A final-minute change to New Zealand's gang laws could make a nasty law even worse

The government latest gang laws – now split into the Gangs Bill and the Sentencing Amendment Bill – is anticipated to pass its third reading soon. But a Last minute changewhich was added after the general public consultation had closed, has raised further questions on legislative overreach.

In general, the law will make gang membership an aggravating think about sentencing, criminalise the general public wearing of gang symbols, allow police to order gang members to disband in public and apply for a court order banning communication between members for 3 years.

The latest amendment to the law would prohibit the possession of gang badges in private settings by issuing gang badge ban orders.

The government argues that the brand new rules can be effective deterrent against gang membershipIt isn’t clear how these laws relate to New Zealand’s own Bill of Rights Act.

Making membership a criminal offense

People join gangs for various reasons. For some it’s a matter of Family connectionsFor others, gang membership can arise from be marginalized from society.

The Royal Commission into Care Abuse stressed that abuse can be a Path to gang membershipAnd a 2018 report highlighted that the Excessive use of prison sentences promotes gang recruitment.

Under existing sentencing guidelines, judges must take into consideration any connection between crimes and gang activity, which might be an aggravating circumstance that may result in an extended prison sentence.

Instead, the brand new draft law amending sentencing requires judges to take gang membership under consideration.

This is problematic for 2 foremost reasons: First, it assumes that crimes that don’t have any connection to an individual's gang membership are in some way worse due to membership in that group.

Secondly, it’s proposed that folks must be punished for being a part of a gang without being prosecuted for it. This is unnecessary. It is already a serious offence under Section 98A of the Crimes Act 1961 knowingly participating in an organized criminal organization.

Insignia behind closed doors

The latest order banning gang badges features a three-strikes element.

If an individual is convicted of publicly displaying gang insignia thrice inside a five-year period, the court must prohibit the person from possessing or controlling such gang insignia for five years.

Violations are punishable by law, which suggests that the police have various search powers.

The last-minute amendment also prohibits […] the presence of gang insignia on the person’s usual place of residence.”

Essentially, repeat offenders will likely be prohibited from living in the identical place where gang badges are displayed – no matter whether the badge belongs to them or another person on the property.

Violation of the Bill of Rights

The Attorney General advised Parliament The government's motion to ban national badges in all public places violated the best to freedom of expression under the New Zealand Bill of Rights Act 1990.

In short, the best to freedom of expression isn’t limited to harmless speech. Rather, a democratic structure requires people to tolerate a certain level of offensive behavior.

In Morse against the policewherein a protester burned the New Zealand flag in front of an Anzac Day parade, the Supreme Court ruled that the Bill of Rights requires courts to interpret laws in a way that’s “least restrictive” of human rights.

In 2011, the High Court also ruled that a ban on gang patches in all public places in Whanganui was an overstepping of the Schubert v Wanganui District Council.

A tailored approach is required

As the Attorney General noted, there could possibly be a bespoke offence to guard the general public from gang intimidation. For example, it could possibly be illegal to wear gang badges in places like schools and hospitals. This is in keeping with the present law within the Ban on gang badges and law on government buildings.

The latest bans on assembly are also subject to varied conditions that allow courts to uphold the best of assembly while still imposing restrictions.

Similarly, police must consider various aspects when issuing a dispersal order (requesting two or more people to depart a selected area), including whether the order is mandatory to stop an unreasonable public disturbance. In this fashion, rights, including the best of assembly, might be respected.

But aside from a number of exceptions, similar to appropriate use for artistic purposes, the symbol ban doesn’t contain any wording that protects the elemental rights on which democracy is predicated.

Since the brand new rules appear to require courts to violate human rights supposedly guaranteed by the Bill of Rights Act and our international treaty obligations (most obviously the International Covenant on Civil and Political Rights) it’s to be expected that lawyers and judges will look for tactics to bypass them.

Because New Zealand has no supreme structure, our fundamental rights and traditions are only protected if the politicians in power are willing to respect them.

Upon closer inspection, the brand new gang laws clearly contain bad ideas. But in addition they violate our constitutional standards and procedures.