Sentencing Amendment Bill

Members, the House is in committee. The House has resolved to recommit the Gangs Bill and the Sentencing Amendment Bill to consider the Minister’s amendment to the Gangs Bill set out on Amendment Paper 111. Members, this is a limited debate. Its sole purpose is to consider the proposed amendment to the Gangs Bill on Amendment Paper 111, which replaces the definition of “public place” in clause 4. All contributions must be relevant to this matter. The question is that the Minister’s amendment to the Gangs Bill set out on Amendment Paper 111 be agreed to.

Thank you, Mr Chair, and I thank the committee for the opportunity to consider this paper at this stage. So what we’re doing here is expanding the definition of “public place” in the bill because, traditionally, by directly referring to the definition in the Summary Offences Act, which includes the inside of cars in a public place—but it’s different in regards to the fact that, in this bill, we are excluding online places and the parliamentary precinct, and that’s been well canvassed in other parts of the bill. Generally, the inside of a vehicle is traditionally considered to be a private place, and why that was relevant to this legislation was—the purpose, of course, is to stop the intimidation of gang patches in public places.

As Police were considering the instructions of how they would implement this—the issue of what happens if gang members were driving around in cars, holding their patches up to the window and driving around—and whether that would be captured by the law as it was drafted, there was a debate about that, so we’ve decided to make it crystal clear that that would be captured because it would have an impact of intimidating the public. This is slightly more than a technical change, but it is one that is just wanting to clarify one particular area. So I’m happy to have any discussion.

Look, I’ve got some tabled amendments that I will come to, but I would like to start with a point of principle here. I mean, this just shows that the Minister’s office is in disarray as he tries to go along and patch up things, the errors that have been made.

The point is this, the Summary Offences Act definition is there for a reason, and it’s quite different to the reason in the Gangs Bill, because whilst the Minister and the Police officials can dream up scenarios where gang patches are kind of pressed against a car window, the Summary Offences Act definition is actually about preventing other offences. For example, one of the cases that I’ve uncovered is Kelly v Police. That was about possession of an offensive weapon in a public place. Obviously, that’s a thing that’s inherently dangerous. In that case, the question was whether the car was a public place, and there’s a really good argument there for saying a car is a public place.

The problem with this definition in respect of gang insignia is that it’s actually a question of—what if you’re sitting in the car with your gang patch on? What if the police go past and you’re in your van with your mates on the way to the clubhouse and the police look at you and go, “They’re wearing their gang patches”? There’s no intimidation, there’s no genuine display, but nevertheless because the interior of a van is now a public place, once again the police can give them the shake down.

Think about this: what about these people are sitting in their campervan, or perhaps just their small van, making up their bed for the night, with gang insignia, in what is fundamentally a private space—because with the policies of that Government, more and more people are living in their vans. In that situation, you’ve got gang insignia, with the curtains on the van closed, but it’s a public place. There’s a total mismatch between the Summary Offences Act definition—which is about things like offensive weapons, disorderly behaviour—and this limitation on freedom of expression. There’s no limitations on freedom of expression of any real meaning in the Summary Offences Act, but here the public place—once again, this Government is actually intruding into private spaces. In fact, saying that a vehicle is a public space, whilst it works for things like offensive weapons—knives in the case of Kelly v Police—doesn’t work in respect of the display of a symbol, because that’s what it is.

Over the other side, for the benefit of the National Party members, think of a boat, think of your yacht, think of cruising around the Marlborough Sounds on your 40-foot yacht and you just so happen to have invited a member of the Black Power. Yep, there you are, a mile offshore—[Interruption]

CHAIRPERSON (Barbara Kuriger): Just a moment—just a moment.

That got them going!

CHAIRPERSON (Barbara Kuriger): Interjections are fine, but barrages make it very difficult to hear.

💬 Hon Kieran McAnulty: I hope they’re quieter on their yachts.

Yeah, you can’t behave in a disorderly manner like that on your yacht, because that’s disorderly behaviour in a public place under the Summary Offences Act. It’s a vessel as well. That’s a genuine point. A private vessel on the coastal waters becomes a public place upon which you can’t have gang insignia. That is the ridiculous position that we end up in. So, Minister, please answer that question. Answer the yacht question, because that’s probably the most extreme case and it would be really good to hear whether you think that’s a prohibited display of gang insignia.

Well, thank you, Madam Chair. I think that speech very nicely encapsulates the issue and the differences across our Parliament. That member is obviously very concerned about the rights of gang members and the potential irritations and inconveniences that they may be put to by this legislation and the fact that they may be restricted in their ability to drive around, hold up gang patches to the windows, and intimidate people in public places. He’s very concerned about that. Frankly, our concern is more with everyday New Zealanders trying to go about their business, who want to be free from the fear and intimidation caused by gang members.

I just remind the committee that only a quarter of 1 percent of the adult population of New Zealand are gang members, yet they are responsible for 18 percent of the serious violent crime and 25 percent of the kidnapping, so this is a group that causes mayhem in our communities. This Amendment Paper is about dealing with one area where the bill as drafted didn’t capture the people who are driving around in cars and are displaying gang patches in a public place. It is not intended to capture people who may be driving in their car with a gang patch on pressed against the seat of the car, not visible and not being displayed. That is not what this is dealing with. It’s only in relation to places where they are displaying those patches in a way that could cause fear and intimidation.

Thank you. I’d love to just take that point on, Minister, and have a proper conversation about that, because my concern here is that you’re expanding the jurisdiction over people and, as Dr Duncan Webb suggested, they may well be people living in their vans. I know that that might be beyond, hopefully, the experience of most people in this Chamber, but that’s a reality in my suburb. I live in a big park, and at the bottom of the park there are people sleeping in their vans in the car park.

What I’m concerned about is the fact that there is such a disparity here in terms of understanding. We know that gangs are often a feature of poverty and alienation. They are places where people find an alternative set of norms and values, which we do not agree with, and it is a bad sign, but they find gangs because they’re displaced from the norms and values of the society that we are lucky enough to live in. It seems to me that by talking about swastikas as not actually meeting the standards—so you can have your Nazi sign, you can have your yacht, and you can do that because you’re insulated by where you are. We are laying open a group of people whose intimate space—whose only intimate space—might be their van, and that is a reality. That is not me being melodramatic. Those are the very people that there will be people in that situation in their van, and we are actually opening the door to those people having the door knocked on and people going into that space.

Now, that is an issue. I wondered whether you had had advice on the worry about the bias in that situation. I take your point that there are some terrible things that happen in gangs—I don’t think I’m ungrounded about that—but I do think there is a real concern about the invasion of space of people who are already fragile in some ways, and it’s going to alienate people way more if, in fact, the only refuge that they have is one that you are invading and you are inviting people to invade without any sensitivity over what that means for them.

I would really like a genuine answer. I don’t want to hear that gangs are bad—I know gangs are bad. I don’t want to hear that there are victims out there, because I know that lots of the people in those gangs and in our criminal system are, in fact, also victims. That does not excuse any bad behaviour or intimidation of others or rape or murder or involvement in drug issues, etc., but neither is it fair to put people into a situation where there is no ordinary, normal refuge, which is so important to our humanity. I mean this very genuinely. I want a response. Did you have advice that this could actually risk invading people’s privacy to an extent which was out of kilter? And did you have advice on the comparator to people who may be involved in situations where they have an offensive sign, like a neo-Nazi sign, a swastika—those kinds of signs—in their houses but may be insulated by the nature of their lives and the fact that they live in situations where they’re a lot less vulnerable to a knock on the door.

Thank you very much, Madam Chair. Look, the Minister’s given us some really good further understanding of how the car provision’s going to work. What he’s stated—and if I heard this correctly—is that you can’t sort of jack it up like that on the back window. That’s out, but if you were driving your car and your patch was on the back like that, that might be OK. What happens if he was in a car crash—not a serious one—and he happened to slam up against the window? Would that be out? I think it’s really important when we’re talking about what is displayed from a car.

I think that it’s really important for us to understand this, because if the provision that was brought in after the select committee process, which has had quite a bit of coverage in the media—the point is that there will now be a power for police, after someone’s already been warned for wearing a gang patch, where they can go right into their home, and even if it’s in a drawer or a chest of drawers or in their wardrobe or under the bed, that’s a penalty. This one is saying that, if they’re not displaying it, that’s not a penalty. My concern is you’re giving mixed messages to the gang community on what to do with their patches here. What is “display”? Is that pushing that, as you sort of said, or is that really pushing it up against the window? It does seem to be inconsistent with this new search power that you’ve introduced where, if they’ve got it in a drawer in their home, that’s infringing the provisions that are in the bill.

Also, I would really like to understand, because we haven’t heard this in any of the debate—and I think the general public want to know this—what was the thing that changed your mind, Minister? In March, when Police were asking for that additional power, did they discuss this car thing as well? Did that come up back in March? What was it between then, sort of June or July, when you whacked this new search power in, and then now when we found there’s an additional requirement to include a provision for cars and displaying from a car? Was there any sort of particular information or advice that you received from Police or from other agencies that caused you to change your mind and include the later provision and this provision so late in the piece?

I mean, this was legislation that was talked about right through the campaign period, which is nearly a year ago now. There would have been some significant considerations of how this policy would work, but it does seem, from the litany of repeated mistakes over this whole course, that it has not been very well thought through in terms of how it’s going to be implemented. It doesn’t really give a whole lot of trust and confidence in terms of how it’s going to be effectively implemented if you’re still coming up with new ideas so late in the piece.

The point, I think, that would be really useful to hear, just to recap, is: is it the display? What happens if you’re sitting in the car—where does the line lay in display? It would also be useful to understand exactly what the thought process was of the Minister for this second thing in this whole course of legislation to be introduced outside of the normal course of policy and legislation making, because it does look like it’s kind of policy on the hoof. You’re just kind of throwing everything at the wall in the hope that it’s going to look pretty tough, but the perception that it’s giving is a general sense of disorganisation in terms of understanding how Police are going to effectively make this work in terms of law enforcement.

The main one I’m really keen to hear: patch in a car, what happens; and what is classified as display? If they’re wearing the patch in the car, is that OK or not? At what point is turning your back to the window classified as display?

Thank you. Just in relation to the question of display, I’ve explained that already; I’m happy just to explain it one more time. The element to display will be case specific and will need to be assessed in light of all relevant circumstances, including the degree of visibility, the size and placement of the gang insignia, and the nature of the public place and the overall context. The purpose of the bill is around display of gang insignia in a way that is causing fear and intimidation. If somebody’s wearing a gang patch in the car and it’s not visible and they’re not particularly displaying it, then that is not covered, and it’s not an issue. It’s only if the gang patch is being displayed. That’s, I think, reasonably straightforward.

The member asked about the thought processes here. I can explain the thought process, which is: we’re passing a bill that is designed to give extra tools to police in order to handle what has been a 50 percent increase in gang membership in the past six years, and to provide them with four new tools to push back against the negative influence of gangs in our community. When the Police came along—yes, late in the stage—and said, “Well, actually when we’ve looked at the details, there is a gap here that we think should be addressed.”, we decided to address it. Before passing the law, we’ve made this amendment in a belt and braces way to ensure that the legislation is as tight as it can be in order to ensure that the New Zealand members of the public can go about their lives without the fear and intimidation of gangs in their community.

I’ll call Lawrence Xu-Nan—I’ll just make the member aware that we have your Amendment Paper now.

Thank you. Thank you so much, Madam Chair. Before I talk about my tabled amendment, I’m just kind of following on from some of the discussions we’re currently having in terms of display in a vehicle, particularly in a vehicle in a public place. Even before that, I think one of the things we are seeing here—and I’m quite genuinely concerned about this—is the process and the hastiness that we are currently looking at here where the Minister put in one Amendment Paper, adding additional things in the committee stage. Genuinely, I’m reflecting on what the Attorney-General mentioned earlier in the year when she was like, “A rushed process makes bad law.”

When we are looking at this Amendment Paper, it leaves me wondering what other things have not been anticipated as a part of this. I really would like to go back to some of the things that the Minister has mentioned throughout the committee stage in terms of the debate around—

CHAIRPERSON (Barbara Kuriger): No, we’re not going back to previous committee stages. This is a very specific—

OK. Let’s talk about what the Minister just said in terms of a 50 percent increase in terms of gang membership, which is a response the Minister gave to our previous question. When we’re looking at this, what we are really concerned about is the fact that it doesn’t address the root cause of a lot of these issues.

CHAIRPERSON (Barbara Kuriger): No, we’re off track now, Dr Xu-Nan. Could you please address your tabled amendment.

Thank you, Madam Chair. Before I address the Amendment Paper, in terms of the public display, I am referring to the broader context of the Crimes Act and section 66 around party liability. When we’re looking at the public display, I understand what the Minister just said—that if it’s hidden, if it’s covered, it’s not an issue, but if someone holds, let’s say, a gang patch or gang insignia up to a window, it is an issue—however, I would like some clarification from the Minister, under section 66 of the Crimes Act, in terms of party liability. What does it mean for other people who are also in the vehicle at the same time? If one of the people in that vehicle holds up gang insignia publicly against the window but it also includes other members in there who did not hold up any insignia publicly but do have insignia covered—in those kinds of situations—would public liability apply? Would the other people also be charged, despite the fact that they haven’t necessarily, in the context of what you defined as a public place, violated that?

Following on from what we’ve been discussing in terms of vehicles, because my tabled amendment—which I would like to take a short call on later on—it’s about—

CHAIRPERSON (Barbara Kuriger): No, I’d like the member to come to the Amendment Paper now, please, within the context of the call. This is a very short debate, and long calls are actually going to start being frivolous around the committee’s time, so let’s just stick to the point of what we’re debating this morning.

💬 Hon Kieran McAnulty: Point of order. Thank you, Madam Chair. I take your point there. However, the difficulty is that, because a member has submitted an amendment, they’re not limited to only speaking to that amendment. The question that the member asked was directly linked to a response that the Minister gave. I support your initial guidance 100 percent, but I have difficulty with the fact that he is now limited to speaking only to his amendment when the question itself surely was in order.

CHAIRPERSON (Barbara Kuriger): Yeah. Your point about his question to the Minister was relevant. I’m just finding that this is going a bit broad, and the member did go a bit broad to what we were supposed to be discussing. I’m just trying to bring him back to the point. I’m sure the Minister will answer his question in due course. Thank you.

Thank you, Madam Chair. Also I’m noting that the time is still ticking, so if you wouldn’t mind giving me just a little bit more time to talk about my tabled amendment, that would be great.

Coming to my amendment, when we are discussing the list of public places, one of the things that we have been talking about is whether certain places should be exempted from the list of public places, which is a clean-up that you see in this Amendment Paper, which contains two possible areas which have been exempted in subclause (a) and subclause (b). What my tabled amendment does is it moves to include another subclause where cemeteries and urupā are also exempted from the list of places.

Now, this is incredibly important because, to all intents and purposes, cemeteries and urupā do fill the requirements of a public place. However, there are a couple of reasons, some of which have been addressed, I think, which are about gang insignia that already currently exist in cemeteries and urupā, but also, when we are looking at paying respect to the deceased, paying respect to our ancestors, there might be appropriate times beyond what is discussed as part of a tangi for there to be insignia or for there to be certain displays in cemeteries and urupā that go beyond a particular event in time.

This is incredibly important as an exemption. If the Minister is really serious about putting people at the centre of all of his discussions and all of his bill making, surely this is something that the Minister would consider supporting, because it is about paying respect to our elders. It is about paying respect to the deceased.

I would really like the Minister to consider this amendment, and I would really like the Minister to give me some clarifications about what I said before, because, again, the Crimes Act and criminal law is incredibly complex, as we see with the various Amendment Papers that have been put through. Clarifications would be very much appreciated. Thank you, Madam Chair.

Tēnā koe. Tēnā tātou e te Whare. Just following on, I want to ask my question, and I want to kōrero about my experience with gang members. I’ve been known to facilitate gang hui on our marae. I’ve been known to vaccinate gang members and their whānau on our marae. I’ve vaccinated gang members in their homes, in their communities, where they’ve opened up.

I am not intimidated by gang members. To me, they are whānau, just like everybody else. It’s how you engage. Yes, I know there was negativity, but there is positivity in supporting and helping our vulnerable communities. We are known for that at Manurewa Marae. When we were in COVID, no one would touch that community. In fact, nobody could get into that community. You had to be a strong community advocate to gain the trust of the gang to get in there to vaccinate them. We just sat at Manurewa Marae, and I’m proud of the mahi that we did, because we got to enter a space where nobody on my left would ever get into. You can’t tell me you’ll get into a gang home, a gang pad, because you’ve got to have empathy. You’ve got to have a bigger vision of who they are and what they’re about. They are whānau. My question is: are marae exempt? Kia ora.

Kia ora, Madam Chair. First of all, I just want to address, again, a wider policy issue because the Minister has swept aside the original definition of “public place” in his Gangs Bill and he’s replaced it with an entirely new one. In this debate, anything to do with “public place” seems to be an appropriate topic.

I just want to identify perhaps what seems to be an inconsistency, because in his November 2023 policy paper, they talked about the display of gang insignia that’s visible from a public place—for example, in a window of a dwelling or even displayed as a flag from a dwelling. I’m wondering if he could address the issue of whether it is now the case that if there’s a car with, say, a Mongrel Mob flag lying fully visible on the back seat or in the window, that’s a public place, but if you’ve got exactly the same flag pinned to your fence on private property only metres away, it’s not a public place. That’s question one.

Is it also the case that the car on the street is a public place when the flag is lying visible on the back window, but as soon as it moves one metre and is on the driveway, it’s not a public place? That’s question two.

Then I want to talk about my tabled amendments. The member mentioned marae, and I think this is an important one because a public place doesn’t mean it’s public property. It’s very clear in the Summary Offences Act that it’s a property that is available to the public whether there’s a right to exclude or whether there’s a charge imposed or not. Now, marae are a very special case here, and of course this has Te Tiriti overtones. This explicitly engages Treaty rights, and it explicitly engages tino rangatiratanga, the idea that iwi and hapū can have control over this space. The question becomes: if a marae is being used for a public purpose—and down at my own local marae of Rehua, they have a Matariki festival, they have a Christmas festival, and they have numerous events where I’m welcome and I really enjoy going on, and on those occasions and on some marae, gang members will go and wear their patches. Now, they’re not going to intimidate.

💬 Tim Costley: So that’s the problem, right? Take your patch off.

Now, the question I have for the Minister, and this is a—you know, you can heckle from the other side, but this is a genuine question—

💬 Tim Costley: No, it’s not.

You on the other side can dismiss a question about who has authority over behaviour on a marae, but I think it’s a legitimate question. The question of whether the marae itself, and the iwi and hapū who are connected with it, should have determination of that or whether it’s the police is highly relevant. My question is this: if there are gang members on a marae with the permission of the relevant authority, iwi, and hapū, then, even if it’s open to the public, is that a public place that the police can enter or is it a private place?

Hūhana Lyndon: It’s our place.

As the member says, is it our place, the iwi or hapū’s place, where the iwi has tino rangatiratanga or not?

I think that if the answer is that under the Amendment Paper 111, it’s a public place, then we must also pass my amendment that says a marae is excluded from a public place. There are three questions in there, Minister.

Just following on from the honourable member’s contribution, it’s a really important question for this committee, and he talked about iwi and hapū—it’s iwi, hapū, and Māori organisations. I need the Minister of Justice to know that. It’s something that we have had problems with, with successive Governments, that we’re just talking about iwi and hapū—iwi, hapū, and Māori organisations. Māori organisations have their own marae.

I am a marae chairman. I am the current chairman of Ngā Whare Waatea Marae. I have been the marae chair for the last six years. Obviously, I don’t get involved in all the business, because, sadly, some of that business is dealing with Government Ministers and they have Government contracts. That’s all fine. I’m not involved in the operations, but I am the marae chair. I’m probably the only current marae chair in this House. I had the position before I came into Parliament in 2017. I checked with the Prime Minister at the time, and I said that I wanted to hold the position. She said, “You’re taking no honorary?” Not one cent—not one cent. I’m there in terms of overseeing tikanga, in terms of protocols, in terms of these areas. Our marae—

💬 Hon Paul Goldsmith: What’s this got to do with the cars and the amendment?

—no, no, I’ll help the Minister here—does not allow, for the Minister’s sake, patches on the marae. All right? Our marae does not, but you don’t have the right to tell us that. We manage our marae—Madam Chair, that’s where I’m coming to: marae must be given the opportunity to make their decisions, like our member for Tāmaki Makaurau. Of course we have exemptions. We vaccinated all the King Cobras. They all came through. They wore their patches, because we weren’t going to get into a punch-up with them about removing their patches, but we allocated a special time when the kids weren’t there, and we brought them in; it was all good.

There’s no flexibility with this Government. It’s about not knocking people over. It’s all superficial stuff. As Ginny Andersen said, it’s just nonsense, the way you’re talking about patches in the car; stand this way, stand that way nonsense.

The question from Duncan Webb in terms of tino rangatiratanga has to be answered by the Minister, particularly given a lot of the pronouncements in terms of by Māori, for Māori solutions from this Government, including from the Minister for Māori Development. Is this a breach of rights for people at hapū level, at iwi level, at Māori community level, for Manurewa Marae, for our marae at Ngā Whare Waatea? You’re making things impossible, Minister. That’s what we’re saying here. You’re making things impossible.

💬 Tim Costley: For gangs.

No, you fools on the other side would not even know what a gang was. You don’t even work with our people. You don’t know what we’re talking about. We work with these people. We don’t enjoy their lifestyles. We tell them they shouldn’t be in gangs.

💬 Hon Member: They’re your people, are they?

Don’t talk about something you don’t know and you’ll never know. We don’t enjoy their lifestyles. We put their kids in our schools while their fathers are in jail.

CHAIRPERSON (Barbara Kuriger): So can we—so do we have a—

But you idiots on the other side would never know our life. You don’t know our lifestyle.

CHAIRPERSON (Barbara Kuriger): The Hon Mr Jackson, that’s good background, but the question for the Minister?

Well, the question is: what is the Minister’s position going to be over marae, papa kāinga? Are we looking at exemptions here on the basis that, as Duncan Webb said, maraes and hapū, iwi, Māori organisations have the right to choose their own paths? That is a partnership right. That is a Treaty right. It’s something that Mr Seymour might disagree with. That’s fine. That’s what this House is all about. But it’s a Treaty right for us to be able to roll our own form of rangatiratanga out. What does that mean, Minister? Does that mean that you come over the top and say, “No. That lot with the patches on can’t come to the tangi. They can’t come to be vaccinated.”? There has to be exemptions—there has to be exemptions.

💬 Hon Paul Goldsmith: What’s this got to do with the amendment?

So, therefore, the amendment—

💬 Tom Rutherford: Take the patch off.

Get the patches out of your thick heads and understand the wider argument. It’s all superficial from you lot. Understand that Māori must have the opportunity and must have the right to decide, must have a right in terms of rangatiratanga. We are not supporters of gangs. We facilitate conferences, you morons. You would never know what we’ve been through, but you sit there and judge.

We are trying to get a better society, a better community for everyone, Minister—Māori, Pākehā—and we need some direction here in terms of working with our people, consultation, working with Māori communities, please, Minister.

Could I just clarify that we’re talking about Amendment Paper 111, which doesn’t make any changes to how this bill affects marae or any other places. It relates to cars and vehicles, hovercraft, and other things like that—but cars. What we’re focused on is extending the definition of “public place” to the inside of a vehicle where those gang patches are being displayed, and—

💬 Hon Dr Duncan Webb: Does it include a marae?

No, it’s in relation to cars, and that’s what this Amendment Paper is in relation to.

Now, we’ve had lots of speeches around the importance of engaging with gang members and about vaccination and about the humanity of all people, and we’re all in favour of vaccinating all New Zealanders, if required. Understanding the challenges of gangs is not the same as accepting and justifying their actions, and so I’d just take it back to the bill. The bill is around giving the police extra tools to deal with the intimidation and fear that gangs create in our community, and this Amendment Paper is about extending the “public place” definition to the Summary Offences Act definition, which includes cars—the inside of cars. That’s what we’re talking about.

OK, so on that note, the basis on which questions will be sought is around cars—

💬 Hon Dr Duncan Webb: Point of order.

CHAIRPERSON (Barbara Kuriger): —I’ll take your point of order in a second, Dr Duncan Webb—and it must relate to this page, because the Minister has clearly answered the questions. We may not agree on the Minister’s answers, but this is particularly around adding cars to the definition of “public place”.

Thank you, Madam Chair. The amendment is not about cars; the amendment is about whether the Gangs Bill should incorporate the definition of “public place” from the Summary Offences Act into the Gangs Bill. Now, “public place”—that opens up a debate on what is the appropriate definition of a “public place” in the Gangs Bill. That might be the Minister’s intention in incorporating that definition, but that’s not what the Amendment Paper does. It incorporates an entire definition about “public place”, and any topic around what a “public place” is is, therefore, open to debate in this committee stage.

Thank you for the point of order, but I do accept—

💬 Dr Lawrence Xu-Nan: Speaking to the point of order.

CHAIRPERSON (Barbara Kuriger): —just a moment, Lawrence Xu-Nan—that during the last debate we had, it was very broad around that topic. I’m just trying to home it in. It needs to be very specific to this Amendment Paper. The member is right that it does bring in the definition of “public place”, but my judgment at the moment is that we’re broadening it out to topics that we did discuss during the original piece of legislation. I’m just asking for members to home in and be very specific with their questions. Lawrence Xu-Nan—is this speaking to the point of order?

Yes—thank you, Madam Chair. Just very quickly speaking to the point of order, when we are looking at the Summary Offences Act 1981, which is part of this amendment, it doesn’t limit it just to cars. It actually specifies “any aircraft, hovercraft, ship or ferry, or other vessel, train, or vehicle carrying or available to carry passengers for reward”.

CHAIRPERSON (Barbara Kuriger): Yes, that’s right. I think we’ve actually come to that place this morning.

But the thing is—and what I’m trying to say in speaking to the point of order, Madam Chair, and I’m seeking your guidance on this—is it inappropriate for the Minister then to limit what he has put in as an amendment, because I would assume that, if the Minister wanted to talk only about cars, he would specify cars only.

Just to the point of order, it’s not my role to assess what the Minister has said to put in his amendment. My role is to sit here and focus on the amendment that we’ve got in front of us, and what I’m asking the committee to do is exactly the same. Does someone want to take a call about the amendment?

Thank you very much, Madam Chair. Look, I would like to speak to the tabled amendment put forward in the name of the Hon Dr Duncan Webb, and that’s to Amendment Paper 111, amending clause 4. It goes right to the heart of the points that we wish to make, and that’s in the definition of “public place”. After paragraph (b), we believe that there should be an additional paragraph added, to read as paragraph (c). There’s already been quite a high level of uncertainty and doubt in terms of what is actually trying to be achieved here. If you look at the amendment, it doesn’t even mention “vehicle” from what I can see.

We think that what would help for this to work, for the Minister, for the avoidance of doubt, any reference to “aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle which is in a public place”—and is a reference to the same: “aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle which is offered for reward”. The point is also that it is unclear as to whether other types of vehicles would be included or not. For example, on public transport, is it clear that, with this change, a public bus being utilised by a gang member is in fact a case of it being displayed? Would that fall into the catchment of this? I think this is important, not just for the point of giving some certainty to those people.

CHAIRPERSON (Barbara Kuriger): Just to the member, the topic of public buses and things has already been very well traversed.

Sure—OK. The point I want to make, though, in terms of being clear what is within the definition of “public place”, is that that is important for police to be able to enforce this appropriately. If it is not clear what is being included in this definition of “public place”, that will need to be specified in operational instructions, which provide police with the information and training to be able to go and implement this legislation. I want to hear from the Minister specifically what instructions will be provided to police in order to know that they will have all of the information available to enforce this clearly.

Now, I appreciate that police discretion will come into this. There will be some really difficult calls to be made and different kinds of circumstances that come up through the course of this law being enforced, but I would like to know, from the Minister of Justice, what he has done alongside the Minister of Police, in consultation with police officers, that can give us confidence that they have turned their minds to the fact that this will create some incredibly difficult situations for front-line officers to be able to make their decisions and exercise their discretion as to when to prosecute and when not to prosecute. If it’s unclear to the police officers, it will be even less clear to the communities which this law will impact upon. It does seem to me that this is policy and legislation being made on the hoof and not being given the careful consideration that is required in terms of how it is practically going to be enforced, in line with police discretion.

I would like to hear from the Minister whether there has been any operational instructions already drafted for police. What are those operational instructions that have been drafted for police? And what consideration has he or the Minister of Police given to the type of training and information required for front-line officers in order for this latest amendment to be able to be enforced clearly in New Zealand for those communities it directly impacts upon?

Kia ora, Madam Chair. Thank you for letting me take a call. I’ll try to keep it to the main Amendment Paper one-on-one with my questions.

The first question that I have is around the evidential basis for this change. There’ve been statements made by the Minister of Justice that people are holding patches up in their windows and intimidating people, but what is the actual evidence of that? It’s not something I myself have observed or seen happening, and I would hope that when we’re amending a piece of legislation and making something illegal, we would actually have a strong evidential basis or some actual precedent of this happening. It’s not something that I have seen or heard a lot about, so what is the evidential basis behind this particular amendment?

The second question I have also relates to police discretion and is mostly around how a police officer is supposed to know, if someone is in a vehicle or in a car, that what’s being worn is actually gang insignia? Obviously, a patch is obvious—we know what to look for in a patch—but there are other gang insignias that fall into this legislation that could be on a T-shirt, could be on a hoodie. The problem with that is it’s harder to know if something is a gang insignia if it is in a car. The police officer has to make that call and have a presumption that somebody is wearing gang insignia within a car. But we’ve discussed this before: gang insignia can be hard to identify because that includes, say, a fist, right? Black Power wear fists. But someone could have a hoodie or a T-shirt with a fist on it completely unrelated or unaffiliated to a gang. For example, the Black Lives Matter movement uses a fist, or workers’ rights, E tū, unions—they all use a fist. If someone’s sitting in their car and there’s a fist on their T-shirt, how is a police officer supposed to determine whether that person is wearing gang insignia or whether they’re wearing an icon or an emblem that is completely unaffiliated?

Another example is sports teams and, say, the use of a bulldog, which we know the Mongrel Mob use as their symbol, but also a sports team uses it too. If police see a brown person in a car who’s wearing a Canterbury Bulldogs T-shirt or jersey, how are they to know that that person is actually wearing gang insignia and isn’t just wearing a sports shirt? Are their rights to privacy and to not be subject to unwarranted or baseless searches being undermined by the fact that that police officer doesn’t even know exactly what they’re looking for? How is that discretion supposed to be applied? And how do we know that this won’t just lead to further discrimination against a group of people who might just be going about their day and wearing a regular T-shirt that has absolutely nothing to do with gang insignia?

This is just wasting the police officer’s time, because they might see somebody with a symbol on—maybe they’re Māori—and pull them up and assume that they’re a gang member because of a symbol that they have on and because they’ve made the assumption that that is gang insignia. Those are my questions; I would love an answer.

Just in response to that, the purpose of this amendment in relation to extending it to cars and vehicles generally is to cover all our bases. The concern that Police raised was that the purpose of this is to free the public from the fear and intimidation of gangs in public places. In the absence of this amendment, there was the risk that some would see the opportunity to do that from within a car, so that’s what we’re closing off through this amendment.

In terms of the police’s ability to decide whether insignia is being displayed in a way that is intimidating, we’ve got every confidence in the ability of the police to use their discretion in a way that people will understand. I think the purpose of this amendment is clear and I’m happy to explain anything else.

I move, That debate on this question now close.

Members, I’ve been following this debate closely, and I’ll be looking for new material and material that is very close—very, very close.

Thank you, Mr Chair. Firstly, I just want to state for the record that I did hear the Minister say, I thought, that marae were not public places. If I’ve got that wrong, I’d ask him to stand up and correct the record, because that’s an important point.

I want to move on to whenua Māori now. Of course, whenua Māori can come in a number of categories. It can be titled land—and certainly that’s probably the clearest case—but also I would ask him to consider land which is under customary title or in respect of which customary rights exist.

💬 Tim Costley: Relevance!

Well, Mr Costley, because we’re talking about what is a public place and—

💬 Tim Costley: It’s not in the Summary Offences Act; it’s vehicles. Read the Act.

Well, I’m sorry if the member can’t read, but the Summary Offences Act definition of “public place” is about all kinds of places, and the question is—and if you’d like to go to the Table and find my tabled amendment, you’ll see that I have suggested that we exclude whenua Māori. The reason for that is because, in many cases, this land is either explicitly or implicitly open to other people. I’ve been to beaches, for example, which are whenua Māori, and I am there only by the grace and invitation, implicit invitation, of the local hapū. Now, that again goes to the question of tino rangatiratanga and whether it is for the police to determine who can wear a patch on that Māori land or whether it is for the local iwi and hapū.

That’s why my tabled amendment says that whenua Māori should be excluded from the definition of “public place” for the purposes of the Gangs Bill, just like we’ve excluded parliamentary precincts because the appropriate authority for the parliamentary precinct is the Speaker. In respect of whenua Māori, the appropriate authority to determine whether gang patches are allowed or not allowed is in fact the local iwi or hapū. And that extends not just to land that has explicit titles issued to Māori individually or collectively but also to areas where customary rights of tino rangatiratanga exist, such as marine and coastal areas, although that may not last long under this Government.

That’s one question I have. I’m asking, firstly, about whenua Māori, particularly that land which might be forested and used by hunters, which might be coastland used by beachgoers and divers and what have you, or which might simply be ordinary land which people use to walk the dogs. That’s the first one, and the second is really clarifying that marae are not public places.

Can I just quickly clarify that parts of marae are considered to be public places. It varies on which particular marae we’re talking about. In terms of this amendment, the paper is not making any changes in regards to whether Māori land or marae or any other public places are involved in this legislation. It is focused on vehicles because that is the difference in the definition. The purpose here is the inside of vehicles that are in a public place and whether a gang patch or gang insignia is being displayed. We’ve had the debate about the broader areas around public places and what that does and doesn’t involve, and we’re not making changes in relation to that.

Just before I take the next call, I just will mention to members on my right who are continually calling about making judgment on relevance that that is a position for the Chair, and I’ll invite them to wonder whether they’re actually helping their cause.

Thank you, Mr Chair. I’ve been wanting to ask this question for a while. While I’ve been here, I’ve looked at what I can, in terms of the guidance that we’re given, with regard to whether this should go to the Attorney-General for a report on consistency with the New Zealand Bill of Rights Act.

I heard my friend Dr Duncan Webb ask a question of the Minister in question time—it was a supplementary—and there was an answer which skirted around the problem of whether the Attorney-General had been asked about this. I think the answer that I got from the Minister in that context was “I talk to the Attorney-General a lot.” With respect, that doesn’t specifically address the issue here. As you can see from the passion on this side of the Chamber, we’re really concerned that there is an infringement of human rights. What we would normally expect to happen is that that would be discussed in select committee, but this is something that is quite special. I just want to articulate that in terms of this amendment.

We are talking about people’s vehicles. That would normally be a very private space. I’ve explained in an earlier exchange that I’m concerned about the reason why private space in vehicles might be particularly important when we’re dealing with our most fragile or most disaffected people in our society. I would like to know, and I genuinely want to know: has the Minister talked to the Attorney-General about this and has he considered whether this should go? Because it is such a significant change to the human rights settings in the bill, has he considered that it go to the Attorney-General for a report on whether it’s consistent with the New Zealand Bill of Rights Act? Thank you, sir.

Kia ora. Thank you for the opportunity to speak to this. I’m wanting to focus my questions on what “definition” is and “discretion”. The definition we have heard is that these amendments are to help, for clarity and for completeness, for the displaying in an intimidating way a gang patch in a car in a public place. That’s an interesting one because some gang members have gang insignia on their faces. If they’re sitting at their Countdown supermarket waiting for their husband or wife in the car park with the gang insignia on their cheek, are they going to be at risk of being arrested?

Further, if you have a T-shirt that might say “Mangu Kaha” but does not have the brand and you’re sitting in the car at the JMB rugby, are you going to also be at risk of being arrested? The discretion for our police is a worry, because the discretion will leave it upon the shoulders of an individual policeman or policewoman to make the call as to whether they’re going to approach the car in front of their whānau and then go into their car and have a look at what they’re wearing, have a look at the way that they are sitting or mixing with their children and whānau in the car.

What is “displaying in an intimidating way”? Is wearing a T-shirt displaying in an intimidating way in the car? I could be passing at the lights and see a cousin with a hoodie on or his face might have gang insignia on his face—I still hongi that cousin; he’s not intimidating. But “displaying in an intimidating way”—what is that definition and what guidance will police get on that? I’d like to know. Is it if you’re actually hanging the flag in the back window of your car? Is that the definition of “an intimidating way”? Or can you just be wearing a hoodie that says “Mangu Kaha” on it and might have the logo on it? Is that intimidating as well? And is that being “displayed in an intimidating way”?

I worry for our rural police—like in Kohukohu, like in Houhora, like in Whangaruru—who have to move amongst our communities across the board, at marae, at rugby games, over into our schools, and they mix with people of different backgrounds. This includes whānau who are gang members. If a whānau member is wearing red and they are known to be a Head Hunter and they are sitting in their car at the JMB rugby watching the game, is the red enough of a trigger for the police to go in and arrest them? I’m asking that because it’s as simple as that. Are gang colours enough of a trigger for a police officer to go into a car and infringe upon that person’s private space with their children? Kia ora.

I’d just like to say that nothing in this Amendment Paper changes the definition of “insignia” in the bill. The amendment is about how it relates to cars, but nothing is changed in relation to what insignia is and how that is determined.

I move, That debate on this question now close.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 111 inserting paragraph (c) relating to “other vehicles” be agreed to.

The question is that the Hon Duncan Webb’s tabled amendment to Amendment Paper 111 inserting paragraph (c) relating to “any whenua Māori” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 111 inserting paragraph (c) relating to “any marae” be agreed to.

The question is that the Hon Dr Duncan Webb’s amendment to Amendment Paper 111 inserting paragraph (c) relating to “any papakāinga” be agreed to.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to Amendment Paper 111 inserting paragraph (c) relating to “any cemetery or urupa” be agreed to.

The question is that the Minister’s amendment to the Gangs Bill set out on Amendment Paper 111 be agreed to.

Madam Speaker, the committee has considered the Gangs Bill and the Sentencing Amendment Bill and reports the Gangs Bill with amendment and the Sentencing Amendment Bill without amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

I declare the House in committee for consideration of the Education and Training Amendment Bill.