The Government's move to prohibit gang patches in public places would be inconsistent with the rights to expression, association and peaceful assembly, a report by the Attorney-General Judith Collins has found.
The Government’s proposed anti-gang laws would ban gang patches in public places and give police extra powers to stop gang members congregating.
Just after 3pm today, parliamentary urgency was accorded for the introduction and select committee referral of the Bill, along with two others. It is now being debated in the House.
In a report also tabled in Parliament this afternoon, Collins' report on the Gangs Legislation Amendment Bill said it had tested the bill against the Bill of Rights.
"I conclude the proposed prohibition on the display of gang insignia in public places is inconsistent with the rights to freedom of expression, association and peaceful assembly in the Bill of Rights Act."
The report said if some gang members thought they were beyond the reach of the law, they were wrong.
"But just as they are subject to the law, including the law proposed by this Bill, they are also entitled to its protection," she wrote.
The report said any limitation on the freedom of expression - "even for gang members" - must be justified or it would be inconsistent with the Bill of Rights Act.
Read more: Govt moves to ban gang patches. What happened when Whanganui did it?
"However, gang insignia is associated with intimidation and criminal activity, so it is more susceptible to justified limitation than other forms of expression."
It said while a ban on gang patches in public places would not stop peaceful assembly in private, the explanatory note of the Bill had confirmed one of its purposes was to "disincentivise gang membership" and it would "clearly have that impact".
It said the goal of the bill was to make it more difficult for gang members to publicly interact with one another, advertise their gang membership and recruit other members.
"To this extent it limits the freedoms [of] peaceful assembly and association ... and that limitation must be justified or it will be inconsistent with the Bill of Rights Act.
The report continued: "More limited prohibitions could target places where intimidation of the public is more likely such as playgrounds, sports fields, beaches and other places of public recreation where the public are highly likely to be. If necessary, such a limited ban could be supplemented by giving constables a discretionary power to direct the removal of gang insignia on any other place if fear and intimidation is likely to occur."
"There would need to be a convincing reason why less intrusive measures would not achieve the social purpose [of the bill] before a complete ban could be justified. It may be that policing a more restricted ban would be compromised and defeat the objective, but that has not been considered."
She wrote that for that reason, the limitation on the freedoms of association, assembly and expression had not been justified.
The proposed power to issue dispersal notices was also inconsistent with the right to peaceful assembly.
Collins had also considered whether the Bill breached freedom of discrimination but found it was not inconsistent with that.
"It is well established that a disproportionate percentage of gang members are Māori.
"The Bill treats Māori and non-Māori gang members the same.
"If the Bill was discriminatory under the Bill of Rights Act because of the disproportionate representation of Māori in gangs, this would mean all attempts to protect the public from gangs would be discriminatory."
Last week, Prime Minister Christopher Luxon said he was prepared to continue with the bill even if it breached the Bill of Rights.
Under the last Government, the Rotorua District Council (Representation Arrangements) was stopped in its tracks when it was found the bill would breach the Bill of Rights - something the National Party criticised Labour for at the time.
Last week Luxon said he did not view the stance as hypocritical in the circumstances and said the bill was aimed at protecting communities from fear and intimidation from gang members.
Govt shouldn't focus on what criminals wear - Free Speech Union
Free Speech Union chief executive Jonathan Ayling said while the policy sought to address an area of great concern for many Kiwis, it was not the way to address gang violence.
He said it would set a "terrible precedent" that further eroded New Zealanders' speech rights.
"We already have laws in place for crime and violence. The Government should focus on these, not banning what criminals wear.
"Equally, where New Zealanders feel actively threatened, intimidated, and harassed, the law already exists and should be enforced to protect those going about their daily lives. If we focus on banning certain forms of expression, where do we draw the line?"
He said removing gang patches didn't mean gangs, or the crime and harm they caused, ceased to exist.
"Suppressing the symptoms of this issue may even make it harder to address the cause itself.
"If the Government is concerned about gang activity, they should focus on exactly that. How these powers are used today sets us on a troubling path for the way they may be manipulated tomorrow."
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