The government's new gang legislation - now split into the Gangs Bill and the Sentencing Amendment Bill - is expected to pass its third reading soon. But a last minute amendment, added after public consultation closed, has raised more questions about legislative overreach.
Author
Kris Gledhill
Professor of Law, Auckland University of Technology
Broadly speaking, the legislation will make gang membership an aggravating factor at sentencing, and criminalise the display of gang insignia in public. It also allows the police to order gang members in public to disperse, and to apply for a court order banning communication between members for three years.
The recent amendment would prohibit possessing gang insignia in a private setting by issuing gang insignia prohibition orders.
While the government has argued the new rules will act as an effective deterrent to gang membership, it is not clear how these laws will stand up to New Zealand's own Bill of Rights Act.
Making membership a crime
People join gangs for various reasons. For some, it is a matter of family connections, for others gang membership may arise from being marginalised from society.
The Royal Commission on Abuse in Care highlighted that abuse was also a pathway into gang membership. And a 2018 report highlighted that the overuse of imprisonment feeds gang recruitment.
Under existing sentencing rules judges are required to take into account any connection between offending and gang activity. As an aggravating factor, it can lead to a longer sentence.
But the new Sentencing Amendment Bill will instead require a judge to take into account gang membership.
This is problematic for two key reasons. Firstly, it assumes offending which has no link to a person being in a gang is somehow worse because of their membership.
Secondly, it suggests people should be punished for being in a gang without them being prosecuted for that gang membership. This is unnecessary. It is already a serious offence under section 98A of the Crimes Act 1961 to participate knowingly in an organised criminal group.
Insignia behind closed doors
The new gang insignia prohibition order has a three-strikes element to it.
If a person is convicted of publicly displaying gang insignia three times in five years, the court will be required to ban them from possessing or controlling gang insignia for five years.
Breaches will be criminal, meaning police will have various powers to search.
The last-minute amendment also "prohibits […] gang insignia being present at the person's usual place of residence".
In essence, it will make it illegal for repeat offenders to live in the same place as gang insignia is displayed - regardless of whether the insignia is theirs or belongs to someone else on the property.
Breaching the Bill of Rights
The Attorney-General advised parliament the government's approach to banning insignia in all public places breached the right to freedom of expression under the New Zealand Bill of Rights Act 1990.
In short, the right to freedom of expression is not limited to inoffensive expression. Rather, a constitutional democracy requires people to tolerate some offensive behaviour.
In Morse v Police, which involved a protester burning the New Zealand flag in sight of an Anzac Day parade, the Supreme Court found the Bill of Rights required courts to give legislation the meaning which "least restricts" human rights.
In 2011, the High Court also ruled a gang patch ban in all public places in Whanganui was an overreach in Schubert v Wanganui District Council.
A more tailored approach needed
As the Attorney-General noted, there could be a more tailored offence that protects the public from intimidation by gangs. It could, for example, be illegal to wear gang patches in places such as schools and hospitals. This reflects the current law in the Prohibition of Gang Insignia and Government Premises Act.
The new non-consorting orders also have various preconditions that allow the courts to uphold the right to assemble while still establishing restrictions.
Similarly, the police have to take various factors into account when issuing a dispersal order (telling two or more people to leave a certain area), including whether the order is necessary to prevent unreasonable disruption of the public. This allows rights, including the right to assemble, to be respected.
But aside from some limited exceptions, such as reasonable use for artistic purposes, the insignia ban has no language protecting the fundamental rights on which democracy is based.
Since the new rules seem to require courts to breach human rights supposedly guaranteed by the Bill of Rights Act and our international treaty obligations (most obviously the International Covenant on Civil and Political Rights), it can be expected that lawyers and judges will explore ways around them.
As New Zealand does not have a supreme law constitution, our fundamental rights and traditions are safe only if the politicians in power at the time are willing to respect them.
On examination, the new gang laws clearly contain bad ideas. But they also breach our constitutional standards and processes.
Kris Gledhill is affiliated with the Criminal Bar Association, which represents prosecution and defence lawyers; the views in this article are his own.
