Last-minute gang law changes ban insignia in homes and widen police search powers

A late addition to proposed gang laws will give police broad powers to search people’s homes in the name of stopping repeat offenders living under the same roof as gang patches or gang insignia.
The amendment, which technically regulates speech or expression in a person’s private residence, was added to the bill after the select committee process, meaning there hasn’t been the opportunity for experts, interested parties and the public to scrutinise the changes.
But Government ministers responsible for the new gangs legislation say they are confident they’ve struck the right balance with the new clause acting as harsher punishment and a deterrent for a small number of repeat offenders.
The Gangs Legislation Bill – which has now been split into the Gangs Bill and the Sentencing Amendment Bill – is expected to pass its third reading on Thursday.
Justice Minister Paul Goldsmith and Police Minister Mark Mitchell told Newsroom they believed the last-minute changes were a necessary part of the Government’s broader crackdown on gangs, and the public display of gang insignia.
But the New Zealand Law Society has laid out a raft of concerns with the 11th-hour amendment in an open letter to Goldsmith.
The open letter, sent by the society’s vice president, David Campbell, said the proposed law essentially set a new precedent for giving police regular access to people’s homes, distorted the reason for police to search people’s homes, and wasn’t relevant to the primary purpose of the Government’s public gang patch ban.
The society sent the letter to Goldsmith almost three weeks ago, but is yet to receive a response. In the meantime, the clock is ticking, as the Government moves forward with passing the two bills into law.
The gang bills, which would make a series of changes to police powers, have been controversial. They include banning gang insignia in public (and now in the home), allowing police to issue dispersal notices, creating laws to stop gang associates from gathering, and making gang membership an aggravating factor at sentencing.
Critics including lawyers and community organisations – as well as official advice – have argued there is no evidence this will deter people from joining gangs or committing offences, and others are critical of the likely breaches of human rights.
However, the Law Society’s letter hinges on this specific amendment, which will make it illegal for repeat offenders to live in the same place as gang insignia.
After the second reading of the bill, dozens of proposed amendments were considered during the committee of the whole House stage. Among them was this change put forward by the Government.
Under Section 8(2)(c), anyone who has been convicted of displaying gang insignia in public two or more times in the last five years would be subject to what the Government calls a “mandatory gang insignia prohibition order for repeat offenders”.
The order includes a condition that there could not be insignia present at the person’s usual place of residence.
It would be up to police as to how they interpreted and operationalised the new clause, and whether it could potentially extend to insignia owned by someone else living at the same private residence – such as a flat or transitional housing.
On August 8, Campbell wrote to Goldsmith to raise concerns about the significant extension of police powers into people’s homes, stating that this went beyond the intention of the public patch ban.
He said the amendment was inconsistent with the Bill of Rights Act and was introduced through an improper process. He urged Goldsmith and Police Minister Mark Mitchell to halt the passing of the bill, so Crown Law could conduct a proper human rights vet of the proposed legislation.
“[The amendment] unjustifiably infringes rights protected by the New Zealand Bill of Rights Act 1990 (Bill of Rights), has no rational connection to the purposes of the Bill and its proposed gang insignia ban, and will likely cause harm to the families and whānau – including children – of those subject to a [gang insignia prohibition order],” the letter said.
Campbell acknowledged there may be public policy considerations for regulating ‘speech’ (or expressions, such as gang insignia) in public spaces, but the regulation in a private residence was significant, “and in this case not rationally connected to the stated purpose of the gang insignia ban”.
The explanatory note to the bill said gang insignia displayed in public may cause some people to feel fearful or intimidated.
“The display of gang insignia as a status symbol may also assist gangs in marketing themselves to potential prospects and future recruits. As gang members are readily identifiable by their insignia, the display of insignia may exacerbate inter-gang rivalries that lead to gang violence in public spaces.”
Campbell said this was unrelated to the existence of gang insignia within a residential home.
The residential ban could extend to insignia never intended to be displayed in public, he said, such as a gang member having their father or grandfather’s patch as a memento.
Taken literally, the new clause 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. 
Though there were exemptions for media displaying gang insignia in public, the same carve-outs had not been written into the clause that regulated insignia in someone’s home.
The amendment also increased the risk of someone being held criminally liable for being around someone in possession of gang insignia, even when the insignia was outside the person’s possession or control.
The Law Society said there was also a risk of disproportionate impacts for the whānau and communities in which gang members resided. 
“They may be subjected to repeated searches which are likely to be disruptive, invasive, and particularly traumatic for children.”
Beyond this, Campbell noted concerns about how the gang insignia prohibition order regime could affect the rule of law.
This could see police using the ban to undertake searches for the purpose of punishment and deterrence, rather than with the purpose of collecting evidence of offending.
“The efficacy of the proposed [gang insignia protection order] regime is in doubt,” Campbell said.
The society’s criminal committee convenor, Chris Macklin, told Newsroom his greatest concern was the process by which such a substantial amendment had been made.
Policy direction – regardless of whether others agreed – was for politicians to decide, he said.
“Our main concern here is actually the process, which is a significant change – one that could put the police into people’s homes on a relatively regular basis – being brought forward after what is a democratically enshrined consultation process.”
Macklin said the way the Government introduced the amendment, after the select committee process had ended, went against the established conventions and norms of democratic process.
Police Minister Mark Mitchell said the amendment, which he championed, wasn’t included in the bill earlier in the process as his officials were considering all the possible implications.
Mitchell said waiting to introduce the changes meant the soon-to-be law was “as strong and as waterproof as we could get it”.
“We wanted to make sure that was going to be effective; that in our country we’re going to see gang insignia and patches disappear from public view; and the public not having to deal with that, and the intimidation that comes with it.”
He said the changes would add another deterrent to gang members who were flouting the law, and he had no concerns about the additional powers given to police.
“The police are pragmatic; they have discretion … they’ll be trained; they’ll have guidelines in terms of how to use the powers. That’s the way police have always operated, and I don’t expect them to operate any differently with this legislation.”
Goldsmith reiterated Mitchell’s position, saying police would use their guidelines and training to appropriately execute searches under the new law.
This part of the gang patch ban was about introducing an “escalating scale of consequences” for the small number of people who repeatedly broke the law, he said.
“It’s a tough piece of legislation, but it’s designed to put pressure on the gangs,” he said.
Goldsmith said the decision to enter people’s homes was not taken lightly, but the pros and cons had been carefully weighed up, and he was confident in the regime.
Regarding the late introduction of the amendment, and the decision not to pause to undertake further consultation, Goldsmith said there was a “very strong impatience” from “law-abiding New Zealanders” for the Government to introduce tougher consequences.
In a previous statement, Goldsmith said there was no doubt these policies would affect and limit the rights of gang members. 
“However, Parliament is entitled to curtail the freedoms of those who misuse them to frighten and intimidate others.”
Goldsmith said he would respond to the Law Society’s letter “in due course”, but neither minister said they had any intention to change the bill, or undertake further consultation.
Beyond sending an open letter, and calling on the minister to hit pause for Crown Law to conduct a full Bill of Rights Act vet of the legislation, there were few avenues available to concerned communities and legal experts.
The Law Society’s Macklin said he would wait for the minister’s response, and see whether the bill became law, but beyond that all options were on the table.
Though it was rare, given the consistent analysis from officials and legal experts that the legislation breaches the Bill of Rights Act, a person or group could file proceedings in the senior courts to seek a declaration of inconsistency.
If the court found the law was inconsistent with the Bill of Rights Act, then the Government would be forced to respond to the court’s ruling. 
That didn’t mean the Government would necessarily change the law. But it would force the Government to acknowledge such a ruling from the court and publicly respond.
This regime – that forced Parliament to respond to the court finding a law breached the Bill of Rights – was passed in 2022.
It was triggered for the first time in 2023, after the Supreme Court found setting the voting age at 18 was inconsistent with the New Zealand Bill of Rights Act because the human rights laws states people are free from discrimination on the basis of age for those aged 16 and older.