a member of the Police acting under a direction of the Commissioner.

(2)        A permit to procure a pistol, military style semi-automatic firearm, or restricted weapon may be issued if the member of the Police to whom the application is made is satisfied-

(a)	That the person to whom it is issued is a licensed dealer; or

5	Section 33A(2).
6	Section 33B.
7	Section 16.
8	Section 18(1).
9	Section 18(2).
10	Section 18(3).

(b)	That the person to whom it is issued is the holder of a firearms licence that bears an endorsement made under section 30 or section
30B  of  this  Act  and  that,  by  virtue  of  that  licence  and  its endorsement, that person is permitted to have possession of the
pistol, military style semi-automatic firearm, or restricted weapon, as the case may be.

(3)        Every permit issued under this section shall, unless sooner revoked, remain in force for such period, not exceeding 1 month, as may be specified in the permit.

(4)        Any permit issued under this section may at any time during its currency be revoked by a commissioned officer of Police.

Subsection (5) is not relevant.  Importantly, there is no similar requirement to obtain a permit to procure in relation to firearms generally.

[22]     Section 44 makes it an offence punishable by three years imprisonment, a

$4000 fine, or both to sell or supply a pistol, MSSA firearm or restricted weapon to anyone not authorised by a permit to import or a permit to procure the pistol, firearm or  weapon  in  question.    Section  50  provides  that  unlawful  possession  of  such firearms is also an offence and similarly punishable if the person in possession is not “authorised or permitted, expressly or by implication” to possess a pistol, MSSA firearm or weapon.

[23]     The Arms Regulations 1992 prescribe the permit to procure process.   Each application  must  specify  the  applicant’s  details,  including  particulars  of  their firearms licence; and also identify the location and description of the firearm and the number of the present owner’s firearms licence.11    Having obtained a permit the intending procurer may deliver it to the intended supplier.12    Following delivery, regulation 26 provides:

Delivery of permit

(2)	The  person  handing  over  possession  of  the  pistol,  military  style semi-automatic firearm, or restricted weapon-

(a)	Shall forthwith write on the permit-

(i)	A  description  of  the  pistol,  military  style  semi- automatic firearm, or restricted weapon, including

		the  make,  model,  calibre,  and  serial  number  or identification number; and	
	
(ii)	
The  date  of  delivery  of  the  pistol,  military  style semi-automatic firearm, or restricted weapon; and	
	
(iii)	
His or her signature; and	
	
(iv)	
The number of his or her firearms licence; and	

(b)	
Shall	
then   return  the   permit   to   the   person   obtaining	
possession  of  the  pistol,  military  style  semi-automatic
firearm, or restricted weapon.

(3)       The person obtaining possession of the pistol, military style semi- automatic firearm, or restricted weapon shall forthwith return the permit to the Arms Office at which the permit was issued and, at that Arms Office, produce the pistol, military style semi-automatic firearm,  or  restricted  weapon  to  a  member  of  the  Police  for inspection.

[24]     This  enables  records  to  be  maintained  and  updated.     Inspector  Green deposed:

[26] ... the details of the firearm are then recorded in the police computer system (National Intelligence Application, NIA) against the electronic record of the endorsement. As the permit application also identifies the seller of the firearm, the firearm is removed from (the) electronic record of the seller’s endorsement once transfer is confirmed.

He added “the language employed by police may be confusing”, which I assume was a reference to the terminology ‘a permit to procure’, since the police also require a permit to procure where an existing owner modifies their firearm to become a MSSA firearm.  Inspector Green deposed that such conversions are “a relatively unusual scenario” and “almost unique to MSSA’s” because a lesser category firearm can be modified to become a MSSA by the replacement of a single component e.g. a magazine  holding  more  than  seven   cartridges.     Generally,   Inspector   Green considered that the endorsement/permit system works well from a police perspective.

The arguments

[25]     Mr Lincoln submitted:

   To  procure  in  the  context  of  the Act  implies  a  supplier  and  a  separate procurer, and this is borne out by regulations 24(1) and 26(1) of the Arms

delivery of the permit to the person ‘handing over possession’ of the MSSA

firearm.

   The purpose of a permit to procure is to allow police to track ownership changes and maintain the integrity of “endorsement records”.   This contemplates a supplier and a procurer.  The decision of this Court in Jenner v Attorney General13 is authority for the proposition that “an endorsement must refer to a specific restricted weapon or MSSA”.14     Hence, the endorsement process provides the information required by the police and
insisting upon a permit to procure for a modified MSSA is pointless.

   Applications for an endorsement in respect of a pistol or restricted weapon, or a MSSA firearm, pursuant to ss 29(1) and 30A(1) respectively, authorise a successful applicant ‘to have possession of ...’ the particular firearm. Similarly, a licence holder who modifies a firearm into a MSSA must seek an endorsement to justify his or her ongoing possession of the firearm. A permit
to procure is therefore unnecessary.

[26]	Ms Coleman submitted:

   Procure is a word of wide meaning; synonyms being to obtain, get, acquire or secure something.  Therefore, use of the word procure does not necessarily
assume the involvement of a third party.

   The predecessor to s 35 of the Act was s 7 of the Arms Act 1958 which provided that a person could not “whether by way of purchase or in any other manner, procure possession of a firearm ...” unless pursuant to a permit to procure  or  import.     Section  35  should  be  read  consistently  with  its
predecessor.

Sections 18 and 35 of the Act are in symmetry, because either a permit to

import is required or in all other cases a permit to procure.   This provides

coverage over all MSSA’s including modified ones.

   The statutory scheme is that an endorsement provides personal authority to possess an MSSA, while the permit to procure (or a permit to import) identifies the specific firearm to which the endorsement attaches.  Both are essential to the record keeping system by which possession of MSSA’s by
licence holders is recorded.

Analysis

[27]     The meaning of a statutory provision is to be ascertained from its text and in light of its purpose.15   The relevant enactment as a whole may be considered, not just the content but the organisation and format of the enactment and any other explanatory material.16

[28]     The general  thrust  of the Arms Act  1983  is  clear enough.    Its  principal purpose is to promote the safe use and control of firearms and other weapons.   It seeks to do so by requiring that firearms dealers are licensed,17  and that those who wish to possess firearms are the holder of a firearms licence.18   Conditions attaching to licences are to further promote the safe use and control of firearms.

[29]     A further level of control exists by virtue of permits to import and to procure. The former applied to all firearms and parts.  Permits to procure, however, are only required in relation to pistols, restricted weapons and MSSA firearms.19   Firearms of these descriptions have been singled out as warranting stricter controls.  A specific endorsement to a firearm holder’s licence is required to authorise possession of  this category of firearm.20     In relation to the special category the legislation, and regulatory regime under the Arms Regulations 1992, include measures to enable the
police to  record  the details  of people in  possession  of such firearms,  including

15	Interpretation Act 1999, s 5(1).
16	Section 5(3).
17	Arms Act 1983, ss 5-12.
18	Sections 23-27.
19	Section 35.

this regime to be comprehensive.

[30]     But whether the Act achieves this aim is another matter.  While I agree that procure is a word of wide meaning, when read in the context of the Act it does not in my view cover the situation at issue.  That is, the obligation under s 35 to apply for a permit to procure a MSSA firearm does not naturally refer to a conversion of a firearm which the person already possesses.   I am satisfied that the conversion scenario, as Inspector Green described it, was not in the mind of the legislature when s 35 was enacted.  The requirements of the Arms Regulations (see [23]) confirm as much.  The permit to procure is required to be delivered to a supplier, who is then subject to a regulatory obligation to record the supply of a special category firearm to the procurer.  Viewed in this broader context to construe ‘procure’ as covering a personal conversion scenario would be inapt.

[31]     I am fortified in this conclusion by the offence provisions:  ss 54 and 50 of the Act.  These create companion offences of selling or supplying special category firearms otherwise than pursuant to a permit to import or to procure; and unlawful possession  of such firearms  by persons  who are not  authorised or permitted  to possess them.   Conviction may result in serious consequences.   These penal consequences are a consideration to be borne in mind when interpreting s 35.

[32]     I do not, however, agree with the applicant’s submission that the requirement to obtain an endorsement to a firearms licence ensures that a record exists of the MSSA firearm held by an endorsement holder.   The evidence establishes that the endorsement provides personal authority to possess a special category firearm, but that the permit process tracks the actual acquisition of the firearm.  It follows that there is a gap in the legislative scheme once it is recognised that modification of a firearm to a MSSA firearm does not require a permit.  Inspector Green’s evidence at [24] suggests  that  the problem  is  not  large,  but  this  loophole is nonetheless  of concern.

[33]     Nor do I accept the applicant’s submission that Jenner v Attorney General

established that the endorsement process of itself enables the endorsement holders

special category firearm to be recorded.  While Andrews J agreed with the District Court Judge that “an endorsement must refer to a specific restricted weapon or MSSA”,21 the decision does not distinguish between information gleaned via the endorsement  application  as  opposed  to  via  the  permit  application.    It  is  the interaction of the two which leads to the identification of a specific firearm.

The declaration

[34]     For the above reasons I make a declaration in these terms:

A permit to procure under s 35 of the Arms Act 1983 is not required where a person modifies an existing semi automatic firearm to create a military style semi automatic firearm.

Do the police have a residual discretion to refuse to issue a permit to procure?

Section 35 of the Act

[35]     The relevant parts of this section are set out at [21].  In short, the police may issue a permit to procure a pistol, a MSSA firearm, or a restricted weapon if satisfied that the applicant is either a licensed dealer, or the holder of a firearms licence that bears  an  endorsement  to  possess  the  special  firearm  in  question.    The  issue  is whether an applicant who is either a licensed dealer, or holds the appropriate endorsement, may nonetheless be refused a permit for some other reason given the use of may in s 35.

Factual background

[36]     Mr Lincoln filed an affidavit in support dated 12 December 2012.  It began:

1.  In September 2011, I emailed the defendant seeking advice as to the procedure  to  follow  in  order  to  manufacture,  build  or  assemble  a sporting rifle that would be, on its final configuration, considered a military style semi-automatic sporting firearm for the purposes of the Arms Act 1983.

21	Jenner v Attorney-General, above n 2, at [55].

an ‘E’ endorsement and then apply for a permit to procure which, he
said, he would consider and refuse or approve.

Mr Lincoln considered a permit to procure was not necessary, but nonetheless he made application for an endorsement.  His affidavit details a dispute which arose in relation to the endorsement application.

[37]     Inspector Green’s affidavit contains some further evidence arising from an email exchange in October 2011.  Mr Lincoln questioned the ability of the police to refuse to grant a permit to procure to a licensed dealer or a person holding the requisite  endorsement.    Inspector  Green  responded  to  the  effect  that  there  is  a residual discretion exercised on a case by case basis with regard to whether a special reason exists justifying the importation of a military style semi-automatic firearm.

[38]     Mr Lincoln filed a reply affidavit dated 6 March 2013.  It included this:

Much of Inspector Green’s evidence relies on what are considered erroneous presuppositions, over simplifications and misinterpretations of the Arms Act, and its regulations.  His evidence is refuted and I put him to proof on the matters asserted by him in his affidavit.

Analysis

[39]    In these circumstances I accept Ms Coleman’s submission that it is not appropriate to consider declaratory relief in relation to this aspect.  The applicant did not apply for a permit to procure.   Hence, there has been no refusal and such evidence as is contained in the affidavits is wholly insufficient to enable the question of interpretation to be considered.  Section 62 of the Act provides a right of appeal to the District Court against official decisions, including a refusal to issue a permit
under s 35.22    This is the appropriate forum to determine this issue in an instance

where there has been a refusal and, therefore, a proper factual situation exists.

22	Arms Act 1983, s 62(1)(a)(v).

Can the police decline a MSSA firearm endorsement application if security precautions are not in place?

The statutory provisions

[40]     Section 30A provides that anyone 18 years of age or over may apply for an endorsement permitting them to have possession of a MSSA firearm, termed an ‘E’ endorsement. The grant of an endorsement is governed by s 30B:

On receiving an application under section 30A of this Act, a member of the police may, subject to any direction from the Commissioner, make the endorsement applied for if that member is satisfied that the applicant is a fit and proper person to be in possession of the military style semi-automatic firearm to which that application relates.

[41]     Regulation 28 of the Arms Regulations 1992 prescribes security precautions for the safe keeping of pistols, MSSA firearms and restricted weapons.  When not in use, such firearms must be kept in a steel/concrete strong room, a room of stout construction, or a locked steel box/cabinet approved by the police as fit for purpose. And, regulation 28(5) stipulates that an E endorsement is issued:

... subject to the condition that every person who is lawfully entitled to possession of a ... military style semi-automatic firearm ... will observe the provisions of this regulation to the extent that they are applicable to that person.                                                                              (emphasis added)

The factual background

[42]     On 30 September 2011 Mr Lincoln applied to the Christchurch Arms Office for an E endorsement.  Determination of the application was delayed for several months while the applicant’s former partner, and nominated referees, were interviewed.  In April 2012 Arms Officer Bruce indicated to Mr Lincoln that his then residence in a house bus was problematic, given the requirements of regulation 28. In early May 2012 Mr Lincoln proposed that his MSSA firearm would be stored in a personal safe stored in a workshop owned by a third party.   This proposal was referred to police headquarters for a decision.   In July 2012 Mr Bruce advised Mr Lincoln that his security proposal had been approved, provided he had 24 hour access to the workshop premises.

[43]     On 14 August 2012, however, Mr Lincoln filed an appeal to the District Court pursuant to s 62(1)(a)(iv) of the Act against the ‘constructive refusal’ of his endorsement application.  A supporting affidavit stated that the Commissioner had persistently obstructed his application and the failure to make a decision amounted to a constructive refusal.

[44]     On 1 October 2012 Mr Bruce advised Mr Lincoln that the vetting required in relation to his application had been completed and it remained only to inspect the secure safe to be installed in the third party’s workshop.  That day Mr Lincoln responded stating that the secure safe would not be installed until after the E endorsement was granted, as the other way around ‘put the horse before the cart’. His email included an undertaking that the endorsement would not be acted upon until the secure safe had been inspected and approved by the police.

[45]     An impasse developed.  Absence an inspection of the secure safe the Police would not determine the endorsement application, while Mr Lincoln’s stance remained as set out in his email.  Curiously, this proceeding had already been filed in May 2012 including reference to  this aspect.   The appeal to  the District Court remains afoot.

Analysis

[46]     Inspector  Green  annexed  to  his  affidavit  a  copy  of  the  arms  manual containing  details  of  the  police  firearms  control  policy.    Paragraph  16.7  of  the manual provides reference to MSSA firearm endorsements:

On no account is an “E” Endorsement application to be approved before security in accordance with Regulation 28, Arms Act Regulations 1992 is installed, inspected and approved.

[47]    For the brief reasons which follow I consider it inappropriate to make a declaration concerning the rights and wrongs of the present situation.   On the one hand, regulation 28(5) deems an E endorsement to be subject to the condition that the holder ‘will observe’ the security provisions set out earlier in the regulation. Arguably these words are prospective, which may cast doubt upon the police approach of requiring the installation and approval of security precautions even

before an endorsement is granted.  This viewpoint, it seems to me, had added weight prior  to  my  making  the  declaration  at  [34].    Before  then  the  grant  of  an  E endorsement had to be followed by an application for a permit to procure.   In my view it was at this point that the existence of approved security provisions could be insisted upon.  The endorsement holder was not only approved as a fit and proper person, but was presumably on the brink of obtaining an MSSA firearm pursuant to a permit.

[48]    On the other hand, requiring the installation of a safe storage facility as a precondition to granting the E endorsement seems premature.   However, I am unpersuaded that it is appropriate to grant declaratory relief at the present time.  I have granted a declaration to the effect that a permit to procure is not required for the conversion of a firearm to a MSSA firearm.  This ruling will prompt, I assume, a review of these processes.  This will provide the opportunity to review the present aspect as well.

[49]     I doubt, therefore, that a declaration relating to security precautions would be of any utility at the present time.

May police require the surrender of an unserviceable MSSA firearm, or part, as a prerequisite to the grant of a permit to import?

The statutory provisions

[50]     Section 16 of the Act proscribes the importation of firearms, or parts, into New  Zealand  without  a  permit  to  import.     The  offence  is  punishable  by imprisonment for one year, a $2000 fine, or both.

[51]     The issue of permits to import is governed by s 18 of the Act.  Any police officer dealing with the permit application may require the applicant to produce for examination and testing a sample of the firearm to be imported (s 18(1)(a)), and:

(b)	May, in the discretion of that member of Police, refuse to grant the permit with respect to-

(i)	Any firearm, pistol, military style semi-automatic firearm, starting pistol, or restricted weapon of any kind; or

(ii)	Any parts of a firearm, pistol, military style semi-automatic firearm, starting pistol, or restricted weapon of any kind.

(2) Without limiting the discretion conferred by subsection (1)(b) of this section, no application for a permit for the purposes of section 16(1) of this Act in respect of-

(a)        A pistol, military style semi-automatic firearm, or restricted weapon;
or

(b)	Parts of a pistol, military style semi-automatic firearm, or restricted weapon-

shall be granted otherwise than by the Commissioner who shall first be satisfied that there are special reasons why the pistol, military style semi- automatic firearm, or restricted weapon or parts to which the application relates should be allowed into New Zealand.                   (emphasis added)

[52]     The Commissioner’s power to determine whether special reasons exist has been delegated to Inspector Green and another officer.   In July 2012, following consultation with the Council of Licensed Firearms Owners, the police promulgated an advisory containing examples of special reasons.  It included this:

‘The words “special reason” are wide, comprehensive and flexible’ meaning a broad range of matters may be taken into account.  A special reason is a reason which sets it apart from the usual reasons which might be offered in such cases.  Circumstances, which in one case would be special reasons, in another, might not be such.

While having the ability to apply discretion in granting or refusing a permit to import under s 18 of the Act 1983, Police may not ban, by policy, whole categories of firearms.   Each application then is to be considered on its merits.

I note that in Practical Shooting Institute v Police23 a total ban on the importation of MSSA firearms which the Commissioner sought to impose in 1990 was declared invalid.  Seemingly, the lessons of that case are reflected in the above passage.

[53]    A table attached to Police advisory contains some examples of reasons considered to fall within the ambit of special reasons.   With regard to a MSSA firearm the possible special reasons justifying an importation are:

The individual applying for the permit:

23	Practical Shooting Institute v Police [1992] 1 NZLR 907 (HC).

(a)        seeks to possess the MSSA as part of a collection, and demonstrates that it fits with and enhances an existing collection, or

(b)       participates in an identifiable shooting discipline or sport at an incorporated sports club with rules encouraging safe and legal use of firearms and a range certified for the shooting activity and intends to use the MSSA in an event at that sports club, or

(c)	wishes to use the MSSA in a capacity equivalent to that described in
section 29(2)(e) of the Arms Act 1983 (‘theatrical purposes’), or

(d)        wishes to replace an unsafe or unserviceable MSSA or part thereof and offers a 1:1 surrender of the unsafe or unserviceable MSSA or part for the MSSA, or

(e)	requires the MSSA for occupational purposes.

(emphasis added)

Factual background

[54]     Evidence in relation to this aspect was provided in affidavits sworn by Messrs Timothy Tipple and William Atkinson.  Mr Tipple is a licensed dealer under the Act. Annexed to his affidavit is an email exchange between himself and Inspector Green which occurred over a five month period ending in September 2012.  It concerned special reasons sufficient to lead to the grant of a permit to import an MSSA firearm, including whether when replacement of an old MSSA was relied upon surrender of the old firearm remained a requirement.  A decision upon an actual application for a permit to import did not follow.  I note that part way through the email exchange the July 2012 advisory was released.

[55]     Mr  Atkinson  was  granted  a  permit  to  import  an  MSSA  firearm  in November 2011  upon  condition  that  he  surrender  his  previous  MSSA which  he described in the application as ‘no longer competitive’.  Subsequently, Mr Lincoln in his  capacity  as  President  of  the  National  Shooters Association  wrote  letters  to Mr Green challenging the legality of the surrender policy in general.   In the end result Inspector Green in July 2012 emailed Mr Atkinson explaining that he had read the permit application as one seeking to replace an old firearm with a new one, where surrender of the old was acceptable. The email then referred to the new policy advisory under which Mr Atkinson could rely upon the special reason available to

members of incorporated sports clubs who required a MSSA firearm for use on a certified shooting range.

Is a declaration appropriate?

[56]     Mr Lincoln advanced wide ranging submissions in which he challenged the legality of a surrender policy imposed by way of a condition upon the grant of a permit to import.  He argued that the requirement to surrender an old or worn firearm was   contrary  to   the   presumption   against   expropriation   of   private   property, particularly as compensation was not paid for surrendered firearms.  The surrender of an old MSSA firearm was characterised as involuntary, indeed as an unreasonable seizure in breach of the New Zealand Bill of Rights Act 1990.  Compliance with the surrender requirement was said to expose the firearm owner to liability for supplying an MSSA firearm to someone without a permit to procure; the officer receiving the
firearm being a party to that offence.24

[57]     In my view I am in no position to make declarations in relation to police policy in the context of this proceeding.  The first aspect is whether the police may impose a condition in relation to a permit to import.  The suggestion that conditions cannot be imposed is hardly susceptible of serious argument.  It is well recognised that a statutory power is to be construed as impliedly authorising whatever may fairly be regarded as incidental to, or consequential upon, the power itself.  The general rule also contemplates the imposition of conditions which are incidental to
an exercise of the express power.25

[58]    Here, s 18(1) confers power to refuse to issue a permit to import MSSA firearms, and s 18(2) requires the existence of special reasons before a permit is granted.  In addition, s 74(1)(e) provides for regulations to be made prescribing conditions to permits, licences and endorsements.  This will be appropriate for conditions of general application; but a need also exists for tailored individual conditions particularly in a context such as the present where an applicant must show
special reasons justifying the importation of a MSSA firearm.

24	This submission ignores s 3(2) and 3(3)(b) of the Act.
25	Attorney-General v Lower Hutt City [1964] NZLR 438 (SC).

[59]     The  second  aspect  is  whether  a  condition  requiring  the  surrender  of  an existing firearm may be imposed.  Assuming for present purposes that this question is capable of serious argument, I am satisfied this proceeding is not the context in which to consider the issue.  As Ms Coleman submitted, I am asked to assess the police policy essentially in a void.   The only evidence before me of a permit to import subject to a surrender condition is contained in the affidavit of Mr Atkinson. His application was made and granted in late 2011, before the revised police policy advisory was released in July 2012.   Moreover, in correspondence after the event Inspector Green pointed out that another special reason could now be advanced in support of the import application.

[60]     In a context where Parliament requires the police to be satisfied that special reasons exist before importation of a MSSA firearm is permitted and policy guidance has been provided by way of examples of special reasons, this Court should not in my view confront the question of surrender of a firearm other than in relation to an actual permit decision, or decisions, made with reference to the 2012 policy.

[61]     For these reasons I decline to make a declaration in relation to this aspect.

Is the immediate supervision defence available in relation to an MSSA firearm?

Factual background

[62]     The applicant’s statement of claim asserts a disagreement between himself and the police concerning whether the defence of immediate supervision provided under s 22(2)(a) applies in relation to MSSA firearms.  Although not mentioned in his affidavit evidence, Mr Lincoln said by way of submission that he wishes to provide his MSSA firearm to others to use under his immediate supervision for the purpose of firearm instruction.  He considers the immediate supervision defence applies in this context, and asserts that the police hold a contrary view.  As will become apparent the police view differs depending upon which offence section in the Act is under consideration.

The statutory provisions

[63]     Section 20(1) contains a general restriction on possession of firearms, in that no-one shall possess a firearm unless of age, 16 years, and the holder of a firearms licence.  A breach of the section is punishable by three months imprisonment, a fine of $1000 or both:  s 20(3).

[64]     However, s 22 creates certain exemptions from liability.  Relevant for present purposes is:

(2)	It is a good defence to a prosecution for an offence against section 20 or section 21 if the defendant proves,-

(a)        In the case of a prosecution relating to the possession of a firearm (not being a pistol or a restricted weapon) by any person,-

(ii)       That at all times while that person was in possession of the firearm, that person was under the immediate supervision of the holder of a firearms licence; or
(emphasis added)

Hence, an unlicensed person may possess a firearm under immediate supervision. The highlighted words are significant on account of the absence of reference to MSSA firearms, which are usually grouped with pistols and restricted weapons throughout the Act.

[65]    Mr Lincoln submits that s 22(2)(a) means what it says, that the immediate supervision defence is available in relation to a MSSA firearm because the word
‘firearm’ in  subsection  (2)  is  widely  defined  to  include  a  MSSA firearm  and, although the defence is excluded in relation to a pistol or a restricted weapon, it is not in relation to a MSSA firearm.

[66]     Ms Coleman had to accept this meaning of the section, but she attributed this result to a ‘drafting error’.  There was no logical reason to exclude the defence in relation to pistols and restricted weapons, but leave it available in relation to an MSSA.   Elsewhere in the Act all three types of firearm are grouped, and made subject to stricter controls.

[67]   Support for the drafting error submission was contained in the Arms Amendment Bill (No 3) 2005.  Clause 13 of the Bill amended the words appearing in the bracket in s 22(2)(a) to read ‘(not being a military style semi-automatic firearm or a restricted weapon)’.  In addition the clause added a new subsection (3) whereby in relation to the possession of a pistol the immediate supervision defence was available, provided the pistol was being used on the range of a recognised pistol shooting club and under the immediate supervision of someone holding a licence endorsement for a pistol.  Hence, the use of MSSA firearms even under immediate supervision was to be proscribed, while the defence was to be extended to cover pistols.  However, at the Select Committee stage the Bill was discharged pending the introduction of further amendments.

[68]     Faced with the present wording of s 22(2)(a) Ms Coleman conceded that the immediate supervision defence is available in relation to the use of a MSSA, at least in the context of a prosecution against the unlicensed person under s 20.  Clearly that concession was appropriate.

[69]     However, counsel drew attention to two other offence sections under which charges could be laid.  Section 44(1) defines the offence of supplying a MSSA (or a pistol or a restricted weapon) to anyone other than a person who is authorised to receive it by virtue of a permit to import, or a permit to procure.   Interestingly, s
44(3) provides a defence where the supply was by a pistol licence holder at a recognised pistol shooting club range and the supplier provided immediate supervision over the pistol while it is in the possession of the other person i.e. the same defence as was contained in the 2005 Bill in relation to possession of a pistol contrary to s 20 of the Act.

[70]     Supply  is  a  word  of  broad  meaning.    It  is  apt  to  cover  relinquishing possession of a MSSA even temporarily for the purpose of firearm instruction by the supplier.    Potentially,  therefore,  even  in  an  immediate  supervision  context  the supplier of a MSSA could be charged under s 44, albeit the person receiving instruction may well have a defence under s 22(2)(a).

[71]     In addition, s 50(1) creates the offence of unlawful possession of a MSSA by a person not authorised or permitted to do so, for example because they do not hold an E endorsement and a permit to procure.  Again, the same immediate supervision defence is available but only in relation to a pistol:   see s 50(5).   Hence, there is potential for someone placed in possession of a MSSA, but under immediate supervision, to be charged under this section, instead of under s 20 where an immediate supervision defence would be available.

[72]     In short, ss 20(1) on the one hand, and 44(1) and 50(1) on the other are in conflict with reference to the availability of an immediate supervision defence in relation to the possession, and supply, of a MSSA.  The existence of this conflict further  supports  the  contention  that  s 22(2)(a)  contains  a  drafting  error  which, regrettably, was not rectified as proposed in the 2005 Bill.

Should a declaration be made?

[73]     Mr Lincoln sought a declaration confirming that, were he to supply a MSSA to another for firearm instruction and provide immediate supervision of that person, he  would  not  commit  an  offence.    The  value  of  a  declaration  confirming  that particular conduct is not criminal is well recognised:26

Where ... a party brings proceedings before the Courts relating to matters involving statutory construction ... because he wants to avoid violating the law and in order to ascertain and observe the law, the Court should surely be much more sympathetic towards granting declaratory relief if convenient.

In this instance, however, the reverse is the case.  For the reasons given the applicant may be prosecuted under s 44(1) were he to supply a MSSA to someone for the purpose of safety instruction under his supervision.

[74]     For these reasons, and in the exercise of my discretion, I decline to grant relief.

26	Lord Woolf & Jeremy Woolf, Zamir & Woolf:   The Declaratory Judgment (4th  ed, Sweet & Maxwell, London, 2011) at [4-207].

Costs

[75]     Costs are reserved.  If costs are sought by the respondent a memorandum in support should be filed within 10 working days. Any reply from the applicant should be filed within a further five working days.

Solicitors:
M Coleman, Crown Law, Wellington
L Inverarity, Crown Law, Wellington