A former member of Black Power says the Government’s proposed gang patch ban won't work and could lead to members getting tattoos of patches. Video / New Zealand Parliament
The clause concerns those who repeatedly break the ban on gang patches in public. After a third infringement, they won’t be allowed to possess anything with a gang patch or live in a house that has anything with a patch on it – even if it isn’t theirs.
Justice Minister Paul Goldsmith initially rejected the private home ban, which is likely to unjustifiably restrict rights to freedom of expression, presumption of innocence, and protection from unreasonable search and seizure. But then he changed his mind.
A “gang insignia prohibition order” will last for five years, and breaching it could lead to a year in jail. Cabinet approved it despite no evidence it will be effective, which police have acknowledged.
The home banis a controversial 11th-hour addition to the Government’s Gangs Bill, which is likely to unjustifiably restrict protections in the Bill of Rights Act (Bora), disproportionately impact Māori, and subject vulnerable and innocent people to invasive, traumatic searches in their own homes.
It is part of a “gang insignia prohibition order”, which will be handed down after an offender’s third conviction over a five-year period for wearing a gang patch in public.
The order means the offender will face a year in prison if they have any gang insignia at all, regardless of where they are, nor can they live in a house with any item that has a patch on it. That includes a patch, for example, on the jacket in a flatmate’s closet, or being worn by someone visiting the house.
Goldsmith added this to the Gangs Bill despite objections from several government agencies, the Privacy Commissioner and the Law Society.
Chief among their objections are the unjustified restrictions on the rights of those in the home – including visitors – including their right to freedom of expression, association, peaceful assembly, presumption of innocence, and protection against unreasonable search and seizure.
Te Puni Kōkiri added there was a risk the Government was repeating mistakes identified in the Royal Commission of Inquiry in abuse in state care, where victims were continuously punished for offending that happened in response to state abuse.
Yesterday, Goldsmith defended the private home ban as necessary to deter gang members from wearing patches in public, even though police – who requested the ban – noted there was no evidence this would happen.
“While a lot of people will say, ‘Oh, this is terrible.’ Well, I’ll say it’s very easy to avoid,” Goldsmith said. “Just don’t get caught three times within five years [wearing gang patches in public].”
Prime Minister Christopher Luxon said he made no apologies for the tough stance, and it was about giving police what they wanted to pursue the gangs.
“If police think there’s another tool or another measure that they need, in addition to the process we’ve gone through with the legislation, so be it. We’re going to make sure they’ve got every tool,” Luxon said yesterday.
The subject of a gang insignia prohibition order will not be allowed to wear a gang patch anywhere – whether in public or private – or live in a home where a patch was present. Photo / Duncan Brown
Goldsmith’s change of heart
Police requested the private home ban in March as part of a suite of harsher penalties for repeatedly wearing gang patches in public.
In his Cabinet paper in June, Goldsmith adopted some of the police’s wishlist, including a gang insignia prohibition order making it an offence for a repeat offender to possess any gang patch – anywhere. But he excluded the private home ban.
In the appendix paper, he justified it by wanting to enable wider police searches of gang members’ homes, and easier prosecutions if any gang patches were found in those homes.
“It will support police to obtain search warrants in a wider range of circumstances. With the residential restriction in place, police would only need to have reasonable grounds to suspect that gang insignia were present in the residence to obtain a warrant,” he said in the paper.
That would include scenarios where, for example, “if the person subject to the [private home] ban is visited by another patched gang member, or if they reside with whānau who are also patched gang members”.
Without a private home ban, the offender could stop a police search by voluntarily giving up an item with a gang patch on it. With it, police can search the whole house based on a reasonable belief that there might be other gang insignia around.
Many government agencies said this didn’t bolster the case for a private home ban, but weakened it because police searches will become much more invasive, potentially traumatising family, including innocent women and children who might live there.
The Ministry of Justice added that searches are meant to be about obtaining evidence, but this would allow searches to be a tool of punishment/deterrence, which was inconsistent with the rule of law.
Goldsmith said a home ban will also make it easier for a breach of the order to be prosecuted. Without it, police said it was “highly likely” a flatmate would claim that any gang patch found in the house belonged to them, rather than the offender who is under a prohibition order.
Prime Minister Christopher Luxon (centre), flanked by Police Minister Mark Mitchell (left) and Justice Minister Paul Goldsmith. Photo / Mark Mitchell
“The residential restriction may be considered to unjustifiably limit the right to be presumed innocent,” Goldsmith said in the paper.
“The person subject to the possession ban may be held criminally liable for breaching the residential restriction even if they did not know or intend insignia to be in the residence.”
In his Cabinet paper in July, Goldsmith said the home ban was also likely to be an unjustified limit on other Bora rights, including the right to freedom of expression, association, peaceful assembly, and to be free from unreasonable search and seizure.
That was because Attorney-General Judith Collins had already found that to be the case regarding the public ban on gang patches, and the private home ban is a greater restriction on those rights.
“Despite these issues, I am satisfied that the gang insignia prohibition order is necessary for the escalating penalties to have the desired deterrent effect,” Goldsmith said in his paper.
Yesterday at the post-Cabinet press conference, Goldsmith added: “It’s tough legislation. And it’s designed to send a very tough message... We’re serious about the gang patch ban in public places. If you repeatedly flout it, then you’ll face a very uncomfortable regime.”
The Government's ban on gang patches in public aims to reduce their fear and intimidation, even though there are already offences in place against intentional intimidation. Photo / Dean Purcell
‘Avoid repeating past mistakes’
In the June Cabinet paper, Te Puni Kōkiri raised concerns about the “negative or traumatic impacts for household and whānau members of gangs (including children)”, which Ministry of Justice officials also raised.
Te Puni Kōkiri also noted the findings of the Royal Commission into state abuse, which “indicated that many Māori who were previously in state care joined gangs later in life due to the institutional abuse they experienced”.
In the July Cabinet paper, Te Puni Kōkiri added there was a risk of “whānau Māori being unfairly targeted by police”, given that 70% of gang members are known to be Māori.
Privacy Commissioner Michael Webster also opposed the prohibition order, noting Ministry of Justice advice that harsher penalties are “not an effective deterrence” and that the threat of additional searches will likely lose efficacy over time.
“I have not yet seen any evidence to suggest that this is necessary and proportionate,” Webster said in the July Cabinet paper.
“I am particularly concerned about the disproportionate affect [sic] this proposal will have on Māori and the privacy impacts on vulnerable population groups who may not be involved in any criminal activity, but who will likely be caught up in invasive and traumatic searches.”
The Ministry for Women said the search powers “will disproportionately impact Māori and Pacific peoples, and in particular, girls and women who reside in those households”.
“These girls and women have unique vulnerabilities within a gang context and are more likely to face reprisals or retaliation following police interventions,” the ministry said in the July Cabinet paper.
“Preventive and mitigating ‘harm reduction and avoiding’ actions that are culturally and gender-informed are not identified or discussed in the paper, and are required if we are to stem the unintended consequences of violence against women and girls this policy might contribute to.”
The Gangs Bill is due to have its third reading this week and will come into force in November.
The Law Society has said it would consider seeking a court declaration that the law is inconsistent with the Bora. If successful, this would require a formal response from Parliament, though it would not force the law to be withdrawn.
Derek Cheng is a senior journalist who started at the Herald in 2004. He has worked several stints in the Press Gallery team and is a former deputy political editor.
