Gangs Legislation Amendment Bill

Members, we come now to Part 2. This is the debate on clauses 7 and 8, “Prohibition on display of gang insignia in public places”. The question is that Part 2 stand part.

I mean, what the heck, because although the Chair said it’s clauses 7 and 8, it’s actually 7, 8, and 8A, because there’s an Amendment Paper on the Table. And I say, “What the heck”, because what kind of Minister of Justice introduces an Amendment Paper that creates a new offence. It’s outrageous and it’s offensive.

Now, if the Minister wanted to create an offence of someone being in possession of gang insignia after having been subject to two or more of these prohibition orders, well and good; let’s give it a good working over at select committee. I can tell you that we’d have real difficulties with it, but we’d address the rights issues that are involved and the procedural issues that are involved. But it beggars belief that the Minister has had months and months to dwell on his gang patch ban, and then, at the last moment, when there is no real ability to scrutinise this proposed offence, he slips it in in the dark of night.

Here we are today, now arguing about an offence which is a serious offence, which is an imprisonable offence—an imprisonable offence under new clause 8A—to have a Hells Angel ring in your top draw at home. This isn’t anything about display. I’m dumbfounded that this is even within scope, and perhaps it’s not. Perhaps the Clerks or the Chair will be telling us something about that a bit later on. But the idea that someone who has been in trouble for having gang patches, all of a sudden because they’ve got their dad’s jacket hanging in the spare wardrobe, can go to jail for a year, that is utterly disproportionate, inconsistent with the purposes of this bill, and the procedure is utterly woeful.

Not one citizen gets a chance to have a say about this because it was slipped in after the select committee process. I would like to know why, Minister, was this not in the bill prior? If it only occurred to the Minister a couple of months ago, why was it not put before the select committee as an Amendment Paper so that the committee could pause, scrutinise it, look for submissions? Regardless of my opinion of it, it still deserves good legislative quality. This is a Government that talks about good regulatory conduct, about good lawmaking, and here we have it introducing at the last moment—not some regulatory labelling of milk powder, no—a criminal, imprisonable offence. That is absolutely abhorrent to due process, whether or not it even warrants it.

I mean, let’s just recognise what this new clause 8A does. It creates an offence punishable by a year in jail. There’s not even provision for an alternative sentence. There’s not even the usual provision or a fine; it’s jail. For what? For owning a symbol. It’s not owning a symbol in public—that’s an entirely separate offence. We’ve got the gang patch ban. It’s for having it at home. Honestly, I am flabbergasted. This Government has done some pretty horrific things, but in terms of due process in criminal justice, it’s just made up a new offence and slipped it in. So here’s my questions to you: why now, why so late, and what is the harm? What is the great evil of grandad’s jacket sitting in the spare wardrobe that you have to imprison someone for that heinous offence of having a hidden piece of gang insignia? Please answer.

Thank you, Mr Chair. So not being a member of the Justice Committee, there are some questions I have for this particular clause, partly because I haven’t been through the select committee process. The first one, in terms of the report on one of the amendments that we do see from the select committee, is around the prohibition of display of gang insignia in a public place. One of the things is addressed on page 5 of the bill, which talks about adding an additional requirement of mens rea. I want to pick up from what the Hon Duncan Webb has mentioned before, and I think the idea of including mens rea in addition to actus reus—the mental component and the physical component of a criminal act—is really important here, and I’m glad to see that that particular amendment has been taken on board in clause 7(1).

However, in the context of criminal law, when we’re looking at a person committing an offence knowingly and without reasonable excuse, now, one of the key elements of actus reus and mens rea is the concurrence of actus reus and mens rea happening simultaneously. So I guess my question for the Minister: the first part of this is the concurrence, which wasn’t, I noticed—I may have missed it—explicitly stated in page 5 of the amendment is still going to be taken into consideration that the knowing and displaying has to happen at the same time. So it goes back again to the example that the Hon Duncan Webb mentioned before in terms of what happens if you know that the jacket that had your grandad’s insignia on it is there, but in a hurry when you left the house had forgotten in that moment in time that it existed, even though you know that it existed in other situations. Considering that it did not happen concurrently, how would one assess that?

So, again, when we come to looking at mens rea and also actus reus and looking at this in the context of criminal law, I would also like to ask the Minister whether there’s been any modelling or any consideration given, other than what is already in the regulatory impact statement, but particularly around the burden of proof being placed on the Crown prosecutor in the context of when something like this happened. So has the Minister considered the broader implication to Crown prosecution in terms of identifying this particular element of clause 7(1)? So the two questions are whether the actus reus and mens rea under clause 7(1) need to happen concurrently. The second part is: has there been any consideration given to the burden of proof that will be placed on the Crown prosecutor in the event that something like this would then need to go to trial? Thank you.

In response to the member’s earlier commentary around new clause 8A, this clause was added to address police concerns about the ability to enforce the gang insignia prohibition. A lot has been said in this space around the police ability to enforce this legislation and the need for protection of police in a process that could result in some conflict areas. So this is an area where police had concerns about the ability to enforce the insignia. I’ll highlight that this is relating to a court prohibition order, so this isn’t a power set upon the police; it’s the court applying a prohibition order.

In relation to the member’s last commentary around knowingly, and the mens rea and actus reus around the commission of an offence, this bill doesn’t seek to undo the justice process; therefore, the commentary around not knowing and acting, I’m a little bit confused, but I can assure the member that the clause 7(1) states: “A person commits an offence if the person knowingly, and without reasonable excuse, displays gang insignia”, and I think that’s relatively straightforward.

Thank you very much, Mr Chair. Look, I’d just like to ask a couple more questions around this change, which is almost a bit like a tiered approach to banning gang patches, with the sort of final stage being that, as the Minister highlighted, this new offence that if someone’s being prohibited by the court to even possess, even if it’s not publicly displayed—that if they’re found to have that in their possession, even though it’s not publicly displayed, that is then an offence that is punishable by a year in prison.

I’m really interested to know from the Minister how this interacts with the new firearm prohibition orders (FPO) regime, which effectively enables or gives police the broad powers of searching without a warrant or without even a cause. From the way that legislation works—that police believe they have an FPO on them, they are allowed to do a check to see if conditions are being complied with or not. So I would like to understand how that works alongside of this provision.

In a potential scenario, if you had a person with an FPO—maybe they’re before the courts—and simultaneously police request for this person to receive a prohibition for owning any gang insignia and also a firearm prohibition order upon them as well, am I correct in understanding that police would then be within their powers to go around to this person’s house any time they wanted, endlessly, to check for weapons? In the course of that search for weapons, if they did find gang insignia, then that person would be able to be imprisoned for a year?

I think it’s really important that we understand, if we’re introducing these new broad powers, how they can be used in conjunction with different parts of legislation that will come into force in the near future. It’s quite a new thing from what was initially proposed to outlaw or have it as an offence imprisonable by a year for simply having within your possession an item of gang insignia.

I wonder how it also relates to the exemption grounds which are stipulated in clause 8 of Part 2 and the exceptions to prohibition is “a genuine artistic or educational purpose;”. So that’s going to be a tricky one. It’ll be interesting—you know, like what if it’s a former gang member who has got an FPO and a prohibition who draws some art with gang insignia on it and gets searched? Is that grounds or not? I’m also really interested in the grounds of exemption for law enforcement. How does that work? Grounds for exceptions to prohibition is “law enforcement”, so somehow police or law enforcement agencies would need to display gang insignia and that wouldn’t be covered under this.

The one I would quite like feedback on is “genuine artistic or educational purpose”. What does that cover, and how would that play out practically if you had a former gang member who’s not active now doing art of gang insignia? They’ve been subjected to a search of their premises without warning or warrant or even cause if they are suspected of having a firearms prohibition order upon them and then police find artistic or drawings or images of gang insignia in their house. Would that person be up for a year in prison? Or would that simply be used as a way of putting pressure upon people in the community if information was required for another type of offending that had occurred?

So what are the checks and balances—I guess I’m asking, Madam Chair—when you’re having someone up for prison for a year for simply possessing it? It does go into that area of freedom of speech, that you’re outlawing insignia even if it’s not being publicly displayed.

I just thought it was timely to sort of clarify the conflating of issues there around prohibition legislation relating to firearms and this legislation. I think the clarity around the police confidence to understand the legal requirements of the purpose of a search and to maintain that purpose within its remit when they do any kind of search—but I think, to clarify: the prohibition order—and as the member outlined, there are clearly exemptions around that display process. So it is unlikely that a former gang member who is doing art will be subject to a prohibition order given that the member has just referred to them as being a former gang member who’s now doing art.

So I think it’s really important to separate the issues and ensure that we are talking about a prohibition order applied for through the court process and that a maximum penalty to be applied is not the police throwing them in prison for a year. I think we need to make sure we retain that context in that space.

Thank you, Mr Chair. Look, “What can we do about that?” So there you go. This is not an isolated problem, right? [Holds up a photograph] That’s a gravestone; that one has a Mongrel Mob emblem on it. I’m aware that many civic graveyards now have rules in place which don’t allow gang emblems on gravestones. But a quick search shows up numerous gravestones with gang insignia on them.

Now, the occupier of graveyards is usually a local body. So this flies right in the face of this bill, right? This is the dog’s breakfast that we’ve got here, right? That they’re rushing through this restriction on free speech; they’ve done it in a kind of all-encompassing way with a few carve-outs rather than saying, “We’re addressing gang patches which are used to intimidate”—which was one proposal—they’re actually—[Interruption] No, you’re not supposed to take photos in the Chamber. Your whip should know that.

The problem here is that they’ve taken this approach, which is just ban them all everywhere, and you end up with situations like this, where you’ve got—I mean, don’t get me wrong, I think it’s a very poor form to have a gravestone like that, but they’re out there and we’ve now got to address what we’re going to do about it. You’ll see that I do have a tabled amendment marked “R” which was put in earlier in the last session, last week, which would exclude a permanent memorial, grave mark, or headstone erected prior to the assent of this bill. Obviously, you don’t want to look forward and commit these things into the future—I get that, right? But the challenge is that you’ve got these headstones out there, and on the bill, as it was presented to this committee, would either criminalise local bodies or it would require kind of the painting over—essentially, the desecration—of the headstones.

Now, neither of those are good, and it’s just reflective of the fact that this is poorly thought-out. Not only is it poorly thought-out in the detail—“We didn’t think about headstones.”, I get that; it’s always going to happen—but it’s poorly thought-out conceptually because we’re banning all gang insignia regardless of purpose, regardless of whether they’re used in a particular way, regardless of whether they intimidate or not. Whereas if you had either an intention—you’re intending to be intimidatory—or it has the effect of intimidating, then none of this would be here. The gravestone doesn’t intimidate anyone. It would be consistent with the purposes of the bill, but you’ve got a mismatch here that’s leading to this.

You will have seen my tabled amendment. It may be that the Minister, because he’s got the resources of the entire State behind him, has tidied up my drafting on this, has got something more to say about. It’s hard to believe but it’s possible that he could improve on my drafting. Have you done that, Minister? Would you like to speak to that?

Well, in the spirit of bipartisanship, we have looked at the tabled amendment put forward and decided that there is some merit in what the member has to say. So I have put in an Amendment Paper under my name which achieves half of what he set out to achieve, which is to say, including “a headstone or grave marker erected before the commencement of this Act”, so as to achieve part of the purpose. So I think that’s a useful suggestion that the member made.

As regards to his broader comments about philosophical matters, I don’t have anything more to say.

Just before I take the next speaker, Ms Redmayne, if you did take a photograph in the Chamber, obvious enough to be seen across the Chamber, as a whip, you should know better. So you will delete that photo, I take it? We do need to maintain some decorum in the Chamber, as the Speaker said today.

Mr Chair, thank you for this opportunity. I wanted to follow up on what Ginny Andersen was saying in terms of—and the Minister of Justice wasn’t in the chair. But there is a high level of worry out there in terms of former gang members and their contribution in terms of communities. I’ve spoken to a number of them over the last few months, and one in particular—Eugene Ryder, who I would hope that this Government has been consulting with—has been very, very clear in terms of insignia being displayed.

Some of these guys have been long-time gang members, but have turned their lives around, and I think that the whole House would agree that people like Eugene, who’s been a real example in terms of Māori communities, Wellington—but he too has major worries in terms of the checks and balances, which is what Ginny Andersen was talking about. You know, they will have their patches, though. Some of them will not have got rid of them, and the opportunity to, I suppose, breach their rights is still very high. I’ve talked with him, and I’ve talked with other gang members who are ex - gang members. I don’t know if he is ex or current, but Denis O’Reilly, another long-time veteran gang member, is worried, again, about the implications of this bill, particularly these clauses 7 and 8, where we’re talking about the display of gang insignia, and particularly when they’ve got them stored away in their houses.

It might be a little bit extreme to think that the police would breach that line, but we need some assurances, given the amount of ex - gang members now who are making a real effort and are turning around people’s lives. What has been the level of consultation from the Minister with regard to this, and it’s a question that’s being asked. Has he spoken to the Eugene Ryders and has he spoken to the O’Reillys, who have been major commentators in this area? I’m interested to hear whether they came through. I wasn’t involved, obviously, in the select committee process, but how many of them came through to the select committee? Is he taking some of their views seriously?

Martin Cooper is someone who is involved with our organisations in Auckland—a long-time Black Power member. He spoke to me a couple of weeks ago too about his concern. Has the Minister got around the former gang members and consulted them about their views with regards to this, because there’s a huge worry.

Can I also ask the member, given his great relationship with iwi, whether this was raised at the iwi leaders meeting in the last week or two. This has been a kaupapa that has been on the table with the iwi leadership because gangs, whether we like it or not, have been—so many of them are part of us. That doesn’t mean to say that we support the actions or intimidation of gangs—not at all. But we do take responsibility when a lot of them, unfortunately or fortunately, are related to us. Did the Minister take the opportunity to consult with the iwi leaders last week in terms of their views on how the Government is dealing with the gang patch view, and did he get any support from iwi leaders with regard to this particular kaupapa? I’m just putting those questions up.

Thank you, Mr Chair. Just in relation to that in terms of consultation, of course we’ve just had a very lengthy select committee process, where there have been more than a hundred people making submissions on the bill, and I can assure the member that the Ministry of Justice, through its many liaison committees with Māori iwi and hapū, will have had many conversations. So that’s important.

In terms of the Iwi Leaders Forum, to be honest, most of the conversation that I had related to other legislation than this. But there were one or two people who raised the general justice matters, whereupon I pointed out—as I have in relation to this bill already in this committee phase—that of course this piece of legislation is one that will give police extra powers to deal with gangs. It does not on its own represent our entire response to gangs and their intimidation in our country and violent crime or crime in general. It is one tool, or four tools, that will be able to help the police. Our broader approach extends into matters of dealing with addictions, dealing with emergency housing accommodation, and dealing with a whole range of issues which are equally important, as well as the broader effort through the Te Ao Mārama courts and many other engagements across the justice sector.

Hon David Parker: You’ve stopped funding it.

Hon PAUL GOLDSMITH: No, we didn’t; we stopped the increase.

Thank you, Mr Chair, for allowing me to take a call on this part of the proposed legislation. So my question—I’m going to try and focus on patches themselves, given that Part 2 is all about the display of gang insignia in public places.

My first question is what evidence has he seen that banning gang insignia helps people to actually exit gangs? I know there was some talk by, I believe, the Minister of Police, the Hon Mark Mitchell, around some of the work that they’ve been doing in Australia in banning gang patches, and I’m interested to know whether that has had any positive public safety improvements in those areas and what the consequences of those provisions have been, particularly reflecting on the Prime Minister’s Chief Science Advisor’s report that is all about minimising gang harm and addresses the drivers of gang membership, where it says, “A stronger focus on prevention and early intervention will slow the flow of young people into gangs and alleviate pressure on multiple systems (justice, health, corrections) in the long‐term.”, and whether he has considered the Chief Science Advisor’s strong advice that we can’t arrest our way out of the gang problem.

So I would like to hear your reflections on that. What evidence is there that banning the visual presence of gangs and gang patches within our communities actually decreases the number of people exiting gangs? Particularly because we currently do have legislation in place that prohibits gang places in public places—that Act has been around since 2013 and yet, as the Minister of Justice continues to quote, the membership of gangs continues to rise. If that legislation in itself has not been effective at driving down membership, why does he believe that this iteration of banning insignia would be any more successful?

Then, I have some questions around freedom of expression. So, obviously, the Attorney-General wrote to us with a number of different considerations around human rights and how they are embedded or contravened within this piece of legislation. Within the New Zealand Bill of Rights Act report, it talked about how restricting what people can wear can be a contravention of freedom of expression. I’m surprised to see that my colleagues in the “Freedom of Speech” Party have not made any strong statements about freedom of expression and what people are allowed to wear—but anyway.

What are the checks and balances in terms of that violation of a human right? What does that mean for other alternatives that people might turn to, to indicate their gang membership? So, for example, you might see people wearing particular colours more prominently. I grew up in Tokoroa, which is sometimes known as a Black Power town—we don’t have any or many Mongrel Mob there. Because of that, we don’t really wear red in Tokoroa, and that’s just the way that things are. Some towns you can go to them and you can only wear blue; some towns you go to, you’re not allowed to wear red—that’s just the way that things are. I wonder: does this create a precedent for colours and sports logos and brands to also be banned? You know, where do you draw the line in terms of that freedom of expression?

As I talked about in the first reading of this bill, could it even extend so far as hand signs? Obviously, that’s a big part of that culture. [Makes hand gesture]—you know, we might think this is hang loose, but this also could be another symbol; or fists as well. That leads me to think about symbols, because, obviously, there are different symbols that are part of insignia. For the Mongrel Mob, it’s a bulldog; and for Black Power, it’s a fist. But those are symbols of all sorts of different things. You have schools and universities that use bulldogs as their insignia. You have various different social movements that use the fist as a symbol of power, of workers’ rights. The Black Lives Matter movement uses the fist, but also Black Power uses the fist. We know this because when Eugene Ryder came and spoke to us at the Justice Committee, he wore a number of different T-shirts and asked which one was the Black Power T-shirt. It turned out that all three of them were completely irrelevant to gang insignia, but it shows that some of the symbolism that gangs use are prominent in other ways. What happens if a police officer sees a fist T-shirt or a bulldog on a T-shirt and assumes that that’s gang insignia?

So how are you going to differentiate between colours and symbolism, and how are police going to know whether to enforce these rules or not, and what is exempt and what is not?

Well, I think that the member Tamatha Paul’s speech made the point very well for us around fear and intimidation when she referred to some towns—I think Tokoroa was the one she referred to—where people just don’t wear red. Well, I suppose the question is: why don’t they wear red? Ultimately, it is because of fear of doing so, that there is a chance that if one does, one gets confused and gets beaten up or is subject to some threat of violence. That, indeed, is partly why we’re doing this legislation—to deal with the fear and intimidation that gangs have imposed in many parts of this country, as exemplified by the very thing that that member has said: that people live in towns and it’s an unwritten rule in that town that you don’t wear a particular colour because, if you do, there will be consequences. That is precisely why we want to deal with the broader issue of fear and intimidation of gangs in our society and is why this legislation is bringing forth four new tools for police to deal with an increase in gang membership.

The member also referred to a ban currently being in place. Yes, there is a ban on gang insignia in public buildings—and that is hospitals and schools and courts. So that has been in place and has been largely successful. This legislation builds on that—to all public places. It doesn’t extend to private places; it’s just all public places.

In terms of the impact on the freedom of expression, yes, we accept that it does impinge on freedom of expression. So, ultimately, Parliament and New Zealanders have to decide—there are balancing and competing rights. Of course the rights of people to be able to go about their normal life without fear of being intimidated or preyed upon by organised crime is also a freedom that we stand up for. So, in many instances, we have to weigh up those freedoms. On this occasion, we believe that the impact on freedom of expression by banning gangs and gang patches in public places is justified in order to deal with what is a real issue confronting our many communities.

Thank you very much, Mr Chair. Look, I would just like to examine the legislation a bit further in terms of the outlay or the expense or the investment that the Government will need to put into this particular initiative or legislative change, in terms of weighing up what the overall safety outcome is for New Zealanders and whether that’s a good investment.

This is a Government that has been really strong on giving very strong messages to a number of our NGOs who work in a variety of social services—that there is a clear expectation that has been delivered by this Government that they’re required to demonstrate their return on investment by going through an organisation such as ImpactLab and having their spend assessed, through looking at what each dollar provided will give in return. So, given that this expectation has been provided to NGOs and those working in various social service provisions, what work has the Government done on itself to be able to evidence what the cost of this is in terms of the taxpayer and in terms of law enforcement—the type of resources that Police will need to be putting into this? What is the overall outcome, in terms of safety, that it delivers?

I guess what I’m getting at is whether this is a wise investment of that Police resource, because what it does appear to quite a few people out there—and I’ve received a few emails on this one—is that it’s a cosmetic approach to addressing what is quite a deep-rooted problem within our community. It’s a very superficial approach to simply remove the stuff that looks ugly and take away the stuff that looks scary, but all it really does is drive it underground. We only need to look back in history to when anything is made illegal, whether that be a drug, whether that be alcohol; ways of subverting and driving that underground typically start to take shape.

I’ll add an additional point in there that the Minister may like to address, because I think this is very relevant: as soon as you make something illegal, it also becomes a whole lot more appealing to people who don’t want to abide by the law. Technically, you’re going to make this even cooler for gangs to defy the State and to display gang patches, because it is a direct challenge that you are entering into. When you enter into, essentially, a proliferation sense—you’re upping the ante, they’re upping the ante—you’re engaging in this engagement with the overarching umbrella that this is going to make everyone safer, but effectively it’s just taking resources away from dismantling organised crime. You’re taking resources away from pursuing money laundering, from pursuing methamphetamine manufacture and distribution. You’re taking resources away from family violence, where young people are growing up in homes where they’re witnessing repeat instances of family violence. Those are the long-term drivers of crime that enable criminal organisations to thrive and to embed their roots in our communities. The jackets they wear are merely a window of that.

So I’m interested to understand from the Minister—you know, he’s a smart guy, this Minister; he’s done his homework. He can demonstrate to us where the evidence is that the taxpayers’ money put into this is not in fact being diverted away from things that have a real impact on the drivers of crime. All this does appear to be, to many New Zealanders, is a cosmetic and superficial way of looking like more resources are being put into restoring law and order when in reality, in the last Budget, Police received $107 million less than in the previous Budget. This Government is giving Police reduced resource, asking them to do more, and expecting a different outcome, and that does seem quite ludicrous.

Well, I think the member the Hon Ginny Andersen is a little bit confused on a couple of matters. In relation to taking away resources from other things that the Police might be doing to deal with organised crime, of course, nothing in this legislation changes the absolute independence of Police in deciding what the priorities are, in an operational sense of how to enforce the law. The Police are able to make those judgments, and in any circumstance, where they put the resources in any given moment in relation to crime in a particular community, that will be for the Police Commissioner ultimately to decide. What we’re giving here, through this legislation, is additional tools that the Police may use at their discretion.

Secondly, in relation to banning gang patches being sort of some minor thing on its own, I’d make the point that I made to the previous speaker, which is that, yes, that would be true if this was the only thing we were doing. But, of course, on no planet is this the only thing we are doing; this is part of a broader response from this Government to deal with violent crime in our community. There are a number of things that this legislation does, but it fits within a much broader response across Government, dealing with long-term social issues, dealing with housing, dealing with education—all these other things that continue apace. So any suggestion that we’re standing here saying all we need to do is ban gang patches and we’ve got the problem solved is, of course, ludicrous, and nobody is making that suggestion.

Thank you, Mr Chair. I first want to pick up a couple of things that the Minister mentioned before. I think the first part is sort of picking up on the idea of the New Zealand Bill of Rights Act. The Minister said, “We understand that some of these infringe on the rights of the people.” I wondered, in this particular case, whether we are able to rely on page 2 of this particular bill and the reports from the Attorney-General on the New Zealand Bill of Rights Act, or whether under the principle of legality that that infringement of rights, and particularly “Freedom of expression” in section 14, needs to be explicitly stated in Part 2 of this bill in order for it to take effect. I’m just thinking in terms of other precedents in terms of case law around the principles of legality and particularly around the Schubert case where the ambiguity that is created by the by-law at that stage meant that the infringement on the right of expression doesn’t really stand. So I want to get some clarification based on what the Minister said regarding the principles of legality and the ambiguity it creates over here in Part 2.

Now, the second thing I want to pick up on, in terms of what the Minister has also mentioned, if the Minister wouldn’t mind clarifying, is the idea that the Minister said that the bill is introduced to make communities safer. But I want to draw people’s attention also to the regulatory impact statement on page 30 where Option Three that was suggested, which is what we are doing right now, specifically says, “Reducing”—and it’s got a plus-plus next to it—“displays of gang insignia may make communities feel safer.”—“feel” being the keyword, not necessarily safer. So I wanted to check with the Minister if that is the intention that the Minister was mentioning before—that the banning of the insignia will give the feeling to communities that they’re safer, not necessarily safe.

The other thing I want to pick up on with what the Minister mentioned is regarding the Hon Willie Jackson’s comment before around consultation. The Minister said that “The Ministers believe that the Ministry of Justice has consulted quite widely around this particular bill.” But I also want to draw the attention—if the Minister wouldn’t mind clarifying that if the Ministry of Justice has done all of this consultation and the Minister is taking advice from the ministry, why did the Minister not take up the advice from the ministry? This is paragraph 138 on page 31 of the regulatory impact statement, it says, “The Ministry of Justice’s preferred option is option one”, which is the “status quo”. So if the Minister wouldn’t mind clarifying that, as well, on why, if the Ministry of Justice has gone through all this trouble of consulting the Minister, this bill doesn’t reflect the advice from the ministry itself.

Now, coming back to the question that I was going to ask, because those are just clarifications based on what the Minister has already mentioned just now, my question’s around clause 7(2), which is around “a term of imprisonment not exceeding 6 months or a fine not exceeding $5,000.” I couldn’t see it in the regulatory impact statement, but I want to know from the Minister: what was the balancing and proportionality test that was undertaken to determine that imprisonment length and also that fine amount, and what other examples were used as part of that?

I also wanted to check this, in the context of other things they introduced, on whether this “imprisonment not exceeding 6 months”, I’m assuming, is on the context that there is a criminal charge that is involved here—that this particular criminal charge, for example, pertaining to this Part 2 of this bill, isn’t going to be part of their three strikes. Is this going to be one of their three strikes? If not, it will be good to get that clarification, and, in that case, if in subclause (3), “If a person pleads guilty”—and then there is also a criminal charge involved with that—whether there is the opportunity, if a guilty plea was initiated, that there isn’t going to be a criminal charge or it isn’t going to be counted towards one of the three strikes, which is something else the Minister is introducing. I think it will be exceedingly unfair to stack the deck in a way that can potentially have the unexpected consequence of further punishing gang members by increasing opportunities for them to fulfil the requirement of the three strikes. Thank you.

I’d just like to talk about what we’re going to do about this—[Holds up Patched: The History of Gangs in New Zealand by Jarrod Gilbert]. So, here we go: a great book, a good academic study. I don’t read it for education. Having said that—but that’s got a photo on the front of it. If that’s sitting in Scorpio bookshop in Christchurch, it’s a display of a gang patch. The irony is, of course, that it’s the Outcasts on there. They’re a prohibited gang under Schedule 2 there. The irony is that if it’s an online book, it’s allowed. Look, to be fair, this is a scholarly study, so there’s at least an argument that it falls within education, even if it’s not within a university, and even if you just buy it for your own interest. Maybe. I don’t think it falls squarely within that exception, but there’s plenty of other magazines.

What if you pick up Motorcycle Monthly, and in there or on the cover, you’ve got a gang patch. It just happens to be they’ve taken a photo of a ride, and someone’s got their gang patch on it. What if you’ve got your Woman’s Weekly on the stand at the supermarket and it’s got someone with a gang patch there. You could think of any number of situations where you’ve got a publication of some sort, and it’s not being used for educational purposes. It’s not media, and it’s not art. It’s just a book. It’s just a magazine, and it doesn’t fall within the exceptions. But, once again, because you’ve taken an it’s-all-banned-unless-it’s-accepted approach, we’re in trouble.

So there’s a really good argument that my—once this has passed, reading this book on the bus would be displaying gang insignia. It’s not for a genuine artistic or educational purpose. It’s displaying the gang insignia. So I’m subject, then, to the force of the law here. It’s clearly wrong, and you can look at it and go, “Well,”—and I’ll sit down soon because I think it’s really worth an answer. I’ve got an Amendment Paper. You’ll know this. You’re probably drafting a way to try to usurp my Amendment Paper as we speak. But there’s an Amendment Paper that talks about excluding “a book, magazine, or other publication”. It gets around the inconsistency of publications online being allowed. But this, now is Fahrenheit 451 stuff. This becomes a prohibited publication. Let’s burn the books. So, Minister, I’m not going to take all the time, but this book is more educative than some. There’s plenty of others out there which are going to fall foul of this rule. Are you banning the books?

Thank you, Mr Chair. I would like to focus on the regulatory impact statement and get your answers to some of the problems I have there, reconciling it with the view that the Minister has taken. So, in the regulatory impact statement, as my friends have said on this side of the House, it does prefer the option of a status quo. But I want to dig down into why, and I want to understand from the Minister why he is setting aside the advice, which is always his prerogative, but it’s very necessary that the New Zealand public understands why that is being exercised.

What I want to know is if the Minister has a regulatory impact statement with him—and he can look at paragraph 110, on page 26. This is where the ministry says this is their preferred option. It talks about the particular issue of the displaying of gang patches, and it says that there is already existing legislation which does this. If you go to paragraph 115, it’s very clear as to what that’s about, and it says in that, in fact, the current legislation, which is the Insignia Act, is already there if you are “actively displaying or wearing the insignia.” It says the extension here is that it will now cover “passive displays of insignia in private places viewable by the public”—so the window of a house or on social media. So it’s talking about something much more cursory.

Now, I appreciate that the public are really very freaked out about gangs, and I understand, because I’ve been in those situations, and I do understand what it’s like. But will this help them, Minister? If it is somebody walking past a window, that’s not actually what’s frightening the New Zealand public. What is frightening the New Zealand public is quite different, and it’s already covered by an Act. What the Ministry of Justice goes on to say, after paragraph 110, is that this law is already kicking in, and what the Minister is doing by bringing in what is, in fact, a red herring and a whole lot more things is getting in the way of what the Police are moving towards achieving through enforcing the Insignia Act. So it goes on.

It says, in those later paragraphs, that the “ban may require more effort from Police to gather intelligence … support their operations, as various patches and insignia can indicate a person’s role in seniority within [the] gangs.”, etc. So they’re basically saying it seems that this law is just not going to work. In fact, it goes on, in paragraph 116, to say the “option risks criminalising minor behaviour.” So we’ve dealt with the big fish; we’ve dealt with the ones that I understand have been freaking out the public. The Police have this tool. What the Minister seems to be doing is actually just fiddling around the edges and making it a crime for somebody in their own private house to walk past a window. That’s what this seems to be saying. So I’d like a really good answer as to why there is this going on if he does not agree with the suggestion that this is, in fact, just sort of a signifier, it is just an attempt to placate a public by pulling the wool over their eyes. What is really going on here?

I’ll just go on, and I want to talk about one other thing in this report while I’m here. But if you would like to then talk about that and then I can ask my next question. Thank you.

Yes, I’ll be very happy to. The member asked for a really good answer, and it’s my intention to give a really good answer. She was referring to the regulatory impact statement and the fear that it might lead to criminalising minor acts, such as people being able to see a patch from somebody wearing it in their home in a window of a house. Of course, this regulatory impact statement was made and delivered prior to a number of Cabinet decisions, and one of the Cabinet decisions we made was not to include the ban on private property visible from the outside, which is what this part of the regulatory impact statement is referring to. So we didn’t go with that. What she’s referring to was about something that was considered and not followed up on. I’d encourage her to keep up to date as to what’s actually happened since the regulatory impact statement was drawn up.

In relation to the previous speaker and his waving of the book by Jarrod Gilbert, I’m afraid I don’t agree greatly with Jarrod Gilbert on many topics, but I am sure that he would be strongly of the view that his books are educational in their purpose and would be well and truly captured by the exemption that the display of insignia for educational purposes are excluded.

The final point I wanted to make was in relation to this deep concern that we might not have agreed with the recommendation from the Ministry of Justice. The only point I’d make on that is the parties of this Government campaigned on a set of policies and won the election and included in their first 100-day plan the intention to deliver what they promised during the campaign. Yes, you might raise the question: “Well, it’s a very interesting approach for the Ministry of Justice to say that notwithstanding that you’d campaign on this and you’d won the election, our advice is not to do it.”, but that was their advice, and that’s up to them to make that advice. But we weren’t going to follow it, because we had made commitments to the people of New Zealand and we are keen to carry on. But there were a number of issues that were raised that we did consider, such as not including situations where people would breach the Act if they were wearing their gang patch on their private property and happened to be seen by somebody walking past.

Thank you, Mr Chair. I’m wanting to address the really important issue of Te Tiriti o Waitangi and what Te Tiriti o Waitangi provides for tangata whenua, for article 2, and their ability to execute their manawhakahaere according to their own tikanga.

Now, if we think about te iwi Māori and the way that we have been impacted by colonial structures to date, we only have to look at two weeks ago and the report from the royal commission into abuse in care and faith-based institutes. Our whānau came and they filled this Whare. They filled this Whare and they shared stories of harm. They are the products of harm by the biggest abusers in this country, which is the State. I say that gangs are full of these harmed individuals, these harmed whānau, through intergenerational State abuse.

When I think about some of our whānau who are in gangs, the way that they try to poipoi—they try to bring together a sense of whānau and connection—is their ability to find a place of connection. As per the regulatory impact statement, it shares that “Historically, as children and young people, many gang members suffered abuse and neglect in state and faith-based care, creating mistrust and resistance to authority. The disproportionate rate of Māori tamariki placed in state care [has] contributed to the … overrepresentation among gangs.” So it is a Te Tiriti issue because we have had the gross breach of the right to protection, the gross breach of care for these young people, these whaikaha, these tamaiti, and these adults who were placed into the care of the State or faith-based institutions, and then, huri rawa ake, [when it finally comes around] they come out and join gangs. They are the product of State harm.

When I consider what our regulatory impact statement has already shared with us—and, in fact, there’s more learnings within this statement—it really outlines the connection of State abuse with these whānau trying to find a sense of connection, and then they’re in a gang. Now, some of these gangs are doing quite positive things within our community, so I do worry about this part whereby it will prohibit their ability to congregate. I can think of a couple of recovery groups that we have in the North, that are—

CHAIRPERSON (Teanau Tuiono): Just to inform the member that part is in Part 3; this is about insignia.

HŪHANA LYNDON: Getting there. OK. I will go back to what I was talking about in terms of our ability for our whānau to exercise their rangatiratanga. Same as the New Zealand Bill of Rights Act, Te Tiriti guarantees them the ability to express themselves according to their tikanga, and, in fact, if gangs are the place where they feel safe for once in their lives, how come they can’t wear their patch to find a sense of belonging and a sense of purpose?

So my question to the Minister in terms of this is: what analysis or what consideration has the Minister given to these breaches of Te Tiriti and, then, the impact of the breaches in terms of this legislation for iwi Māori who are members of gangs? Because they do have rights through Te Tiriti, they do have rights to express themselves, and they do have rights to be equal citizens; not othered in a society that says, “No, you cannot wear your patch in public, and, in fact, we’re going to charge you. We’re going to fine you $5,000 or chuck you in jail.” Kia ora.

Thank you very much, Mr Chair. I’m pleased that the Minister referred to some of the work that officials have done, because it’s always quite interesting—and I know there’s some on that side of the committee as well who like to solve a good problem—to define a problem and to look at the possible ways to address the problem that’s being addressed.

You always know you’re in an interesting situation when the title in the regulatory impact statement says, “What is the policy problem or opportunity?” The first line is: “The Government’s coalition agreements commit to progress the policies in the Government’s 100-Day Plan. This includes prohibiting the display of gang insignia.” So the problem is that they came and they campaigned on stuff, and said, “We’re going to do some stuff.”, and irrespective of there actually being a problem, this is where we land now. It makes it really tough when you’re trying to be analytical and come up with a definition of the problem, when it’s just that it’s been campaigned on—that’s the problem that’s in the problem definition. So I think it will be really interesting as this plays out, because, as the Minister stated, New Zealanders did vote for change. This Government campaigned hard on cost of living and also law and order issues. I think there are quite high expectations that this legislation will, in fact, make a meaningful difference to public safety. So I’ll be interested to hear the views of the Minister.

If the overarching objective of this legislation is to reduce gang harm, how does taking off gang patches reduce gang harm? It seems to me, from reading this analysis, that there is no real clear way of demonstrating what the impact of that is when you’re looking at the different options. So the options that are laid out here, in terms of the criteria used to compare different options to the status quo—the criteria they’ve developed are improving public confidence, reducing gang membership, reducing rates of offending, and also compliance with the New Zealand Bill of Rights Act—so we’ll rule out the last one now! But those are the ones that we’ll have to come back to once this legislation has, in fact, been enacted, to look and see whether it’s been effective in what it set out to do in the first place.

Improving public confidence, as has already been laid out, is that there are some real questions here that have been withheld under the Official Information Act. If there’s not the ability to actually enforce this legislation, it has the antithesis effect, so it would actually go against the paragraph here that has a criterion showing that we want to improve public confidence. If that legislation or that new law is unable to be enforced, it holds quite strong potential for the antithesis to happen, which would be to undermine or destroy public confidence in having law and order being able to be enforced.

Reducing gang membership—that’ll be interesting. We keep a close eye on that one because we know that gang membership increased particularly since the 501s came back from Australia and added a layer of complexity that New Zealand had not seen before in criminal organisations. We will be watching very closely to see how that gang list tracks and also to see who’s taken off it as well as put on it, because the Government does have the ability to reassess who’s going on there and take people off. So it wouldn’t be great if some criteria were being changed or people were being taken off just to give the appearance of a reduction in gang numbers, when, in fact, there was just a bit of a vetting exercise to take people off. It’s important that we are holding the Government to account on being able to assess if those criteria are, in fact, being met.

And, of course, reducing rates of reoffending is one of the criteria in deciding upon a policy option to address the problem. Reducing rates of reoffending is one that we’re really interested in, because, from what I can see, what this legislation does—there will be a lot of reoffending going on in this space as people are repeatedly penalised and brought before the courts for wearing gang patches, to the point of imprisonment. I actually think that the legislation we’re debating right now will do the complete antithesis of what the criteria say. It is going to increase reoffending, particularly for gang members, to the point where you’re seeing those numbers go. The question is—[Time expired]

We talked a great length about the 50 percent increase in gang membership over the past six years under the previous Government. There were a whole host of reasons for that, and the previous member Ginny Andersen referred to the 501s from Australia. We also referred to the very mixed response from the previous Government to gangs. It was a bit confusing. Sometimes they were against them, and sometimes they wanted to give them money to do certain things and run drug rehabilitation courses, and so it was a mixed message.

I think that was rather perfectly exemplified by the Greens speaker Hūhana Lyndon too before, who said that some gangs are doing quite positive things in our communities.

Hūhana Lyndon: They are.

Tamatha Paul: They objectively are.

Hon PAUL GOLDSMITH: Well, I’m sure they are doing the occasional positive thing, but I think the positive things are greatly outweighed by the negative impact of gangs in our community. I don’t think that big gangs are a force for good in our community, on balance. I think most New Zealanders recognise the fear and intimidation that comes with gangs operating in our country and the association with violent crime and with drug crime. That is why we’re setting out to reduce the harm caused by gangs.

Now, there was a reference made to the royal commission of abuse in care, and of course everybody in this Chamber is very conscious of the recommendations and the pain of the survivors and the many people that went through it—of course. It’s not particularly a Treaty thing in the sense that under any universal human rights, people should be able to expect not to be abused in State care—any New Zealander. Nobody would justify that, and that is why very serious stories have been told through that period, and it’s why the previous Government had formed the royal commission and why this Government is taking that extremely seriously and working our way through that. But, of course, we have to deal with not just the past but today, and no society can function if people aren’t held responsible for decisions and actions that they make today—whether or not to attack somebody, whether or not to peddle drugs in our community, whether or not to commit any crime.

Reference was made to the science advisors, and it’s not a binary choice. You don’t choose between, on the one hand, only dealing with the long-term causes and drivers of crime and dealing with what we have here today and ensuring that people are caught and held to account for actions that they are responsible for today. You have to do both. This Government, of course, recognises that you have to deal with those long-term issues, and we recognise the reports of many people making that case, and we continue to do so through the many billions of dollars that are spent across this country in social care and welfare and development. Yes, you have to do that, but, of course, it doesn’t work if you don’t also hold people to account for their actions today. No society can function if people are not responsible for their actions and there are not consequences for violent actions and for causing and peddling misery in our communities.

Thank you, Mr Chair, for allowing me to take another call on Part 2, which mainly focuses on the prohibition of gang insignia in public places.

I’m not sure that I got a good answer from the Minister in relation to Te Tiriti and how that has been considered in the development of this aspect of the legislation. My colleague talked about Te Tiriti and article 2 in particular and mentioned how article 2 speaks to tino rangatiratanga and self-determination. I really want to understand from the Minister: what advice did he receive around Te Tiriti considerations and the impact on Māori that this particular part would create in terms of prohibiting gang insignia within those public places? Because we know that a majority of people who are in gangs are Māori and we know that for wearing a patch, they could end up with a $5,000 fine or they could end up in prison—even though they might not even commit a crime while wearing that patch.

First of all, who’s got $5,000 to pay a fine in the first place; but, second of all, putting more Māori into prison when the Minister knows very well that Māori are already over-represented in our justice system—Māori are more likely to be heavily policed, which we’ve heard about in this committee of the whole House. Myself and Hana-Rawhiti talked about Huntly and Tokoroa and South Auckland and all of the communities that are more heavily policed. We know that Māori are more likely to be imprisoned, and we know that we are over-represented in our prisons and we’re more likely to receive harsher punishments and to be the subject of surveillance more than our non-Māori counterparts. But this is obviously not a concern for the Minister. Does the Minister even care that this piece of legislation and particularly that this part will lead to more Māori being imprisoned simply for what they’re wearing?

I don’t feel the Minister has at all addressed our Te Tiriti concerns and how that has been taken into account and how this piece of legislation contravenes people’s right to their own individual self-determination as well. Self-determination means that you can wake up in the morning and choose the things that you want to do—you are determining for yourself—and that includes what you choose to wear every single day.

So I would like the Minister to talk about the implications for Māori that he has considered and what that advice and evidence has been; what the Treaty implications are; and, given Treaty provisions are set to be removed from over 40 pieces of legislation and are in the process of being removed from the Corrections Amendment Bill, how will we even consider those things in the first place? I would like the Minister to respond to that aspect of the bill.

I’m very happy to respond. I have to say I’m a little confused, because that member has stood up before and said—I think it was that member—that in Tokoroa, everybody understands that you can’t wear red because that’s not the local colour, and I would have thought an understanding around self-determination to be about what one can or can’t wear is relevant in that context. That is why we’re not comfortable with the current fear and intimidation by gang members across the many communities of our country and why this legislation is part of the Government’s response to it.

And, look, I’ve dealt with this and I’m just conscious of the fact that this is probably the 15th time that I’ve responded to questions in relation to its impact on Māori, and I’ve made the same point many times, which is to say that Māori are more likely to be the victims of crime in this country as well. So our care and our attention and our focus is on the law-abiding citizens of New Zealand—Māori and everybody else—who want to go about their life without fear and intimidation from gangs and from the crime that they cause. This legislation is about giving some extra tools to the police to help deal with the impost of gangs in our community.

Thank you, Mr Chair. Now, I have a number of Amendment Papers in respect of this part and so I would like an opportunity to speak to them. What I propose to do is speak briefly, as is anticipated by the Standing Orders Committee, and then the Minister of Justice perhaps can affirm that he’s going to adopt them or perhaps not—but we’ll see.

The first is in respect of clause 7(1), which is the offence clause for the gang patch ban. It currently reads, 7(1): “A person commits an offence if the person knowingly, and without reasonable excuse, displays gang insignia at any time in a public place.” My proposed amendment simply adds the words “in a manner which would be threatening or intimidating to a reasonable person”, because that is the whole purpose of this legislation. The whole idea is that if there’s, you know, a person in Tokoroa that’s wearing known gang insignia and that person is doing it to intimidate the public so that they don’t wear red, as the Minister said—well, fair enough, we don’t want that going on. Let’s create the offence which is consistent with the purpose. Minister, will you support that amendment paper?

Thank you, Mr Chair. While the Minister of Justice is considering his answer to my colleague the Hon Dr Duncan Webb’s question, I just have a discreet line of new questions for him. It’s about, in Part 2, the meaning of a “person”, because, in situations like, say, a funeral, where you have a deceased person who was a member of a gang and might have a preference to display gang insignia on their coffin, as might be a common practice in a gang funeral—the question I have for him is: who is the person who is liable for the offence? Is that person the funeral director? Is that person the person carrying out the funeral? Is that person the executor of the estate?

This is not a frivolous question; this is a common situation which we experience in New Zealand Aotearoa. And whether we disagree or agree with the ability of a deceased person’s wishes to be carried out in that way, there is still a question there about whether the executor of the estate, in carrying out that person’s wishes, would be liable for a criminal offence or a fine under this part. And, further to this point, would it then be an offence for, say, the operator of the public place where that insignia was displayed—say, for instance, the hospital or the transportation for the deceased person or the cemetery—to allow the display of that insignia? I’d like for the Minister to turn his mind to each of those four places where you might have this situation—where a deceased person’s wishes are being carried out with the display of gang insignia—and to clarify, I guess, for the record who might be liable for a punishment under this part if that was carried out in this way, or if it is, in fact, not the intent to punish in this way the executor of someone’s wishes when they have died, for that kind of a breach of these provisions.

I also want to ask the Minister, in the context of a tangi where gang insignia is to be displayed at a funeral, by the person who is deceased, who the person is in that context, given that there is often no one proprietor of a marae. Often in these arrangements where there is communally held land and a communally managed marae, you might have two legal bodies—legal persons—who are in charge of carrying out the business of that marae. One would be the underlying landowner or the land block. It is often a piece of Māori land with several thousand owners. And then, in the situation where you have a marae which is run by a committee that is a body corporate, is that the legal person that would then be held to account under this part? Thank you.

Thank you, Mr Chair. Moving to my next tabled amendment, I wonder if the Minister of Justice, firstly, might—it’s about clause 8(a)—give his response to my initial speech, which was to say, “Well, what the heck? Why has this been introduced at the last moment and when did this spring into his head? Why didn’t the Justice Committee get a chance to look at it?” And in terms of the debate on this part, this is the only chance we get to debate this offence provision in respect of mandatory gang insignia prohibition orders for repeat offences.

My tabled amendment, which is marked “v”, addresses the problem in clause 6, because the only punishment given in clause 6 for someone who breaches this order is imprisonment not exceeding one year. Now, in every other offence clause that we look at, there’s a fine alternative. Now, it may be—and I don’t have the Sentencing Act to hand—that in the Sentencing Act, if there’s imprisonment, it’s kind of inferred somehow that you can do a fine or community work or some other thing. But that should be clear, and certainly the absence of “or a fine”—and my tabled amendment uses “a fine not exceeding $5,000”; I’m not even sure if that’s the right number. But, certainly, a fine should be an alternative because, you know, an offence for your kid having grandad’s gang patch jacket in the spare wardrobe clearly doesn’t warrant any imprisonment. It might warrant a modest fine, but imprisonment? No.

So, Minister, I can see you’re taking advice, and I’m really glad about that because I’m hopeful that you’ll be able to respond to this, because it does strike me that you need to be consistent in your drafting. The Parliamentary Counsel Office has clearly drafted this, and they would usually always have a fine alternative. So I wonder, Minister, if you’d like to respond to that.

Tēnā koe, Mr Chair. Thank you for the opportunity to speak on this part of the legislation. I want to explore with the committee and with the Minister, particularly, around the knowledge of an individual that they are even in a public place, because we are criminalising kākahu—we are criminalising clothes—and the ability for an individual to wear whatever kākahu they want to.

Now, in terms of the legislation, in clause 7(1), it says that “A person commits an offence if the person knowingly, and without reasonable excuse, displays gang insignia at any time in a public place.” I go to page 5 of the commentary on the bill, where we’re talking about prohibiting gang insignia in a public place, and there were submissions on this, because how do you actually prove that an individual knew that they were in a public place? How does the individual actually know that the cemetery that they are at for a poroporoaki to their loved one is a public place—just your average community cemetery run by a council? Or how does the individual know when they are running up the road to the supermarket that “Oops! I got caught with my patch on. So, therefore, I could be locked up for six months, away from my whānau, or charged $5,000, which I can’t afford.”?

I want to explore how we are going to get successful prosecutions, knowing we’ve already had advice as to how you are going to prove that an individual knew that they were in a public place. It puts a harder burden on the individual police officer or the person who is watching and reporting on this to prove that the individual actually knew, because they could be at the laundromat and they could be just drying their clothes. Would that individual know that wearing their T-shirt is actually breaking the law?

I raise T-shirts because we wear T-shirts and whānau wear T-shirts with slogans all the time, slogans like “Tino rangatiratanga”, “He Whakaputanga”, “Toitū Te Tiriti”—oops! Heads up. When we have gangs who might have T-shirts, at what point do we deem it a gang insignia and a symbol when, actually, it can be just average kākahu, because we are criminalising kākahu. Is it just the leather patch? Is it just the patch? Shucks! I should have asked my uncle for his patch and brought it into the House. Is it only just the patch, or is it the jersey, is it the T-shirt, is it the bandana, or is it the colours that I wear? I know, just like in Tokoroa, not to wear red. Don’t wear red in Whangārei, unless your head’s up.

That’s what I want to explore with the Minister: how on earth are we going to successfully prosecute that a person knowingly knew that in the laundromat that they were drying their clothes in, they were breaking the law by wearing a gang T-shirt, and the gang T-shirt might just say “Black Power” or “Mangu Kaha”. It may not even be the entire insignia. How does the police officer define what gang insignia is? “Mangu Kaha” could be black power of a range of things. It could be related to a marae or a hapū.

So that’s what I’m wondering about: first, what is the definition in terms of what the insignia is and what the kākahu will be—because we’re criminalising it—and, further, how on earth do we prove that the person knew that it was public? Because if you’re in the supermarket, if you’re at the cemetery, and if you’re going about your daily business and you didn’t realise that you were in a public place, like the playground, with your tamariki—how are the police going to prosecute a mother with her children, who is just strolling along to the playground locally, just down the road, and she just happens to be wearing a bandana and a “Mangu Kaha” T-shirt? Kia ora.

Well, thank you, Mr Chair. I just want to speak briefly to the tabled amendment marked “u”, and it’s about the Minister’s proposed clause 8A. Now, I object to the clause full-stop, but in terms of what is the triggering prohibition, I understand that possession of gang insignia, which you’ve fallen foul three times already—possessing gang insignia is one “controlling gang insignia”. That’s having it in your room perhaps or in the house that you have exclusive possession of. But the one I have trouble with is clause 8A(2)(c), “gang insignia being present at the person’s usual place of residence.”

Now, the fact of the matter is that many people live in relatively communal living circumstances. If we take, for example, a small boarding house or a flatmate situation, the person subject to the order might actually be happy to be living in a house with gang members. That goes on, right? Now, if they’re living there and someone down the hall in their own room, with exclusive control over that room, might have their own gang patch hanging up in the cupboard. Yet because this person subject to the order knows about it, it would appear that they are intentionally breaching that because they’re in a house—in their usual place of residence—where there is a gang patch. It’s not their gang patch. They don’t have control over the gang patch, but they know it’s there, and they’re intentionally in that house, so they would fall foul of that.

My point is this: despicable as this whole clause is, you simply don’t need (c), because the person, if it’s in that boarding house situation or in a gang house situation, can’t have possession of the gang insignia and they can’t have control of the gang insignia. But you can’t insist that they control other people who are in the same residence. It’s extending the scope. So I’d be interested in whether you’d look at getting rid of that “present [in] the person’s usual place of residence.”, because it does not work, and it expands the scope of it quite unreasonably. What it, in effect, does is it imposes the order on third parties.

Now, Minister, you’re not exactly leaping to your feet in response to my question, so I might, if I may, go on to a further tabled amendment on that same clause—the clause that you’ve slipped in by stealth, thinking that perhaps we’re going to debate it, but this is the only chance we’ll get—and that is why I want to talk about the clause 8A(1), which starts off, “A court must make a gang insignia prohibition order”. I guess my question is this: why do you need a “must” in there? Why can’t you leave it up to the court to see whether it’s appropriate in all the circumstances? The prior offences may have been trivial, or it may be clear that it’s simply not necessary, because this is, once again, a constraint on freedom of expression, and not only is it about public expression; it goes to private expression. This is almost kind of creating a thought crime in the sense that you’re not allowed to have, in your own bedroom, a symbol on the wall which represents a gang affiliation. That’s it, right? This is like 1984 stuff. In people’s private spaces, they can’t have an expression of gang affiliation. That is alarming.

Now, you’re telling a court that they “must” make that order, and I don’t understand why you need that compulsion. If there is some reason for it, then let’s give the court that discretion. But to say more on this, it’s, essentially, three strikes. You’ve mixed up three strikes, firearm prohibition orders, and gang patch bans. You’ve got a three-strike gang patch prohibition order. So I’d be interested in knowing whether the Minister has kind of determined that a District Court judge “must” make that order or whether he’s just going to trust a District Court judge to make an order where appropriate.

Look, I just wanted to respond. In terms of the Amendment Papers around someone being convicted three times for flouting the gang patch ban, there is a series of consequences that flow, so as to give the judicial system greater ability to deal with recidivist offenders in this way, and we think that’s appropriate.

I think this debate has been enlightening, because it has, I think, underlined the confusion in attitudes on the other side of the House in relation to this, because we keep on hearing that the gangs are really quite good, they’re misunderstood, they do good things in the community, and their expression is important, and yet at the same time we hear members say, “Well, of course, you don’t wear red in Whangārei.” [Interruption] Well, that’s what the member said—“We know we don’t wear red in Whangārei.

Well, why do we not wear red in Whangārei? Because of fear and intimidation of the consequences for doing that, and that is precisely what we’re trying to deal with in this. Many people have suffered the violent consequences for wearing the wrong thing in the wrong place, and the only reason why it would be an unwritten rule that we don’t wear red in Whangārei is because of precisely the matters that we’re trying to deal with in this legislation.

Thank you, Mr Chair. I don’t know, I feel like one of the reasons we kind of go back to all of these points—I just want to clarify for the Minister of Justice that it is because we have yet to get proper clarification from the Minister in answering some of these questions, because the Minister kind of goes back and talks about what colour people are wearing as opposed to addressing some of the questions.

Just picking up on a couple of things the Minister said—before I go into my question as well—the Minister mentioned before about greater authority for the District Court. I would like to just clarify to the Minister that it is not greater authority. The principle of comity states that it is already the rights of courts to be independent and for the judiciary and for the legislature not to impede on the independence of the judiciary. So I think that very much addresses what the Hon Dr Duncan Webb before mentioned in terms of clause 8(a) on why do we need to mandate the court to do certain things, which is one of the very core principles of law and the separation of power.

Now, when we are looking at one of the things that was also mentioned before by my colleague Hūhana Lyndon around knowing, and if a parent is with a child—I think I’m more interested in knowing the impact that it will have on tamariki, on the children, when the family is being approached by the police. Again, it’s something that could happen because the police and the constable are within their right to go and identify if someone is wearing gang insignia.

I want to, again, go back to the regulatory impact statement, page 32, where it says, “People indirectly impacted by the prohibition of the gang insignia”. And it states that the impact is high where there’s an indirect impact on children and whānau of the person subject to arrest or court proceeding, or even in this particular case, I would extend it to the identification of the insignia. So I just wanted to know from the Minister if that has been a consideration, and what kind of cultural competency training will the police—for their own wellbeing as well as the wellbeing of people they approach—need to undertake in order for something to be properly and appropriately implemented.

Now, the question I have to the Minister goes back to my earlier question around clause 7(2), where I still haven’t got a clarification from the Minister on the six-month term of imprisonment or fine not exceeding $5,000—where did that sort of come from and what are some of the proportionality tests that have been conducted to determine those two particular convictions and whether they are going to be a part of the three-strike legislation later on as one of their strikes. But I want to extend on that to talk about a few other things.

First of all, how does this interact with the Sentencing Act? The first thing is in the context of what happens if the gang member is someone who is under the age of 18. What sort of precautions are there around that in terms of potential charges or potential sentencing? The second question I have around that is in terms of the definition of who is eligible for home detention under the Sentencing Act, which suggests someone who has an imprisonment rate of less than 12 months. And, in this particular case, if the prison rate is six months, does that mean that the person is then also entitled to potentially—I mean, this is obviously up to the court, because the court has independence in terms of what the judges may rule. But, in terms of that, I wondered if there’s any modelling that’s been done in terms of the potential impact it will have to the Department of Corrections around the way that they are able to monitor.

Now, the third part of my question comes down around what is, again, on page 32 of the regulatory impact statement—and this is still to do with the conviction and sentencing and fine—where it says for the Department of Correction, the impact is slow, “We expect most convictions will result in a fine (rather than a sentence).” If there is an expectation that most will be result in a fine, why do we need to have a fine or sentencing? What is the rationale for having both of those sort of things?

So I have three questions for the Minister in terms of clause 7(2). What happens if the gang member is under 18? Is there going to be any modelling done around eligibility or resources that will be required for home detention if they have been sentenced? And have any considerations been given in terms of the proportionality around six months or the fine of $5,000?

I move, That debate on this question now close.

I just wanted to respond to one of the questions that the previous speaker, Dr Lawrence Xu-Nan, raised in relation to the three-strikes legislation—and I’m sure that he’s fully aware of this: that three-strikes legislation has particular offences that are included in strike offences, which does not include the gang patch one. Of course, it also has 24 months’ imprisonment as a threshold as well, which is obviously more than six months. So in relation to that matter: not included.

Just before we take the next call, I do want to note that there has been some new material—so thank you for that—and that has been specific. But then, also, some of the contributions are starting to get peripheral. Now, it is fair for members to ask questions, and you might not like the answers that the Minister gives, but, once those have been addressed, it’s important that we move on.

Thank you, Mr Chair. There are two parts to this question. The first is my question about the deceased person. This is an important question because there are situations where gang insignia is displayed on a coffin. I was just explaining this to one of my colleagues who’s not familiar with this practice, and so I’ll do so for the benefit of the Minister. It is common practice within gang tangi or gang funerals for insignia to be displayed on a coffin, either in the form of a jacket or in another form—

Grant McCallum: Repetitive.

ARENA WILLIAMS: —say, a picture. The reason this contribution isn’t repetitive, for the benefit of the member—I think the member from Northland—is that the Minister hasn’t considered this. So I’ll explain quickly to him what the problem is. This is a common practice for gang funerals, and so it will come up in opportunities where often police are asked to intervene in gang funerals, and these are often high-profile events that are of considerable gravity and stress for the police who are asked to enforce them, and we see that they attract a lot of political attention but also public attention and media attention.

So the question that I’m asking the Minister is an important one. When courts or police are asked to come back to what the intention of Parliament was when this bill was passed, I want to be clear as a Parliament that the Minister has not answered my question, and so they must conclude that it is the intention of Parliament that undertakers, that people who carry on the business of funeral direction, that hospitals, and that people who conduct the affairs of the marae as the legal owners of the marae are not intended to be considered as persons under his provision at Part 2, clause 7(1). So it’s important now that we acknowledge in this Chamber that there is no disagreement from the Minister that persons do not include anyone who is giving effect to the wishes of the deceased person, which should also include the executors of the will or the executors of the person who is deceased and the funeral director. So when it’s read back, we would accept that this was the case.

My second set of questions to the Minister is a separate one. Given his interest and the interest of the Minister of Police in stopping the membership and recruitment of gangs for young people—and this is a particular concern of mine; it was the issue that I raised at the first reading of this bill—I am really concerned here that this bill isn’t clear about the punishment for people who are family members of young people, people who are under 18, and who would be wearing gang colours and gang insignia. There should be a harsh punishment for parents or for immediate family members who are dressing young people in their control in gang insignia, and there should be a harsh punishment for people who wish to recruit young people to gangs and have them wearing gang insignia. That is not included in this bill. And I’m asking the Minister whether that’s an oversight or whether it’s intended that Part 2, clause 7 does include young people and the intention is to punish young people who are put in that position.

Just in reply to the first part of the member’s questions in terms of the responsibility in terms of gang patches and funerals and so forth, the law is very clear: it is the person who displays the gang patch who is responsible, and it needs to be in a public place. Those are the matters that are relevant.

Thank you. Mr Chair, you may recall I sat down before I’d finished making a contribution, because an answer came and I was going to come back and the Minister took on that line and answered my question and was very reassuring, saying that this was only about public places. But when the discussion has gone on in this committee stage, we have talked about proposed clause 8A, which actually talks about insignia inside of the home and a prohibition occurring there. Now, I am concerned by where that came from, because the Minister seemed to be saying that he had considered what the Ministry of Justice said and had walked away from the kind of private application to private space, and yet here it is.

What I would ask the Minister, which is of great concern, is: if somebody had a Nazi sign in their house, would that be something that this would be subject to? If they had swastikas; if they had material that we would consider at the deepest end of harmful and connected with things like that, would that apply, or are we just applying it in a way that means that we are not being consistent in our sense of justice and our morality? Especially since we’re combining this with going into people’s bedrooms.

Now, that was my initial concern—I raised it; I was reassured I had got the wrong end of the stick and this was all about the public space—but 8A clearly says that it isn’t. I’d ask the Minister to answer that and consider whether, in fact, that’s something that we should be amending, that’s something that we should be looking at, and I’d really like an answer to that question. What would happen with a swastika under this law? And why is a swastika—where people have been seriously harmed and victimised in our society as a result of it—if I’m right, not subject to the same kind of rules and proportionality? Because, remember, people are going to be imprisoned for this. So what’s going on? Thank you.

I know repetition’s not good, but there are three things I’ve asked, and the Minister simply hasn’t addressed them. The book question: I didn’t like his answer, but he addressed it, so that’s done. But he didn’t address the question of whether a court should have discretion under section 8A—“must” or “may”. He didn’t address the question of the need for the residence in clause 8A(2)(c), and whether that (c) paragraph is even necessary there.

The other one that is a no-brainer is why on earth there’s not an alternative to imprisonment in clause 8A(6). We’ve only just seen this clause. I accept that these are detailed questions; they’re not wide-ranging objections to the policy. They are saying, “We’re trying to do this. In respect of the ‘must’ or ‘may’ question, what is the great evil that means that you’re going to impose an obligation on a court to make an order when a judge is well placed to determine whether in all of the circumstances it’s proportionate and it will address the social harm that is sought to be addressed by this clause?”

In terms of the residence question, the point is that this is a truly extraordinary intrusion into someone’s personal life in that you’re not only prohibiting them from having gang insignia in their possession or in their room; you’re prohibiting their flatmates from having gang insignias—if they know about it—in another room. In terms of workability, it’s an absolute dog’s breakfast and it’s a horrendous piece of legislation. But, for goodness’ sake, let’s not make people liable for a year imprisonment because they know that their flatmate has a gang patch. That is true madness. In terms of the fine, we just need to sort that out. Will you support my tabled amendment saying a $5,000 fine is also an alternative?

Thank you, Mr Chair. This is a new line of question from me, and this is about the importance of not only restricting the use of gang insignia as something which is intimidating but also restricting the use of gang insignia when it is glamorising. I am particularly concerned about this issue, with what I’ve raised in my first reading contribution. I do not think that anyone should be able to glamorise the use of gang insignia, and so, at clause 8, “Exceptions to prohibition”, my questions for the Minister in the chair, Louise Upston, are on 8(a)(ii), the “media reporting of news”. My question to the Minister is: is it necessary for the news to show the full image of gang insignia, or would it be more appropriate for gang insignia to either be blurred or to be used in a way which does not show the full picture? I would put it to her that media reporting about gangs can be done in a way which does not glamorise gangs, does not use their insignia, and does not promote the way that gangs display themselves in a sort of uniform to signify that they are together and that they are an organised movement. Media reports should be really careful to not use gang insignia in exactly the way that gangs intend for it to be used when they are wearing it, and so I would ask the Minister whether that is necessary at all.

I move, That debate on this question now close.

The question is that the Minister’s amendment to Amendment Paper 51 set out on Amendment Paper 64 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 51 to replace “must” with “may” in new subclause 8A(1) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 51 to delete new subclause 8A(2)(c) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 51 to insert “or a fine not exceeding $5000” into new subclause 8A(6) be agreed to.

The question is that the Minister’s amendments as amended to Part 2 set out on Amendment Paper 51 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7(1) be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 8(a)(vi) relating to books, magazines or other publications be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 8(a)(vi) relating to educational purposes be agreed to.

The Hon Dr Duncan Webb’s tabled amendment relating to grave markers and headstones is out of order and the same in substance as a previously agreed amendment.

Members, the time has come for me to leave the Chair for the dinner break. The committee will resume at 7.30 p.m.

Sitting suspended from 6.02 p.m. to 7.30 p.m.

Part 3 Dispersal notices and non-consorting orders