04/04/2019
Dieuwe de Boer
Opinion
Back to top

"Henry VIII Clauses" In Arms Amendment Bill Give Jacinda Unilateral Power To Ban All Firearms

In my submission against the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill (aka Tarrant's Law) I highlighted several embedded clauses that allowed the banning of firearms, magazines, and even ammunition via executive order. I have since been pointed at the source: the new Section 74A which summarises the full extent of these executive powers.

Graeme Edgeler, a Wellington barrister, has identified these as being "Henry VIII Clauses" and he objects to them because they can be used to turn citizens into criminals on an executive whim:

Criminal laws, especially those carrying significant criminal penalties, should be imposed by Parliament, not delegated to regulation.

It's not hard to guess where the name for these types of clauses comes from:

The expression is a reference to King Henry VIII's supposed preference for legislating directly by proclamation rather than through Parliament.

There was previously only one "Henry VIII Clause" in the Arms Act, and that was the one Jacinda Ardern used to ban all semi-automatics with detachable magazines of greater than five round fixed capacity within 7 days of the Christchurch massacre, end-running parliament until they could pass this new bill under urgency.

The new bill contains not one, not two, but a total of five Henry VIII Clauses, as follows:

74A Order in Council relating to definitions of prohibited firearm, prohibited magazine, and prohibited ammunition

The Governor-General may, by Order in Council made on the recommendation of the Minister,—

(a) amend or replace the description in section 2A of a semi-automatic firearm (except a pistol) or pump action shotgun that is a prohibited firearm:

(b) amend or replace the description in section 2B of a magazine that is a prohibited magazine:

(c) declare any semi-automatic firearm (except a pistol) or pump-action shotgun of a stated name or description to be a prohibited firearm for the purposes of this Act:

(d) declare any magazine of a stated name or description to be a prohibited magazine for the purposes of this Act:

(e) declare any ammunition to be prohibited ammunition for the purposes of this Act.

Even pistols are not actually exempt, because there are no restraints on the types of ammunition that can be banned.

Essentially parliament is saying that they don't know if they'll get all the definitions right or what kinds of insane loopholes they're creating with this rushed legislation, for which they only allowed a token 48 hours for public consultation.

The Governor-General acts as instructed to by the Prime Minister's office and cabinet.

Once this bill is passed, Jacinda Ardern will have unilateral power to ban every piece of ammunition and any magazine (detachable or fixed) therefore giving her the executive power to ban every single firearm in the country.