Wanganui District Council (Prohibition of Gang Insignia) Bill

It is a delight to speak very specifically to clause 5A, “Signposting of specified places”. Earlier in the debate we discussed what a specified place is. A specified place “means a public place designated as a specified place for the purpose of this Act …”. In turn, a public place, as we have already discussed, is “a place—that is under the control of the Council; and that is open to, or being used by, the public, …”. It includes roads—and we have already heard from Metiria Turei tonight about the dangers of such a wide definition of a public place—and, indeed, any part of a public place controlled by the Wanganui District Council. We have, in clause 5A, specified places within the definition of public places—

💬 Sandra Goudie: Specified.

I thank Mrs Goudie for her commentary. It is a very broad ambit for the Wanganui District Council, and now it is asking what the specified places are.

Clause 5A states that specified places have to be signposted. Well, what do we in this Chamber think will become the badge of honour in any gang headquarters in the Wanganui District? It will be one of these signposts. The moment that gang members in Wanganui come across a place where there is a sign that states and directs that they cannot wear their gang patch, the sign will automatically become a badge of honour. In fact, I expect that many gangs around Wanganui will begin a contest to see who can get the greatest number of signposts. That is the problem with this bill: it creates a badge of honour for, and increases the status and mana of, gangs by making their patches something they can choose to use, in competition with one another, to show their pride in being a gang member. The signposts will just become an image of that. I can see that the Wanganui District Council will have to budget an enormous amount of money to constantly replace the signposts that will be torn down, taken into gang headquarters right around the Wanganui area, and used as badges of honour.

The signposting of specified places really serves just to emphasise why this bill simply will not work. We have already said that the intent of the bill is a good one, and Chester Borrows deserves to be congratulated on bringing the will of the Wanganui District Council to us today. But this particular clause shows us why this bill will not work. The very thing that the bill aims to do will be undermined, because, straight away, the signposts will become badges of honour to be ripped down, and away we go again. Under this well-intentioned but poorly-thought-out bill, the Wanganui District Council and the good ratepayers of the Wanganui area will be forced to shell out, time and time again, for signposts.

Subclause (2) states: “No prosecution … and no arrest or seizure under section 7, may be challenged on the ground that a notice was not affixed in accordance with subsection (1).”

💬 Paul Quinn: Problem dealt with.

No, I say to Mr Quinn that the problem is not dealt with. All that provision will do is increase the desire of the gangs to play cat and mouse with the police.

Unfortunately, none of this legislation will change the behaviour of those gangs. This bill is about reducing intimidation, but the intimidation is committed by the people, not the patch. Unfortunately, in this symbolic and cosmetic bill, this is the most cosmetic moment. The signposts will point gang members to where they can go to prove themselves. That will be where they can go to tear down a sign that tells them they cannot be in a place, and to challenge the authority of the Wanganui District Council and the police. This clause is symbolic of the problem with this bill.

I return briefly to the question of a specified place, because I think this is the provision that Labour members are particularly concerned about. The Wanganui District Council will be making decisions about specified places on the basis of the wide definition of “public place”. We know where the specified places will be: they will be in the central city, because we know that that area is partly behind the intent of this bill, and we also know they will be in the rich areas. We definitely know that the poorer areas of Wanganui will not be places where this law will apply. We know that the gang problem will simply be shifted out of the central city area and into the poorer areas of the city. The notion of a specified place under this bill effectively shows the people of Wanganui which areas the Wanganui District Council cares about today and which other areas it does not mind the gang problem continuing in.

Clause 5A should not be passed; it is, in fact, just a signpost for gangs.

I have put an amendment to clause 5A in the pile of amendments on the Table. My amendment is to delete subclause 5(2), which states: “No prosecution under section 6, and no arrest or seizure under section 7, may be challenged on the ground that a notice was not affixed in accordance with subsection (1).”

My problem with this bill is that it is very unusual. It is very different legislation from what we would otherwise find anywhere in the criminal law book. It provides for a particularly serious level of criminal sanction for a comparatively minor act, which is the wearing of a certain kind of clothing. So it is very, very important that not just the people of the Wanganui District but anyone who is driving or passing through the district are aware that within a certain boundary there is a law that provides for a criminal offence that is not found anywhere else in this country, and which has very serious consequences. If the council is able to include a very broad range of areas under this provision so that that criminal offence applies to a very broad range of areas, then it is absolutely essential that in those areas there is signage to tell people that if they wear a certain kind of specified clothing, then they are committing a criminal offence.

Generally speaking, in New Zealand law we have a provision that if something is not legislated against, then it is permitted. There is a great deal of criminal law that is well understood by the community. It has been built up over a number of years. Most of it—some of it—applies equitably across the whole country, so people know that if they are committing a certain kind of offence in Invercargill then it will be an offence in Wellington, Northland, and Palmerston North. This bill, however, is very, very different, because of the by-laws creating a criminal offence. Everyone knows that there are different by-laws around this country, but not ones that are as Draconian as this measure, providing that a criminal offence is committed by the wearing of certain clothes. There should be no excuse for the council being able to impose that kind of restriction and criminal sanction without advising the community—and, in fact, the entirety of this country, really; people from anywhere may find themselves in the area—that they may be subject to those criminal sanctions.

Subclause (2) gives the council an excuse to do nothing. The council need not ever post any signage anywhere if it does not think it is reasonably practicable to do so. It can impose this by-law, impose the criminal sanctions, have the use of the police to back it on this legislation, and not provide any public signage or indication that the criminal offence will apply in certain areas. By allowing for subclause (2), there is a real risk that the community simply will not know that they risk committing this criminal offence and will be subject to it. That is grossly unfair. We are not talking about gang members here; we are talking about people who may unwittingly be caught up in that process.

I know, for example, Michael Franti has a band with a type of insignia that looks very much like the Black Power insignia—the “power to the people” insignia. The band’s insignia is not a gang insignia, but it is very, very similar to it in look and style. It is quite possible for an overwrought policeman—and Mr Borrows must have met a few of those in his time—to get a bit overexcited about seeing something that might look like gang insignia but is not necessarily gang insignia. A person who wears such insignia is potentially subject to police searches without a warrant. If the police do not believe that person—perhaps that person is a young Māori man, for example; and we know that young Māori men are particularly subject to the criminal law under these circumstances—it is quite possible that that young person could find himself or herself being processed before the police come to their senses and realise that, in fact, no criminal offence has been committed. The police might also use this law to stop people, search them, and then find some other reason with which to charge and process them, thereby creating a great deal of hassle and cost for the police, but also creating for such young people—

It is important to make a number of points in respect of this particular clause.

Various speakers have spoken about an underlying intent of the Wanganui District Council to somehow ban gang insignia from the areas of the town that are well off and to leave the poorer areas of the town languishing, with gang members allowed to be there uninhibited. When the process of bringing a local bill before the House is initiated, one of the things that have to be done is for a copy of the bill, as intended, to be put up for public display in a number of areas. At the back of the copy of the Wanganui District Council (Prohibition of Gang Insignia) Bill were a number of maps, photographs, and street descriptions of where the gang patch bans could be, or are anticipated to be. That information was open to the public, so that they could have some communication on it and give some feedback on their thoughts. If the members who have given speeches on the bill and spoken in such a disingenuous way about the Wanganui District Council and its intent had taken the time and effort to get that document, they would have seen that the spread of the ban across Wanganui is broad and includes large tracts of parks and reserves around the poorer areas of the town. It does not include residential streets but does include council property within those areas.

I think it is also important to note that one of the saddest things about debate in this Chamber is that at times people speak out of both sides of their mouth. On the one hand we have people standing up and commending the Wanganui District Council for caring enough to promote this bill: for putting up its hand and taking responsibility. They are saying it is a worthy move and all that patronising stuff whereby people pat us on the head for having done so. Then those people are speaking out of the other side of their mouth—for instance, the Green member who has spoken suggested that there was a conspiracy between the Mayor of Wanganui and myself to hide from the public exactly where these bans would be put in place. Well, people cannot have it both ways. The speech was made before tea, and the suggestion was made that the mayor had done that and that I was somehow part of the conspiracy.

Another point is that time and time again we hear speeches about the disingenuousness of the police in stopping and enforcing laws against young Māori men as a matter of course. I find that incredibly difficult to stomach, given the role that the police take within our society. I am not so green as to be cabbage looking, and I understand that amongst every big box there are a few rotten apples. Where we have 8,500 employees there are those who will abuse any legislation, just as there are now.

A suggestion was also made that in the notified areas cars could be stopped, and the contents tipped out and searched for gang insignia. Of course, cars can be stopped under the transport legislation. They can be randomly stopped for anything—and frequently are. The fact that this legislation enables a police officer to stop a vehicle from which gang insignia is displayed to the public is the nature of the definition of section 2 of the Summary Offences Act. That is where this definition of “public place” comes from, and it provides that people who are in a vehicle in a public place, so defined, are in a public place. When they are in that vehicle, within this legislation, the gang insignia would have to be visible in the banned area from outside the vehicle.

It is important to make those points. Yes, we do accept that from time to time rules are bent and rules are broken. That is the nature of human life; it is the nature of living in a society. But let us get back to the point. These people in Wanganui took legislation—the Local Government Act—and used it in a way that it was intended for: to be able to create legislation that deals with a problem that is not only theirs but is a problem broadly across the whole of our country. Those of us who represent constituents understand that that is true. The people of Wanganui have put up their hand, accepted they have a problem, and have taken some flak for that in bringing this bill before the House.

I thank the member who is sponsoring the Wanganui District Council (Prohibition of Gang Insignia) Bill for taking that call. I hope the Chair recognises that the speech was slightly wider than clause 5A and that we may be able to respond in kind. I thought it was good that the call was taken, but I say to Mr Borrows that the speech was much wider than clause 5A, and we were specifically asked to keep our speeches to that clause.

I will respond to his speech, because it was never implied that the Wanganui District Council wanted to attack poor communities. The reality is that there are many communities in our society, I say to Mr Borrows, that will not read that bit of paper. They will not read it. They will see it and will have no interest in it. They will not know that it is relevant to them. They will not necessarily know the impact it might have on their community. I was simply saying—and I hope this is not going to be politicised as my saying that the Wanganui District Council hates poor communities, which I never said—that for something as serious as this, the council needs to ensure that those communities that are going to be affected really understand what the by-law means. That is simply all I was saying. I appreciate that the Wanganui District Council had its draft by-law proposal, but we all know that there are many people in our communities who will not read that piece of paper. They will not know what to do if they read that piece of paper and do not like what they read there. They will not know how to form a lobby group or how to influence district councillors to vote so that their views are represented. I was simply asking that that be considered so that if this bill does pass through this House—and I hope it does not—those communities that are most at risk will be assured that the council will make every effort, beyond what is required of it by the bare minimum of the Local Government Act in terms of by-laws, to make sure that communities understand that. That is all I was saying.

💬 Chester Borrows: Like a referendum?

What was that, I say to Mr Borrows?

💬 Chester Borrows: Like a referendum?

Mr Borrows fails to understand what I am saying. What was the turn-out for referendums? Can we be sure that the communities that are involved really know what is going on? That is simply what I am saying. If we sit up here in our ivory tower and think that every community takes notice of every word we say in central and local government, knows everything that is going on, and knows the exact processes they should follow under the Local Government Act to remedy anything they do not like, then we are very, very bad representatives for the country. All I was simply pointing out is how important it is to make sure that all communities in Wanganui understand, especially if they are in a community that will not be part of the by-law—

💬 Paul Quinn: They understand it.

Well, Mr Paul Quinn says they understand it. Of course, he claimed that every part of the country apart from Wanganui did not want this bill, and that is why the Government did not pick it up as a Government bill. Actually, I think Mr Quinn is just speaking off the top of his head, and has no evidence to back that up.

💬 Paul Quinn: I raise a point of order, Mr Chairperson. The member has, in fact, misrepresented me. I take objection.

The CHAIRPERSON (Hon Rick Barker): That is not a point of order. The member knows that.

I apologise to Mr Quinn. I did not realise he was so sensitive. I thought he was able to withstand robust debate. Clearly, he is not.

The Labour Party will be supporting the amendment moved by Metiria Turei to delete subclause (2) of clause 5A. We agree that it is rather unfair to tell people that they can be prosecuted for being in an area where there is a sign saying that they cannot be in that area with gang insignia, then telling them that there is no defence when there was not actually a sign there. This comes back to the point that my colleague Grant Robertson made, which is that gang members will want to steal those signs. In fact, a whole lot of people will want to take those signs and hang them up in their bedrooms, as they do with traffic cones and all those kinds of things. Anyone who has been into a university flat knows the array of street signs that can often be found there. This will be one that people will really want to have. I do not believe it is fair that someone can be prosecuted under this bill for going into an area while wearing gang insignia, as provided for under this bill, when there is no signage telling them that they are in that area.

I hope that the ACT Party will be supporting this amendment. Even if the party does go on to vote for the bill—I do not think it should, but, clearly, it is under some pressure to do that—I hope it at least supports this amendment. I do not think the ACT Party believes that it is fair that someone can be prosecuted for committing a crime when they are not told that it is a crime to do it in that area. I really do not think that the ACT Party believes that that is fair. If ACT supports this amendment, it will be agreed to, and at least we will be one tiny step closer to fairer legislation when it comes through.

I want to know what this might do in the communities that do not know how to engage in this process—and I still believe those may well be our poorer communities. What will it do to the value of their houses, when they know that in certain parts of the district there will be big signs up saying it is OK to buy a house in that area because it is a gang-free area, but the rest of Wanganui is a gang-intense area, an area where we have told gang members they can wear their insignia? I wonder what that will do to those communities, to any tourism ventures they may want to have in those communities, and to house values for people who own homes in those communities. I would appreciate the member in charge of the bill taking a call on that issue. Obviously, I think we will have to have some kind of signage if we go through with this. I ask whether the impact has really been thought through. What might be the, obviously, unintended impact on those communities that will be known and signposted as areas where people can go and see patched gang members and gang insignia, and where it is OK to be intimidated by gangs, even if it is not OK in other parts of the district?

Again, this comes back to the point that if the Government feels this is something that might work and that needs to be done, why is it not being done across the whole country? Why is it not being done in a uniform way so that we do not pick winning suburbs and losing suburbs, and winning cities and losing cities? Mr Borrows claims that we are being disingenuous when we say that we appreciate the work that the Wanganui District Council has done. For myself I say to Mr Borrows that I am not being patronising to the Wanganui District Council when I say that. I genuinely mean it. I think that we can thank the council for the hard work that it has done on this legislation, and for the manner in which the legislation came to the House—clearly, the council cares about its community and wants to do something about the issue—but respectfully disagree that this a pathway by which a solution can be achieved.

Labour supported this bill’s referral to the Law and Order Committee. I am sure Mr Borrows will concur that our members on the committee worked hard to try to come up with a workable bill. But when it came back after the select committee process, we just could not support a bill that would not do anything, and that might actually have unintended consequences. If the National Government wants to put this up as legislation that covers all areas, so that we do not have to have signposting because everybody would know that it applied everywhere, and so that people who travel from outside the city would know that the law applied across the whole country, then, of course, the Government can come back and talk to us, and we will make a decision based on the merit of that legislation.

I would like to hear from the member in the chair on his view on Metiria Turei’s amendment. I think it is a fair one. I understand that Mr Borrows will probably stand up and say that gang members will take the sign down and walk into the area. I do not believe that is as likely to happen as their taking it down just to put it up in their gang headquarters or a student’s taking it down to put it up in a university flat. I think that at some point we have to come down to a fundamental principle. That principle is that if signposting is the way people know those areas are where they cannot wear gang insignia, then we cannot say that if the sign is not there, someone can still be prosecuted. There is no way people can know about that unless they go down and read a document at the council. Why would they do that if they did not know that it would be an issue?

The first place I go when I visit Wanganui is not to the council offices to check all the by-laws so that I can make sure that I do not break any of them while I am there. That is what we are actually saying people have to do, because if those signs go missing, people will be committing a criminal act without even knowing it, and will be subject to a $2,000 fine. I do not believe that anyone in this House should support that or say that it is OK. Maybe the signs that are outside Wanganui—and we could put this in by amendment—should say: “Please go to the local council and check the by-law, because you may be breaking the law without knowing it if the signs have disappeared.”

I would be interested in the member in the chair taking a call. I hope National members will support the amendment moved by Metiria Turei. I hope the ACT Party will support it.

💬 Grant Robertson: They’ll have five positions on it.

They probably will have five positions on it. Maybe after Mr Garrett has given us his position, Mr Boscawen can give us his position, and then we can get a better idea. I think that will be one small step towards making this a much fairer bill. Thank you.

Tēnā tātou. Mr Chairperson, I crave a small modicum of forbearance on your part, so that I may stray very briefly from time to time during my short and hopefully sporting contribution to the import of clause 5A of the Wanganui District Council (Prohibition of Gang Insignia) Bill.

I respond to one of three things that were said by the member who is shepherding this local bill forward, Chester Borrows. I made a reference to the police. I appreciate the difficult role the police have, especially in relation to gang management and gang engagement. I am very aware of the role that our Māori police have in maintaining cordial relations with certain gang members so they can maintain contact and uncover information. In actual fact, I support that. Indeed, one of my whanaunga, Paddy Whiu from Ngāpuhi, was here this evening and he played a key role in that. I would not like the member for Whanganui to form the view that those of us on this side of the Chamber who are not going to agree with this bill have an impoverished view of the police.

The reality is if the police are going to police and execute this bill to the black-letter meaning of the law, then they must improve their performance and conduct in terms of what we saw with the Pōmare residents being tossed out on the road—in particular the mokopuna, the children, and the women. I am talking about the suburb out in the Hutt and the drama visited upon them—especially the children—by Housing New Zealand Corporation. I want to assure the member Chester Borrows that I am supportive of the role the police have. But, just like MPs, the police are not above the law. If their conduct—as our conduct is constantly challenged—is not beyond cavil and is not compliant with the law, then they should expect to be called to account for it.

I fear that when the police are asked to determine whether a council has been reasonable or practicable in terms of identifying a place where the information will be made available about whether a place is suitable for banning gang insignia, they will be embroiled in a very difficult situation. Part of dealing with gangs is maintaining contact and engagement with them. I probably share a lot of the views of the Pākehā and Māori of Wanganui who have had a gutsful of being seen to indulge or acquiesce to this ongoing gang violence. The reality is that in dealing with bodies like that, information is power. If gangs can be suborned to unwittingly provide information to the law enforcement agencies, then they will have multiple arrows to the quiver. I have no doubt in my mind that prosecutions in this regard will be challenged and inevitably found to be wanting. It is just not tolerable for people to suffer for doing something wrong when there is just no way within a defined space that they could have reasonably known that they were treading into territory where they were not wanted.

Of course we do not want their bad ways in public spaces. I recently read about the affairs of the gangs in Sydney and elsewhere in Australia, and no one wants to see those imported into our airports, etc. But this bill is about the machinery of local government being used to eradicate a problem that has spread throughout rural and urban New Zealand. It is not solely about the broad threats that gangs represent; it is about whether the mechanisms that we are placing in law this evening through the passage of this bill are going to work.

The bell is about to ring, so I make a short reference to the ACT Party’s law and order spokesperson, David Garrett, who is a person full of zeal—not passion, but zeal. Occasionally, he reminds me of the inquisitorial board of the early stages of the Catholic Church in Europe. That zeal has been found to be built on shifting sands. It depends on whether ACT believes that the major party—the National Party—is going to support its foul legislation known as the “three strikes” bill, as to whether it will vote with us.

The question was put that the following amendment in the name of Metiria Turei to clause 5A be agreed to:

to omit subclause (2).