MPs have been warned a bill that would ban gang patches in public places could disproportionately affect Māori and unfairly impede on basic freedoms.
The Government has been urged by some to scrap the bill and start again, but the Police Association broadly supports it.
The justice select committee is today hearing from submitters on the Gangs Legislation Amendment Bill, which would also give police extra powers to stop gang members congregating.
In early March, a report by Attorney-General Judith Collins found the bill would be inconsistent with the rights to expression, association and peaceful assembly.
Today, Free Speech Union (FSU) chief executive Jonathan Ayling told the committee the bill “isn’t good law” and the group’s recommendations for changes would prove as “safeguards”.
The recommendations included that the definition of “gang” under the new law be narrowed, that the Attorney-General approve additions to the list of gangs in the law and sign off on any conviction under the Act. The group also recommended a “sunset clause” – suggested at six years, where the law’s efficacy could be reassessed. It also recommended the Police Minister be compelled under the law to report to Parliament once a year on the law and how it was working.
He said it was important the law addressed “a serious problem” in New Zealand society but with “respect to basic freedoms”.
Ayling said the law would disproportionately affect and “silence” Māori.
FSU senior in-house counsel Hannah Clow said the group was concerned about the way the Prime Minister Christopher Luxon spoke about rights in relation to the bill.
“Rights are not retractable privileges. The Prime Minister made a quote where he indicated that there are responsibilities that come with rights, gangs haven’t fulfilled their responsibilities as citizens, so therefore they’re not entitled to their rights – which is just a very, very dangerous approach to rights generally.”
Chief Children’s Commissioner Dr Claire Achmad told the committee the Children’s Commission was particularly concerned about the bill’s “potentially discriminatory impact on Māori” because of the overrepresentation of Māori in gang membership.
“We are concerned this will exacerbate the overrepresentation of Māori in our criminal justice system – and therefore we are concerned about the impact that this bill may have, disproportionately, on mokopuna Māori and whānau Māori.”
She said the Children’s Commission did not condone gang-related offending and the harm it caused.
“However … we have an obligation to advocate for all mokopuna including those who are in gang whānau.
“The impact that this bill may have on mokopuna has not been fully considered to the extent that we would like it to be.
“We urge you to consider the direct and indirect impacts on [them].”
New Zealand Law Society’s Chris Macklin said his group had some concerns about the extent of rights infringements by the bill, and that there was some evidence that could suggest the bill may not achieve what was intended by it.
He said preventative measures to stop gang membership before it happened may be more effective.
“We commend efforts to reduce gang related harm but … we have to wonder if we’re at the wrong end of things here and if the bill is the right way to achieve efforts to reduce gang related harm.
“We would respectfully submit, first and foremost, is that the bill be withdrawn to allow for further policy analysis and work.”
He conceded that may not be likely.
Macklin said intention should be considered in the law, rather than “strict liability” where a person might inadvertently display a gang insignia.
“People may depict clothing, signs, symbols and so on that support a gang without being aware of it.”
The Law Society also believed reviews of the law should be built into it.
Te Hunga Rōia Māori o Aotearoa Māori Law Society’s Julia Spelman said the legislation “unfortunately not only will not achieve the aims that it hopes to, but may actually in fact have the opposite effect, and make things worse”.
“There’s a real opportunity here to pause this bill, to take up the hard work that’s been done over a number years by the Royal Commission [Into Abuse in State Care] and others to then get some really good quality information about what could be done to achieve the aims which are shared by everybody.”
She said the bill would increase the societal view of “us and them” and while it was important to consider victims of gang-related harm, it was also important to consider most gang members had been victims themselves, often through abuse in state care.
“If we as a society are serious about addressing some of the problems that all society experiences due to the existence of gangs, then we really need to be honest about that fact and look at that as a starting point.”
She said the bill gave police a lot of discretion and in her view that discretion was “never exercised by police without bias” and that Māori were “always worse off when police are exercising discretion”.
Spelman said there were a number of people born into gangs and she hoped measures taken by Parliament would help them leave gangs rather than “into entrenched state where they will continue with the gang lifestyle”.
“That is the real risk.”
Minister of Police Mark Mitchell has previously said New Zealanders deserved to feel safe in their homes and public places.
“For too long, gangs have been allowed to behave as if they are above the law,” he said. “There is no tolerance for this behaviour and these new laws will support police to take action against it.”
ACT’s justice spokesperson Todd Stephenson has also previously expressed support for the changes, saying:
“After five years of Labour cuddling criminals and ignoring victims, it’s time for gangs to see consequences for their actions.”
‘Could be quite valuable’ — Police Association
Police Association president Chris Cahill said his organisation broadly supported the bill but it didn’t come without “fish-hooks”.
“The reality we see is, gang membership is not declining, it’s just increasing.
“The crime that gangs continue to commit, continues to grow. They’re still the biggest drivers of drug crime in New Zealand and the harm that then flows on from that.”
He said the Police Association viewed the legislation as an attempt to break that cycle as well as undermine gang intimidation, but said it was “unrealistic” for people to think it meant police could go up to gang members in the street and ask them to remove their patches.
“It’s just simply not feasible in the vast majority of situations.”
He said the law would, however, be a “tool” in the police’s toolbox. He gave an example of someone committing a separate crime and also in public wearing a gang patch — they could then be additionally charged for that under the new law.
“It could be quite valuable.”
He said that in an organisation of 14,000 employees such as the Police, there was “going to be some people who get it wrong at times”.
“But I think you need to be really careful when you say, for instance, that this will lead to racist outcomes because the police are racist.
“Will Māori be more affected by this legislation? 100% they will be more affected because they are overly represented as gang members. Is that the police’s fault, that they then charge more Māori with breaching the gang patch ban?”
He said, however, that police generally “got it right”.
‘We’re only seeing stick’ – former gang member
Former Black Power member Eugene Ryder told the committee he had been abused in state care and “found solace” in his former gang due to “shared similar experiences”.
“The people that were put in charge on behalf of the state to care for us were raping us. What we learned from that was violence, extreme violence.”
He said the bill risked criminalising people because of their association instead of because of their behaviours.
“The bill as it stands … will put a lot of pressure on police, undue pressure and that pressure can potentially evolve into [creating] a more challenging situation both for police and the general public.”
He said it was likely under the law gangs would switch to just wearing colours to represent their allegiance, or tattooing their gang insignia.
“Will that reduce the intimidation or the fear of society?”
Ryder suggested the Government address the drivers of gang membership instead of the bill.
“The poverty, the health, the low social housing. All of those have never been addressed.
“There is a carrot and stick, but we’re only seeing stick nowadays.”
The committee continues this afternoon.