A last-minute change to New Zealand’s gang laws could make a bad law even worse

The government’s new gang legislation – now split into the Gangs Bill and the Sentencing Amendment Bill – is expected to pass its third reading shortly. But a last-minute amendment, added after public consultation closed, has raised more questions about legislative overreach.

Broadly speaking, the legislation will make gang membership an aggravating factor in sentencing, and criminalize the display of gang insignia in public. It will also allow police to order gang members in public to disperse, and to seek a court order banning communications between members for three years.

The recent amendment would prohibit the possession of gang insignia in a private setting by issuing a gang insignia prohibition order.

While the government claims the new rules will be an effective deterrent to gang membership, it is unclear how these laws relate to New Zealand’s Bill of Rights Act.

Making membership a crime

People join gangs for different reasons. For some, it is a matter of family ties, for others, gang membership may be a result of marginalization from society.

The Royal Commission on Abuse in Care highlighted that abuse was also a pathway to gang membership. And a 2018 report highlighted that the overuse of prison sentences fuels gang recruitment.

Under current sentencing rules, judges must consider any connection between the commission of a crime and gang activity. As an aggravating factor, this can lead to a longer sentence.

But the new sentencing bill would require a judge to take gang membership into account.

This is problematic for two main reasons. First, it assumes that crimes that are not linked to gang membership are somehow worse because of their membership.

Secondly, it suggests that people should be punished for being a member of a gang, without being prosecuted for that gang membership. This is unnecessary. It is already a serious offence under section 98A of the Crimes Act 1961 to knowingly participate in an organised criminal group.

Badges behind closed doors

The new ban on gang insignia has a ‘three strikes’ element.

If someone is convicted of publicly displaying gang insignia three times within five years, the court must impose a five-year ban on him or her from possessing or handling gang insignia.

Violations will be made punishable, which means that the police will have various powers when conducting searches.

The last-minute change also “prohibits (…) gang insignia from being present at the person’s usual place of residence.”

In essence, it will become illegal for repeat offenders to live in the same location where the gang insignia is displayed, regardless of whether the insignia belongs to them or someone else on the property.

Violation of the Bill of Rights

The Attorney-General has told Parliament that the government’s approach to banning badges in all public places breaches the right to freedom of expression, as enshrined in the New Zealand Bill of Rights Act 1990.

In short, the right to freedom of expression is not limited to innocent speech. Instead, a constitutional democracy requires that people tolerate offensive behavior.

In the case of Morse v Police, in which a protester burned the New Zealand flag ahead of an Anzac Day parade, the High Court held that the Bill of Rights requires courts to give legislation the meaning that is ‘least restrictive’ of human rights.

In 2011, the High Court also ruled that a ban on gang insignia in all public places in Whanganui was too big a step in the case of Schubert v. Wanganui District Council.

A more tailored approach is needed

As the attorney general noted, there could be a more tailored offense that protects the public from gang intimidation. For example, it could be illegal to wear gang patches in places like schools and hospitals. This mirrors the current law in the Prohibition of Gang Insignia and Government Premises Act.

The new no-gathering orders also include several conditions that allow courts to uphold the right to assemble while imposing restrictions.

Similarly, police must consider several factors when issuing a dispersal order (telling two or more people to leave a certain area), including whether the order is necessary to prevent unreasonable disruption of the public. This ensures that rights, including the right to assemble, are respected.

But aside from a few limited exceptions, such as fair use for artistic purposes, the ban on badges contains no language that protects the fundamental rights on which democracy is based.

Because the new rules appear to require courts to violate human rights supposedly guaranteed by the Bill of Rights Act and our international treaty obligations (particularly the International Covenant on Civil and Political Rights), it is expected that lawyers and judges will seek ways to circumvent them.

Because New Zealand has no constitutional basis, our fundamental rights and traditions are only secure if the politicians in power at the time are prepared to respect them.

On closer inspection, the new gang laws clearly contain bad ideas. But they also violate our constitutional norms and processes.