New law will ban Mongrel Mob patch, but not terrorist symbols

Tuesday, 17 September 2024

Government set to make New Zealand gang patches illegal.

The new law will not include symbols used by foreign terror organisations like the Ku Klux Klan or Isis.

National’s Gang Bill included banning gang patches and giving police powers to break up congregations of gang members.

The Opposition says the Government is “riding roughshod over democracy”, as it looks to criminalise gang members’ insignia and meetings.

Gang patches will soon be illegal, with Parliament expected to pass a contentious law giving police wide-ranging power to suppress gangs later this week.

But civil liberties groups and Labour have called the bill a “populist mess”, saying it defies basic common sense.

As an example, Labour justice spokesperson Duncan Webb questioned why someone with motorcycle club jacket should receive a greater punishment than someone flying a Nazi flag. He said there was no principled argument to target one group over the other, given they both caused harm.

“It’s a weird world where it’s illegal to wear a gang patch of a little known gang, but not to display a swastika flag or wear a Ku Klux Klan outfit or carry an Islamic State banner,” he said.

The bill would ban certain symbols related to New Zealand’s “gangs”, but the definition of a “gang” won’t include foreign criminal organisations such as terror group Isis or white supremacy group the Ku Klux Klan.

Why it matters

The National Party campaigned on cracking down on gangs, and proposed the Gangs Bill to deliver on those election promises. That included banning gang patches. The bill would also give police powers to break up congregations of gang members.

But the bill, and the Government’s last minute additions to it, have found a broad spectrum of critics. Libertarians such as the Free Speech Union joined with gangs and the legal fraternity to chastise the bill. They flagged human rights concerns, questions around whether it was enforceable, and other issues, during colourful select committee hearings.

The Opposition also questioned the principles of this bill, given Justice Minister Paul Goldsmith opposed hate speech law on the basis of freedom of expression. But Attorney General Judith Collins advised ministers that the Gangs Bill would also breach other rights as well - including freedom of expression, peaceful assembly, and association.

The arguments

Webb said this was unprincipled lawmaking, based on “populist” rhetoric rather than evidence or common sense.

“It is truly a dog’s breakfast of a bill. It is riding riding roughshod over democracy,” Webb said.

He questioned why the minister refused to let the public have a say on his proposal to grant the police powers to search homes looking for gang insignia, saying such a significant change should be subject to fulsome scrutiny.

“The previous legal principle was that something happening in the privacy of one’s home, which causes no victim, is not the concern of the state,” he said.

He said the last-minute addition showed this was rushed lawmaking, packed with inconsistencies, for example, he questioned why Goldsmith, in Opposition, rallied against hate speech law - which could have outlawed symbols of hate such as terrorist insignia - but was then outlawing symbols related to gangs.

Goldsmith argued his proposed measures would “send a very tough message” to gangs.

The breakdown

The Gangs Bill would create special offences to initially apply only to the members of 41 named gangs. It would outlaw their insignia, and give police powers to issue a “dispersal notice” and enforce a “non-consorting order” for members in those gangs.

Given the list was focused on domestic groups only, symbols of global hate or terror were not criminalised in the bill.

Following criticism that police would be unable to enforce the gang patch ban, Goldsmith added a new ability for police to enter homes of people who had previously been found wearing gang insignia.

Anyone who had been found three times, within five years, with gang insignia could have their house searched without notice or warrant. Any sign of gang insignia in their home would be a further offence, and police would not need to prove that they owned the offending item.

The Law Society said this was an unjustifiable police power, and wrote to the minister raising concerns given it was introduced without any public consultation.

“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,” the society said.

Who said what

The Law Society said it hadn’t heard back from Goldsmith, more than a month after writing to him with its concerns.

The society said the bill was unclear, and if it was read literally it could criminalise a range of behaviours.

“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 society warned.

“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.”

Officials also raised concern, saying the Government was positioning these searches as a punishment unto itself - whereas the principle for police search power was to find evidence. It said this bill presented a risk of fuelling police harassment.

What next?

The Gangs Legislation Amendment Bill was set to be debated, for a final time, at Parliament on Thursday.