Justice Minister Paul Goldsmith says Bill of Rights won't stop gang patch ban

Patched Black Power members at a gathering.
Patched Black Power members at a gathering. Photo credit: RNZ/Facebook

Story by Anneke Smith of RNZ

The Justice Minister says if the ban being imposed on gang patches is found to breach the Bill of Rights, that would not stop the government enforcing it.

Critics are questioning the legality and enforceability of the government's ban on gang patches.

The government expects to have banned gang patches in all public places by the end of this year.

The policy expands on existing restrictions in schools, hospitals and courthouses.

Police Minister Mark Mitchell said people didn't feel safe in their homes, communities and public places.

"For too long gangs have been allowed to behave as if they are above the law.

"There is no tolerance for this behaviour and these new laws will support police to take action against it."

Gang patch bans have been tried before - through a bylaw in Whanganui in 2009.

The Hells Angels later asked the High Court to review the law and it ruled the ban was inconsistent with the Bill of Rights, specifically the right to freedom of expression.

The government said its ban was based on "legislation that's worked" in Australia, but Australia does not have a Bill of Rights.

The Bill of Rights states everyone has the freedom to expression, including the freedom to seek, receive and impart information and opinions of any kind.

Asked whether banning gang patches would breach that right, Justice Minister Paul Goldsmith said "people have also got the right to be able live peacefully in a society without being intimidated and harassed".

"There's always a balance and we'll work our way through the human rights implications but of course we campaigned on bringing in these policies, we've been elected, the Cabinet's made the decisions, we've prepared the legislation and we're going to do what we said we're going to do."

If the bill ultimately was found to breach the Bill of Rights, Goldsmith said it would not stop the government from making it law.

The government had to balance the rights of law-abiding citizens to go about their business without being intimidated against the rights of gang members' to self-expression, he said.

Parliament has the ability to make a judgement and then ultimately the government is held accountable at the ballot box.

"If people don't agree with us, they'll throw us out," Goldsmith said.

Police Association president Chris Cahill said he anticipated gangs would fight the changes in court.

"It's certainly going to be controversial and there will be challenges throughout the courts I'm sure, probably all the way to the Supreme Court around the Bill of Rights.

"But when you've had gang members double in a very short period of time I think you've got to try and do something."

Cahill said his organisation was broadly in favour of the coalition's policies - though the police wouldn't be able to enforce them everywhere, all the time.

"Gang members aren't just going to hand over their patches. So the ability to police it in some communities will be much more difficult than others.

"Sometimes you might have lone police officers, or one or two, dealing with large numbers of gang members, whereas in other parts of New Zealand you'll have large numbers of officers and they'll be able to deal with it."

Labour's police spokesperson Ginny Andersen said focusing on gang wardrobes wasn't good policy; arguing seizing weapons and shutting down illegal businesses was a better use of resources.

She also raised concerns the ban on gang patches would put police officers at risk.

"I'm concerned about the impact on increased assaults to the frontline. It's really hard for police to consistently enforce this law right across New Zealand. That will be a challenge."

Police Minister Mark Mitchell said the police were capable of enforcing the new laws and he was confident they would do so.

Goldsmith said they were building on existing legislation which had been applied in hospitals and schools in order to define who was in a gang.

"The appendix has a list of 40 gangs and so that'll be carried over to this legislation which is extending it to all public places."

Banning patches was the first step and tattoos were not being included at this stage, although Goldsmith would not rule that out happening in the future.

Posting gang patches on the internet or social media was also not covered by this legislation, he said.

"We're starting off with just the straight intimidation of large numbers of gang patches in the community and we're going to outlaw that.

"But the other elements of course are the dispersal orders which gives the police the ability to tell a large gang group to disperse and they have to do that within seven days, if they don't they can be arrested and fined and even imprisoned."

A gathering was defined as three or more people who were members of the gangs listed in the legislation.

The group could be dispersed if "police had reasonable cause to believe they would be interfering with the lawful activities of the rest of the community", Goldsmith said.

Such laws had been enforced in other countries and it could and would be done here, he said.

The government was arranging for 500 extra police and would have the resources to enforce the gang-related laws, he said.

"We back the police to do the job and we've given them extra tools to enable them to do the job effectively."

Police Commissioner Andrew Coster said the new laws would help officers do their jobs.

It was likely the law would be used a lot when it was first introduced and if needed additional staffing would be brought in to small places such as Ōpōtiki which had large numbers of gang members and low police numbers, he said.

He expected the new tools, as well as additional staffing, would make a difference to gang violence in coming years, he said.

Gangs traded on their reputation which was represented in the patches that they wore, they used that as a cover for crime, an enabler of violence and dealing of drugs into our communities - and it was the appearance of that that tended to attract young people, Coster said.

"So I believe it's entirely probable that addressing the visible appearance of gangs will ease those problems."

Coster said a lot had been recently invested in keeping staff safe and there was now greater capability on the frontline.

The legislation will be accompanied by a report from the Attorney-General, outlining the human rights implications, when it is introduced to Parliament this week.

It will go through the full Select Committee process, meaning anyone can have their say on the new laws later this year.