‘No evidence’ it will work, risks making gang problem worse: Officials’ scathing analysis of Government proposals

The Ministry of Justice has issued a pointed message to the Government over its proposals to crack down on gangs: they’re mired in Bill of Rights issues and there’s no evidence they’ll lead to fewer gang members or less crime. While the Government says it has a mandate to press on regardless, many of the proposals have been watered down following officials’ advice.

“There is no evidence to suggest that a suppression approach will work to reduce long-term offending behaviours by gangs, or eliminate gangs altogether.”

That is the blunt message from Ministry of Justice officials on the Government’s proposals to ban gang patches in public, stop gang members gathering in public, prevent gang members from communicating with each other and impose harsher sentences simply for being part of a gang.

The measures might reduce public visibility of gangs for a while and boost public confidence in law and order, but officials were skeptical whether they would lead to any meaningful reduction in gang membership or criminal offending.

There would also be trade-offs, with more police resources directed towards gang members - regardless of whether they were doing anything unlawful - and more prisoners, meaning pressure on prison resources that were already being squeezed.

The measures might also capture completely harmless behaviour, and breach the Bill of Rights Act (Bora) including the right to freedom of association, freedom of expression, protection against disproportionate punishment, and protection from discrimination (the measures would be disproportionately felt by Māori).

“The shift in the overall approach also risks further entrenching mistrust of state authorities held by gang members and many in their wider whānau,” the ministry’s regulatory impact analysis (RIS) adds.

This would risk making the gang problem worse by:

• making it harder for people to leave a gang
• creating more friction between police and gangs, undermining “prevention opportunities such as the de-escalation of gang tensions or social service delivery to address needs”.
• “undercutting efforts to cultivate pro-social activity [such as meals for schoolchildren] within gang communities, for those groups that have moved towards adopting such behaviours”.
• and “making it harder for whānau experiencing violence, particularly domestic violence, to seek help”.

The Ministry of Justice lauded the status quo, which included recent changes to tackle gang harm including a new search warrant power enabling weapons to be seized during a gang conflict, the power to seize recklessly-driven vehicles, new asset forfeiture measures targeting gang leaders and a commitment for 500 more frontline police.

Officials noted that much of the Government’s initial proposals were based on the new police powers in Western Australia, but these are so recent that there is limited data or independent evaluations.

Other Australian states have had anti-gang laws in place for much longer and several independent reports have raised concerns about their minimal impact on overall crime and their misuse in being applied to non-gang members.

“Queensland’s statistics indicated only a 4 per cent reduction in membership in the two years following their 2013 law, with ‘no discernible impact on general crime’,” the RIS said.

Asked about officials’ appraisal of the Government’s proposals, Justice Minister Paul Goldsmith told Parliament during Question Time on Thursday: “We don’t agree with that analysis.”

He later added: “We don’t necessarily agree with every piece of advice that we get from officials here in Wellington and we treat all advice with respect, but, fundamentally, when a Government is elected to deliver on a policy to keep our country safe, we will deliver on that policy.”

A bill to enable the proposals is currently at select committee, which is accepting submissions on the proposals until April 5.

Justice Minister Paul Goldsmith. Photo / Mark Mitchell

Banning gang patches in public

The problem: Such patches can be intimidating and can exacerbate gang violence in public spaces. However, patches are also used as a statement of identity and their use can be part of one’s right to freedom of expression. Banning them may also make it harder for police to identify gang members and gather intelligence.

The history: The Whanganui District Council’s bylaw banning gang patches in public was overturned by the High Court in 2011 as it was found to be a disproportionate punishment.

The status quo: It is an offence, punishable by a $2000 fine, to display gang patches in central or local government buildings such as schools, hospitals and courts. Other existing laws make it illegal to use a gang patch to intimidate in a public place.

The initial proposal: To make it an offence - punishable by a fine up to $10,000 or a 12-month jail term - to wear a gang patch in public, or anywhere visible from a public place, or to use one on social media. This would risk criminalising harmless behaviour, for example “if the law applied to a gang member in their house wearing a patch who walked past a street-facing window”, the RIS says.

Harsher punishments are also unlikely to have a deterrent effect. “Criminological studies show that severity of punishment has a minimal effect on deterring crime.”

Officials’ preference: The status quo: “These powers respond to the actual behaviour the insignia ban is intended to address, while limiting freedom of expression and association no more than is reasonably necessary.”

Cabinet’s decision: To make it an offence - punishable by a $5000 fine or a six-month jail term - to use gang patches in public places, but not in private places visible to the public or on social media.

Exceptions include “for genuine artistic or educational purpose”, police training, law enforcement, media reports or if the use of the patch was “in the circumstances, reasonable for that purpose”.

Officials noted that this is still “a significant intrusion on freedom of expression and association”, and it “can still capture those who breached the ban without the intent or effect of causing fear or intimidation”.

Additional comments: Cabinet’s option might have a “significant, immediate impact in increasing public confidence in law and order”, but with a range of negative consequences, including the risk of imprisonment for harmless behaviour and the potential for over-enforcement. This happened with the Whanganui bylaw when Mongrel Mob member Brett Beamsley was arrested when a picture of a bulldog was mistakenly thought to be a gang patch.

“Any [prisoner] increase (including remand) will be difficult for Corrections to absorb within baseline funding, given the tight fiscal environment that Corrections is operating in and cost pressures relating to existing population growth.”

A gang patch can be used to intimidate, but can also be a harmless act of expression.

Dispersing gang gatherings in public

The problem: Such gatherings cause fear in communities and, if it’s a gang convoy, can involve dangerous driving or blocking a road.

The status quo: Police can intervene in gang gatherings in public if illegal activity is taking place, such as harassment, “intent to frighten or intimidate”, or reckless and dangerous driving.

Police also work with gang convoys to bypass towns and manage traffic and have a new search and seize power that a judge can enable if there is a safety risk due to a gang conflict.

The initial proposal: For police to be able to issue a dispersal notice to any group of gang members in a public place, who would have to leave the area and not associate with one another for seven days. Failure to do so would be punishable by a $5000 fine and/or a six-month jail sentence.

Exemptions include immediate family members of gang members and those engaging in legal activities like work, education or healthcare.

Officials said the proposal would infringe on one’s right to freedom of association and the proposed power was so wide that it might be inconsistently applied, “even where there is no link between the gathering and harmful gang association (eg a family gathering where some of the whānau are gang members)”.

Officials’ preference: The status quo. “The empirical evidence suggests that such [proposed] powers do not reduce crime rates relative to the status quo.” They also risk imprisoning someone for harmless activity, though they could increase “a sense of public safety and freedom of movement” in communities where gangs are more common.

Cabinet’s decision: Safeguards have been added.

• Police would need reasonable grounds to believe the gathering would disrupt the “activities of other members of the community”. This would require a link between the group - which needs to be at least three people - and a likelihood of harm.
• Dispersal notices can also be issued later, if doing so at the time wasn’t safe for police or the public, and the group would be barred from returning to that area for seven days.
• Additional exemptions include those in legal custody, which would enable Corrections to manage sentences or Parole Board orders. Police would also be able to issue exceptions on a case-by-case basis, such as to enable attendance at a funeral or tangi.
• The offending has to be qualified by the offender doing so “knowingly and without reasonable excuse”. This brings it more into alignment with the Bill of Rights Act protection to be innocent until proven guilty.

Police already work with gangs to manage gang convoys. Here police staff line SH1 during the tangi of Head Hunter William “Bird” Hines in Foxton. Photo / NZ Police

Stopping gang members from hanging out together

The problem: Gang criminal activity is often preceded by planning among them.

The status quo: There are already offences for people communicating with each other in planning a criminal offence. Depending on what is being planned, police have investigative powers including search and surveillance warrants.

The initial proposal: Police can issue an anti-consorting order that would prohibit someone from associating or communicating with known gang offenders for three years.

An order could apply to any gang member subject to a firearms prohibition order, or who has been convicted of a serious offence (punishable by two years or more in prison) in New Zealand or overseas. Breaching an order would be punishable by a $15,000 fine and/or a jail term up to five years.

This would create the potential for a second punishment for a crime that has already been punished, which would be contrary to the right against disproportionate punishment in the Bill of Rights Act.

Officials’ preference: The status quo. “The efforts under the status quo to prevent and deter consorting for criminal purposes appear to be having a positive effect.”

Cabinet’s decision: Additional safeguards have been added.

• The District Court, instead of police, issues the order, and they can only be issued for offending that took place after the law comes into effect. They cannot be issued if the detrimental effects on the person in question “outweigh its societal benefits”.
• Exemptions have been added, similar to those for a dispersal order.
• Cabinet agreed to keep the harsher penalties (the ministry proposed far lower penalties) but with the same qualifier as for a dispersal notice: that the offender must breach the order “knowingly and without reasonable excuse”.

Additional comments: Anti-consorting orders might not end up being used. “In Queensland, several Metropolitan Police units they surveyed ‘discontinued use and advised they found their use of the consorting law in [public areas] to be resource-intensive with little tangible results... or [that criminal gangs] were addressed through other policing strategies such as major and/or covert investigations’,” the RIS says.

“This is consistent with studies indicating that Australia’s consorting laws had ‘no discernible impact on general crime’.”

A Government proposal would give police the power to disperse a gang gathering in a public place and they wouldn't be allowed to return to the area for seven days. Photo / Bevan Conley

Making gang membership an aggravating factor at sentencing

The problem: The Government doesn’t think the current provision in the Sentencing Act goes far enough.

The status quo: Gang membership is already an aggravating factor at sentencing, but with qualifiers. The membership needs to be applicable to the case and the judge must consider “the nature and extent” of the connection, if any, between the offending and the person’s gang membership.

For example, if the offender stole food from a supermarket for an immediate family member, then it would not increase the sentence compared to if they’d been part of a group of gang members making and selling illegal drugs.

The initial proposal: For gang membership to always be an aggravating factor, regardless of the severity of the offence or any connection between the offending and the offender’s gang membership.

Officials’ preference: The status quo. This allows a sentence to reflect the context of the crime, including where gang membership might be coincidental rather than an integral part of it. “We consider that the existing aggravating factor is sufficient to recognise the harm caused by members of gangs and organised criminal groups in a way that is consistent with the rights contained within the Bora.”

Cabinet’s decision: To give greater weight to gang membership at sentencing by removing the need to establish a link between the offending and the offender’s membership to a gang.

A judge would only need to consider whether being a gang member is applicable to the offending. This might limit the right of freedom of association by treating people differently on the basis of what group they’re a member of.

Additional comments: Justice officials said it would be “unlikely” to have any impact on reducing gang membership rates, given there is “no evidence that increasing the severity of punishment deters gang membership”.

They added that longer sentences mean those prisoners can’t commit crimes against the public while behind bars, but this was “unlikely to reduce rates of offending in the long term” because being in prison correlates to increased criminal activity and reoffending rates following release are high.

“In some cases, imprisonment can entrench anti-social networks, which increases the risk of reoffending.”

Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the press gallery and is a former deputy political editor.