The New Zealand Law Society Te Kāhui Ture o Aotearoa has written to the Minister of Justice about the introduction of Amendment Paper 51 on the Gangs Legislation Amendment Bill (the Bill), which proposes a new ‘gang insignia prohibition order’ (GIPO) regime and includes a prohibition on individuals subject to a GIPO having gang insignia in their homes.
The Law Society believes this is an incursion into private life that is not justified on the basis of the evidence available, and raises Bill of Rights and rule of law concerns. It has expressed its disappointment at the introduction of these amendments after the Select Committee process, without any indication that further consultation will be undertaken.
The Amendment Paper’s proposals would require that a court make a GIPO where an individual is convicted of displaying gang insignia in a public place and has been convicted of two or more of these offences within the past five years. The GIPO would prohibit that individual from possessing and controlling gang insignia, but also having gang insignia present at their usual place of residence. A judge would have no discretion as to whether to make an order.
Where an individual subject to a GIPO intentionally breaches all or any part of that order, they would be liable on conviction for a term of imprisonment not exceeding one year.
The Law Society has asked the Minister to withdraw Amendment Paper 51, at a minimum to allow assessment of the effectiveness of the gang insignia ban before considering further action. This would also enable the provision of a full Bill of Rights vet by Crown Law.
The Law Society believes the proposed GIPOs are an unjustified limitation on the right to freedom of expression¹, exacerbating the rights infringements already identified in the Gangs Legislation Amendment Bill. Gang insignia are a form of speech, expressing membership of a particular group. The proposed amendments seek to regulate a person’s private home by outlawing possession, even if they do not intend to display that insignia in a public space.
While there may be public policy considerations for regulating ‘speech’ in public spaces, the attempt to regulate speech in a private residence is significant, and not rationally connected to the stated purpose of the gang insignia ban. The explanatory note to the Gangs Legislation Amendment Bill states:
Gang insignia displayed in public may cause some people to feel fearful or intimidated. The display of gang insignia as a status symbol may also assist gangs in marketing themselves to potential prospects and future recruits. As gang members are readily identifiable by their insignia, the display of insignia may exacerbate inter-gang rivalries that lead to gang violence in public spaces.
Such considerations are unrelated to the existence of gang insignia within a residential home.
Further, while the Regulatory Impact Statement (RIS) notes the GIPOs aim ‘to deter repeated breaches of the display ban, and do not create a universal prohibition on the private displays of expression and association’, the Law Society disagrees. The residential ban could extend to insignia never intended to be displayed in public – such as a gang member having their father or grandfather’s patch as a memento.
The definition of gang insignia ‘includes any item or thing to which a sign, symbol, or representation…is attached or affixed (for example, clothing or a vehicle)’. Whilst the courts may interpret this sensibly, it could lead to unreasonable enforcement action or prosecution. Taken literally the definition could be taken to include printed reproductions of gang insignia, making it a criminal offence to possess a newspaper with a gang symbol in it, or certain books.
The addition of a residential restriction also increases the risk of a person being held criminally liable for being proximate to someone in possession of gang insignia, even when the insignia was outside the person’s possession or control. This risks infringing the right to be presumed innocent, under section 25(c) of the Bill of Rights.
The efficacy of the proposed GIPO regime is in doubt. The RIS notes that any deterrent value is likely to diminish over time, and states that the prospect of even an initial deterrent value is not clear and the likely rate of compliance and gang reaction to the proposals is uncertain. Despite this, the RIS proceeds to assess the GIPO regime and residential prohibition on the basis of a presumed deterrent effect. Moreover, it reports that the ban on possession of insignia is likely to focus police resources on those not involved in serious and organised crime.
In addition, the Law Society has concerns about the impact of the proposals on the rights of families, whānau and those residing with an individual subject to a GIPO.
The Law Society agrees with the RIS that there is a risk of disproportionate impact on whānau and communities in which gang members reside, who will be subjected to repeated searches which ‘are likely to be disruptive, invasive and particularly traumatic for children.’
The inclusion of the ‘place of residence’ condition as a part of a GIPO will extend evidence gathering to the entire property, and likely result in the closets, underwear drawers and other private areas of whānau being searched. This risks infringing the right to be free from unreasonable search and seizure under section 21 of the Bill of Rights. The RIS states that issuing officers will assess the reasonableness of police applications for search orders, and that the provision is not intended to authorise unreasonable searches to be executed. Given the scale of the potential rights infringement, and its lack of rational connection to the purpose of the gang insignia ban, the Law Society considers such assurances to be insufficient. Where an unreasonable search is conducted, an affected third party’s access to the means needed to challenge it is likely to be limited.
Further, those who reside with an individual subject to a GIPO may have their own freedom of expression infringed. They will be unable to possess gang insignia themselves, despite potentially never having sought to display that insignia in public in breach of the Bill.
The Law Society has concerns about the potential impact of the GIPO regime on the rule of law. This concern is also identified in the RIS, with there being a risk of a GIPO being used to undertake searches not for the purpose of collecting evidence of offending, but as a method of punishment and deterrence.
The RIS suggests that the deterrent impact of the GIPO regime relies largely on the deterrent effect of enabling police to obtain a search warrant to search a private home for gang insignia. It appears police have sought this broader residential restriction partly because it will enable them to obtain search warrants in a wider range of circumstances, and enable them to more easily secure prosecutions.
The Law Society does not agree that legislation should be pursued with a view to limit the ordinary operational challenges and constraints that exist to ensure the fair and just application of the criminal law. As noted in the RIS, ‘the wider policy rationale underpinning the possession ban 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.’
The Law Society is concerned that such significant amendments have been proposed at Committee of the Whole House stage, preventing public consultation, and without obtaining an assessment by Crown Law of the Amendment Paper’s inconsistency with the Bill of Rights.
The Law Society’s letter to the Minister of Justice asks that the Amendment Paper does not proceed, and suggests that urgent amendments to it are required if it does. The Law Society recommends:
¹ Section 14, New Zealand Bill of Rights Act 1990 (Bill of Rights).