Gang members' motorcycles destroyed following court order. Video / NZ Police
The Government’s proposed ban on wearing gang patches in public is inconsistent with the Bill of Rights Act, according to Attorney-General Judith Collins.
Collins has also deemed the power the Government wishes to give police to disperse gatherings of gang members is inconsistent with the act as it violates the right of peaceful assembly.
It comes as the Gangs Legislation Amendment Bill, which houses the proposed ban and dispersal power, passed its first reading in the House under urgency today as the Government ticks off the final items on its 100-day plan ahead of the deadline on Friday.
The Attorney-General is tasked with assessing proposed legislation as to whether it violated any aspects of the Bill of Rights Act 1990.
The Government is not beholden to follow the Attorney-General’s findings and can progress a bill, even if it violates rights guaranteed in the act.
Collins found the patch ban was inconsistent with the rights to freedom of expression, association and peaceful assembly, while the dispersal notices were found to be inconsistent with the right to peaceful assembly.
She acknowledged the patch ban was more susceptible to the justified limitation of rights, given patches were associated with intimidation and criminal activity.
However, Collins noted how gang members could identify as such in ways that wouldn’t be prohibited. Furthermore, people might not be present when gang members wore patches publicly.
She argued a more limited ban could be in place in areas where the public was likely to be, such as playgrounds, sports fields and beaches - and therefore the ban as proposed wasn’t justified.
“If necessary, such a limited ban could be supplemented by giving constables power to remove patches if fear and intimidation is likely to occur.”
Attorney-General Judith Collins found the gang patch ban was inconsistent with the Bill of Rights. Photo / Mark Mitchell
The dispersal notices would apply to the gathering of three or more gang members in public. They would last for seven days. An appeal process to the Police Commissioner was also available with a decision required within 72 hours.
The central issue Collins identified was the potential for the notices to impinge on the freedom of peaceful assembly.
She highlighted the right to peaceful protest and how the notices could restrict that.
“The right to assemble for the purpose of a protest has great public importance in a democracy and limitations on that right should not be entertained in the absence of imminent risk to safety or public order.”
Justice Minister Paul Goldsmith said the gang presence in New Zealand should not be considered acceptable.
Goldsmith argued how fundamental rights could be limited if it was justified, such as for the prevention of crime. He did not reference Collins’ report.
“New Zealanders deserve to feel safe in their communities, that’s why we need to take action.”
Labour’s justice spokesman Dr Duncan Webb said his party would support the bill through to select committee to evaluate what measures could be implemented to restrict gang behaviour.
“We want to make sure that any actions to suppress the contagion of gangs in New Zealand [are] proportionate and reasonable and don’t impact certain communities in an inappropriate way.”
Labour's justice spokesman Dr Duncan Webb explained his party's support for the bill. Photo / Mark Mitchell
He claimed aspects of the bill were vague, including what insignia would be included in the ban.
In her opposition to the bill, Green Party MP Tamatha Paul spoke of being brought up in Tokoroa among friends and whānau who were gang members.
She referenced conversations she’d had with gang members, who had told her about the abuse they suffered in state care, leading to a life of aggression, which meant a natural gravitation to gangs.
Paul claimed some gang members were discussing the idea of not wearing patches due to the intimidation they could cause.
Paul said she didn’t want to undermine gang harm but called for an “evidence-based approach”, citing reported advice from justice officials that the legislation would drive up rates of gang membership, increase domestic violence and make it harder to exit gangs.
Act Party MP Todd Stephenson supported the bill and welcomed Labour’s support through to select committee.
New Zealand First MP Jamie Arbuckle invoked his party’s slogan from the 2023 election - “Let’s Take Back Our Country” - by saying the bill would allow New Zealand to be taken back from the control of gangs.
Te Pāti Māori co-leader Rawiri Waititi condemned Arbuckle’s kōrero as a “load of rubbish” and said he would not support the bill as he suspected it would disproportionately impact Māori.
Adam Pearse is a political reporter in the NZ Herald Press Gallery team, based at Parliament. He has worked for NZME since 2018, covering sport and health for the Northern Advocate in Whangārei before moving to the Herald in Auckland, covering Covid-19 and crime.
