The Justice Committee has examined the Gangs Legislation Amendment Bill and recommends by majority that it be passed. We recommend all amendments unanimously.

The bill aims to reduce the harm caused by gangs and make communities safer. Its focus is to reduce the harmful behaviour that gangs engage in, and disincentivise gang membership. The bill contains a range of new powers to disrupt and directly target gang activity. It would:

• prohibit the display of gang insignia in a public place

• empower police to issue dispersal notices that require specified gang members to leave a public place and not associate in public for 7 days

• create a new non-consorting order that prohibits association and communication between specified gang members for 3 years

• amend the Sentencing Act 2002 to make gang membership an aggravating factor at sentencing.

As part of our consideration of the bill, we have examined its consistency with principles of legislative quality. We have no issues regarding the legislation’s design to bring to the attention of the House.

On 26 February 2024, the Attorney-General presented a report on the bill to the House of Representatives under section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA) and Standing Order 269(1). Section 7 requires the Attorney-General to bring to the House’s attention any provision that appears to be inconsistent with any of the rights and freedoms contained in NZBORA. Under Standing Order 269(1), the Attorney-General must indicate the provision to the House and how it appears to be inconsistent with NZBORA.

Clause 7 of the bill would prohibit a person from displaying gang insignia at any time in a public place. The Attorney-General assessed this provision against section 5 of NZBORA. That section provides that the rights and freedoms contained in the Act may be subject to reasonable limits that are prescribed by law and demonstrably justified in a free and democratic society. The Attorney-General concluded that the proposed prohibition is inconsistent with the following rights under NZBORA:

• freedom of expression (section 14)

• freedom of peaceful assembly (section 16)

• freedom of association (section 17).

In reaching this conclusion, the Attorney-General considered whether the bill limits the freedoms no more than is necessary to achieve its objectives. She noted that more limited prohibitions could target places with a higher likelihood of public intimidation or a more likely public presence. The Attorney-General suggested that a limited ban could be supplemented by giving constables a discretionary power to direct the removal of gang insignia in other places if fear and intimidation were likely to occur. The Attorney-General stated that, before a complete ban could be justified, a more convincing reason would be needed for why less intrusive measures would not achieve the social purpose. She recognised that policing a more restricted ban could be compromised and defeat the objective, but noted that it had not been considered.

Clause 9 of the bill would create new dispersal notices against gang members disruptively gathering in public. It would require the specified gang members to leave the public place and not associate in public for 7 days. The Attorney-General acknowledged that a notice could not be issued to a gang member who was participating in a public demonstration.¹ However, once a notice was issued, the gang member could not publicly demonstrate at any time with any of the people named in the notice while it was in force. She emphasised the importance in a democracy of the right to assemble for the purpose of a public protest. Further, limitations on that right should not be entertained in the absence of an imminent risk to safety or public order.

Clause 16 provides that a person issued with a dispersal notice would need to seek to vary it to attend a public demonstration with other gang members specified in the notice. The Attorney-General considered that, even if the variation could be effectively exercised, permission should not need to be sought to exercise this fundamental constitutional right. The Attorney-General therefore concluded that the proposed dispersal notice regime would impair the freedom of peaceful assembly more than is necessary and is inconsistent with section 16 of NZBORA. She suggested that this inconsistency could be resolved by adding political protests to the category of exempted activities in clause 15.

This commentary covers the main amendments we recommend to the bill as introduced. We do not discuss minor, technical, or consequential amendments.

Clause 2 provides that the bill would come into force 6 months after Royal assent. We were advised that this date could overlap with the busy Christmas period for the New Zealand Police. A fixed commencement date would help them to plan for the necessary elements of implementation. We therefore recommend amending the commencement date to 21 November 2024.

Clause 7 provides that a person commits an offence if the person, without reasonable excuse, displays gang insignia at any time in a public place. The penalty on conviction is a term of imprisonment of up to 6 months or a fine not exceeding $5,000.

Several submitters expressed concern that the offence is a strict liability offence, which requires the prosecution to prove the physical, but not mental, element of an offence. One submitter pointed out that strict liability is generally not appropriate for offences liable to imprisonment. Further, the Legislation Design and Advisory Committee guidelines state that criminal offences should include a mental element unless compelling reasons exist not to do so.

We acknowledge the concerns raised in submissions. We agree that the offence should contain a mental element of “knowingly” displaying gang insignia. We recommend amending clause 7(1) accordingly. We also discussed whether the mental element should apply to the public place part of the offence—that is, a person should only be liable if they knew they were in a public place. We were advised, however, that this would be inconsistent with other offences that criminalise certain conduct only in public places. Requiring proof that a person knew they were in a public place also creates a burden that could be harder to supply evidence for. This could risk unsuccessful prosecutions in appropriate cases.

Clause 19 would enable the District Court to make a non-consorting order for a person after hearing an application by the Commissioner. The Court would need to be satisfied that the person was a specified gang offender. The order would need to help disrupt or restrict the capacity of the person to engage in conduct amounting to a serious offence. It would also need to identify the specified gang offender(s) with whom the person could not consort.

Clause 19(1)(a) would require the Commissioner to give notice to a person that an application for a non-consorting order had been made against them. Given the significance of a non-consorting order, we think it would be more appropriate to require the notification to be served personally. We recommend inserting clause 19(1B) to this effect.

Subpart 2 of Part 20 of the District Court Rules 2014 requires applications to the District Court under certain legislation to be filed as an originating application under this subpart. We recommend inserting clause 19(1A) to make it clear that an application for a non-consorting order would need to be filed as an originating application under the Rules.

We note that the District Court Fees Regulations 2009 state that originating applications have an associated fee of $200, unless exempted under section 3(2)(a). We understand that, for consistency with other current exemptions, applications for non-consorting orders are intended to be exempt from the fee. We recommend inserting clause 33A to specify this.

Schedule 2 of the bill contains a list of identified gangs for the purposes of the legislation. The list is based on the gangs previously identified in the Prohibition of Gang Insignia in Government Premises Act 2013 and associated 2018 regulations. We received advice that updates are needed to the list, based on current intelligence from the Police. Four gangs now meet the criteria for a gang, eleven have been identified as defunct, and two are now identified as separate gangs. We recommend amending Schedule 2 accordingly.

Clause 30 would enable the Governor-General, by Order in Council, to add or remove gangs from the list set out in Schedule 2. This would be made on the recommendation of the Minister of Police. Clause 30(2) provides that the Minister would need to be satisfied on reasonable grounds that the organisation, association, or group had both of the following characteristics:

• a common name or common identifying signs, symbols, or representations

• its members, associates, or supporters individually or collectively promote, encourage, or engage in criminal activity.

Many submitters expressed concern that the test to be identified as a gang under the legislation is not particularly stringent. We agree and propose several amendments to the criteria in clause 30, which we set out below.

We think that the focus should be on the behaviour of the members or associates of the group being designated, and not on their supporters. We also recommend that the test should require actual criminal offending instead of promoting or encouraging offending. Given the consequences of being added to the list, we considered whether the threshold should be serious offending rather than any criminal activity. However, we understand that this would exclude some gangs that are intended be covered by the legislation. We consider that a category 3 or 4 offence, as defined in section 6(1) of the Criminal Procedure Act, would instead be more appropriate. As previously noted, these offences all have a penalty of imprisonment of at least 2 years. We recommend amending the bill accordingly.

We acknowledge the importance of ensuring that the designation is relevant. We therefore recommend that the offending should be within the past 5 years and the group should be currently active in New Zealand. We also recommend including offending outside New Zealand that would qualify if committed in New Zealand. We understand that this would enable the Police to consider gangs that operate in both Australia and New Zealand.

We recommend inserting clause 30(2A) to make it clear that section 30(2)(c) would not apply to conduct that consisted primarily of civil disobedience for the purpose of political activism. Our proposed amendment is intended to protect political activist groups from being eligible for inclusion on the list of gangs.

To ensure that the list is regularly reviewed, we also recommend inserting clause 30(3A) and (3B). These would require the Minister to review the Schedule before making a recommendation to amend it, and every 5 years if no amendments were made.

The Labour Party considers criminal gangs to be a significant problem in New Zealand. Keeping communities safe from gangs and disrupting their criminal behaviour should be a priority. This bill, however, is entirely unworkable and diverts precious police resources from attacking the root of the problem.

We agree that intimidation by gangs is unacceptable, however the provisions banning gang patches create expectations that the police will be stopping groups of gang members in the street and demanding that clothing be removed. In many cases this would place police at risk and will not occur. While it might be said that this is “just another tool in the toolbox” the fact is that if an activity is criminalised then there is a reasonable expectation on the part of the public that such visible wrongdoing will be addressed by the police. We consider that to be an unreasonable and unworkable demand on police.

The provisions of this bill are largely triggered by a person being a member of a gang. Our select committee process made it clear that the current list of gangs and gang members is not reliable. The gang list included defunct gangs and was far from comprehensive. Given that this is a critical component of the workability of the framework we consider that the entire regulatory edifice is built on a shaky foundation.

The provisions giving police the power to disperse gang members are equally unworkable and do not meaningfully add to the powers that police already have to intervene where there is disorderly conduct in a public place. The test requires that the police suspect that there are three or more people who are gang members who are “unreasonably disrupting the activities of other members of the public”. This is vague and provides little or no guidance to police or the courts as to when a dispersal notice may actually be issued.

The issuing of the notice itself is also problematic. The bill would allow a dispersal notice to be served by email in some cases. While we accept the operational challenges of the police, we do not think it workable to serve a notice (the breach of which can lead to an imprisonable offence) by a verbal explanation and a follow up email. The service of the notice (or the explanation of it) may well occur in a tense or heated environment when the likelihood of its significance being understood is low. We are not confident that people who are served dispersal notices by email will be assiduous in checking their emails to understand the nature and extend to the constraints imposed by the notice.

We consider that any notification of a limit on freedom like a dispersal notice—the breach of which can lead to prison—should be served in person by means of a physical document. We note that this is the case with a police safety order.

Non-consorting orders are intended to be a tool to disrupt gang activity. In fact they do no more than the existing provisions in section 112 of the Sentencing Act 2002 (other than being longer in duration).

Creating gang membership as an aggravating factor in sentencing whether or not the criminal conduct is related to gang membership is also problematic. We agree that if there is an offence which is a gang offence this is a serious matter and there should be a corresponding uplift in the sentence. However, where there is no rational connection between the offence and status of the offender as gang member the increase of the sentence imposed is arbitrary.

We also consider that the procedural provisions in the bill fall short of what is appropriate in a democratic society. We consider that where conduct leads to a constraint on liberty the evidential threshold should be the criminal standard of beyond reasonable doubt, not the civil standard of the balance of probabilities.

The Green Party opposes the Gangs Legislation Amendment Bill. As a country, we have made enormous gains in understanding what drives people to join, and stay, in gangs. It is a complex web of shared historic trauma (including abuse in state care), poverty, and cycles of incarceration that fuels gang membership.

Our primary concern is that this bill will unravel progress made over a number of years to address intimidating behaviour and organised crime by gangs. There has been collaboration between gang leaders, police leadership, and government leaders to understand the drivers of gang membership so that meaningful solutions can be sought. However, this adversarial and punitive approach undermines this collaboration and makes our communities less safe.

Enforcing the ban on gang patches creates hostile, dangerous environments within our communities. We have serious concerns about the slippery slope of telling people what they can and cannot wear. We are concerned about the dangerous position this puts police officers in, and the risks to public safety where this enforcement results in showdowns between police and gangs. Removing the visual presence of gangs within our communities does not eliminate the existence of gangs by any measure. In addition, evidence heard by the committee shows that this legislation will be unenforceable in some circumstances, in particular in some communities where there are many more gang members than police officers. Passing legislation that is unenforceable is bad policy-making.

We are concerned about enhanced police powers to issue dispersal notices, non-consorting orders and increased discretionary powers. There is well-documented evidence that racial bias continues to influence a wide range of policing decisions in Aotearoa, including in relation to charging discretion. We are deeply concerned with introducing new powers that risk these biases becoming further entrenched in Police attitudes and practices. The introduction of consorting laws in other jurisdictions has resulted in disproportionate use against indigenous people.⁵ This legislation will directly lead to higher incarceration of Māori.

We also considered the petition of Yulian Varbanov, which was presented to the Petitions Committee of the 53rd Parliament on 27 July 2022. The petition requests:

We consider that the matters raised by the petitioner were covered in our consideration of the bill. We have no further matters to bring to the attention of the House.