Footage released during the trial concerning a gang member shooting at the Sofitel Hotel Auckland in 2021. Video / Supplied
Proposed police search warrant powers targeting gang members’ weapons are vague, without sufficient evidence and could lead to harm.
That’s according to the New Zealand Law Society, which has stated vagaries in the proposed Criminal Activity Intervention Legislation Bill risks police abusing their power and disproportionately impacting Māori, given their high representation in gangs.
The society’s Monique van Alphen Fyfe believes crime legislation has a tendency to be rushed without the necessary evidence due to the desire to enact it and she is urging lawmakers to be assured of the bill’s effectiveness.
On Monday, the justice select committee heard submissions on the bill - part of a package of legislative reform that aimed to give police more tools to tackle gangs.
In July when the reform was announced, at least 23 houses had been targeted in drive-by shootings in the space of a fortnight. Police Minister Chris Hipkins at the time conceded that gang tensions had deteriorated in the past 18 months and the Government needed to do more to curb the violence.
Among the new powers afforded by the bill was an amendment to Search and Surveillance Act 2012 to provide a new warrant power to search for and seize weapons during a gang conflict.
Places and vehicles able to be searched included those that a judge had reasonable grounds to believe a gang conflict existed, one or more gangs were involved in a conflict in a specified area and the issue of the warrant could reduce the risk of harm to people or property.
Van Alphen Fyfe, speaking on behalf of the society - which made a written submission on the bill - said it was problematic not to include a reference to the intention of the power - the search and seizure of weapons.
“You can see that there’s the potential for a judge to issue a warrant for purposes that are slightly broader than what the actual harm being targeted is.”
A conflict between the Tribesmen and the Killer Beez sparked a number of drive-by shootings in Auckland earlier this year. Photo / NZME
Van Alphen Fyfe said the society also took issue with what was considered a vague definition of gang conflict.
In the bill, gang conflict meant “ongoing dissension” between two or more gangs, or factions within gangs, that was likely to involve weapons and was likely to present a risk of harm to people or property.
The society’s submission noted how a number of gangs were active in New Zealand and had “longstanding rivalries which regularly manifest in violent incidents”.
“If the intention is it’s only used in exceptional circumstances then you’d expect those sorts of things to be more clearly defined,” van Alphen Fyfe said.
Also a barrister at Stout Street Chambers, van Alphen Fyfe felt the proposed search warrant powers hadn’t been supported by necessary evidence, such as overseas comparisons and whether similar legislation had increased warrants or prompted more legislative change.
“We haven’t really seen a lot of that, there’s a lot of assertions rather than analysis of the effects.”
In her view, crime legislation could sometimes lack detailed analysis because of a Government’s wish to respond to public safety concerns.
“That means that there are risks and despite the assurances that a judge won’t issue a warrant in breach of someone’s rights, there is the potential for that to happen because there hasn’t been the narrowing of the power to make sure it doesn’t extend beyond the objective that they’ve set themselves.”
The society’s submission observed that the proposed search warrant powers were distinct from general warrant thresholds, which required suspicion of offending.
Justice Minister Kiri Allan (left) and Police Minister Chris Hipkins will be awaiting the result of the select committee process on the bill. Photo / Dean Purcell
This was a concern raised by Deputy Privacy Commissioner Liz MacPherson to the committee in person, who said the “precedent-setting design” of the search powers raised several concerns.
“We have not yet seen evidence that proposed new warrant power is an effective measure to address gang harm by removing weapons from gang conflicts,” she told committee members on Monday.
“The proposed new warrant power represents a notable departure from the established approach to the use of search powers that require police to have reasonable grounds to suspect a criminal act is occurring or will occur.
“Although it is implicit that the search is for unlawful weapons, this reasonable suspicion standard regarding offending should not be bypassed without careful consideration of the potential risks, particularly the potential for disproportionate use.”
On Tuesday, Police Minister Chris Hipkins said he accepted the concerns but disagreed with the commissioner’s submission.
“It is one of the things that the Government weighed up when we decided to bring that bill before the House, he said.
“We want to give police more ability to intervene before something happens, rather than allowing police to respond after the fact.”
Justice Minister Kiri Allan chose not to comment when asked about the bill’s reported distinction from general warrant thresholds, saying she would await select committee deliberations “with interest”.
