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COLFO Update: The High Court Judgment is out

By Michael Dowling, COLFO

Further to my earlier email, the lawyers have now had a chance to consider the decision.


Overall, our lawyers had this to say:


The judgment shows that our appeal was well directed, when we asked farmers and others with a stake in protecting property rights for support.


Most COLFO members did not have prohibited ammo. Yet their unselfish donations allowed the Fair and Reasonable campaign to serve the wider NZ interest in getting a strong reinforcement for property rights.


The Judge makes it clear that Parliament can over-ride the constitutional right to compensation for property expropriated. But it is just as clearly shown when it does that, it trashes rights and legal taonga of very deep importance. Many governments around the world have stolen the property of minority groups of citizens.


Many have fomented hostility to such minorities for political gain and to justify stealing their property rights. It is shameful that New Zealand has now become one of those.


For the past 40 years we’ve preached to the world on respect for the rule of law. The Treaty process has seen redress for expropriations over 150 years old. Now we’ve shown how shallow and fragile even core rights are in the hands of unscrupulous politicians.”


And on the detail of the judgment itself, they helped draft this summary:

COLFO argued two things about the prohibited ammunition order:


  1. That the failure to provide compensation for banned ammunition was a breach of property rights and therefore compensation should be paid.
  2. That the definition of prohibited ammunition was unlawful and should be declared invalid.


“The licence rules worked, but it appears that Police didn’t apply them correctly to the Christchurch shooter. The new rules will only be as good as the people applying them.”


On the issue of compensation:

Justice Cooke agreed that there was a common law right to compensation. And that the decision to not compensate was contrary to this right.


This is a big win for property rights and many other sectors are likely to win from this judgment in the future. He went as far to say:


I respectfully do not agree that [the right to property] can be treated as some lower form of right. The right is not one of those set out in NZBORA. But that does not mean it does not exist, or that it has a lower status.

--- Article continues below ---


And then went on to say that this decision was inconsistent with the decision to provide compensation for prohibited firearms and parts.


For these reasons I accept that the measures enacted by Parliament involved an abrogation of the right of the owners of prohibited ammunition not to be deprived of their property by the Crown without compensation, but conclude that Parliament clearly decided to do so.


The Judge said:


That is particularly so given that there is no association between the newly defined prohibited ammunition and criminal activity, let alone the mosque shooting”.


As we know, Minister Nash has claimed time and time again that the whole reason for banning this ammunition was to prevent another mosque shooting. The Court found that this was simply not true. 


So why didn’t Justice Cooke go on to say that LFOs should receive compensation? Because he found that the decision was made by Parliament.


“As we know, Minister Nash has claimed time and time again that the whole reason for banning this ammunition was to prevent another mosque shooting. The Court found that this was simply not true.”


On that view, as Parliament is sovereign, such a decision would be out of reach of the Court. Our argument was that while the Act provided expressly for compensation for surrendered firearms, it was silent on prohibited ammunition. 


We considered that left it open for the Minister to decide on compensation to respect the constitutional principle that requires compensation. Disappointingly the Judge considered that he had to interpret the Act overall as showing that Parliament intended that there be no compensation for ammunition.


If we appeal, it will be against this conclusion. 


And on the definition of prohibited ammunition:

Once again the Court found that there was no connection between the definition of prohibited ammunition and the mosque shooting, or with criminal activity. 


…prohibited ammunition has no apparent association with the dreadful events of 15 March 2019, or indeed the criminal use of firearms more generally.

--- Article continues below ---


But that the definition was still consistent with the purposes of the Arms Act - to provide for firearm control. Our lawyers had argued that the prohibited ammunition should be determined on a test of whether it was more harmful that non-prohibited ammunition.


A question of safety. We learnt in the hearing that Police didn’t even provide the Minister any advice to consider whether this prohibited ammunition was any more dangerous. Justice Cooke stated that what had been prohibited cannot be seen as more harmful. But that the Minister didn’t have to take this in to account.


Unfortunately this means the Minister could choose to ban further ammunition without having any evidence that it makes the community safer. We always knew that these rushed laws and regulation had little to do with making our community safer. And the Court agreed.


“...the Government took away the right to keep our property without compensation that they were doing so despite our property rights.”


Furthermore that when the Government took away the right to keep our property without compensation that they were doing so despite our property rights.


Justice Cooke’s determination that this right exists will hopefully help protect some in the future - when the Government comes for other citizen’s land or vehicles or whatever they decide they want. Over the coming days, we will consider the options (and merits) of appealing. 


But we’ll certainly seek feedback before any decisions are made.


Thank you again for making this effort possible.


Michael Dowling


Council of Licenced Firearms Owners

(on behalf of the Fair and Reasonable Campaign)


Keep up with Fair and Reasonable on Facebook.


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