The Law and Order Committee has examined the Wanganui District Council (Prohibition of Gang Insignia) Bill and recommends that it be passed with the amendments shown.
Introduction
The Wanganui District Council (Prohibition of Gang Insignia) Bill is a local bill and the Wanganui District Council is the promoter. The council considers that the wearing or displaying of gang insignia, particularly in public places, has contributed to an increasing gang problem in the Wanganui district. It sought views from members of the public on this bill by means of a referendum. We understand that the council does not believe that the enactment of this bill would solve the gang problems in Wanganui, but considers that it could form the beginning of a solution.
This commentary focuses on our recommendations for significant changes to the bill, and does not cover minor changes of a technical nature.
New Zealand Bill of Rights Act 1990
We recognise that a prima facie examination shows that parts of this bill, as introduced, could be found to be inconsistent with the New Zealand Bill of Rights Act. We took this issue seriously and have worked to address these concerns and create the right balance. We have recommended several changes, which are addressed in more detail in the remainder of this report, to make the bill more compliant with the New Zealand Bill of Rights Act. We accept that allowing the Wanganui District Council to make these bylaws could be perceived to breach the New Zealand Bill of Rights Act, but we think for the safety and security of the residents of Wanganui these powers are desirable.
Wearing
We recommend amending clauses 3, 6, and 7 by removing the words “wearing” and “worn” to make the bill more compliant with the New Zealand Bill of Rights Act 1990. We were advised that the bill would comply more readily with the New Zealand Bill of Rights Act if these words were removed. This amendment would mean that the wearing of an item that cannot be seen would not be inadvertently captured.
Definitions
Gang
We considered amending the definition of gang in clause 4 of the bill by taking out the gangs listed. However, we consider it important that the listed gangs stay in the bill in order to speed up the implementation of this legislation.
Gang insignia
We recommend amending the definition of “gang insignia” in clause 4 to include the phrase “commonly displayed”. It is important that the definition of gang insignia be kept broad to allow for possible rebranding of gangs. However, we consider that this amendment would provide a useful limitation on the insignia that could be captured by the prohibition.
We considered recommending amending the bill so that tattoos would not be captured by this legislation. However, a majority of us (New Zealand Labour and New Zealand First) are concerned that this might cause an increase in the use of tattoos by gang members to intimidate the public. We do not consider that every tattoo should be covered by this legislation; it should capture only those that denote membership of, affiliation with, or support for a gang.
Vehicles
We recommend amending clause 4 by inserting new subclause 4(2) so that people in vehicles in specified places who were displaying gang insignia would be subject to this legislation. We understand that it was not intended that vehicles in public places be exempt from the legislation.
Bylaws designating specified places or new gangs
Specifying public places
We recommend amending the bill by adding new clause 5(5) to make it clear that the Wanganui District Council could not make all the public places in the district specified places using bylaws. Some submitters were concerned that the council could designate the whole district as such. We understand it is a well-established principle that a power to regulate an activity does not amount to total prohibition, but this amendment would provide certainty.
Signposting
We recommend amending the bill by inserting new clause 5A, so that signposts would be required, where it was reasonably practicable, indicating the specified public places where displaying gang insignia was prohibited. However, an arrest or seizure could not be challenged if there were no signs in the area. We consider this amendment would be sufficient to give notice that displaying gang insignia was illegal in these areas, and would expect the council to be diligent about the maintenance of signs.
Local Government Act 2002
We recommend inserting new clauses 5(2A) and 5B. New clause 5(2A) would make the bylaw-making process in this bill consistent with the Local Government Act.
Inserting new clause 5B would ensure that the bylaw-making powers in the bill were subject to section 157 of the Local Government Act, which specifies that the public must be notified of the making of bylaws. When a specified place or new gang was added by bylaw the public would be notified.
We also recommend inserting new clauses 5C, 5D, 5E, and 5F, which would provide mechanisms for the review of bylaws made under this legislation. A review would provide an opportunity to establish whether the bylaws were effective.
Prohibition of gang insignia
We recommend amending the title of clause 6 by including the words “display of”. We consider that this change would more accurately reflect the intent of the bill.
Penalties
We recommend amending subclause 6(2) of the bill to include a reasonable excuse provision to make the bill more compliant with the New Zealand Bill of Rights Act.
We also recommend amending clause 6 of the bill by decreasing the maximum fine for this offence from $5,000 to $2,000. We consider a maximum fine of $2,000 would be consistent with fines for similar offences such as disorderly behaviour and intimidation.
Power of seizure
We recommend amending clause 7(1)(b) to make it clear that police could seize insignia that had been displayed in a specified place. There would be no requirement for the insignia to still be displayed in that specified place when it was seized.
Disposal of seized gang insignia
We recommend amending clause 7(2) so that where the accused was given diversion or pleaded guilty, the insignia would be forfeited to the Crown. The amendment would make it clear that anyone who was convicted of or subject to the diversion process for the offence would have to forfeit their insignia to the Crown.
We recommend inserting new clause 7(3) to specify a process for the police to follow when applying to the court for destruction orders for seized gang insignia. We are concerned that if the bill were enacted as introduced there might be claims for the return of property. Court orders are the usual way of deciding what happens to seized property.
Stopping vehicles
We recommend an amendment to insert new clause 8, which would allow the police to stop a vehicle, without a warrant, if they had reasonable grounds to believe that an offence had been committed under this legislation. Police would not then have to use other legislation to stop a car with an occupant displaying gang insignia, and we consider this amendment necessary for the efficient enforcement of the provisions of this bill.
Enforcement
We recommend inserting new clause 9 to ensure that the Police were the only enforcement agency for this legislation. We do not consider it appropriate for council staff to enforce this legislation, and suggest that care should be taken to ensure that only the police could do so.
South Australian gang legislation
While supporting the reporting back of the bill, New Zealand Labour members believe that the opportunity should be taken to consider the related legislation in South Australia and that the bill should not proceed further in the parliamentary process until such time as a full evaluation has taken place of the South Australian experience.
Appendix
Committee process
The Wanganui District Council (Prohibition of Gang Insignia) Bill was referred to the committee on 16 April 2008. The closing date for submissions was 6 June 2008. We received and considered nine submissions from interested groups and individuals. We heard six submissions.
We received advice from the Department of Internal Affairs, the Ministry of Justice, and New Zealand Police.
Commentary
Recommendation
The Law and Order Committee has examined the Wanganui District Council (Prohibition of Gang Insignia) Bill and recommends that it be passed with the amendments shown.
Introduction
The Wanganui District Council (Prohibition of Gang Insignia) Bill is a local bill and the Wanganui District Council is the promoter. The council considers that the wearing or displaying of gang insignia, particularly in public places, has contributed to an increasing gang problem in the Wanganui district. It sought views from members of the public on this bill by means of a referendum. We understand that the council does not believe that the enactment of this bill would solve the gang problems in Wanganui, but considers that it could form the beginning of a solution.
This commentary focuses on our recommendations for significant changes to the bill, and does not cover minor changes of a technical nature.
New Zealand Bill of Rights Act 1990
We recognise that a prima facie examination shows that parts of this bill, as introduced, could be found to be inconsistent with the New Zealand Bill of Rights Act. We took this issue seriously and have worked to address these concerns and create the right balance. We have recommended several changes, which are addressed in more detail in the remainder of this report, to make the bill more compliant with the New Zealand Bill of Rights Act. We accept that allowing the Wanganui District Council to make these bylaws could be perceived to breach the New Zealand Bill of Rights Act, but we think for the safety and security of the residents of Wanganui these powers are desirable.
Wearing
We recommend amending clauses 3, 6, and 7 by removing the words “wearing” and “worn” to make the bill more compliant with the New Zealand Bill of Rights Act 1990. We were advised that the bill would comply more readily with the New Zealand Bill of Rights Act if these words were removed. This amendment would mean that the wearing of an item that cannot be seen would not be inadvertently captured.
Definitions
Gang
We considered amending the definition of gang in clause 4 of the bill by taking out the gangs listed. However, we consider it important that the listed gangs stay in the bill in order to speed up the implementation of this legislation.
Gang insignia
We recommend amending the definition of “gang insignia” in clause 4 to include the phrase “commonly displayed”. It is important that the definition of gang insignia be kept broad to allow for possible rebranding of gangs. However, we consider that this amendment would provide a useful limitation on the insignia that could be captured by the prohibition.
We considered recommending amending the bill so that tattoos would not be captured by this legislation. However, a majority of us (New Zealand Labour and New Zealand First) are concerned that this might cause an increase in the use of tattoos by gang members to intimidate the public. We do not consider that every tattoo should be covered by this legislation; it should capture only those that denote membership of, affiliation with, or support for a gang.
Vehicles
We recommend amending clause 4 by inserting new subclause 4(2) so that people in vehicles in specified places who were displaying gang insignia would be subject to this legislation. We understand that it was not intended that vehicles in public places be exempt from the legislation.
Bylaws designating specified places or new gangs
Specifying public places
We recommend amending the bill by adding new clause 5(5) to make it clear that the Wanganui District Council could not make all the public places in the district specified places using bylaws. Some submitters were concerned that the council could designate the whole district as such. We understand it is a well-established principle that a power to regulate an activity does not amount to total prohibition, but this amendment would provide certainty.
Signposting
We recommend amending the bill by inserting new clause 5A, so that signposts would be required, where it was reasonably practicable, indicating the specified public places where displaying gang insignia was prohibited. However, an arrest or seizure could not be challenged if there were no signs in the area. We consider this amendment would be sufficient to give notice that displaying gang insignia was illegal in these areas, and would expect the council to be diligent about the maintenance of signs.
Local Government Act 2002
We recommend inserting new clauses 5(2A) and 5B. New clause 5(2A) would make the bylaw-making process in this bill consistent with the Local Government Act.
Inserting new clause 5B would ensure that the bylaw-making powers in the bill were subject to section 157 of the Local Government Act, which specifies that the public must be notified of the making of bylaws. When a specified place or new gang was added by bylaw the public would be notified.
We also recommend inserting new clauses 5C, 5D, 5E, and 5F, which would provide mechanisms for the review of bylaws made under this legislation. A review would provide an opportunity to establish whether the bylaws were effective.
Prohibition of gang insignia
We recommend amending the title of clause 6 by including the words “display of”. We consider that this change would more accurately reflect the intent of the bill.
Penalties
We recommend amending subclause 6(2) of the bill to include a reasonable excuse provision to make the bill more compliant with the New Zealand Bill of Rights Act.
We also recommend amending clause 6 of the bill by decreasing the maximum fine for this offence from $5,000 to $2,000. We consider a maximum fine of $2,000 would be consistent with fines for similar offences such as disorderly behaviour and intimidation.
Power of seizure
We recommend amending clause 7(1)(b) to make it clear that police could seize insignia that had been displayed in a specified place. There would be no requirement for the insignia to still be displayed in that specified place when it was seized.
Disposal of seized gang insignia
We recommend amending clause 7(2) so that where the accused was given diversion or pleaded guilty, the insignia would be forfeited to the Crown. The amendment would make it clear that anyone who was convicted of or subject to the diversion process for the offence would have to forfeit their insignia to the Crown.
We recommend inserting new clause 7(3) to specify a process for the police to follow when applying to the court for destruction orders for seized gang insignia. We are concerned that if the bill were enacted as introduced there might be claims for the return of property. Court orders are the usual way of deciding what happens to seized property.
Stopping vehicles
We recommend an amendment to insert new clause 8, which would allow the police to stop a vehicle, without a warrant, if they had reasonable grounds to believe that an offence had been committed under this legislation. Police would not then have to use other legislation to stop a car with an occupant displaying gang insignia, and we consider this amendment necessary for the efficient enforcement of the provisions of this bill.
Enforcement
We recommend inserting new clause 9 to ensure that the Police were the only enforcement agency for this legislation. We do not consider it appropriate for council staff to enforce this legislation, and suggest that care should be taken to ensure that only the police could do so.
South Australian gang legislation
While supporting the reporting back of the bill, New Zealand Labour members believe that the opportunity should be taken to consider the related legislation in South Australia and that the bill should not proceed further in the parliamentary process until such time as a full evaluation has taken place of the South Australian experience.
Appendix
Committee process
The Wanganui District Council (Prohibition of Gang Insignia) Bill was referred to the committee on 16 April 2008. The closing date for submissions was 6 June 2008. We received and considered nine submissions from interested groups and individuals. We heard six submissions.
We received advice from the Department of Internal Affairs, the Ministry of Justice, and New Zealand Police.
Committee membership
Ron Mark (Chairperson)
Hon David Benson-Pope (Deputy Chairperson)
Chester Borrows
Martin Gallagher
Hon Darren Hughes
Simon Power
Kate Wilkinson