Gangs Legislation Amendment Bill

Members, the committee is resumed. Members, when we rose for the dinner break, we had concluded the debate on Part 2. We now come to Part 3. This is the debate on clauses 9 to 26, “Dispersal notices and non-consorting orders”. The question is that Part 3 stand part.

The Minister might not be surprised to know that I have a number of Amendment Papers in respect of discrete matters here. I must say, I was really disappointed that in respect of three of those Amendment Papers—and none of them are trivial papers; none of them are kind of joke papers—they’re all making reasonable points that the Minister may or may not agree with, and in respect of three of them, he didn’t mention them. So I’m hopeful that when we come to talk about those further Amendment Papers, he will at least have the decency to mention the paper and mention his position on it, and perhaps he can find it in his heart to give a reason why he takes the position he does.

I see this part deals largely with dispersal orders and non-consorting orders. Now, it’s well recognised. The Attorney-General recognises that these are both limits on freedom of association, and that’s really important to note at the outset, so the fundamental point being that any limit must be justified in a free and democratic society to be New Zealand Bill of Rights Act compliant. The Attorney-General says, “No, that’s not the case.”

I’ll come in particular to why that is the case, but I guess my first point that I’d like the Minister to address is actually a practical one: I’d like him to address how this is actually going to work, because there are two sides to this. Firstly, this is about breaking up intimidating gatherings, and so the point is that it’s about doing something in the moment. Then the second point is that the archetype that they’ve been talking about is these large gatherings, such as sort of the motorcades around tangi and things like that. It’s pretty well established that there are not the police resources in many modest towns and provincial centres to break up a big motorcade, and once that motorcade has come and gone, the whole purpose of a dispersal order is expired, so you’ve got a strange situation where you can’t do it when it’s happening because you haven’t got the resources, and then once it’s occurred, it doesn’t matter anymore anyway because it’s of historical significance only.

Now, I know in the legislation—and I’ll talk about it in more detail when I come to Amendment Papers—it talks about issuing dispersal notices after the event has happened, but given the purpose of this is not to punish, it’s really important that this isn’t punitive, because if it is it’s criminal and we need to have a whole different framework for it. This is actually protective of the community, and so we don’t take steps to limit human rights which aren’t directly protective of the community. So if there’s been a gathering and then the next day the police officer goes and issues a dispersal notice, that’s not protective; that’s punitive. Because unless it’s clear there’s an intention—and I don’t know how it would be clear—to have another gathering which is disruptive in the future, then you’re just doing it, essentially, out of spite.

Now, don’t get me wrong, gang members who are intimidating in large groups—I get the problem, but once again, it’s a totally ham-fisted approach, and I really don’t understand how on earth you’re going to make this work. There are a whole lot of other details around there in terms of how we effect service on gang members and the really significant problems with that, but the first question I have that I’d like the Minister to address—and I’ll keep my contributions short in so far as I can so that he can respond in the way he anticipated—is how it’s going to work.

Thank you, Madam Chair. When we turn our mind to Part 3, as has just been said, it really does focus on those dispersal notices, and in itself it might seem sort of relatively straightforward on the surface, but when you start looking or trying to picture the practicalities of how they’re going to work, all sorts of things arise. So I think there’s a number of questions that do require further information and, certainly, further response from the Minister in the chair, Paul Goldsmith, so that we can have a level of confidence that not only is the activity of issuing a dispersal notice worthwhile—achieves what it says it’s going to achieve—but also isn’t a risk and doesn’t put someone in jeopardy or harm.

As the Hon Dr Duncan Webb just said, when faced with a group of three or more people who you believe or have reasons to believe are gang members and therefore are in a group and therefore could be disorderly or cause intimidation, a constable then has to go and not just tell them that they’ve got to go away from each other but issue them in writing. As we’ve heard, you know, police don’t carry paper and they don’t have that in written form—so we’re certainly led to believe throughout this process—so it’s a matter of asking those people individually for their emails so that they can be issued that infringement notice via email, and, if they don’t give that email or don’t see the rationale behind what the question is, even asking them if they will accompany that police officer to a police station, presumably so that something can be prepared for them, printed out, and given to them. So it feels like there’s an awful lot of cooperation involved in a process that by its very nature is a dispersal notice and therefore is probably not likely, necessarily, to come with that requisite cooperation from those parties.

I’m wondering if the Minister can just give us a little bit more detail, particularly in relation to the paper, because I know the Minister has said in prior stages—I think, in Part 1, he specifically made mention of the fact, when he responded to a question, almost made light of the fact—that it was as simple as just providing that written notice there at the time. I’m certainly under the impression that that’s not necessarily possible, so that leaves me to wonder, then, what is the alternative, and has that even been thought about to the point where we’re all satisfied that this is something that actually can happen. So my question to the Minister is: how does the dispersal notice get issued if a person doesn’t provide their email and doesn’t choose to accompany a constable or a police officer to a police station to receive such a notice?

Kia ora, Madam Chair. Thank you. My question is around the dispersal notices aspects of Part 3 of the Gangs Legislation Amendment Bill. There was a little bit of commentary made by the Minister before the dinner break about pro-social activities that gangs perform within communities. So my question is around why the Minister chose to ignore advice from justice officials around enforcing this ban on gangs gathering in a public place and how it is likely to undercut “efforts to cultivate pro-social activities within gang communities, for those groups that have moved towards adopting such behaviours”.

For context—because there was maybe a bit of scepticism about the pro-social role that gangs play in particular communities—I just wanted to bring to the Minister’s attention, for context, some of those pro-social activities. During the COVID-19 lockdowns, there was a real emphasis from the Government to try and reach hard-to-reach communities who may be a bit more distrustful towards the public health system and distrustful towards Government departments, because of the prevalence of abuse that they might have experienced as part of those systems. We know there is a really strong connection between the abuse in State care and how that led to an overall distrust of institutions and how many people who are in gangs were victims of abuse in State care.

We know that Mark Pitman, leader of Black Power, was instrumental in getting vaccinations into the Black Power community. He went on national TV and got vaccinated. We know that Harry Tam, as well, who is a lifetime affiliate of the Mongrel Mob, was also involved in encouraging his community to get vaccinated. This was an approach that was taken by the former Government to actually engage in the communities that they’re talking about and to actually work with gang leaders in order to encourage overall societal outcomes, which is increasing the vaccination—

CHAIRPERSON (Maureen Pugh): Can I ask the member, is this going to relate to dispersal notices?

TAMATHA PAUL: Yes. This is talking about those pro-social activities that I’m concerned will get interrupted with these dispersal notice laws. I’m just giving some examples because, before the dinner break, it seemed the Minister wasn’t aware of some of these pro-social activities.

There was the gang involvement in increasing our vaccination rates, but also when gangs stood guard outside the mosques after the Christchurch terror attacks. To quote from an article, “Members of the Mongrel Mob appeared to act as security at the Christchurch vigil for the 50 terror attack victims today.” When asked about that protection that the Mongrel Mob provided, they said there were three reasons for them providing that protection. It was, first, that they had brothers and sisters and family members who practised the Islamic faith. The second was, he said, “Number two, we have a duty as a community to be there in time of need.” And three, “If we look at effective policing, it’s more effective when they are working with the community. They can’t do it all on their own.” Similarly, in Hamilton, the Waikato chapter of the Mongrel Mob turned out in protection for the prayer that happened following the March 15 attack. So here you can see examples of gang members who can see something going on in their community and they’re getting involved. That is providing a positive social outcome for that community, which would not be possible had these laws been in place, because these laws would be used against them.

There was also another story of a pro-social gang activity when the protesters from Parliament decided that they were going to take over the marae in Wainuiomata. And, actually, lots of different people joined together to stop them from going on to that marae. It was a combination of local leaders, Rotary members, gang members, league players, teenagers, as well as elderly knitters, who stood side by side blocking the entrance to the marae. But we also know that there are many gangs that provide really important family violence prevention services and addiction-based health groups, such as the Kahukura marae-based programme run by the Mongrel Mob that helped its members and its community to move away from methamphetamine use. That was a subject of a lot of political scrutiny. However, we can’t deny that it was performing a positive role, because it was people from a gang community helping their members to deal with issues of mental health and addiction.

So it’s clear that there are gangs that are moving towards doing positive things in their community. The Minister might not have seen it himself, but I’d invite him to come to one of those communities and see for himself that there—

The member’s time has expired

Well, look, I thank the previous member, Tamatha Paul, for her comments. I understand her desire to emphasise the good things that gangs sometimes do—and nobody denies that sometimes they do. Our clear understanding is that, on balance, they do more harmful things for the community, and that’s why we have this piece of legislation that is giving the police extra powers to deal with gang activity. But with respect, the member is mistaken when she’s suggesting for a moment that the so-called pro-social activities of gangs will be stopped by this process, because police need to reasonably believe that the dispersal notice is necessary to avoid the gang unreasonably disrupting the activities of other members of the public.

If the gang members are gathering in order to encourage people to have a vaccination, I don’t think that’s going to fall in that category. If gangs are gathering to encourage people to stop taking meth—which would be ironic, but if they were—then that wouldn’t be unreasonably disrupting the activities of the members of the public. And if they were gathering to run a sausage sizzle in order to raise funds for victims of crime, then that wouldn’t be unreasonably disrupting the activities of the public. That is the clear test for this legislation, so it won’t be capturing those things. She also referenced protests and so forth. Again, I’d refer to clause 9(3), “Limit on issuing”, that “A dispersal notice may not be issued to a person who is a member of any group of persons who are gathering in a public place for the primary purpose of demonstrating support for, or opposition to, or otherwise publicising, a point of view, cause, or campaign.” So I’d point the members to those details.

In terms of how the dispersal notices would work, which was asked by another member: the police need to have a concern that the notice is necessary to avoid unreasonably disrupting activities or other members of the public. Now, issuing the notice—well, there are options. One can detain somebody to issue and serve the notice. They could serve the notice in person at the event—a hard copy—or they could send an email. Or if they didn’t have an email, which has been raised if someone didn’t offer up an email address, then the police have the power to take them to the station to provide a printed-off copy if that is what is required. Obviously, as we’ve said many, many times, the police have the discretion to determine for themselves what’s the appropriate way to deal with any given particular situation. They could issue a notice after the gathering, and the purpose of that is obviously to stop them regathering in another event, which would be disrupting the activities of other members of the public.

Why are we doing all this? Because this is providing the police with one extra tool in order to help them deal with the disruptive activities of gangs in the public sphere following a 50 percent increase in gang membership over the past six years, and widespread public concern.

Thank you, Madam Chair. Thank you for the opportunity to take a call—my first call—on the Gangs Legislation Amendment Bill in Part 3, dealing with dispersal notices. This is something that I have been looking into, as to whether these dispersal notices fulfil the purpose that they purport to need to achieve, and I have to say I have some concerns and I would like the Minister to look at some of the alternative ways that this particular provision in clause 9 could be used that isn’t in the way that he’s envisaged.

I’ve heard his answers to my colleague Tamatha Paul that there are certain examples where, in his view, dispersal notices wouldn’t be issued, and I wanted to ask him whether he had received any advice on dispersal notices in relation to activities which would fall outside of what could reasonably be expected to be covered by this clause. The reason that I ask that is because there are human rights issues associated with this particular part of this bill—and the reason for that is it’s not unreasonable for most New Zealanders to be able to expect that they are able to gather in a group. For these particular New Zealanders, if they are seen as or are suspected to be a gang member and if there are more than three of them, they could be issued with a dispersal notice. So that freedom to associate, which is one of the fundamental freedoms, would be impacted by this bill.

My first question is: has he received some advice about those? Because when I read through it, it doesn’t appear to me that there are any particular protections in this section that mean that the dispersal notice could only be issued for what we would expect it to be for—for a gang activity. So I wanted to know from the Minister, would he consider amending clause 9(1)(b) to change it from “to believe that issuing the notice is necessary to avoid unreasonably disrupting the activities of other members of the public.” and to add an additional part to say that it connected to a gang activity, because there may be situations where—and, I mean, I know and I think most members of the House would know through their experiences of being in public places in summer that sometimes there are people who are disruptive. Whether that’s unreasonably disruptive might be a question of judgment, and it might be, in cases of illegal activity, a question for the police. But what this bill does is it puts a huge amount of responsibility on the person issuing the dispersal notice to, first of all, determine whether that person is a gang member and then it also asks them to look at whether it’s an unreasonable disruption, and that isn’t connected to their gang activity.

So my question to the Minister is about whether he has looked at that, and I do have some further questions. I’d like to allow the Minister to respond to those, but I do have some other questions around the practicalities of this particular section. I know that he’s said—and I appreciate—that for the purposes of protest, this is not meant to be the purpose of this section. I appreciate that and I think that’s clear, but I’m talking about other activities. I wonder if the Minister could respond.

Thank you, Madam Chair. I just have a couple of questions for the Minister of Justice, because we did tease this out quite a bit at the Justice Committee, but I think there’s potentially been subsequent changes to what we saw at select committee. I’m particularly concerned, in clause 17 of Part 3, in relation to “Breach of [a] dispersal notice”. It specifies here that a person commits an offence if they’ve been served with a dispersal notice and then knowingly, without any reasonable excuse, associate with a named person in a public place during a period of time in which the notice is in effect. That’s, effectively—and he might want to clarify—like a non-association order.

So I just would like clarification that, if there’s three or more in a main street who are considered by police to be intimidating the public, once the police go through the process of telling the gang members that they’re being issued a dispersal notice, asking them if they have a valid email address, if they offer one, they can email it to them; if they don’t, they’ll then offer to go down to the police station and print it off for them. Then, once they say, “You’ve been issued a dispersal notice”—to those three or four members—the next stage of establishing whether a breach has occurred is the part that I’m quite interested in, to understand how that occurs.

We weren’t able to get the full answers out at select committee. While it will depend on, potentially, the police officer on duty and how long he’s been on duty in that area and how well he knows known gang associates or people affiliated with a particular gang, the difficulty I perceive is that, if those gang members do not give the correct identity, do not give a Yahoo! or Hotmail email address at the request of the officer and also do not want to accompany the officer down to the station—would the police officer then take a photograph of those members in order to be sure of their identity? Would that be the best practice possible, so they’re able to be identified and then loaded into the National Intelligence Application (NIA)—so that there’s a flag in NIA to say, “We believe”, and name who they think they are and to match that with a profile that may or may not be, I understand, on the national gang list. Then, once police have corroborated some intelligence, along with local knowledge, about what the names and identities of those gang members are, then they would be in a position of establishing that a breach had occurred.

I guess these things may play out in the courts, but it would be good to have an understanding from the Minister, because if that is then punishable by—I think it’s five years. Is it five years? Sorry, six months—“A person who commits an offence against subsection (1) is liable” for conviction of six months and a fine not exceeding $5,000. It’s $5,000, not five years. Then, there’s got to be sufficient evidence before the judge who’s convicting for that offence that, in fact, it was the same person who in the first instance didn’t have an email and didn’t come down to the station and the police officer issued—that it was, in fact, that same person, within the seven-day period, who breached that dispersal notice.

Also, reading this, they’re also prevented from associating with one another. Say those five gang members from the main street have all been issued with a dispersal notice and are subsequently at another house where they’re not doing illegal activity but they are together and a police officer comes across them, then how will the police officer prove, how will the prosecution prove, that in fact they are the same two members who should not be associating together, who have breached that dispersal notice and are therefore liable for a six-month imprisonment period or a fine of up to $5,000?

I know these may seem quite specific and detailed for the Minister to respond to, but I think it’s really important that we have a practical understanding and—sometimes there’s not clear intelligence about who’s in a gang and who’s not in a gang. That will have to be, really importantly, ironed out if people are going to be convicted for breaching these dispersal notices.

Tēnā koe, Madam Chair. I’m just wanting to address Part 3 and ask the Minister a few questions in relation to the powers to issue dispersal notices.

Following on from my colleague in Labour, I definitely worry about the impact that this will have on whānau, on tamariki, and on the ability for that person to feel connected into the wider community, particularly when I was looking at clause 9, “Power to issue dispersal notice”, subclause (1)(b), it is upon the shoulders of the police officer at the time “to believe that [issuing the notice] is necessary to avoid [unreasonable] disrupting [of] activities of other members of the public.” Now, that can be up for debate, in terms of what these occasions are. Gang members might be at a local rugby game for JMB, supporting their children, and if you have three gang members there and they just happen to maybe have a “heads up” or a “Mangu Kaha”, and their children are running around with Rippa Rugby, is their mere presence intimidating, or are we recognising that they are members of a community, and their babies are playing JMB? So do the police have to act every time that they see three or more gang members in a public place? I would argue that we need some common sense in the way that police are empowered in this legislation but also to exercise caution.

Further, in clause 9(2), we see that the dispersal notices don’t even have to happen at the time. They could be after the gathering. Is it an assumption that the police officer will see said gang members doing whatever they’re doing—they might be just chilling or walking down the street—and the police officer has to follow those individuals to issue that notice? Or how do you even know that they were the original gang members in the first place? Some of our communities are quite large, and then others are quite small. Again, as per previous contributions, there is worry for the individual police officer who might be the sole officer in that community, whether it be Kuhukuhu, Kaiaua, Ōpōnoni, or Whangaruru. Those are some things there in terms of that burden on the police officer and also their judgment.

Further, in terms of the prohibition orders of five years, that’s quite taimaha, that’s quite a heavy burden, again, for the individual, for over a five-year period not to associate with their whanaunga with gang affiliations. So I’m wanting to unpack that, really, in terms of what considerations has the Minister taken into account for the tamariki, the mokopuna, the wider whānau, and these individuals who might be under a prohibition order, to be able to operate and function within their whānau community—understanding, also, that there’s an acknowledgment that there’s been no consultation with Māori on the proposal of this bill. Māori, being the most impacted people by this legislation, have not been consulted or engaged with. Instead, officials said that they consulted with themselves and other Government agencies to analyse the proposal against the principles of Te Tiriti o Waitangi and the Crown’s obligations.

So if the Minister can also share what he views in terms of how the Crown, through this legislation, are upholding their obligations to Te Tiriti o Waitangi, with this legislation here—

CHAIRPERSON (Maureen Pugh): I remind the member that we are up to Part 3.

HŪHANA LYNDON: Yes, yes. Te Tiriti is etched right through this legislation. There is compliance right through.

We are going to place the burden of making these judgments on police officers in our community. Are the police officers going to be trained in a relevant way that they will know how to engage with these communities? Have we considered the impact on tamariki mokopuna and the wider community? Five years is a long time. How are we going to support these individuals to actually reintegrate at the conclusion of their five-year prohibition orders, as well? Kia ora tātou.

I think the Minister may want to speak.

CHAIRPERSON (Maureen Pugh): Sorry, I didn’t see him.

Hon Dr DUNCAN WEBB: I’ll yield.

Sorry, just in relation to the concerns that the member has raised about whānau and important relationships, it’s worth noting that both the dispersal notices are for seven days or the non-consorting orders do have exemptions for immediate family members and for those engaging in activities like work or education or healthcare, so you’re not going to be stopped from consorting with your family members and your co-workers if you happen to have a job, and exemptions can be applied for lawful attendance at tangi, for example. But an exemption would have to be applied for. So we think that makes reasonable flexibility there.

In terms of the consultation, I will remind the member that the bill has been before a select committee with the opportunity for anybody to engage and have their views on this legislation over the past four months, which is how the process normally works, and people get an opportunity to have their say. What we’re trying to achieve through this part is to provide the Police with two extra tools to deal with situations where gatherings are made, which are unreasonably disrupting the activities of the members of the public. The member referred to three gang members watching football or rugby on the sideline and watching their kids playing rugby, and it would be surprising that that would be a case of unreasonably disrupting the activities of other members of the public. What we are thinking of, though, is if there were 50 motorcycle gang members taking over a town and meeting in the middle of town; that would be something that is potentially disrupting the activities of other members of the public. Quite rightly, if there was one constable on duty in that town and there was nobody else within 100 kilometres, then a discretion may well apply. That is why we have given the ability for the dispersal notices to be issued later as an option. So the legislation provides for that opportunity. Again, of course, the Police always have discretion as to how to apply or enforce the law in any particular circumstance as regards to their ability to do so.

Thank you, Madam Chair. Look, it does seem that what the Minister’s just said demonstrates how unworkable this is, because at one end you’ve got sausage sizzles and at the other end you’ve got 50 motorcyclists. We’re not interested in the extremes; we’re interested in the middle, and I’d be really interested in the Minister saying where the line lies.

If we have three people with a couple of dogs which some people might find a little intimidating, and loud music, clearly gang members, at the park yahooing, does that cross the line? Is that unreasonably disrupting the activities of other members of the public? Because some members of the public would be disrupted. They’d be disrupted whether they were gang members or not, and perhaps unreasonably so. Does there need to be some connection with their gang-ness and the disruption, or is that just an incidental? So I think it’s all very nice to talk about the extremes, but that’s not where the problem is; the problem is where the rubber hits the road.

The other thing I want to ask you about: you said that the purpose was to stop these people congregating again and being disruptive. Now, if that’s your purpose, that’s not what the bill does. Does the Minister intend that to breach a dispersal notice, you’ve got to be being disruptive again? Because if that’s the case, we’ve got work to do.

I’m going to keep my contribution short, because I really want to hear from the Minister and have that exchange which we’re supposed to be having here. I want to talk about the fact that, once the dispersal has occurred, the purpose for the issuing of the notice is actually expired. So giving a notice after the event—two days after the event, conceivably—becomes more and more meaningless. That’s why I’ve put in Amendment Paper D, which suggests deleting the words “or were gathered”, so when you serve the notice, you can serve it on someone at a gathering or who are gathered. The “were gathered” makes no sense, because to pop round their house the next day utterly undermines the very purpose of this bill, which is to disperse. They have dispersed, and so to issue a dispersal notice after the dispersal is an absolute nonsense. Of course, it’s time-bound from the moment of the initial meeting, so the longer you wait, the shorter the period of dispersal, which again undermines it.

So my Amendment Paper says, “Look, let’s not be silly. Let’s accept that if we’re going to have these silly dispersal notices, make them so that they disperse, not so that they tell people to disperse after they’ve dispersed.” So that’s my Amendment Paper D. I’d be interested in the Minister’s comments.

I do think the member is somewhat lacking in imagination, because it is quite possible that certain gang members might be in the habit of gathering regularly every day for a week in a manner that unreasonably disrupts the activities of the members of the public, and so the purpose of having served the dispersal notice would be to stop the re-gathering in that particular circumstance.

Thank you, Madam Chair. I have a number of questions which I’ll keep really short to also make the point that the practicalities of this are really difficult. One of the issues that I have is in Part 3, clause 9 when it talks about “a gang member;” or “3 or more gang members”, and I know when I go to the definition that that includes prospecting gang members.

One of the phenomena that we have seen—certainly in communities that I know—in Auckland is young people who are being groomed to be gang members who may not actually realise that they are being groomed. This is a real phenomenon; it is sort of uncles taking them for boxing classes and so on, really just ingratiating themselves to the family while perhaps the father is in prison. Those young people would not consider themselves to be prospecting, and yet a police officer at an event under section 9 may look at that young person and say they are prospecting. So my question to the Minister on that is whether that young person, for the purposes of this Act, is a prospector or not.

Then when it says about dispersing the activities of other members of the public, my second question is: does that include family members of the gang members? So if, for example, there was a ruckus happening and the people that were being affected were whānau members at, say, a public gathering—it might be a Christmas party or whatever; it wasn’t mainstream—would a constable come in and say that is disturbing some of those other members? Would it apply in that case?

My third question is in relation to the really problematic clause 9(3), which talks about the “primary purpose” and the political things that could be happening and the decision that somebody has to make about what the primary purpose of the gathering is. Now, my question is: is that a subjective or objective test? Is it a reasonableness test? Or is it a little bit more like the criminal case where, say, for example, if one was to put some bombs on a plane in order to blow up the plane when it’s in mid-air to get insurance, and yet it is completely reasonably foreseeable that everybody on the plane would die, would that be manslaughter or murder? The intention is there for insurance purposes, but that would be seen as murder.

Now, if I apply the same logic for this, in whose mind is the primary purpose? Is it the primary purpose of the gang members of the reasonable person on the—what is it, omnibus?

Hon Dr Duncan Webb: Clapham omnibus.

INGRID LEARY: Clapham omnibus? Is it the person who is the constable who is making the determination? And what happens, for example, at a tangi, where we’ve seen some of the dispersal type of rationale used to say a tangi has got out of hand. Now, nobody, in my mind, would question that the primary purpose that has caused people to come into town and to gather would be a tangi. If that got out of hand, then arguably this “primary purpose” section doesn’t work. So that is my question to the Minister.

The last question I have is around requiring somebody to go to the police station, and I’m just wondering whether he has turned his mind to the safety of the officers in that? How is that going to be operationalised? Is a constable going to require somebody to come into a police vehicle? Are they going to require them to walk down? What happens? What is the Crown’s liability if somebody is requiring a gang member to come down and due care hasn’t been followed? Like, what kind of advice has he sought to make sure that this is workable for the police who might not be able to issue that dispersal notice on the spot and has to very delicately and politely ask a gang member to come down to the police station with him?

I’d also say in that example, it would be really good, again, to go back to the young prospector who may not consider themselves to be being prospected but the officer may think they are. Would they be required to go down to the police station as well? Has the Minister thought about the age ramifications on that; whether it is safe to bring young people down when there is a question over whether they’re prospecting or not?

There’s a lot of devil in the detail on this and it feels completely unworkable to us. I think the more the Minister can clarify in these scenarios exactly what will happen, the more confidence, particularly the police will have, that this terrible piece of legislation could actually have some validity. Otherwise, it really does seem like a terrible piece of lawmaking.

Members, I’m hearing quite a bit of repetition. I’m just looking for some new material in the coming speeches.

Tēnā rā koe e te Pīka. Otirā tēnā rā tātou e te Whare. E tū ana ahau ki te pātai i ētehi pātai ki te Minita e pā ana ki tēnei o ngā pire.

[Thank you, Madam Chair. Indeed, greetings to all of us in the House. I stand to ask some questions of the Minster reading this particular bill.]

I have a few questions to the Minister, and I have asked different questions last week as well. However, I’m just going to ask a few questions in relation to Part 3, and I quote, “A constable may issue a dispersal notice to a person if the constable has reasonable grounds—(a) to suspect that the person—(i) is a gang member;”. That is so dangerous, because, in my eyes and within our experiences, that is stereotyping 101, and I circle the definition of what is “reasonable grounds”, and to use the word “suspect” is very, very dangerous, because we know, and the data shows, that we are over-profiled.

Last week, I came in here saying that I am consistently being pulled over, in a small town like Huntly, for no reason. Since the elections and we moved to Wellington, not once have I been pulled over. We already know from experience that we are over-profiled, and it shows where 50 percent of the male population in jail and 65 percent of female are of Māori descent. So I want to ask the Minister: what measures does the Minister have in place to mitigate Māori profiling, if we’re using words such as “to suspect the person is a gang member”? To put that into context for whānau watching at home, if three Māori boys are coming together and they look like gang members, does that mean that the police officer has authority to give them a dispersal notice? Why I’m asking questions like that is because we know that it will happen. I’ve seen my brother get pulled over by a paddy wagon for no reason during fireworks. I’ve seen it and we watch it constantly. So this is why we’re coming with questions that may sound silly to some, but we have to bring them into the House to keep Ministers accountable. Will this happen in our communities? And we know it will.

Another question is: what training are police taking to issue a dispersal notice, and how will this work? Recently, with experiences given from members across this side of the House, it was only last week—two weeks ago actually—that a whānau member of mine who had a gang affiliation passed away and we had a tangi for him, and it was only last week that we had our grand final in Rāhui Pōkeka, and there were many different gang members there. I was associated with them. I interacted with them. So does that mean that I am liable to get a dispersal notice? These are the questions that I want to ask even for ourselves, even for our party. Then I’d also like to ask—and you can correct me if not, Madam Chair—some questions on Schedule 2, if possible, for identified gangs.

CHAIRPERSON (Maureen Pugh): Next debate.

HANA-RAWHITI MAIPI-CLARKE: OK. Well, that’s all I’ve got for this one.

Thank you very much, Madam Chair. I just wanted to get a bit of further detail about how someone can challenge a dispersal notice. I think this is really important, because these are not administered or laid by a court; so you don’t have a right of appeal or any way to challenge that. If a person has received one of these dispersal notices and they believe that they’re not a gang member or, furthermore, it wasn’t a fair issuing of that notice, what is the process for having that revoked? It does really reflect the fact that it is a police officer and that they’re a short duration of time, and a review would need to be completed pretty quickly.

It’s important there is a review mechanism to enable citizens to have an opportunity to remove that dispersal notice in a timely manner if they quite clearly believe that those grounds weren’t met. There is, obviously, a degree of operational discretion in place there when they’re making those determinations, but I would really like some reassurance from the Minister that while revocations must be determined by the commissioner within 72 hours—we know that, but there’s not really any further detail about how that might operate. Once the alleged gang member who is illegally dwelling somewhere has been issued with one of these, what happens if they’re not a gang member and they were in fact just chilling, or they were with two people, not three? What are those situations? What are the natural justice grounds for someone who’s been issued with one of these who honestly believes that it was not a fair situation?

I think it’s important that there is clear understanding of how this is going to be implemented. I note that in the regulatory impact statement it does state that there is a risk that it could be quite a significant resource burden on Police if you were implementing some kind of appeal mechanism. These are being made as easy as possible to lay on somebody, but it doesn’t seem quite so clear what the process is for retracting one if it was not done in the right way.

The second point I’ll make in this call is that, in this analysis here, there are three options, and the preferred option to progress, from officials, who did all of this work, is to stick with the status quo. I think it’s important that we mention that the recommended advice from officials is to stick with what we’re doing now, because it’s working. The current approach with the transnational organised crime strategy and also resilience to organised crime in our communities—that long-term way of reducing organised crime—will have a long-term effect on reducing gang membership in a far more effective way than dispersing people and driving them underground and, effectively, just doing this cosmetic stuff.

They list out the changes that have occurred in the past few years that actually enable Police to have more tools in their kit to do these things. There have been changes in terms of the criminal activity intervention legislation that provide those increased search powers over a 14-day period when there are inter-gang tensions and even violence. The fact that there has been a whole range of programmes—and I just want to read out one part, because I think this is really important: “making the above distinction may be more effective at improving public confidence in the long term … Targeting gangs as groups—including where their conduct is not harmful—is likely to have minimal impact. This is because the majority of the public have little or no contact with gang members, and policing non-harmful conduct will not address those high-visibility instances of serious crime that cause people to feel unsafe.” I’d like the Minister to respond to that, because I think those are wise words.

The member asked about the review process, and the previous speaker asked whether she could be, as a non - gang member, issued with a dispersal notice. Of course, the requirement is to be a gang member, part of the three or more, and it’s necessary to avoid unreasonably disrupting. If somebody feels that they have been issued with a dispersal notice and they shouldn’t have been, the process is to apply to the Commissioner of Police, and the Commissioner of Police has to reply within 48 hours. If they point out that they’re not a gang member or that there wasn’t three or more people involved or that the issue wasn’t necessary to avoid unreasonably disrupting the activities of the public, then the decision can be revoked. The decision and the communication to the person who’s applied needs to be done within 48 hours. That is the process, and it’s done quickly through the Commissioner of Police because this is a seven-day period, so you want to move quickly. That’s the process. If somebody feels like they shouldn’t have been issued a dispersal notice and can demonstrate that they’re not actually a gang member, well, then, that was how they would go about it.

I move, That debate on this question now close.

Thank you, Madam Chair, for the opportunity to keep debating Part 3. I have to say, I have noted that Part 3 is quite a significant part of this bill and goes up to clause 26, and I feel there’s a number of them that haven’t been touched on yet. So the motions that we move on or that the debate end I think are very premature. I also note the Minister hasn’t answered my questions in relation to clause 9(1)(b). But I don’t want to talk about that any more. I want to move on to another part of the bill, which I feel also needs to be addressed.

The Minister accused my colleague Dr Duncan Webb of lacking an imagination. It’s not a way I would describe Dr Webb, and I wanted to perhaps draw the Minister’s attention and utilise his imagination. In clause 9(3), which I believe hasn’t been discussed yet, which is looking at whether this is, in fact, workable—and I know that this has been brought up as a potential criticism of this bill—but I would like the Minister to engage in whether it is in fact workable. From my reading, all that people would be able to do to avoid a dispersal notice under the overall area of clause 9, given subclause (3), is to invite members to attend something which is for a point of view, cause, or campaign in a public place. Inviting people to a protest for Toitū Te Tiriti could be a cause that if any gang member or group of gang members decided to put that sign up and say, “That was the reason we’re gathering”, then surely no dispersal notice could ever be granted. That’s not to say that people would necessarily do that when that wasn’t the cause, but it would be almost impossible to ascertain if that was, indeed, true. It could be used for many other different causes. I think that, in this respect, it does appear to be very unworkable from a practical perspective.

Additionally, moving on to clause 10, the service of the dispersal notice has limb after limb of different expectations that constables have that they must fulfil in order to proceed on to the next section. I haven’t worked a lot in criminal law but I have had some experience when I was a very young lawyer, and it appears to me that there are fishhooks everywhere here in terms of the actual workability of this legislation. I mean, just to take one example: in clause 10(2), there is an expectation that the constable requests that the person give them their email address or other method of serving electronically, which I imagine is an electronic address, but presumably in the future could include some other forms of address which are not specified in this piece of legislation. But if that does not occur, then that person may accompany the constable to the police station.

Then, moving on to clause 11, if that person again refuses, we then end up in a situation where there are ever-increasing penalties for noncompliance. If you think about someone who’s wrongly caught up in this legislation—which I think is what we’re afraid of. We’re not afraid of making sure that gangs are less intimidating. We’re not afraid of challenging situations where gangs seek to intimidate. What we’re afraid of is people going about their legitimate, normal activities, and being caught by this piece of legislation, and ending up with a significant fine; which, in my experience, people who are already vulnerable to being involved in the justice system often may not pay. Then what goes on from that is we end up with the very unjust situation for people who are wrongly connected with this.

So I would like, actually, the Minister to answer my first question. I would like him to talk about how clause 9(3) is, in fact, workable from a practical sense because it doesn’t appear to be workable to me to achieve this bill’s aims. I would also like him to expand on how he thinks someone who is—[Time expired]

Thank you very much, Madam Chair. It’s a privilege to take the first call on this particular silly bill. I’ve just heard the Minister in the chair, Paul Goldsmith, in his answer, talk about how he’s giving the police extra tools to be able to deal with people going about their everyday business. It is an issue for us when “on reasonable grounds”, which is very subjective for police officers, many who we have found in the past—and many reports have come out of the police, that there is racial profiling in the police department. There have been reports—and I’m sure you’ve done your due diligence and read those reports, because there’s racial profiling within the police. I find this bill really concerning when you’ve got words like “reasonable grounds”. It’s absolutely subjective to suspect that a person is a gang member.

We’ve got a lot of rangatahi that walk around with hoods, with hoodies—my boy is one. Now, if a police officer suspects that he is a gang member—

Hon Member: Which will happen.

RAWIRI WAITITI: Which will happen, because we’ve already had the racial profiling, and there have been already reports come out about the police already having racial profiling within the police. It has been happening for many, many years. Like my colleague talked about, Hana, 50 percent of the male prison population in Aotearoa are Māori; 65 percent of the female prison population are Māori. That already tells us that we’ve been racially profiled. I have issues with the reasonable grounds. It’s absolutely subjective.

I just want to talk about my experience with the gangs. There’s no gang in whānau, but there are whānau in gangs, and not all of them are criminals. Here is the problem: if you deem it reasonable grounds to suspect that somebody is a gang member, there’s going to be huge problems. I worked with the gangs when—I heard one of the other colleagues talk about vaccinating. I worked with many gangs; I have a whole lot of proof to show that they did their part for Aotearoa. The Black Power, the Mongrel Mob—the whole lot. I worked with Harry Tam; I worked with Eugene Ryder. I worked with them all to ensure that they did their part when it came to the vaccinations. They also stood on the iwi border controls. You ask any police officer right now: they had no issues—they had no issues.

How far-reaching does this bill go—how far-reaching does this bill go? Does it reach into marae? Does it reach into marae, where many of our gang members in my community are doing the hāngī? They’re feeding the multitudes that come on to our marae, to our tangihanga. They’re the ones cutting the wood for the hāngī, they’re the ones killing the meat, they’re the ones going to do all the diving, gather the kai. How far does this reach—how far does this reach?

We’ve already got police officers who do a good job. Community policing is the answer, and I already know because we have community policing down there in Whangaparāoa Cape Runaway, where a police officer actually plays rugby with the Mongrel Mob members. We all live together; we’re all related. But these are the answers—community solutions are the answers, not these types of bills.

Now, “A person … is detained under subsection (1), may, after being cautioned, be arrested without warrant if the person—(a) fails or refuses to remain at the place where the person is detained; or (b) fails or refuses to give their biological details”. If that was my boy and he refused to give this detail because he is not a gang member, what does that mean? This bill has the ability to reach into his home because of reasonable grounds that a constable has to suspect a person of being a gang member.

These are the questions that I have for you, Minister, tonight, and my community deserve the answers in this committee. Do the police have the right to walk on to marae, the last bastion Māori have for rangatiratanga? Your Prime Minister agreed that article 2 was to be undisturbed of our property rights—of our taonga, of our moana, of our kāinga. Now, does this bill go against what the Prime Minister admitted to in question time last week? These are the questions that I have—Madam Speaker, I haven’t finished—

The member’s time has expired.

Thank you to the member for his questions. I’d like to reassure him that if somebody thought that they were issued with a dispersal notice and they weren’t a gang member, then the process is set out very clearly in clause 18, which is to say they can apply immediately to the Commissioner of Police and the Commissioner of Police has to reply back within 48 hours, and if the individual is not a gang member, then they wouldn’t meet the grounds for the dispersal notice.

In relation to helping out with vaccination campaigns, again, that is not captured by this legislation, because it would be very hard to describe that as unreasonably disrupting the activities of members of the public. Going out and getting some meat for a hāngī wouldn’t strike me as an activity that’s disrupting the activities of members of the public. What we’re talking about is a large gang activity stopping people moving around Ōpōtiki or a place like that—is what is in mind through this legislation.

In terms of racial profiling, I think the only point I’d make there is, you know, it’s very easy to say and very damaging for the many thousands of young men and women in the police force who do their very best every day to keep the community safe. It’s a very easy allegation to throw at them, and it’s one which—we back the police to do their job, and of course recognise that over the past and in our history, and there are claims that are made that need to be dealt with carefully. We’re going through that process through the State abuse inquiry, and that’s something that all New Zealanders would want to see dealt with more effectively. The reality is that no society or no institution will ever be completely free of bad actors, but a good Government has things in place to ensure that few of those people can get anywhere near places where they can cause damage, and, if they do, they’re called out very quickly and dealt with very quickly and effectively. That was, I think, one of the primary things that we learnt from the dreadful circumstances of the past, where things happened and nothing changed for many, many years, and people didn’t deal with those situations.

So I hear what the member is saying but can give him this assurance that the process is laid out quite clearly and it only relates to unreasonably disrupting the activities of members of the public, and there is a very clear process for that to be challenged in a quick and easy fashion.

Thank you, Madam Chair. After that sweeping speech by Rawiri Waititi, I’ll want to dig down into the detail of it. I have a number of Amendment Papers and I’m just going to crack into them because I just would like to see as many answered as the Minister of Justice can.

The first is around service. My Amendment Paper “f” suggests that clause 10 should simply read “A dispersal notice must be served by personal service.” because this idea of serving a notice by email is deeply problematic—even just the technical point, right? The question is this: is an email notice served when the officer presses send on his device or when it arrives in the inbox? Now, that might sound like—isn’t that the same thing? The answer is absolutely not. We’ve got an Electronic Transactions Act that deals with this very problem, and it says that something is delivered only when it enters the information system of the recipient. So my question in respect of service is: if we’re going to have this email service, does the email have to be successfully sent and enter the information system of the recipient? Otherwise, it would be like saying a notice was served when it was put in the postbox but never delivered into the homeowner’s letterbox. That can’t be right.

The other thing is this: there are so many things that can go wrong with email service. The officer might type in the wrong email address. You’ve got to remember, the whole idea about this is you’ve got this gathering which is unruly, might have had a few beers, might not be entirely happy to be giving their details to a police officer. Now, how can we be sure that the person is then going to disperse, go back to a home—perhaps have a few more beers, let’s face it—and actually open their Gmails.

I get it. I get that the officers don’t like paper. They don’t want to have to go to the car and get out a clipboard and a carbon copy form and write out things. But let’s just be clear about this, and we looked at this in select committee: there is no other situation where you’re given a notice by email and if you don’t comply with it, you can go to jail. There’s nothing—nowhere in the law. The nearest we get is speeding infringements, which are an infringement notice which trigger an obligation to pay or to turn up in court and defend it. If you have to turn up in court, you’re going to get a summons—a summons delivered to you; served on you. So my Amendment Paper looks to get rid of email service because it’s utterly unreliable, unrealistic, and doesn’t meet the kind of seriousness requirement.

The other point I have is around clause 11A—and I’m going to keep going on so that the Minister can respond to more than one—and that’s the idea of a duty to explain. This was added at select committee. It’s a good thing. Obviously, if there’s an obligation to explain, it must have some impact. But clause 11A(3) says “A failure to comply with this section does not affect the validity of the dispersal notice.” So you’ve got an obligation to explain, but if you don’t do it, it doesn’t matter. What’s that going to do? What incentive does that give to an officer to explain properly what this dispersal notice means? They can just utterly ignore it and all of the legal implications fall on it anyway.

So my Amendment Paper G says to get rid of that because, yes, we need a duty to explain. If you’re going to email someone a notice and it’s going to have a very significant impact on their human rights—their right to associate—and very significant consequences if they breach it, then absolutely you should have to say, “Look, chum, listen carefully. This is a serious matter. Here’s what’s going to happen now. You’ve got to disperse and you’ve got to not associate with these other two or three people for seven days. Do you understand?” You absolutely need to have that explanation, and if you don’t give it, the dispersal notice should be of no effect because you haven’t told them what it’s about.

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 3, set out on Amendment Paper 51, be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 9(1) deleting the words “or were gathered” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 9 deleting the words “after the gathering has ended” be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 10 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 11A be agreed to.

The Hon Dr Duncan Webb’s tabled amendment to clause 13 is out of order as inconsistent with a previous decision of the committee.

The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 15(b)(iii) be agreed to

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 16 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 18 be agreed to.

The question is that the Hon Dr Duncan Webb’s tabled amendment to delete clause 26 be agreed to.