The clause concerns those who repeatedly break the ban on gang patches in public. After a third infringement, they won’t be allowed to possess anything with a gang patch or live in a house that has anything with a patch on it – even if it isn’t theirs.
The “gang insignia prohibition order” will last for five years, and breaching it could lead to a year in jail. Cabinet approved it despite warnings that it restricts basic rights, has no evidence it will be effective, and risks giving police too much search power.
ANALYSIS
Should you face a year in jail if you know there’s something in your home with a gang patch on it, even if the item doesn’t belong to you or even anyone who lives there?
The Government thinks so, if you’ve been convicted of wearinga gang patch in public three times over a five-year period.
This is part of a “gang insignia prohibition order”, a last-minute addition to the Gangs Bill.
The new clause was added to the bill a month after the committee process finished, even though it stemmed from a police request at the end of March when submissions to the committee were still open.
It’s part of a suite of anti-gang measures that include giving police the power to disperse gang members from public places, and non-consorting orders banning certain gang members from hanging out together.
The Government says the new prohibition order went through a full Cabinet process and gives police what they need to tackle gangs. It also hopes it will deter gang members from wearing patches in public, though there’s no evidence to support this.
The bill is expected to pass its third reading this week and come into effect in November. But it could face legal action because it is likely to breach the Bill of Rights Act (Bora) – not just for those subject to a prohibition order, but for their flatmates as well.
Prime Minister Christopher Luxon with Police Minister Mark Mitchell and Justice Minister Paul Goldsmith. Photo / Mark Mitchell
Not just any home
The prohibition order was part of a police wishlist in advice to Police Minister Mark Mitchell on March 27. Their concern was for gang members flouting the incoming law by repeatedly wearing patches in public, and they wanted a series of escalating penalties to deter this.
The new clause means that if you’re convicted of wearing a gang patch in a public three times in a five-year period, a court is required to hand down a gang insignia prohibition order.
The order lasts for five years and is punishable by up to a year in prison. It bans the offender from having any gang insignia in any setting, public or private.
It also bans any insignia “present at the person’s usual place of residence”, regardless of who the patch belongs to. Without this, an offender could claim that any patch found in their home wasn’t theirs. With it, they’re liable for any patch in the house, even if it’s on the jacket of a flatmate or a visiting family member.
This means it impacts the rights to freedom of expression, association, and peaceful assembly, not just for the offender, but also their flatmates as well as any visitors to the house.
There’s some wriggle room: any breach of the order has to be done “intentionally”. This means the offender probably wouldn’t breach the order if they didn’t know about the patch, for example, in a journal on the coffee table, or worn by a visitor when the offender wasn’t even home.
Curiously, Cabinet landed in a place that wasn’t the preferred option for either police or the Ministry of Justice.
The maximum penalty for wearing a gang patch in a public place is six months in jail or a $5000 fine. Police wanted those penalties to double for a second offence – which Cabinet rejected.
Police wanted a special "checking" power enabling them to search for gang insignia in the home of a gang member subject to a prohibition order, which Justice officials warned could be used as a "harassment" tool. Cabinet rejected it. Photo / George Heard
‘A tool of harassment’
Cabinet also rejected police’s request for special search powers relating to the residential ban.
Usually, two grounds have to be met for a judge to grant a search warrant: reasonable grounds that an imprisonable offence has been or will be committed, and a reasonable belief that the search will uncover evidence.
Police asked for the latter to be dropped, which would enable “simply a power to check and make sure they are not in possession of any other gang insignia in breach of the order”.
“The core legal justification for intrusive search powers is that they are necessary to gather evidence of a particular criminal offence... Preventative searches risk straying into becoming a tool of harassment,” the ministry’s regulatory impact statement (Ris) said.
Even without lowering the threshold for a search warrant, the Ris said prohibition orders posed an inherent risk.
“The wider policy rationale underpinning the possession ban [prohibition order] is that it enables disruptive searches to be conducted. This risks distorting the general legal basis of search powers, from a tool for collecting evidence to a method of punishment/deterrence.”
Justice officials opposed every police suggestion for escalating penalties, including prohibition orders. Repeat offenders would face increasingly harsher sentences anyway, they said, because prior convictions are an aggravating factor at sentencing.
There was also “significant evidence” that harsher penalties are not an effective deterrent, which police acknowledged in their advice to Mitchell: “Police has therefore not been able to provide any evidence that the ban will have the intended [deterrent] effect.”
Justice Ministry officials are concerned that a possession ban order will have a detrimental impact on social cohesion, and undermine police's de-escalation work on gang crime and anti-social behaviour. Photo / Alex Burton
While a prohibition order would have more impact as a deterrent than not having one, Justice officials said the costs outweighed any benefits including:
restricting rights protected in the Bora;
exposing housemates of someone under a prohibition order to police searches “likely to be disruptive, invasive, and particularly traumatic for children”;
eroding social cohesion and trust in police, which would undermine police’s de-escalation work with gangs.
Labour’s justice spokesman Duncan Webb called it “an absolute dog’s breakfast ... a horrendous piece of legislation”.
“This is a truly extraordinary intrusion into someone’s personal life, that you’re not only prohibiting them from having gang insignia in their possession or in their room, you’re prohibiting their flatmates from having gang insignias – if they know about it – in another room.
“For goodness’ sake, let’s not make people liable for a year imprisonment because they know that their flatmate has a gang patch. That is true madness.”
Webb questioned the need for a ban in the home, the penalty of imprisonment instead of a fine, and why a court should have no choice over whether a prohibition order is appropriate.
Labour's justice spokesman Duncan Webb said the new clause in the Gangs Bill is an "absolute dog's breakfast". Photo / Mark Mitchell
Justice Minister Paul Goldsmith dismissed these by saying the amendment was “appropriate”.
He conceded the gang patch ban in public places impinged on the freedom of expression, but National had campaigned on doing it – and it was justified.
“The rights of people to be able to go about their normal life without fear of being intimidated or preyed upon by organised crime is also a freedom that we stand up for.”
The counter to this, which Justice officials have pointed out, is that there are a range of offences that already capture intentionally causing fear or intimidation. A gang patch in a private home is also hardly going to harm someone going about their normal life.
It asked Goldsmith to withdraw it, but if prohibition orders had to be included, to dump the home ban or include a “reasonable excuse” defence, for example, “where a defendant is present at their residence and aware their flatmate has a gang patch, but is in the process of finding a new place to live”.
Failing that, the Law Society has said it would consider seeking a court declaration that the law is inconsistent with the Bora. If successful, this would require a formal response from Parliament, though it would not force the law to be withdrawn.
The Government could face legal action seeking a court declaration that the Gangs Bill is inconsistent with the Bill of Rights Act. Photo / 123rf
It was disappointing there was no select committee scrutiny, the Law Society added.
Police Minister Mark Mitchell conceded that such scrutiny would have been the “perfect-case scenario”, but the amendment wasn’t finalised until after submissions to the committee had closed.
“We felt to make sure that legislation was strong and delivered the powers police need to be effective, it needed to be added to the bill. It went through a full Cabinet process,” he said.
“It gives police the ability to seek a warrant and go in there and remove that gang patch permanently, finding it in their place of residence. It’s a great deterrent because gang members hate having their houses searched. Normally there’re drugs or firearms or something in there they don’t want the police finding.
“If gang members stick to the law, they’ve got nothing to fear.”
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the Press Gallery team and is a former deputy political editor.
