Judicial Review of Minster's decision to ban certain ammunition and decision not to offer compensation to LFOs
As the case progresses we will be uploading the key documents so our donors and supporters can follow the progress of the litigation. We will be in the High Court 4 and 5 May 2020.
We have now received the Government's response (statement of defence) to the litigation but are awaiting approval of the lawyers to make it publicly available.
What is the litigation about?
The Arms (Prohibited Farms, Parts, and Magazines) Amendment Act 2019 was passed under urgency in response to the 15 March attack. Like most Acts passed under urgency, sloppy drafting led to a confusing piece of legislation that is almost impossible to understand. The Amendment Act made it an offence to, without reasonable excuse, possess, sell or supply prohibited ammunition, or risk imprisonment for up to two years. The Minister of Police got to decide what “prohibited ammunition” actually meant in the Arms (Prohibited Ammunition) Order 2019.
The Order prohibited tracer and so-called ‘enhanced-penetration’ ammunition (which is ambiguously defined as anything with a “steel or tungsten carbide penetrator”). COLFO tells us that these kinds of ammunition have legitimate recreational, business and environmental uses, particularly steel-shot.
The Order did not provide for any compensation for prohibited ammunition.
COLFO sent a letter to the Minister in October 2019 asking him to rethink the ban on tracer and enhanced-penetration ammunition and the decision to not award compensation. The Minister did not respond to COLFO's letter, so we filed proceedings.
Who are the parties?
COLFO is the plaintiff. The Minister of Police and the Governor-General are the defendants.
Why the Minister of Police and the Governor-General?
Orders in Council are made by the Governor-General on the recommendation of Ministers. In this case, the Minister of Police was responsible for making the recommendation. The Governor-General generally accepts the Minister’s recommendations but it is ultimately her decision whether or not to make an Order.
We are asking the court to rule that the Minister was wrong to recommend the contents of the Order and the Governor-General was wrong to accept them.
What outcomes does COLFO want?
COLFO asked the court to do three things:
- Declare that owners of prohibited ammunition are entitled to compensation,
- Review the Minister’s recommendations to prohibit tracer and enhanced-penetration ammunition and rule that:
- the Minister did not take into account relevant matters when making the recommendation,
- the Minister acted for an improper purpose, asked the wrong questions, and had regarded irrelevant considerations, and
- the Minister’s recommendation was irrational and arbitrary,
- the Order was therefore invalid;
- Review of Minister’s recommendation to not award compensation for the same reasons
What are the next steps?
Our hearing dates are 4 and 5 May 2020. We now a timetable for filing evidence and submissions.
COLFO has been asked by numerous supporters about why we can’t challenge the ban of prohibited firearms in the Court. We understand your frustration and so asked our lawyers, Franks Ogilvie, to explain why this is difficult to do:
Why can’t you challenge a law passed by Parliament?
There is a difference between an Act (passed by Parliament) and an Order in Council (made by the Executive branch of government). Only Orders in Council can be challenged in Court.
In New Zealand, Parliament is supreme and can pass whatever legislation it wants. The courts do not have the power to strike down an Act.
Parliament can use Acts to delegate its rule-making powers to Ministers, who make up the Executive branch of government. Decisions by the Executive can be reviewed by the courts and reversed if the court decides they were improperly made.
This is why COLFO can file proceedings against the Minister for recommending the Order but cannot file proceedings against Parliament for passing the Amendment Act.
Can we challenge the Arms Amendment Act by questioning the validity of Parliament?
Given recent news revolving around the Deputy Prime Minister, Winston Peters, and New Zealand First’s alleged violation of campaign finance laws, some COLFO members have asked if we can challenge the Amendment Act on the basis that it was not made by a valid Parliament.
The short answer is ‘no’, for two reasons.
Firstly, there is a general convention that courts do not look behind Acts and question how they were made. The court has to accept any Act as valid and binding, even if the process was questionable. It is up to voters to hold Government (with a capital ‘G’, meaning the Labour/NZ First/Green coalition Government) to account in the next election.
Second, the Amendment Act was passed by an almost unanimous vote. Even if the court could question the validity of the Government, the fact that the Act had the support of the whole House means that it would have been passed without NZ First’s support.
But isn’t this similar to what happened in England? Can we challenge the Arms Amendment Act by using the judicial review decision involving Boris Johnson’s advice to the Queen to prorogue Parliament?
There is a difference between what happened with Mr Johnson’s advice to prorogue the United Kingdom’s Parliament and the passing of the Arms Amendment Act 2019.
The advice came from Mr Johnson acting as a Minister and was given to the head of the Executive (the Queen). It was not part of Parliament’s law-making powers. Advice and decisions of the Executive can be challenged in court; Parliament’s law-making powers cannot.
In our case, the firearms prohibition was made law through an Act by the Legislature, not the Executive. The process by which Bills are brought to Parliament is not a matter that can be challenged in the courts.
There is also a jurisdictional issue. New Zealand’s legal system is completely separate from the Supreme Court in the United Kingdom. While the UK courts have decided against Mr Johnson’s advice, this does not mean the New Zealand Courts would apply the same reasoning even if this judicial review was applicable to the issue of the Act’s legitimacy.
So what are we actually taking the Government to Court on?
We have further litigation planned but at this stage, but at this stage we have only filed on the prohibited ammunition ban. This ban is indicative of what the problem is with many of these new firearm laws and regulations – they are ambiguous and invalid. You can read more about the action here -