Al Noor Mosque. Photo: RNZ / Samuel Rillstone
The headline to this story has been corrected on 29 October to reflect who was making the claim about the police.
A former senior police officer did not observe the firearms community's apparent concern over the loophole which ultimately allowed Brenton Tarrant access to military-style semi-automatic guns.
Mike McIlraith, who is now a director of the Firearms Safety Authority, joined the Firearms Community Advisory Forum from May 2017 in his role as the inspector in charge of police's Arms Act service delivery group.
The forum brought together police, other government departments and members of the firearms community - including the Council of Licensed Firearm Owners, dealers and retailers - to discuss issues around the regulation and administration of firearms.
The issue of the so-called military-style semi-automatic (MSSA) loophole has been aired recently by Associate Justice Minister Nicole McKee and at the inquest into the deaths of 51 worshippers, who Tarrant murdered at Al Noor Mosque and Linwood Islamic Centre in March 2019.
The loophole allowed a standard firearms licence holder to convert A-category semi-automatic centrefire rifles into E-category MSSA rifles by inserting high-capacity magazines, which anyone could buy as they were unregulated before the mosque shootings.
AR-15-style firearms were among the firearms which were problematic due to their modularity.
The terrorist - who was a firearms licence holder - used two such converted rifles as his primary weapons in the murders.
McKee - who was a spokesperson for the Council of Licensed Firearm Owners (COLFO) and sat on the forum before entering parliament - was appointed in May 2017 by then-Police Minister Paula Bennett to provide advice on a law and order select committee report into illegal gun ownership.
The committee had suggested further restricting semi-automatic rifles and shotguns.
During that time McKee often opened online updates to COLFO by saying "I like guns".
In September, she told TVNZ's Q+A she "definitely" used the opportunity to advise the minister to close the MSSA loophole.
Bennett told Q+A she did not recall the loophole or restrictions on high-capacity magazines being brought up by McKee and the issue did not appear in her handwritten notes.
COLFO vice-chair Michael Dowling last week made similar claims about the gun owners' concerns over the loophole, while giving evidence to the mosque inquest.
He said police "failed to address the issues raised by the shooting communities about the loophole".
Members of the council had routinely raised it with police from 2010 to 2019, he said.
"Not me specifically, but I was witness to a number meetings where it was raised by some of the members of COLFO," he told the inquest.
It was raised on at least three occasions, Dowling said.
"We raised it with police and suggested it be closed. One of our concerns about raising it publicly is it high-lit the issue."
COLFO vice-chair Michael Dowling. Photo: RNZ / Nate McKinnon
But while giving evidence at the inquest this week, McIlraith said that was not what he saw or heard.
When asked if there were concerns raised about the loophole by members of the community at the Firearms Community Advisory Forum, he responded: "That was not my observation".
RNZ had seen minutes from the forum in May 2016 and December 2017 which showed the issue was discussed, however, the level of concern or even who raised it was not clear.
In the 2016 meeting minutes, there was a discussion about firepower being directly correlated to magazine size and a question being raised about restricting "larger" magazines to those with endorsements on their licence, but someone told the forum "there are thousands of magazines out there and this would make possession of such magazines suddenly illegal for some who had them legally".
Again in the 2017 meeting minutes, if concerns were raised they were not noted.
"Three local manufactures [sic] make 30 round mags," the minutes said.
"FCAF member commented that the definition of 'fit and proper' can be applied as a control - fit and proper users do not fit large mags to A Cats illegally.
"There are no restrictions in sales of large capacity magazines. The behaviour should be around supporting good legal practice."
In 2016, the law and order select committee recommended police "investigate the creation of a category of restricted semi-automatic rifle and shotgun" due to its concerns the MSSA definition was unsustainable and no longer enforceable due to the interchangeability of firearm parts.
McKee's submission to the committee made no reference to the loophole or a need to close it.
Associate Justice Minister Nicole McKee. Photo: RNZ / Samuel Rillstone
Following the advice Bennett received from McKee and her other advisor, Geoff Thomas, the government rejected the select committee's recommendation in 2017, saying: "We are aware that experts in the firearms community have suggested alternative approaches. The Government remains open to hearing any such suggestions."
When Nikki Pender - one of the lawyers for the victims' families - asked Dowling during the inquest what the Council of Licensed Firearm Owners had suggested as an alternative to tightening access to semi-automatic centrefire rifles, he said: "We weren't proposing a solution. We were saying this is going to be a problem."
The council's submission to the select committee in 2016 did inadvertently speak exactly to the issue at hand.
"COLFO believes much of the fear of these firearms is based solely on appearance and is simply misinformed. A wooden stocked .223 semi-automatic rifle is identical in functioning to a MSSA. One simply looks different," the submission said, drawing attention to the negligible difference to the danger posed by A-category and E-category semi-automatic centrefire rifles.
The council "emphatically" opposed any suggestion semi-automatic firearms should "now be registered and treated as an "E" category firearm ("Military Style Semi-Automatics" or a "MSSA")".
"COLFO deplores the suggestion that law-abiding shooters, amongst the most scrutinised people in this country, should be restricted in their legitimate hobbies and occupational requirements by the actions of those who sell and deal in drugs, or engage in armed robbery," the submission said.
The two people who acted as referees for the terrorist's firearms licence were themselves firearms licence holders with endorsements for MSSAs and pistols.
One of them was aware of the terrorist's anti-immigrant and racist views, but did not view them as extreme and did not tell police.
Dowling repeatedly told the inquest that police had the responsibility to close the MSSA loophole.
Counsel assisting the coroner Abi van Echten went through numerous attempts by police to tackle the issue, including policy changes which were appealed in the High Court in 2010 and 2013.
"What I'm really trying to suggest to you is actually all of these cases present a picture of the police trying to close the legislative gap to the extent they could by policy and that that just wasn't having effect," she said.
"They were trying to close it with things that didn't matter," Dowling responded.
"According to you?" van Echten asked.
"Yes," Dowling said.
"But we've already established that you haven't in fact investigated this or presented balanced views on it," van Echten said.
In early August 2017 - the same month the terrorist arrived in New Zealand from Australia - police again stressed the danger the loophole presented in a briefing to then-minister Paula Bennett.
At the inquest this week, University of Waikato Law Professor Alexander Gillespie called the briefing "some of, if not the clearest advice I've seen from the police given to the minister, Bennett, that in essence the firearms law designed to restrict MSSAs was collapsing".
Gillespie told the inquest that police were crystal clear about the existence of the loophole and it could not be closed without legislative change.
Further, those within the firearms community - even some dealers - were aware of the loophole and actively exploiting it.
"The exploitation of the gap was identified as being done by some within the lawful firearms community," Gillespie said, before reading from the briefing.
"There is a growing awareness of these legislative gaps in the firearms community and amongst dealers, some of whom are seeking to exploit these gaps to acquire MSSAs or sell MSSA parts by enabling the conversion of A-category semi-automatic firearms to MSSAs.
"The exploitation of the gaps in the legislation by some individuals and dealers was escalating," Gillespie said.
"Some dealers were either deliberately or recklessly facilitating licence holders to exploit legislative gaps by seeking to sell all of the parts needed to assemble an MSSA or assisting gun holders to circumvent the controls which may apply to imports and sales of MSSAs."
When asked if police were doing what was within their power to close the loophole, Gillespie responded: "The police were trying very hard in my experience to bring this to the attention of minister and to make minister act accordingly. But not just police, also Justice Thorp had the same recommendation [in 1997].
"The problem we have in New Zealand, as with other countries, is you have to wait for an atrocity to happen before we have a legislative response."
Gillespie referenced the same political will for gun control which followed massacres in the United Kingdom, Australia and Canada.
"Even though it is foreseeable that this is going to happen, we very rarely act in a way where we try to stop it in advance," Gillespie opined.
The National and ACT parties' coalition agreement contained a commitment to "transfer the Firearms Safety Authority, administrator of the Act, to another department such as the Department of Internal Affairs".
McIlraith told the inquest the idea was "horrible".
Mike McIlraith, who is now a director of the Firearms Safety Authority, at the inquest into the mosque attacks this month. Photo: The Press / Peter Meecham
In a statement to RNZ in response to McIlraith's comment, McKee said: "Part of our proposed changes include moving the Firearms Safety Authority away from Police allowing them to focus on enforcing our laws. By distancing the FSA, we are also following through on the recommendation of the Royal Commission of Inquiry, which called for the regulator/administrator to be independent."
However, that was not correct.
The Royal Commission of Inquiry made no such recommendation. It directed its recommendations to police or another "relevant entity".
On Friday, RNZ asked McKee why she had made the misleading statement. Her response did not answer the question.
When asked again why she made the misleading statement, a spokesperson responded: "Regarding your 'misleading comment' the minister stands by her response."
RNZ also asked the minister if she could provide any evidence of her claim that she lobbied to close the MSSA loophole.
"Since 2012 I have pushed to ensure that large capacity magazines, such as that used on March 15, should be restricted to those with the appropriate firearms licence endorsements, having gone through the additional vetting to validate their 'fit and proper' status," her statement said.
"It has been erroneously reported by media that I 'lobbied' Minister Bennett to keep this 'loophole' in place, having confused my position regarding the availability of high-capacity magazines on standard firearms licences.
"I was not the person making the final decision around the 2016-17 inquiry when acting as one of two advisors to Hon. Paula Bennett, the then-police minister. I did not hold that responsibility, it sat with the government of the day.
"Discussions were held directly with police, and through the Firearms Community Advisory Forum. The latter were conducted under Chatham House rules which is reflected in the minutes. Making these concerns public at the time would have been extremely irresponsible as it would have alerted every criminal and gang member that there was a loophole which could be exploited."
In a 2011 submission to a parliamentary select committee, McKee suggested the capacity of magazines in A-category semi-automatic centrefire rifles should be increased from seven rounds to ten.
In the same submission, she raised concerns wording of the Bill could result in such A-category rifles being reclassified to MSSAs.
RNZ again asked if she had any advice of her efforts to close the loophole and referenced the 2011 submission.
No evidence was provided, but a spokesperson did suggest the 2011 submission was evidence of her efforts to close the loophole.
RNZ also asked if she had any examples of erroneous reporting which suggested she tried to keep the loophole open, but received no response.
The Council of Licensed Firearms Owners provided a statement in support of Dowling's evidence during the inquest: "COLFO and licensed firearm owners have always supported good lawmaking that balances public safety with the individual responsibility of owning and using legal firearms.
"We've worked collaboratively across multiple governments to bring expertise to the table and ensure that NZ has world-leading gun laws. We will continue to do this into the future."
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