Gang patch bylaw too broad and vague, lawyers say

The Wanganui District Council's Gang Insignia bylaw is a "sledgehammer used to crack a nut" lawyers representing the Hells Angels told the High Court at Wanganui yesterday.
Lane Neave Christchurch lawyers Steven Rollo and Duncan Webb were challenging the bylaw on behalf of Auckland-based Hells Angels member Philip Schubert, before Justice Denis Clifford.
The bylaw, which came into force on September 1, 2009, bans the gang patches, insignia and colours of 10 gangs in public places in Wanganui, Mowhanau, Kai Iwi and rural community halls.
Parliament earlier passed a law allowing the council to enact the bylaw.
Mr Webb argued that the geographical area the bylaw covered was too vast in its scope and amounted to total prohibition across the district.
He said it was unreasonable and repugnant to the Bill of Rights Act which was also not given proper consideration by the council.
He called the definition of the types of insignia banned under the bylaw "hugely broad and vague," for the geographical area it covered, and said the wider area would be permissible if a narrower scope for the insignia was given.
The ban was basically prohibition, which breached the Bill of Rights Act and the council was not given the power to do this by Parliament.
In his submission, Mr Webb told the court that whichever way you looked at it, the bylaw was a fundamental error because it resolved the safety of Wanganui citizens against the rights of gang members.
"If the council took cognisance of those rights they would have reached a different decision."
He also pointed to the Wanganui District Council (WDC) meeting of August 31 2009 when then-councillor Barbara Bullock raised the issues of the Bill of Rights submissions that had been received by the council's Gang Patch Bylaw subcommittee.
Councillor Sue Westwood also spoke to the item and was told by then Mayor Michael Laws that she was out of order.
"Mr Laws would not allow discussion around the submissions, and told the meeting that as the chair he set the agenda and it had already been resolved."
Both councillors walked out of the meeting because they were not allowed to speak to the (Bill of Rights) act, Mr Webb said.
Part of the bylaw requires council to erect signage adjacent to areas the bylaw relates to; and in specifying that signage must go up, it was evident Parliament's intent was that the bylaw would affect "very small pockets," not Wanganui city as a whole, he said.
Mr Webb cited Jarrod Gilbert, ethnographer and sociologist, who has just completed a PhD and six years of research into gang culture.
Mr Gilbert's research found that Hells Angels membership was the most defining feature of their identify, and that definition was made by the right to wear various gang insignia.
The bylaw took away their right to be members and identify themselves as such in public, when there was no other reasonable way for them to show who they were, Mr Webb said.
Mr Webb also noted that, of the 13 prosecutions under the new bylaw, only one was for a gang member wearing a patch.
Mr Rollo said the test for the bylaw was proportionality, and "a sledgehammer has been used to crack a nut".
The two lawyers, in their submissions, said there had been no gang clashes with the Hells Angels in the past three years, and harassment and intimidation were difficult to gauge - it was difficult to tell whether people were intimidated by the sight of the person and their look, as opposed to what they were wearing.
The fundamental problem with the bylaw was that it "just went too far" and the onus was on the council's lawyers to demonstrate the bylaw was reasonable, they said. WDC lawyer Hayden Webb, from Kensington Swan, submitted that the geographical area did not breach a section of the Bill of Rights Act and that signage did not reflect the expressions of the act.
Justice Clifford has reserved his decision.