Gangs Legislation Amendment Bill

Members, the House is in committee for further consideration of the Gangs Legislation Amendment Bill. Members, when we were last considering the bill we were debating Part 1. We’ve been debating this part for approximately an hour and a half, so I’m looking for new material relevant to this part of the bill. The question is that Part 1 stand part.

I move, That debate on this question now close.

Thank you, Mr Chair, and good news: I have new material. In fact, I have an amendment looking at the issue of gang insignia, because, as the Minister has made clear, the gang patch ban—which I think is probably what we’d just call it—is about intimidation. One of the concerns I have is that there may be things that are worn—and, in fact, there are plenty of examples of garments or jewellery, in particular, that are simply not intimidating because the insignia that is there isn’t actually visible, and a ring would be a good example.

It’s commonplace in outlawed motorcycle gangs to wear sort of silver jewellery with motifs on it which fit the description of gang insignia. They signify some kind of association with a gang, but, of course, if you’re walking down the road and someone is wearing a silver ring, you’re not going to even notice that it’s a gang insignia. However, that could be used as a reason for the police to detain and remove that ring, and so on and so forth, in a way which is actually at odds with the purpose of the bill, because it wasn’t intimidating at all. So the amendment, which has got a “w” on it—marked “w”—suggests that in the definition of “gang insignia”, a further paragraph is added: “(c) but does not include any insignia or item that is not readily visible and identifiable as gang insignia from a reasonable distance, such as jewellery”.

Minister, I’m really interested not only in your response to this particular paper but in terms of what you’ve said previously; you’ve said that this bill is about stopping intimidation, and I’m interested in your view on whether that’s all it does, or whether it’s just about cracking down on gangs more generally and their insignia, wherever they may be—intimidating or not—because from your responses, it would appear to be the latter, but the bill itself says the former. In terms of the limitations on association, on free speech and expression, and so on, I would be concerned if there wasn’t a proper purpose, if you like. We don’t agree with much of this bill, but stopping intimidation is a proper purpose and it’s a proper thing to pursue, but just cracking down on gang insignia for the sake of it clearly isn’t.

So there’s an amendment which is premised on what the bill says its purpose is—stopping intimidation—and I’d like the Minister’s view on whether he would find that an acceptable amendment but also his view on gang insignia more generally. Is it about just gang insignia and a gang crackdown, or is it about making sure that people aren’t intimidated, because I know he will have read assiduously the amendments on the Table and will have seen that there are some other items there which, again, go to situations where gang insignias are there in the public, but they don’t transgress his intimidation principle, if you like—and I’ll speak to those shortly.

I’d just point out for the benefit of the member that the purpose of the bill is indeed to deal with intimidation by gangs, but that’s not the only purpose. The purpose is to reduce the ability of gangs to operate; secondly, to cause fear; thirdly, to cause intimidation; and, fourthly, to cause disruption to the public. So there are a number of purposes.

Thank you very much, Mr Chair. I’d like to specifically ask the Minister about the impact on Māori and on Māori whānau as a result of this legislative change. As reflected in the research and also as laid out in the regulatory impact statement that’s been tabled, gang members are disproportionately young male Māori and live in more deprived communities in New Zealand. So the overview of that is that about three-quarters of those on the National Gang List are Māori.

My interest, too, is around not just those individuals—of course we agree we want to see them coming out of gangs—but it’s those people in and around those gang members, those families, who will be directly impacted by this legislation. I’m just wondering if the Minister, being the Minister for Treaty of Waitangi Negotiations as well, is looking at any Treaty implications, or what is the wider impact on hapū and iwi as a result of this?

We know that there is an overarching desire to give young people growing up in New Zealand all of the opportunities and incentives to take up pro-social choices and to have a productive and crime-free life. Really, by having dispersal notices, banning gang patches, and having the impact of those, there is some quite good research that demonstrates that that just entrenches those whānau within those communities. It removes those relationships with the State that could potentially facilitate the next generation of young people making a pro-social choice to come out of that environment.

Given the significant adverse impacts of imprisonment, as described in paragraphs, I think, 74 to 77 in the regulatory impact statement, on balance, the net impact is quite strongly negative, and the downstream effects also are likely to require additional social assistance as a result of disruption to whānau, particularly when one parent is on remand or incarcerated. We also see that playing out in some of the statistics we see in care and protection for children, when one or more parents have been imprisoned. So I’m interested to know what work is being done by the Government to understand the downstream impacts on hapū and iwi in New Zealand, given that they will be disproportionately affected by this change.

It notes in the regulatory impact statement that there’s likely to be an impact on the cohort of tamariki and rangatahi who have parents and caregivers with gang affiliations who will become incarcerated as a result of that. I appreciate that the Minister has stated that he wants to put all gangs on notice and that he’s going to make it incredibly difficult to be in a gang and he’s going to make it unpopular to be in a gang. I would just like to know the fact that he’s turned his mind to it, as young people will also be impacted by these changes, and that he’s turned his mind, if he’s concerned, that this legislation may just push another generation of young people into situations where they don’t have those pro-social choices available to them. So it would also really engage responsibilities to the State, under the Oranga Tamariki Act.

I would propose to the Minister that the introduction of this legislation alongside this Government’s proposal to remove section 7AA from the Oranga Tamariki Act would make Māori tamariki and rangatahi even more susceptible to mismanagement by the State, if they have a primary caregiver who is no longer able to take up that role, as a result of incarceration. So I’m really keen to understand the significant adverse impacts of imprisonment on the next generation of young people in New Zealand, given the fact that those who this legislation is targeted to is heavily disproportionately weighted in the fact of young, Māori, and also male, and the impacts upon their whānau, their iwi, and their hapū.

Thank you, Mr Chair. I’ll start with pointing out that in the previous session where we considered this, I asked a question about named people and the need for everyone who is a named person in a dispersal notice, which is in clause 4—and I’ve got an Amendment Paper A dealing with it—to be served so that you don’t get the anomaly where one person can associate with the others but they can’t associate with them. Now, I’m sure the Minister’s taken advice on that, but I would like his response.

The other question I have, which is a more policy-based question about the bill as a whole, is how it deals with young people, because the bill as a whole is pitched as having some offences in it but being a civil bill. However, it actually imposes constraints on young people. So, in terms of a young person, a 13-year-old, wearing a gang patch or engaging in disruptive behaviour, what’s the interface there? So, in terms of the purpose of the bill as a whole, the Minister just spoke to those—I think it was four—overarching purposes, but how does that fit with children? Because these are quasi-criminal infringements, if you like. That’s probably the best way to put it. If you’ve been given a dispersal notice, it’s almost like an infringement notice. And yet children, presumably, are subject to this quasi-criminal regime, and it strikes me that there hasn’t been a lot of thinking done around how this bill will fit with the wider framework around the behaviour of young people and the response of not only police courts but also Oranga Tamariki and other agencies to those behaviours. I think that’s actually quite an important point, because, as my colleague was just mentioning, this bill does run the risk of pushing a section of our community further away from Government agencies.

Of course, young people who might be 12, 13, or 14 are the very people we want to be drawing into schools, healthcare, and other agencies rather than dispersing them and having fines for them wearing gang patches or gang paraphernalia. So how children will be dealt with—we’ll be very interested to know. But, as I said, just going back to that need to make sure that everyone who’s dispersed is subject to the same regime and has been served with a dispersal order.

I move, That debate on this question now close.

Thank you, Mr Chair—thank you very much. I would just like to draw the Minister of Justice’s attention—and I appreciate, you know, the Official Information Act (OIA) is an important Act which we all abide by, sometimes challenge, but it’s really interesting: I found that the only section in this entire regulatory impact statement that I can find—there’s a couple of minor ones, but the main one that’s got some information that’s been withheld under the Official Information Act, and it’s withheld under section 6(c) of the OIA, directly relates to implementation challenges. There’s only two paragraphs in this on implementation challenges, and the one that we’re allowed to read reads, “If a public display involves multiple gang members, a larger operational response may be required to enforce a ban on the spot.”—so, you know, that’s Police saying that “If you’re wanting us to do this, we’re going to need a whole lot of cops at once in order to make this work.”

I was just wondering, in terms of the interests of transparency and also the public interest of New Zealanders, who, I’m sure, are very curious as to how this legislation will play out in practice, whether he wants to enlighten us as to what paragraph 118 of the regulatory impact statement actually says. I’d be interested to know: what are the grounds for withholding this information from the general public? You know, if there are clear challenges that police have identified to be able to operationally enforce these new laws, is it not right that when we are debating this legislation, we should know what those are? That would only seem fair and right in terms of having transparency, having an open discussion about how these laws will impact not only our police but also other communities in which these new laws will be played out.

We can only guess—and the mind boggles—as to what those implementation challenges may be. We do know that, since coming into office, this Government has fewer police officers on the front line than it did when it came in. I think that number is currently sitting at around 124, and as we see a new wing graduate, the new wings now have around about—used to have about 90-plus; they’re now looking at, sort of, high 60s for a wing. With the number of police who are retiring or choosing to take on other work, that number of police coming in is not sufficient to meet attrition currently, and that is why the numbers of front-line serving police have decreased under this Government. So I just wonder whether paragraph 118 may be that Police is drawing the Minister’s attention to the fact that there will be significant problems with the operational capability of front-line police to be able to enforce this law right across New Zealand—that, as in paragraph 119, if there is a large gathering, it will require numerous police to do a specific operation in order to enforce the law, and that might potentially act as a deterrent.

There also is the concern that has been raised, quite rightly, by the Police Association that having a law that is not operationally able to be implemented risks undermining the confidence that the New Zealand public have in the New Zealand Police, and that is a real concern. That is a real concern, because what that pretty much says is that this Government is prepared to want to look tough so much that they’re prepared to risk the actual credibility of our police service, who do an amazing job, to actually risk that credibility of being able to enforce the law in order to demonstrate on the tally that they’re looking tough and they’re doing something.

I really consider that the reason this paragraph has been withheld by the Government under the Official Information Act is it gives further insights as to the fact that this law will struggle to be enforced and that this law may, and will, undermine the ability of the police to do their job and be seen by people in New Zealand that the police are able to do their job. There is a fear that that may have a spreading effect to having people immune or saying that this law isn’t—“I won’t abide by it if it’s only applied in Auckland and not in Kaikohe; why should we do it if it’s not here and there?” So it raises some very real concerns, and I think the Minister needs to address some of those.

Tēnā koe, Mr Chair. Look, I just want to probe a bit at some of the underlying things I believe are missing, and it’s based, really, on the fact that, given what we know and understand around things like Māori incarceration as a country, around things like poverty that Māori endure and have endured for centuries as a country, the things that we already know—Māori are overrepresented in incarceration figures, as we know.

It all stems from the early history of this country, when the economic pieces that were available to two societies in this country were either taken by force and one was advantaged and one was disadvantaged—these are things like economic dispossession of Māori, you know, as a result of illegal purchases or invasion and confiscation of lands, effectively castrating Māori economically; the displacement of Māori through education. These are all things that led to the impoverishment of Māori. They’re the things that underpin what grew out of that impoverishment, the social displacement and deprivation of Māori as a result of these things, you know, and the fact that as the country began to develop post the wars, there was a significant and intense privileging of the Pākehā partner in the Treaty of Waitangi, as returned servicemen were granted more than 800,000 acres of farmable land to develop farms for their families. Māori were left out of that equation, and some—

CHAIRPERSON (Greg O’Connor): Mr Ferris, I just remind you we’re on Part 1 of this bill at the moment, so you’ll need to start contexting that and referring back to the bill. 

TĀKUTA FERRIS: Oh yeah, that’s all right—yep, ka pai. I’m just setting the scene of where Māori impoverishment—

CHAIRPERSON (Greg O’Connor): We generally allow about two minutes’ context, but we need the bill now.

TĀKUTA FERRIS: Yeah, ka pai. So these are well-known things, yet I just see no attempt, no appetite, to apply or consider any questioning or analysis that addresses these things, which means that the efforts of the current Government are more about dealing to symptoms of problems rather than addressing root cause of problems. So it’s clear to me that this side of the House has no desire to ask themselves, “What’s the impact of my ideas or the bills I’m putting forward on Māori? What will the impact be?” Given that the gang patches legislation has been commented on broadly and it’s quite clear that it will disproportionately negatively affect Māori and their associated communities, why is it that the Government can’t ask themselves that simple question: what is the likely impact of this law on Māori and Māori communities going forward?—not finished.

CHAIRPERSON (Greg O’Connor): Then finish quite specifically.

TĀKUTA FERRIS: Given that the Minister is the Treaty settlement Minister, I would expect that he has been exposed to—at least exposed to—some quite robust Tiriti analysis frameworks as he works through that portfolio of work. Then I would consider: how is he applying those frameworks, a Tiriti-based analysis framework, to his decisions as the Minister of Justice? And what expectation he has of his team who sit on the Justice Committee to know and understand or have some capacity—some capacity—to apply a Te Tiriti - based analysis framework to the decision-making efforts of the Justice Committee, or to apply the same approach to analysis to the questions?

CHAIRPERSON (Greg O’Connor): Mr Ferris, I think you’ve had a pretty fair go. You need to talk about the bill.

TĀKUTA FERRIS: Kia ora e hoa. Āe, tēnā koe—those are my questions.

I hesitate to reply again because on a number of occasions I’ve replied on the issue of the impact of this legislation on Māori.

The previous speaker, Ginny Andersen, was concerned about the adverse impact of this legislation on young Māori. I suppose the only point I would make is: we on this side of the House are more concerned about the adverse impact of gangs on young Māori and on the negative influence of gangs in their community. We recognise that Māori are more likely to be victims of crime than other New Zealanders, and that is why we’re very focused on this legislation reducing the negative impact of gangs on young Māori growing up throughout the country and getting drawn into a very negative way of life.

Now, in response to the observations by our member from the Māori party, Mr Ferris, what I would point out is that if our only response to the increase in violent crime that people have seen in our community and the rise of gang activity—if the only response from this Government was this legislation, he might have a point. But that is not the only response of this Government: we continue to invest widely in many innovations such as Te Ao Mārama, court system, and many aspects of our justice system which are designed very much to work with specific needs and requirements of Māori in relation to crime, and we work very closely with many iwi groups right up and down the country.

Of course, our broader response to dealing with crime involves investing in many, many programmes in relation to addictions, in relation to dealing with the huge challenges that we have around emergency housing, huge challenges around truancy in schools—there’s a wide range of Government policies. So anybody who asserts or assumes that this legislation is our only response to what is a much broader issue—which everybody recognises is a much broader issue—would be false.

I move that debate on this question now close.

Point of order. Thank you, Mr Chair. Just a point of order around the fact that we haven’t quite finished—oh, thanks for putting the mike on. We haven’t quite finished part—

CHAIRPERSON (Greg O’Connor): Mr Xu-Nan, perhaps, if you’re going to take a point of order, you’ll wait until a decision’s been made—

Dr LAWRENCE XU-NAN: OK—here and now.

CHAIRPERSON (Greg O’Connor): —and sit down. Now, I’m aware the member has recently come to the House. The member’s also not aware, as I am, of matters that have been discussed in the previous over two hours of this debate. So the member needs to understand that just because he hasn’t been in the Chamber and he hasn’t been part of the debate, it doesn’t mean the issues haven’t been discussed. I make that point for him and for all members that are in the Chamber right now. So now I am in the process of taking a motion from Katie Nimon.

I move, That debate on this question now close.

CHAIRPERSON (Greg O’Connor): And I will make the comment that having looked at the topics that have been discussed, there has been very little new information come forward in the last short while. I’ll be looking for some very, very new information.

Thank you, Mr Chair. I do have a question that’s quite specific to what I hope would be some new information if the Minister of Justice is able to give it to us. It’s a relatively straightforward question, and it shouldn’t take too long.

When we think about the core purpose of the Gangs Legislation Amendment Bill, as a couple of other people have intimated, at its heart it’s about reducing intimidation, etc., and it’s using this specific means, this specific methodology, as a proxy, so to speak, to enable that to happen. But I noticed in the regulatory impact statement—I think very early on it talks about the limitations and the constraints on the analysis that was able to be done in relation to this bill—it said, “Narrow scope: Agencies were commissioned to fulfil the Government’s commitments on gang policies included in the 100-Day Plan.” It sort of strikes me, therefore, that that in itself has constrained some other counterfactuals or some other information that we could perhaps have brought to the forefront. I think it’s important we consider the rest of that paragraph, where it says “This commissioning and timeframes limited the options … [available] to be considered that would achieve this objective.”

So I’m asking the Minister: as part of the process that he went through, because there is always more than one way to skin a cat, isn’t there, given that the purpose was to reduce the intimidation that gangs have or can partake in, how did he come to the conclusion that removing gang patches, as opposed to—and I’m assuming that he balanced that up against other potential measures. Is he able, therefore, to give us a little bit more information about his own process with regard to that, so that we can perhaps understand a little bit more fully how this particular piece of legislation fulfils that process? Maybe even just one or two examples would suffice.

I think, given there have been several questions asked over the preceding sort of two hours, where we’ve talked about the purpose of this legislation—that have raised really good questions. When we think about not just the impact on young people but the impact on young Māori men, and various other questions that have been raised, I think, more pragmatically, if the Minister could give us any sort of insight as part of this committee stage as to—given that the regulatory impact statement says quite specifically that it had very little opportunity to evaluate properly, given that this needed to be rushed through, so to speak, as part of the Government’s 100-day plan. But even still there must have been some sort of comparison, so I’d love the Minister to tell us about that.

Thank you, Mr Chair. I just have a very quick question. So just, first of all, thank you, Mr Chair, for the clarification before. I was a little bit late to the Chamber today, but I would like to check if the Minister of Justice has responded to my question in the previous session around the definition. I think in this particular case, Part 1 is—

Ricardo Menéndez March: He hasn’t.

Dr LAWRENCE XU-NAN: —absolutely crucial—thank you. Part 1 is absolutely crucial when we’re looking at the definition and interpretation, particularly when we’re looking at clause 4, because the interpretation of some of these terminologies has a fundamental impact on how we interpret the rest of the legislation. So if the Minister wouldn’t mind just clarifying what I mentioned in terms of the definition of “immediate family” in the previous session, and who determines what is considered culturally recognised and whether paragraph (a) and (b) under “immediate family” are mutually exclusive or is paragraph (b) under “immediate family” an exhaustive list, which then contradicts and potentially challenges what is considered culturally recognised. So that was my previous question, if the Minister wouldn’t mind clarifying.

The question I have, again around the clarification of terminology, is about the term “serious offence”. In this particular case, when we’re looking at the definition for a serious offence, I wanted to check with the Minister, first of all, in paragraph (a) of the definition of “serious offence”, it contains the same duration for a term of imprisonment that is defined in section 2(1) of the Crimes Act in terms of what is considered a serious violent offence. Now, “violence” is an incredibly important keyword in the Crimes Act, so I wanted to check with the Minister if the term that is a serious offence in this bill and a serious violent offence in the Crimes Act are considered synonymous, because both of them carry the same term of imprisonment of seven years or more.

The other question that I have in line with the serious offence question is around subparagraph (b)(iii), because it lists a number of subsections in the Crimes Act of which there are five of them pertaining to a variety of different terms. Each one of those terms in the Crimes Act carries a term of imprisonment of five years, but (a) states “an offence that is punishable by a term of imprisonment of 7 years”, so I wondered if the Minister wouldn’t mind clarifying. What is the rationale of increasing that (a) to seven years instead of five when some of the other sections in (b) are giving other examples that pertain to a term of imprisonment that have a different year duration for that.

So those are my two main questions. The first one is a clarification of “immediate family” and the second question has two parts, the first part being whether the definition of “serious offence” and the definition of “serious violent offence” in the Crimes Act are synonymous. The second part of that is the rationale behind the term of imprisonment of seven years, noting that in (b)(iii) all of those subsections from the Crimes Act carry a term of imprisonment of five years. Thank you.

Mr Chair—

CHAIRPERSON (Greg O’Connor): Kahurangi Carter.

HŪHANA LYNDON: It’s not Kahurangi.

CHAIRPERSON (Greg O’Connor): Sorry, have I got that wrong? Hūhana Lyndon—my apologies.

HŪHANA LYNDON: It’s Hūhana. Kia ora.

CHAIRPERSON (Greg O’Connor): It’s a long way down there.

HŪHANA LYNDON: She’s gorgeous, so that’s all right. I take it. To the Minister: I want to address something that is really important in te ao Māori, and it is the ability for us to poroporoaki, or farewell our dead. In thinking about this legislation and the fact that you cannot consort together, there is a worry, because, ultimately, whānau will pass, and then how do these gang member whānau poroporoaki or farewell their dead?

Now, my assumption, Minister, is that a marae is not a public place and police cannot enter our marae and take exception to the gang members who might be present and a part of the hui mate. This is my expectation. But the minute that the gang member who might be wearing a t-shirt, who might be wearing a patch or a jacket, then exits the marae and might be in the car park or even where we have—we have the marae ātea and the waharoa. So you gather, as manuhiri, to go on to the marae. I’m assuming, and I’d like to explore with the Minister what his interpretation is of the public space, because out the front of the waharoa and the car park—does that mean that our gang whānau could be targeted by the police who might monitor hui mate of significance in rural Māori communities for this purpose? Because we know in rural Māori communities, we gather large, we gather to mourn and farewell our dead, and gang members are a part of that whānau. So I’d like to understand the interpretation of the Minister in terms of waharoa and car parks around our marae.

Further, I’m also wanting to hear from the Minister in terms of the definition of “vehicle”, because is a hearse deemed a vehicle in this space? Because if you have a wife, a niece, or a mokopuna who will escort that tūpāpaku, that deceased person, in the hearse to the cemetery, will that hearse then open up for the gang member in the hearse to be put at risk through this legislation? Then, of course, we go to the cemetery, and the cemetery could be a community one run by councils. Is that deemed a public place? And then, further, my assumption is—because we have Māori cemeteries on whenua Māori, I’d like to understand if ture whenua Māori, Māori reservations for the purposes of urupā, or cemeteries, are deemed public or not for this legislation.

These are things that I think are really important for the Māori community to understand in terms of how this legislation will be interpreted by the police, because, ultimately, it will be the police in rural Māori communities who will have to manage the situation. So I do want to ask: what feedback has the Police given to the Minister around their ability to prevent? So this is: have you asked the police about their ability to prevent gang members from gathering in public places? Because they have the lived experience, they have the knowledge in terms of what it’s practically going to look like.

So, for myself, I’m from Whangaroa, Kaeo. We have hui mate there, and we have gang members. I fear that our one police officer in Whangaroa or Kohukohu or Te Kao or out in Russell, te Whangaruru, will have to come and monitor a hui mate—a hui mate where the family needs privacy and the ability to poroporoaki those that have passed and to support their loved ones. Gang members could be targeted. That is my deep fear for the mokopuna to watch the police hover around our marae, because they know that a Head Hunter or a Black Power member might have gone on to the marae, and they wait—and they wait—to target our whānau who are going on to the marae for a hui mate.

Not taking away the fact that it’s not just hui mate on marae; we can get married, we can have 21sts, and we can have birthdays. So I do worry about the implication. So I want to understand from the Minister definitions around a cemetery; I want to understand from the Minister definitions around a hearse. Then, are the waharoa areas and the car park around the marae deemed public, because some of our marae do open up on to streets. Then, what has the Police given you as feedback around how on earth are they going to prevent gang members from gathering in public places? Kia ora.

Just very briefly, we have many times raised the issue of the ability of the police to enforce this legislation, and we’ve been very clear that, ultimately, police always have discretion as to when it is appropriate or not to engage, and they will retain that discretion. But we have every confidence that with sufficient planning and arrangements, they will be able to enforce this law.

There’s a number of specific questions, particularly around immediate family members. I’m struggling to understand the member’s confusion. It seems quite clear that an “immediate family” means “family, whānau, or other culturally recognised groups” and then, in (b), “to avoid doubt, [that] includes—” a list of six people. So those six groups are definitely in, although (a) could potentially be broader than those six. So I’m not quite sure what the concern is there.

In terms of public places, it’s very clear that a “public place” is one that “is open to … being used by the public, whether or not [by] payment [or] charge,”. Now, there will be some cemeteries that are not open to the public, and there will be some that are. So that will be dealt with in individual cases.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper No 51 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4, inserting the words “and understood” to the definition of gang insignia, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4, excluding any insignia or item that is not readily visible and identifiable from the definition of named person, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4, definition of named person, be agreed to.