The adequacy of the process to grant the individual’s firearms licence

6.1 Overview

In this chapter we review the adequacy of the process that resulted in the individual’s application for a firearms licence being granted.

Our discussion is organised around the following headings:

An atypical application.
Clearing away minor process issues.
Was the individual eligible to apply for a firearms licence?
Should Lauren Tarrant have been interviewed as a referee?
Should gaming friend and their parent have been accepted as referees?
Why was important information not elicited in the vetting process?
Concluding comments.

6.2 An atypical application

The individual’s application had a number of unusual features:

He had only been living in New Zealand for 15 days before initiating the process.
He did not have an Australian firearms licence.
He did not have a near relative living in New Zealand to act as a referee.
He was unemployed and therefore could not use an employer as a referee.
He had been travelling, for the most part, since 2014 and therefore did not have a recent overseas employer to provide a reference.
He was living alone and therefore there was no one who lived at the same address as him who could be interviewed as part of the process.
He ended up nominating as his referees a friend and their parent who lived together but in a different District from him.
Hhe relationship he had with the substitute for the near-relative referee, gaming friend, was limited in terms of personal engagement and had been primarily online in character.
His relationship with the other referee, gaming friend’s parent, was distinctly limited – confined to the individual staying with them briefly in 2013 and again in August 2017.

The individual was therefore not a usual applicant with an easily checkable character. To put this another way, his application presented particular features that the vetting process had not been designed to address. It is important to keep this in mind when reading some of the critical comments in this chapter.

6.3 Clearing away minor process issues

There are three aspects of the process that warrant comment but can be dealt with very briefly.

The first is that we see no problem with the interview of the individual and the assessment of his firearms storage arrangements.

The individual was capable of presenting well, and plainly did so on this occasion. The reasons he gave for wanting a firearms licence were of a kind often given. If his claim to having “now” met with people in a pistol and rifle club was intended to suggest recent contact in Dunedin, it appears to have been untrue as the only people of that description that he had met, at least to our knowledge, were gaming friend and their parent. However, it may have been a reference to the possible visit or visits to the shooting club in Waikato in August 2017. In any event, there was no reason for the Dunedin Vetting Officer to challenge this contention.

The Dunedin Vetting Officer did not inquire of the individual how well he knew his referees but the Firearms Licence Vetting Guide does not require such questions to be asked and there was no direction from the former District Arms Officer to explore this. In contrast, the Dunedin Vetting Officer would have known that the relationship between an applicant and referee is addressed during referee interviews. This means the criticisms we make in this chapter do not extend to the Dunedin Vetting Officer.

The second is that the order of interviews did not follow the ordinary process where referees are interviewed before the applicant. This is not a requirement of the Arms Regulations 1992. It is, however, a sensible practice as it allows any questions that might come out of the referee interviews to be put to the applicant. As it turned out, the interviews with the referees did not give rise to any such questions. This means the order of interviews is not material to what happened in the individual’s case.

The third is the conclusion of the former District Arms Officer and Licensing Clerk that the notations on the National Intelligence Application in respect of gaming friend and their parent did not preclude them from acting as referees. The former District Arms Officer and Licensing Clerk pointed out in evidence to us that gaming friend and their parent had, despite these notations, been granted, and retained, firearms licences and endorsements. Given the scrutiny associated with firearms licences and the greater scrutiny applied when endorsements are sought, the former District Arms Officer considered this outweighed the significance of the incidents recorded against them on the National Intelligence Application. The Licensing Clerk was of the same view. The Arms Manual’s guidance on the fit and proper person test for applicants indicates firearms licences are not confined to those of impeccable character. The referees were very experienced members of the firearms-owning community and were thus well placed to act as referees for applicants whom they knew well. So, we have no difficulty with the conclusion that the notations did not disqualify them from acting as referees.

6.4 Was the individual eligible to apply for a licence?

Section 23 of the Arms Act 1983 provides that “any person” over the age of 16 can apply for a firearms licence. There is no statutory requirement for citizenship, permanent residence or even residence. The individual was therefore eligible to apply for a licence.

The Arms Manual indicates that applicants must be “ordinarily resident in New Zealand”. This is not consistent with the Arms Act. And even if there were such a requirement – which those dealing with the application would probably have assumed – we are of the view the individual as of 1 September 2017 was ordinarily resident in New Zealand, despite him having been in New Zealand for 15 days. This is because his only home was in Dunedin, he intended to stay in New Zealand indefinitely and he was able to do so as an Australian.

6.5 Should Lauren Tarrant have been interviewed as a referee?

Although the logic of the Arms Regulations might suggest that the near relative who must be identified on the application should also be interviewed, this is not a requirement under the regulations. In deciding Lauren Tarrant was not an appropriate referee and telling the individual that he should provide a replacement referee, the Licensing Clerk was acting in accordance with New Zealand Police policy. That said, there remains a question whether Lauren Tarrant should have been interviewed by phone or video call.

Interviewing a near relative by phone or video call is not mentioned as a possibility in the Master Vetting Guide and no allowance for it is made in the processes set out in the Firearms Licence Vetting Guide. Such interviews are not part of standard licensing practice.

We consider the standard licensing practice to which we have just referred is inappropriately limited. If there is a person in New Zealand who knows the applicant well enough to be the functional equivalent of a near relative – as closely connected to the applicant as a near relative would be – there will be little to gain by making contact with a near relative overseas. But if the person in New Zealand who knows the applicant best is not a functional equivalent of a near relative, it would obviously be sensible for Vetting Officers to make contact with the overseas near relative. By not providing for the overseas near relative to be contacted, firearms licensing practice has become controlled by the processes laid down in New Zealand Police policy and operational guidance. It has also drifted away from fulfilling the purposes of the vetting of referees, which includes establishing that they know the applicant well enough to adequately comment on whether the applicant is a fit and proper person.

Given New Zealand Police policy and operational guidance was so explicit as to what should happen if an applicant did not have a near relative living in New Zealand, we make no criticism of the actions of the Licensing Clerk and former District Arms Officer in relation to Lauren Tarrant not being contacted.

What would Lauren Tarrant have said if she had been approached?

We think it likely that she would have supported the application. She was aware of the individual’s far right racist and Islamophobic views but she also understood that he had never engaged in acts of violence. She wished to retain a relationship with him if she could. As well, we doubt the individual would have put forward Lauren Tarrant as a referee unless he was reasonably confident she was going to be supportive. When we asked the individual whether he had spoken to Lauren Tarrant about being a referee he indicated that he had and that he believed that she would, if interviewed, have supported his application.

All of that said, we have no reason to doubt that Lauren Tarrant would have answered honestly any questions put to her. So it is conceivable that probing questions of Lauren Tarrant might have produced answers resulting in the application receiving greater scrutiny than it did.

6.6 Should gaming friend and their parent have been accepted as referees?

Who decided that gaming friend and their parent were appropriate referees?

The decision that gaming friend and their parent were appropriate referees had a number of components:

The Licensing Clerk’s noting of gaming friend and their parent as referees.
The former District Arms Officer’s subsequent processing of the file on that basis.
The sending parts of the file to the two Vetting Officers without directions to probe the nature of the relevant relationships.
The limited nature of the questioning by the Waikato Vetting Officer of gaming friend and their parent about their relationships with the individual.
The former District Arms Officer’s decision that the application be granted.

What was the factual basis upon which they were accepted as referees?

The Licensing Clerk and former District Arms Officer had limited recall of how they dealt with the application. This is unsurprising given how long ago the relevant events occurred and the large number of other applications they processed. The result was that their evidence involved substantial reconstruction based on what is apparent from the file and their usual practice.

The Licensing Clerk was reasonably confident that they had asked the individual how long he had known gaming friend. If so, it is likely that the individual answered to the effect he had known gaming friend for ten years. It is likely that a similar question was asked about how long the individual had known gaming friend’s parent, which would likely have prompted the response that they had known each other for four years. We think it highly unlikely that the Licensing Clerk probed the individual as to the depth of his relationships with the two referees. There was nothing in the Licensing Clerk’s evidence or in the notes on the application form to suggest that such probing had occurred.

The former District Arms Officer’s understanding of the depth of the relationships between the individual and gaming friend and their parent can have been no more extensive than that of the Licensing Clerk.

Based on the evidence they gave we consider it likely that the Licensing Clerk and the former District Arms Officer discussed the appropriateness of gaming friend and their parent as referees. Such a discussion would have been warranted by the National Intelligence Application notations against their names. Neither, however, suggested they had discussed whether gaming friend and their parent knew the individual well enough to act as referees.

The former District Arms Officer did not direct the Vetting Officers to make particular inquiry into the relationships of the referees with the individual.

In chapter 5 of this Part, we discuss the questions asked in the interview and the answers given by gaming friend and their parent. They said the individual was a friend whom they had known for ten years in the case of gaming friend and four years in the case of gaming friend’s parent. Gaming friend disclosed that their initial contact had been through “video games etc” and that they had subsequently been in regular contact.

Did gaming friend know the individual well enough to serve as a referee?

Gaming friend had indeed “known” the individual for ten years, but the relationship was primarily online. They had been in the physical presence of the individual for approximately 21 days during the individual’s 2013 trip to New Zealand and on his return to New Zealand in August 2017.

All of those we spoke to who engaged with this issue agreed that this level of interaction between the individual and gaming friend was insufficient to justify using them as a substitute for a near-relative referee. This included experienced members of New Zealand Police. These views were primarily based on the limited face-to-face interactions (approximately 21 days) between the individual and gaming friend, rather than an assessment of the significance of the online relationship. But a senior member of New Zealand Police with extensive involvement in firearms licensing was made aware of the online contact during our interview with them and still considered that the relationship was insufficient:

…corresponding with someone, whether it’s online or by letter or anything which is not face-to-face, is a different thing to meeting and interacting with someone on a daily basis.

And later:

So, I would look for personal interactions. These are just numbers. But I was saying that the number of days is 21, you would not know someone very well … . … I would say, look, what are these interactions? So, it’s the quality of the interaction, not just length of time.

In formal submissions made to us, New Zealand Police disputed the view that the interactions between the individual and gaming friend were insufficient to warrant gaming friend being a referee. The submission was expressed in this way:

[Gaming friend] and [the individual] spent a substantial time in each other’s company, both in person and in online gaming forums. [Gaming friend] travelled with [the individual] for 21 days and they spoke together in online gaming forums for 10 years. [Gaming friend] is also an experienced shooter, who had spent time with [the individual] while he was using a firearm. [Gaming friend] could attest to [the individual’s] behaviour and approach to firearms safety.

This response does not capture the episodic nature of the relationship between the individual and gaming friend. They had spent approximately 21 days together while the individual was staying with the referees in 2013, travelling around with gaming friend between March and May 2013 and staying with the referees in August 2017. The 21 days of interactions were, accordingly, spread across two visits, with a gap of four years between them. As well, the submission is not particularly consistent with the responses we received when talking to those involved in the administration of the firearms licensing process, including those who dealt with the individual’s application.

New Zealand Police’s submission suggests that a more detailed inquiry into the relationship between the individual and gaming friend may have legitimately concluded that he was an appropriate referee in place of Lauren Tarrant. The fact is that a detailed inquiry was not made. Given the individual was an Australian who had little apparent connection with New Zealand and thus had little opportunity to build personal relationships with anyone living here, more detailed inquiry was appropriate.

It remains true that no one in New Zealand knew the individual better than gaming friend. So, on a literal reading of New Zealand Police policy and operational guidance – that the substitute for a near-relative referee should be the person in New Zealand who knows the applicant best in a personal sense – gaming friend was a suitable substitute. As well, despite their very limited in person contact with the individual, gaming friend knew salient information about the individual’s character that they could have shared with the Waikato Vetting Officer – information about the individual’s far right political, racist and Islamophobic views. If they had shared that information with the Waikato Vetting Officer, it may have resulted in the application receiving greater scrutiny than it did.

A conclusion that gaming friend was an appropriate referee may have been defensible if firearms licensing staff had explored the depth of the relationship between the individual and gaming friend, including that it was mostly conducted online and had still decided they were an appropriate referee. But this is not what happened.

Did gaming friend’s parent know the individual well enough to serve as a referee?

Gaming friend’s parent had no online relationship with the individual. Over a period of four years, the parent had spent only seven days in the presence of the individual prior to acting as his unrelated referee, most of which had been four years earlier. Their association with the individual was just a consequence of the individual’s online friendship with their child.

We think it clear that the very limited relationship between gaming friend’s parent and the individual was too limited to justify them serving as a referee.

Was it appropriate for a person and their parent to be used as referees?

Regulation 15 provides for two referees, a near relative of the applicant and someone who is not a near relative of the applicant. It is, of course, possible, for such referees themselves to be related without the second referee being related to the applicant. Regulation 15 is, however, at least consistent with the view that a diversity of opinion is appropriate and that the two referees should be independent of each other. That said, a requirement for independence is neither spelled out in the regulations nor stipulated in New Zealand Police policy and operational documents.

With the benefit of hindsight, we see the parent and child relationship as material to what happened. We think it likely that the parent’s willingness to serve as a referee, and the substance of what they told and did not tell the Waikato Vetting Officer, was associated with gaming friend vouching for the individual’s character. We doubt whether gaming friend’s parent would have been prepared to act as a referee based on seven days’ engagement with an applicant who was not a friend of their child.

6.7 Why was important information not obtained in the vetting process?

The important information that was not obtained

Important information that was not obtained from the referees during the vetting process was the nature of their relationships with the individual and the individual’s far right political, racist and Islamophobic views.

Were the referees honest in the answers they gave to the Waikato Vetting Officer?

The notes of the interview between gaming friend and the Waikato Vetting Officer set out a question “Do you know of any reason whatsoever as to why Police should refuse a firearms licence to the applicant?” and records the response as “No reasons known”.

Gaming friend was well aware of the individual’s extremist political opinions and that he was racist and Islamophobic. But they said nothing of this to the Waikato Vetting Officer. Their “no reasons known” response indicates that they saw them as not being relevant to whether the individual should be granted a firearms licence.

We put it to gaming friend that they had, in their discussions with the Waikato Vetting Officer, given the individual a favourable character reference despite being well aware of what the individual thought and said in relation to race and Islam. Their response was that in the online environment where the individual made those comments, it is impossible to tell whether people voicing racist and Islamophobic views are serious.

We are prepared to accept that gaming friend did not envisage that the individual was sufficiently serious in his views to further them with acts of violence. But we consider that they must have appreciated the individual was serious in the sense that he did have racist and Islamophobic views, as opposed to just pretending to have such views.

It is certainly open to question whether gaming friend’s knowledge of those views was consistent with their unqualified endorsement of the individual’s character. But, given the focus of our Terms of Reference was on Public sector agencies, we were not called upon to make findings in relation to gaming friend.

Gaming friend’s parent also endorsed the individual’s character in an unqualified way. There is no evidence to show that they were aware of the individual’s views. And they certainly did not see him as potentially violent. It is, however, at least surprising that the parent – a member of the firearms-owning community for many years and well-familiar with the vetting process – saw their very limited interactions with the individual over only seven days as qualifying them to serve as a referee.

Were the questions sufficiently particular?

By asking the referees only the open questions stipulated in the Firearms Licence Vetting Guide about the individual and their relationships with him, the Waikato Vetting Officer made it easy for gaming friend and their parent to respond in the general way they did (see the vetting notes set out earlier in chapter 5 of this Part).

The limited questions asked were consistent with the Firearms Licence Vetting Guide. As well, the Waikato Vetting Officer knew the referees and was well aware of their extensive involvement with firearms and firearms licensing. On this point, the Waikato Vetting Officer said the referees always “complied with all the requirements” and they had been able to meet the requirements to “maintain membership of the [pistol] club”. The Waikato Vetting Officer therefore may have expected them to volunteer any information material to whether they knew the individual well enough to be referees or as to his character. As will be apparent, this did not happen.

Questions about extreme views are not stipulated in the Firearms Licence Vetting Guide. In light of this and there being nothing to alert the Waikato Vetting Officer to the likelihood of the individual having extreme views, we do not criticise the Waikato Vetting Officer for not exploring that possibility. We are, however, more troubled by the limited questions asked of the referees as to their relationships with the individual.

The Waikato Vetting Officer was of the view that the acceptability of gaming friend and their parent as referees had already been determined and believed this extended to the depth of their relationships with the individual. Given the absence of direction to test the relationships, we have a measure of sympathy for this position. We do not, however, accept its logic:

The acceptance by the Licensing Clerk and former District Arms Officer of the suitability of the referees could only have been provisional in terms of the depth of the relationships because they had no opportunity to explore this with the referees.
There are questions in the Firearms Licence Vetting Guide as to how long the referees have known the applicant and how they would describe their relationship with the applicant. This demonstrates that the nature and the extent of the relationship between the referees and the applicant is an issue that the Vetting Officer is required to assess.
In the context of the individual’s application, the Waikato Vetting Officer should have determined that further exploration of the relationship between the individual and his referees was required. The Vetting Officer was aware that:
1. there had been a referee substitution;
2. the referees lived in a different District to the applicant; and
3. gaming friend had met the individual through online gaming and that the individual was “from Australia, recently come to NZ, will probably settle here”.
On the basis of his evidence to us, it is clear the Waikato Vetting Officer appreciated that gaming friend’s parent, at least, did not know the applicant particularly well.

New Zealand Police position as to process

We have received submissions from New Zealand Police as to the process followed to grant the individual a firearms licence.

New Zealand Police contended:

[The substantial amount of time gaming friend and the individual spent in each other’s company], included with the following context, has resulted in [the individual] receiving a firearms licence.

- The applicant explained he wanted a firearms licence so he could go hunting, target shooting and sport shooting – a common explanation for applicants in New Zealand.

- The applicant attended the safety course with no issues raised and successfully passed the firearm safety test.

- The referees were interviewed by a very experienced vetting officer, face-to-face and no concerns were raised with the interviews or about the referees.

- At the end of the application process, including vetting - there had been no suggestion of concerns or red flags raised. There was no suggestion that a more in-depth investigation was necessary.

If New Zealand Police’s point that there “was no suggestion that a more in-depth investigation was necessary” includes inquiring into the depth of the relationships between the individual and the referees, then we disagree. But we do not otherwise take issue with the points made.

The drift of the New Zealand Police submission is consistent with a view that the purpose of the vetting exercise is to find grounds on which an applicant or referees might be considered unfit or improper rather than to provide assurance that the fit and proper person test has been satisfied. We agree that there were no indicators to suggest that the individual or gaming friend and their parent were “unfit or improper”. But we think there were indicators at the time that warranted inquiry into whether the referees knew the individual well enough to provide assurance that he was a fit and proper person to possess firearms.

6.8 Concluding comments

The unusual nature of the individual’s firearms licence application was not appreciated. The decision not to interview Lauren Tarrant was understandable in terms of New Zealand Police policy in place at the time, but it was unfortunate. Inadequate consideration was given to whether gaming friend and their parent knew the applicant well enough to serve as his referees. On the basis of usual licensing practice, gaming friend’s personal association with the individual was insufficient for them to serve as the substitute for a near-relative referee and inadequate attention was paid to this issue. The association of gaming friend’s parent with the individual was undoubtedly insufficient for them to act as a referee.

We have considered whether these errors could be solely attributed to New Zealand Police as an institution.

We are of the view that the guidance given by New Zealand Police to licensing staff was inadequate, as was their training. The Master Vetting Guide and the Firearms Licence Vetting Guide did not provide much assistance in dealing with the particular issues the individual’s application raised. The licensing staff involved with the individual’s application acted in good faith and in accordance with the Master Vetting Guide and the Firearms Licence Vetting Guide. But we do not see this as a complete answer.

As we have explained, the purposes of vetting referees include establishing that the referees know an applicant well enough to provide reasonable assurance the applicant is a fit and proper person. The material available to the former District Arms Officer and the Waikato Vetting Officer indicated that inquiry into the relationships between the individual and his referees was warranted. The inquiry that was made was inadequate in light of the overarching purposes of referee vetting.

This criticism does not extend to the Licensing Clerk as we regard their acceptance of the referees as provisional only and that was the extent of their formal role.

Our criticism of the former District Arms Officer and Waikato Vetting Officer comes down to them not having exercised evaluative judgements as to how, and whether, the purposes of the vetting process could be, and were, satisfied. This criticism is heavily tempered by the realities that:

neither had been trained to apply such evaluative judgements;
New Zealand Police policy and operational guidance that governed their work did not clearly identify the purposes to which we have referred;
the same guidance provided limited assistance in identifying the very particular issues the individual’s application posed; and
the increase in the number of firearms licence applications in 2017 because of the licensing bell curve meant that staff were under considerable pressure to process applications in a timely manner (see Part 5, chapter 4).

We have considered what might have happened had the licensing policy and process been appropriate and how this may have impacted the events of 15 March 2019. This involves counter-factual analysis (an assessment of what would have happened if events had taken a different course) that is hypothetical and speculative.

With the cautions just mentioned in mind, we consider that:

if someone had spoken to Lauren Tarrant and she supported the application, a decision to grant the licence would have been difficult to fault;
if it had been concluded that gaming friend or their parent did not know the individual well enough to serve as referees, the application would not have been granted at that time; and
if the individual’s application had not been granted, it is uncertain how he would have responded. We think it is possible, and perhaps likely, that he would have been able to obtain a licence eventually, perhaps by arranging for Lauren Tarrant to come to New Zealand for an interview. This may have delayed his preparation for the terrorist attack. It is also possible that he may have formulated a plan to carry out the terrorist attack using different means or abandoned his planning for a terrorist attack in New Zealand.

6. The adequacy of the process to grant the individual’s firearms licence