The spate of drive-by shootings in Auckland exposed a legal gap which the Government plans to close in a package of new laws tackling gangs to be announced today, the Herald understands.
Law and order has once again become a political issue ahead of next year's election, with the poor performance of Poto Williams resulting in Chris Hipkins replacing her as Police Minister last month.
Williams had "lost focus" on the escalation of gang tensions, said Prime Minister Jacinda Ardern in explaining the Cabinet reshuffle, at a time when the Killer Beez and Tribesmen motorcycle gangs were engaged in a tit-for-tat war.
At least 23 houses had been targeted in drive-by shootings in the space of a fortnight, in yet another example of armed conflict between gangs which has escalated in recent years.
Hipkins conceded that gang tensions had deteriorated in the past 18 months and the Government needed to do more to curb the violence.
Briefings given to the Police Minister have since identified a gap in the criminal law in relation to drive-by shootings, or other situations where a firearm is discharged with the intent to intimidate someone.
Under the Crimes Act, it is currently an offence of a "threatening act" to intimidate someone by firing a gun - but only if the person pulling the trigger is inside the same dwelling as the victim.
However, it is not a "threatening act" for someone to discharge a firearm on a street or other public place in an attempt to intimidate - such as a drive-by shooting - according to the advice given to Hipkins.
The Herald understands the Government plans to close the loophole by amending the "threatening act" offence to cover all situations where a firearm is discharged with the intent to intimidate.
The maximum penalty is likely to be increased to five years.
The proposed new law will be announced this morning by Hipkins and new Justice Minister Kiri Allan, as part of a package of legislative reform which aims to give police more tools to tackle gangs.
Changes to police search powers and asset seizure laws are also expected to be among the new laws proposed by Hipkins, although a ban on gang members wearing patches in public - as the National Party recently promised to do - is unlikely.
However, last week Hipkins did not rule out another National policy: so-called "dispersal orders" to prevent gang members congregating in public.
Details of the new laws will be made public today after Hipkins and Allan meet with members of Operation Cobalt, the dedicated police operation to crack down on gang activity.
Whether or not any proposed law changes would be effective remains to be seen.
Laws passed in the mid-1990s to combat "unprecedented" gang activity has been largely unused and ineffective, according to recent research by sociologist Dr Jarrod Gilbert.
It found politicians and police officials campaigned for reform without sufficient evidence to appeal to voters, stoking the public's fear of gangs to pass law enforcement measures - some previously deemed unnecessary by lawmakers.
"It was abundantly clear that [lawmakers] weren't being driven by an informed approach," Gilbert told the Herald in May.
"If you don't understand the issues, the chances of finding sound solutions is remote, and that's exactly what came to pass."
There are currently two pieces of legislation dealing with gangs and organised crime being considered by Parliament.
The first is the potential introduction of Firearms Prohibition Orders (FPO) which if imposed on a specific individual, give police further powers to confiscate illegal firearms.
But the bill put forward by Labour does not include warrantless search powers, like in Australia, which means FPOs are unlikely to give police powers they don't already possess.
The second bill before Parliament is a proposed strengthening of the Criminal Proceeds Recovery Act.
Under the current law, police do not need a conviction. They only have to show that someone profited from criminal offending to the lower standard of proof applied in civil cases — "on the balance of probabilities" — rather than surpassing the more difficult "beyond reasonable doubt" threshold for criminal cases.
More than $1 billion worth of real estate, luxury cars and cash are among the assets restrained from drug dealers, gangs and other criminal groups since the law was passed in late 2009.
Under the proposed change to the law, the police would be able to ask the High Court to restrain - and later forfeit - the assets of anyone "associated" with an organised criminal group, if their declared income was insufficient to pay for them.
This is designed to target the leaders of gangs, and organised criminal groups, who the police allege have structured their affairs to "insulate" themselves from involvement, or even knowledge of, profit-driven crimes committed by their members.
"These leaders and other members nonetheless provide the structure within which this criminal activity takes place and will derive benefit from this structure," briefings to former Justice Minister Kris Faafoi show.
"For example, drug-related organised crime in New Zealand is structured into franchises and pyramid schemes, so that the leaders and senior members who receive a portion of profits are distanced from the criminal activity.
"They also created distance between themselves and their illicit activities by using intermediaries, third party relatives or friends, associated business people, apparently legitimate businesses and legal entities such as companies and trusts."
Police Association president Chris Cahill said this proposed law change would have the "quickest impact" on gangs.
"It gives police greater opportunity to seize ill-gotten gains and hence remove the incentives to join gangs," Cahill wrote in a column published this month.
"We don't want a watered-down version of this sort of law, particularly when giving some young people a cellphone these days is enough to get them to sign up."
National's proposal to ban gang patches was worth considering, said Cahill who urged the country's politicians to also put their differences aside
"Given that we know what the problems are, and we know there are no quick fixes, it seems to me that the politicking needs to be put aside in favour of the doing," said Cahill.
"All Kiwis would be better off if the recent tendency to 'out-tough' each other took a back seat in the House of Representatives."
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