Wanganui District Council (Prohibition of Gang Insignia) Bill

Clause 4 is the interpretation clause of the Wanganui District Council (Prohibition of Gang Insignia) Bill. There are a number of points that I want to raise as we work through the different interpretations in the bill. In this clause we will find the nub of some of the concerns that have been expressed on this side of the House. It is when we start to delve into the meaning of terms such as “gang”, “gang insignia”, and “public and specified place” that we actually find the difficulty for Labour in this bill. The difficulty is not the intention of the bill. As we have already discussed, the intention is one that we can all sympathise with, but in terms of the interpretation, it is a difficult area for us.

Let us start to work through the clause. The first area I will talk about is the meaning of “Council” and “district”. Here “Council” means “the Wanganui District Council”, and “district” means “the district of the Wanganui District Council”. As we have already said, this presents us with a difficulty. By using those interpretations of the meaning of “Council” and “district”, the bill sets up a situation where we are making criminal law for a specific region. Making criminal law for a specific region is a very, very difficult and dangerous area, because all we do at that point is move a problem from district to district. As we have noted a number of times in this debate, the Wanganui district does have a gang issue, as do a number of other districts.

If we are defining and interpreting “Council” and “district” to mean “the Wanganui District Council”, what will the good people of Palmerston North be thinking tonight, when they are listening to and watching this debate?

💬 Simon Bridges: A victory for democracy!

They will be wondering whether, by this bill and by this interpretation, Parliament is simply shifting the problem from Wanganui to Palmerston North. The gangs might even find their way to Tauranga to see Mr Bridges, but a number of problems are created when we create laws like this. It pushes us as a Parliament towards the notion that we can make criminal law on a district by district basis. We have seen internationally that that creates difficulty: it moves crime around; it creates definitional problems about where boundaries are and where they are not. That shows that in the interpretation clause we are, in fact, creating a problem for ourselves.

The next interpretation in the clause is around the meaning of “gang”. We have already heard tonight a number of contributions on this issue. In the bill at the moment, we have a number of gangs named. As has already been said by my colleagues, that is effectively a badge of honour for those gangs. We have already heard stories of people saying: “I want my gang to be in there. I want my gang to be named in the Act. That’s the badge of honour for me.” As my colleague Mr Hodgson, who has recently resumed his seat, said, it is a very, very bad thing to have a part of legislation that names a gang and puts a gang on our statute book. I do not want to see gangs on our statute book. I do not want to see gangs in our communities. This bill is effectively giving them that badge of honour by putting their names into the bill.

Then we move to paragraph (b), which opens up the question of how the Wanganui District Council will define other organisations. In this paragraph, “gang” also means “any other specified organisation, association, or group of persons identified in a bylaw made under section 5”. Well, here we go. The Wanganui District Council is about to start deciding what is and what is not a gang. We will come to that when we get to clause 5 later in this debate. I think that is also an extremely dangerous path for the Wanganui District Council to be going down in trying to define what is a gang. We are already naming some of those gangs, but we are also opening up a separate can of worms when we have to define which organisations are gangs. I think the Wanganui District Council is being placed in an incredibly difficult position by this bill.

💬 Sandra Goudie: It’s their bill!

It might well be the council’s bill, I say to Mrs Goudie, but that does not mean that we as a Parliament should accept every single idea that comes from a district council into this Parliament. Our job is to make law, to stay here, and to show some leadership. We welcomed this bill coming from the Wanganui District Council, and referred it to the Law and Order Committee, but now—

💬 Paul Quinn: I raise a point of order, Mr Chairman. I am not quite sure how a lecture on what our job is supposed to be has anything to do with clause 4 and the interpretations.

The CHAIRPERSON (Eric Roy): I do not need any assistance. I will overrule that point of order.

The issue that we have here is that we could simply rubber-stamp every bill that came through from a district council, or we could look at it and say that we understand the concerns that the people of Wanganui have, and that we want to try to limit and prevent the intimidation they are feeling, but that this is not the bill to do it. The definition of “gang” in this clause is not a part of the bill that will actually help people. “Gang” is defined here in a way that I think is problematic both because of the organisations named, and also because of the people whom the district council is now able to name. I think that is very problematic.

Then we move on to the interpretation of “gang insignia”, and this really is the nub of the problem in this clause.

💬 Simon Bridges: A great definition. Brilliant.

I will read what it says: “gang insignia (a) means a sign, symbol, or representation commonly displayed to denote membership of, an affiliation with, or support for a gang; and (b) includes any item of clothing to which a sign, symbol, or representation referred to in paragraph (a) is attached”. I can understand why Simon Bridges is so supportive of this particular clause, because it is a lawyer’s paradise to have this definition of “gang insignia”. What do we mean when we say “a sign, symbol, or representation commonly displayed to denote membership …”? What does that mean? Is that a scarf? Is that a T-shirt? Is it a particular coloured T-shirt? A red or a blue T-shirt? What is it?

💬 Moana Mackey: A bandanna.

Is it a bandanna? These are the things that will then be debated and questioned in the courts, giving yet more promotion to the gangs that are associated with some of those things. Fundamentally, this clause gives a false hope that knowing and being able to say what is “gang insignia” will fix behaviour. In the end, people will find ways around it. Once the courts define it as, perhaps, a bandanna or a scarf, we will move on to another item of clothing, another kind of badge, or another colour. It will not help solve any of the problems to simply keep redefining “gang insignia”. Paragraph (b) of this definition of “gang insignia” refers to “any item of clothing to which a sign, symbol, or representation referred to in paragraph (a) is attached”. Well, what will that be?

💬 Hon Steve Chadwick: “I love Mum”.

An “I love Mum” badge, or a piece of embroidery. Whatever it is, we will have an endless round of legal debate on what “gang insignia” actually means. It is not a suitable interpretation.

Then we move on to the definition and interpretation of “public place”. What is a public place? According to the bill, a public place “(a) means a place—(i) that is under the control of the Council; and (ii) that is open to, or being used by, the public, whether or not there is a charge for admission;”, a “road”, or “any part of a public place.” That is very good. We know and we have defined what we are talking about. We are talking about areas in public, but a public place is a specified place. That is the thing. It is a specified place that the district council decides on. That means that the district council will begin looking around. We know that they want to take people out of the central city. They do not want the image of gang patches in the central city. What does that mean? Once again, we move the problem around. We shift the problem, rather than actually trying to solve the problem. We know that the problem will be shifted to those suburbs where there are already gang issues. It will not be shifted to the rich areas of Wanganui; it will not be shifted to the central city. We can guarantee that a specified place under the Wanganui District Council will not include those areas such as Castlecliff where we know there are already gang problems.

Right through this interpretation section we can see difficulties, legal wrangles, and problems that have been shifted from place to place. It is quite simply an unacceptable clause for us to be passing as a Parliament, no matter the good intent of the member who has brought it before us.

I am happy to stand up and take a call on this interpretation clause. I agree with a lot of what my colleague Grant Robertson has been saying. I think he has outlined Labour’s concerns about this bill particularly well. I reiterate the concerns that Labour has.

💬 Simon Bridges: Then why is the member talking?

Well, if National members think that this is such a great bill, why do they not pick it up as a Government bill and make it apply to the whole country?

💬 Paul Quinn: We don’t need to; it’s before us.

OK, I have to explain something to Mr Paul Quinn: this applies only to Wanganui. Does the member realise that? My point is that if National members think that this is such a great bill, why do they not pick it up and make it apply to the whole country?

💬 Paul Quinn: Because only Wanganui wants it.

I am looking forward to seeing the survey tabled from Mr Paul Quinn from which he takes the piece of information that only Wanganui wants this legislation. I suspect there is none, because one of the concerns we have about this legislation is this passing of criminal law, district by district. I do not think that that is an avenue we want to go down, at all.

I come to the definition of a public place. Another concern I have about this bill is that we are being asked to pass legislation when we do not know where it will apply in Wanganui. We do not know what the legislation will look like when the by-laws are passed. I congratulate the Law and Order Committee; I think they have done a good job of trying to come up with the best they can for a very bad bill. We do not know where that provision is going to apply. As it stands, the bill basically provides carte blanche to put it anywhere. But I think I know where it will apply. This legislation will not apply in the poorest parts of Wanganui. It will not apply in the parts of Wanganui where people living there are citizens with the least power to oppose this kind of thing. It will apply to some of the wealthier areas—some of the nicer areas, if you want to put it that way—in Wanganui. Once again, we will end up with our poorest communities—those already struggling to deal with the realities of gang activity—having to put up with even more because this legislation is being driven into their area. I want to know how any member of this House can vote for that and say that that is an OK thing to do.

We should be doing a lot more to eliminate the activities of gangs, but pushing them into the poorest parts of our communities, where they can cause even more trouble, is not the way to do it: that is going to make it worse. How will local business people in the public areas where gangs are going to be pushed into, feel, when suddenly some business people in Wanganui are protected from having any gang members but they are not? How will those business people feel when they are not in an area that is covered by a by-law? One of the issues I have with this bill is that we are being asked to pass it without knowing the actual impact that it will have on Wanganui and its citizens. It is very, very difficult for this Parliament to do that, in an area of criminal law.

I come to the definition of gang insignia. We have amendments on the Table that both do pretty much the same thing. They seek to take tattoos out of the definition of gang insignia. We appreciate the reasons why that provision has been put up. It is difficult—

💬 Paul Quinn: You people put it in there!

Once again, I might have to educate Mr Paul Quinn. On select committees Labour members like to work constructively to write the best law that we can—we do like to do that. We have decided that this is not a law, in its entirety, that we want to support, but that does not mean that we will not be constructive at the select committee and try to come up with the best law that we can.

I do not see the point of banning gang patches if we are not going to ban tattoos. That creates an incentive for people to go out and get their faces tattooed with their gang insignia because they can no longer wear it on their T-shirts. I want to know how that is a good outcome of this legislation. I think that if we were to talk to people, they would probably tell us that they find a facial gang tattoo—an insignia—one of the most intimidating things. I think that that is more intimidating than a red or black T-shirt or a red or black bandanna. If this amendment goes through, we are being asked to pass legislation that says to gang members that they are allowed to go into a certain area with no gang patches except for tattoos—they have to take their T-shirts, jackets, or whatever, off, but their tattoos are OK. So if people want a permanent gang patch that they cannot be made to take off, they can go out and get a tattoo. I do not necessarily think that that is the kind of signal we want to send.

In the end, Labour is voting against this legislation because we do not think it is going to work at all, anyway. But if we are looking at the details of these amendments, I think that that is probably quite an unintended consequence that we should avoid. If we look at the definition of gang, as my colleague has already pointed out, we see that it is a badge of honour to be put up—I will not take much longer, at all, if my call is extended, Mr Chairperson—

💬 Paul Quinn: Promise?

—unless Mr Paul Quinn keeps interjecting on me, and then I am going to take another 5 minutes after this. He has so much to say. Maybe Mr Quinn might want to stand on his feet and take a call, if he is allowed to—if his whips will let him.

💬 Paul Quinn: I can’t get in; you’re taking up all the time.

No, he cannot get up. He has been told to stay in his seat and not to say anything. His whips are saying “Your mouth is working for the Opposition; please, just stay quiet.”

If we briefly come back to the legislation, we see that—

💬 Paul Quinn: Why don’t you sit down and give us a chance?

—settle down, Mr Quinn—it is a badge of honour to be considered, in this respect. These gang names are merely names, but if we think that the only things that matter to gangs are their names and their patches, then we will never come to terms with gang activity in this area.

I am really surprised the ACT Party is voting for this part of the bill. Surely after everything that Rodney Hide and Heather Roy said at the time of the first reading of this bill, this is really where the rubber hits the road for ACT. Do the ACT members, who have voted for this legislation all the way through this Committee stage, really truly believe that this is going to change anything? ACT is the law and order party—it is tough on law and order, so we would think it would be interested in a definition of gangs, gang insignia, and areas gangs will be banned from. Does the ACT Party really believe that this bill will make a difference? As my colleague Pete Hodgson pointed out earlier, there is the bigger issue of whether a libertarian party really believes that people should be told they cannot wear a particular T-shirt. We would think, given some of the things ACT members were saying during the Electoral Finance Act debate, that that would be something they were against.

💬 Hon Steve Chadwick: Or a yellow jacket.

Or a yellow jacket, for example. Do they really think that banning colours, or anything that might be construed as a gang thing, is something the ACT Party should be supporting? I am very interested to hear what the member Roger Douglas has to say on this issue, because it seems to me to go against everything that party has always claimed that it stands for but apparently—clearly—does not.

💬 Hon Steve Chadwick: Only for some.

That is quite correct; as my colleague says, only for some. I think we need to be very careful about this legislation. It is full of loopholes—absolutely full of loopholes. If the bill does not have perverse outcomes, it will be completely avoided by the people we are deliberately trying to catch with it. We have other legislation on the statute book. The proceeds of crime legislation should do far, far more to tackle gangs than this ever will. Why is that not being advanced?

I have an amendment to clause 4 in my name that looks to explicitly ensure that tattoos are not included in the definition of gang insignia. I see that Chester Borrows has a Supplementary Order Paper doing the same thing, and I expect that whichever of them goes first will pass.

I am pleased that Mr Borrows has put forward that Supplementary Order Paper, because we have been particularly concerned that by not excluding tattoos from the definition of gang insignia, Māori, in particular, who have a tradition—an ancient, thousand-year history—of tā moko, will be targeted unjustly by the council and the police through the use of the Wanganui District Council (Prohibition of Gang Insignia) Bill.

This is an area where I find Labour’s position on the bill difficult to understand. Notwithstanding that Labour members have said they are opposing the legislation, if we look at the select committee report we see that there is no indication whatsoever that Labour opposes it. The select committee included New Zealand First, Labour, and National members. In particular, Labour and New Zealand First members were concerned to make sure that tattoos were included in the definition of gang insignia, thereby increasing the risk of prejudice and discrimination, particularly against Māori. It would be nice to get some clarity from Labour about what its actual position is on this issue, because it is not clear from the bill and it is a bit difficult to get a sense of where that party is really going.

There is a real issue here about the definition of a public place. I said earlier that nothing prevents a council, essentially, from being able to declare the entirety of the Wanganui district area a specified place, and therefore as subject to this law. Mr Garrett pointed to a provision in clause 5—which I am sure we will get to—that states that the council is not supposed to do that, but nothing actually stops it from effectively doing it.

The definition of a public place includes any area that is under the control of the council, whether or not that area is being used, or is open to being used, by the public. The definition in clause 4 also includes “a road, whether or not the road is under the control of the Council;”. The Wanganui district area is a very large area, and a particularly rural area, so there will be lots and lots of places that the council will not necessarily know about. The council may provide a set of rules that essentially covers the main thoroughfares of the city and the region—the areas that are most likely to be populated—miss out just a few individual roads, but be covered by the provisions of this bill and not therefore breach clause 5, as Mr Garrett read out. But the council would have effectively closed off the entire district.

There is no indication in the legislation of the consequences for the council if it were to close off the entire district. The bill does not state which parts of the council rules would then not be in effect, or whether all of the rules that breach that provision would not then be valid. It does not state that. It does not state how the determination is to be made or who will make it. I know the making of by-laws is restricted, to some extent, and there are controls around that, but nothing in this legislation indicates what they are or what the sanctions might be. So my position—that this bill will allow the Wanganui District Council to effectively close off the entire region and make it subject to this legislation—still stands, because there is nothing that will prevent the council from doing so in a practical or practicable way.

That is a very serious concern, especially when it is placed alongside the power of the police to stop and search vehicles. The provisions, in the main, are about the display of gang insignia in a public place—a public display—so we can understand the logic behind the provision. We might disagree with it, but we can understand the reasoning behind it. But when we start talking about the police being able to stop and search the cars of people who may or may not be displaying gang insignia inside the car, which is a private place—it is not a public place that is subject to the council rules—we ask, then, where in the rules that power to stop cars and search people for gang insignia makes sense, given that the purpose is to stop the display of gang insignia in a public place.

A car is not a public place. The police do not have to know that there is a display of gang insignia in a public place by a person who is currently in a car; they have only to suspect that display. So they can stop the car on any grounds, and what they will actually do in practice—and what Māori know they will do in practice—is stop a car full of Māori. It does not matter what those Māori have been doing—[Interruption]—and Paul Quinn knows that that will be the case.

💬 Paul Quinn: You can call me Paul.

Well, I have to use the member’s proper name; I am just trying to be well-behaved. The member knows that that will be the case. The Māori members in this House know that that will be the case. The police will simply stop every car that has a significant number of Māori people in it, using this provision, in order to search them. The police do not have to have reasonable cause to stop and search the car; they have only to suspect that someone may or may not be wearing gang insignia, which is a very broad description. There is the kind of obvious gang insignia we all think about, but what about something like a swastika, for example, which actually has multiple uses and multiple meanings? I understand that for a Hindu a swastika is a symbol of love, harmony, intelligence, and strength. But if the council decides that a swastika as a single symbol is a gang insignia, then anybody can be stopped in his or her car by the police because the police have decided they want to search that car for a swastika.

Members might want to suggest that perhaps it would be only skinny, bald guys with big boots who have swastikas. Buddhists do not have a lot of hair. There is just no way that a rule can be set around the display of these things that makes any practical sense, that is properly enforceable, and that is sufficiently constrained so the rule actually meets its purpose. That is where this bill fails the process of making good law that is enforceable, that has a sound basis, and that we know will be enforced in a way that makes sense for the community and deals with the issues in it.

Of course, gang violence is a big issue, but this bill, as we have heard, will not do anything about it. What it does do, which is even worse, is create a great deal of uncertainty in the community about colours, which will lead potentially to a great deal more violence around the wearing of colours. It gives the council enormous powers to outlaw symbols and make their wearing a criminal offence. Some symbols are ancient symbols that have multiple levels of meaning, but the council’s actions will be based on its own prejudiced views about what those symbols might mean and about the people who carry them.

The bill gives the police extraordinary power, which they do not have anywhere else in the country, or even under existing criminal law, to stop and search people in a car whom they suspect potentially of displaying gang insignia, thus giving the police the power to search that car and those people for a great deal of other kinds of things, justly or unjustly.

A large number of court cases will come out of the use of that power, in particular, because it is such a significant extension of the police powers of search without warrant. I know that Mr Borrows has a lot of experience in the police and in the law. He understands how these things are put out in practice. I am sure he knows that police are out there who will stop and search cars full of Māori simply because they can, and in the Wanganui area this bill will make it much, much easier for that to happen. It will lead to perfectly ordinary, probably Māori, men, who would otherwise be entirely law abiding, becoming extremely frustrated and angry with the police, and being subject to extraordinary police harassment for no reason other than that they might be wearing a red jumper, a black jumper, or a yellow jumper inside a car full of other Māori wearing other kinds of coloured clothes.

That is not the kind of law this Parliament should be passing; it is very bad law and very unenforceable law. It will cause enormous problems in the community itself and create higher levels of violence between communities, and higher levels of prejudice, thereby increasing police harassment. I urge this Committee to oppose this legislation for all of those reasons, and for the other reasons we have heard today.

Moana Mackey wants to know whether the ACT Party truly believes that the Wanganui District Council (Prohibition of Gang Insignia) Bill will make a difference. The answer is a categorical yes. If we did not believe that this bill would make a difference, we would not be supporting it, and I would not be supporting it.

Moana Mackey talked about ACT as being a libertarian party. She may not realise that there is a party called Libertarianz, which stood at the last election. We are not that party; we are the ACT Party. We are a party of choice; we stand for choice. In this case, the ACT Party will be supporting a bill put forward by the people of Wanganui. They want this bill, and that is one of the reasons we have considered it and will be supporting it. I say to the sponsor, Mr Borrows, that if 58 members of the National Party vote for this bill, it will be passed into law.

What did Mr Hodgson have to say? He said that the ACT Party is consistent. It might be “consistently wrong”, in Mr Hodgson’s words, but at least it is consistent. Well, I ask Mr Hodgson to cast his mind back to last month. He and his party voted to repeal the Electoral Finance Act, a law that was passed by the Labour Government despite widespread opposition from people throughout this country. What did Labour do less than 15 months after it had passed that Act into law? It voted for its repeal. I tell Mr Hodgson that that is a very smart move. He talked about the ACT Party being consistent; well, if any party has been inconsistent on an issue in the last 15 months it has been his party. Thank you.

There is no need to look around before giving the call, Mr Chair; no one else is jumping to his or her feet. Mr Quinn over there has been very vocal, but apparently is not confident enough to stand up and give a speech in this Chamber and actually put his words on the record.

That was a very, very interesting speech from Mr Boscawen. It was basically the exact opposite of the speech that his colleague David Garrett gave on the purpose clause of the Wanganui District Council (Prohibition of Gang Insignia) Bill. Mr Garrett said that this was a bad bill and it would not do anything.

💬 Paul Quinn: He is supporting it. He said he was voting for it.

He did not actually say in his speech that he was supporting it. We had to ask him afterwards whether he meant he was supporting it. He said yes, but members should watch this space. Mr Garrett pointed out how bad this bill was. For Mr Boscawen to now come to the Chamber and say that ACT thoroughly supports this bill, and would not be voting for it if it did not totally support it, very much contradicts what his colleague said. I suggest that maybe they need to talk to each other a little more before they come to the Chamber and give their position to the Committee. They have shown the complete inner turmoil within the ACT Party about this legislation. The five ACT MPs in this Chamber cannot even get it right, so how will they get it right amongst their members across the country? We know that the members across the country are writing to the five ACT Party members and telling them that they do not want them to vote for this bill, and that they will leave the ACT Party if they vote for it.

I will respond to some questions put by my Green colleague Metiria Turei about Labour’s position on this legislation. I apologise for perhaps not being clear and not clearly outlining our position. Labour will not be supporting the amendments put up by Ms Turei and Mr Borrows, for the reasons outlined in the commentary on the bill: “We are concerned that this might cause an increase in the use of tattoos by gang members to intimidate the public. We do not consider that every tattoo should be covered by this legislation; it should capture only those that denote membership of, affiliation with, or support for a gang.” We think this is a stupid bill and we will not be voting for it.

The Labour members of the Law and Order Committee worked constructively and worked very hard to try to make a very bad bill as good as it could be. The people of Wanganui feel very strongly about this bill. It went to a select committee. We all have an obligation to work as hard as we can at the select committee, which, of course, is where a lot of real work takes place and where a lot of the silly antics that we see all the time on TV do not happen. We feel that if we are going to ban gang insignia, then we really cannot leave out tattoos, otherwise that would tell someone to take off their T-shirt and get a facial tattoo because a tattoo is the one type of gang insignia that is not covered by this bill. We stand by that.

We do not think this bill will work, at all. We do not think it should pass. We know now that Mr John Boscawen thinks that this bill is great, that the ACT Party should support it, and that it fits in. I am sorry that I called his party “libertarian”; I meant “liberal”. It was a slip of the tongue, although I have heard many ACT Party members call themselves libertarians, but that is another issue. We know on the record that John Boscawen absolutely thinks this is a great bill. He thinks it is wonderful and fantastic. He now needs to have a conversation with his colleague Mr Garrett, who said exactly the opposite about this legislation. Mr Garrett, of course, was the star law and order candidate—

💬 Paul Quinn: You said that before.

I tell Mr Quinn to take a call. He should stop sitting there, chipping away. He should tell his whips that he wants to take a call. He should stand up and say something, rather than just sitting there and yelling at everyone.

Mr Garrett has just come to the Chamber to talk to Mr Boscawen. They can have a little kōrero—a tête-à-tête, kanohi ki te kanohi—over there and actually find out what the ACT Party’s position is.

I stood to respond to the question raised by Metiria Turei. The answer is no. Labour members will not be supporting either amendment, but more important, we absolutely will not be supporting this bill. We do not think that it should go ahead. We think that if every member of this House was allowed to vote with his or her conscience, was allowed to vote the way that he or she believes, and was not being mustered and forced to vote for it like the ACT Party is, then this very bad bill would not pass.

The passing of this legislation will not make anyone safer. Mr Borrows raised the issue of a young man who was murdered for wearing a red T-shirt. Of course, as Ms Turei pointed out in her speech, this bill may make the situation worse. There may be more people out there wearing red T-shirts because they cannot wear gang insignia. How will people who want to go out and cause those people harm know whether the person wearing a red T-shirt is a gang member who cannot wear his or her insignia, or is just someone wearing a red T-shirt? We may see more of these senseless and tragic accidents.

Meanwhile, this bill is a smokescreen for a Government that is not doing anything about gangs. It wants to be able to say: “We passed this bill. Is that not a great thing?”. But it is not passing the Criminal Proceeds (Recovery) Bill, which is languishing on the Order Paper. It is not doing anything else that will make a difference in the battle against gangs. This bill is nothing but a smokescreen, and I reiterate that Labour will be opposing it. Who knows what ACT is doing?

I move, That the question be now put.