Gangs Legislation Amendment Bill

Members, we now come to Part 4—

Point of order, Madam Chairperson. I’m just seeking some clarification because, through that debate, we were methodically working through Part 3 and had debated a large part of Subpart 1, but there have been no calls taken on Subpart 2, which is non-consorting orders. Now, it might be an oversight, or maybe I’ve got it wrong, but are we now going to debate Subpart 2, because the calls were on Subpart 1 and they were coming to Subpart 2, and there has been no debate on those important orders. If the Chair could clarify that, that would be appreciated.

I’d just remind the member that I was seeking new material. I did ask members to introduce new material. There were 13 calls during that debate on Part 3. I can’t control what the members want to debate, and so the repetition—I did warn members that there was a quite a bit of repetition. The decision has been made and I’ve made a ruling, and we’re moving now—

Speaking to the point of order, Madam Chair. There is a significant new power being introduced through legislation—

CHAIRPERSON (Maureen Pugh): Are you now arguing with my ruling?

Hon GINNY ANDERSEN: Are we allowed to bring up the non-consorting orders in later parts of the bill, or is that it—we’re not ever allowed to raise that again?

CHAIRPERSON (Maureen Pugh): The ruling is that we are moving on to Part 4—

Hon GINNY ANDERSEN: So you’re preventing us debating non-consorting orders? You took a vote before we were able to talk on that issue—

CHAIRPERSON (Maureen Pugh): The 13 calls we have just had have covered it in—

Hon GINNY ANDERSEN: Not non-consorting orders—there were no calls.

CHAIRPERSON (Maureen Pugh): I can’t control what the members want to debate at the time. If you want to use all of your calls to debate clause 9, that’s your call. We are moving on to Part 4. This is—

Point of order, Madam Chair.

CHAIRPERSON (Maureen Pugh): Is this a new point of order?

CAMILLA BELICH: This is a new point of order. I just wanted to address the statement that you made in your ruling, which I didn’t recall being part of this debate for the entire—since the dinner break. The first part was that you reminded members about repetition. I think you did that once, very early in the debate, and I think that was addressed by members. But there are about 15 clauses that were not debated at all in that part. I know that you have discretion and you’ve made a ruling, but you do have some discretion to allow for material in the subsequent discussion, and so I’d just like to request that in order that democracy is best served and those non-consorting orders are addressed, there is some leeway given to reference non-consorting orders, because without that there will not be an opportunity for this committee of the whole House to scrutinise this quite considerable power that the Government has had and—

I understand the member. Part 3 has ended; the House has voted. We are moving on now to Part 4. Part 4 is the—

Point of order.

CHAIRPERSON (Maureen Pugh): Is this a new point of order?

Hon Dr DUNCAN WEBB: Yes. I seek leave of the House that Subpart 2 of Part 3 now be debated.

Leave is sought for that purpose. Is there any objection? There is. Part 4: this is the debate on clauses 27 to 35, “Miscellaneous provisions”, and Schedule 3. The question is that Part 4 stand part.

I’ll take these clause by clause to ensure that there can be no repetition. So let us first talk about clause 27. This is the clause which says that in matters of fact arising in this proceeding, it is a civil standard of proof. I would talk about clause 26, but that’s in another part and we won’t talk about that here—although we’d like to.

The idea that the questions of fact here are to be dealt with “on … balance of probabilities.” is deeply problematic. Because what we actually have here is a series of provisions which are punitive in nature. They are criminal in all but four—

Hon Shane Jones: Stuff the gangs!

Hon Dr DUNCAN WEBB: —and the fact is that—well, you want to be careful, Mr Jones. You’ll be profiled like Rawiri Waititi said.

Rawiri Waititi: Profile him! Arrest him!

Hon Dr DUNCAN WEBB: There certainly is a bit of disruption going on over in the far corner.

Now, the fact is that the provisions of this legislation—things like being a gang member, because being a gang member under this series of legislative measures impacts significantly on a person’s rights and freedoms. It’s, essentially, a limitation on liberty. That can’t be denied, because the Attorney-General herself outlined that.

The question is: to what standard of proof do we have to establish, for example, the keystone of this legislation, that someone is a gang member? This is basically it, right? More likely than not or beyond reasonable doubt. Now, if you’re going to stop people gathering in public places or consorting or displaying emblems that are significant to them, then you’d better be bloody sure. And that’s not more likely than not—that’s beyond reasonable doubt.

I do have an Amendment Paper on the table that talks to the section and says in respect of this standard of proof, it should be the criminal standard. Because, essentially—and I don’t think the Minister would disagree with this—this piece of legislation pushes gangs across the line from members of civil society into members of the criminal class. That’s what it essentially does: it says it is now fundamentally criminal to be a gang member, regardless of anything else that’s going on.

So let’s be honest about this and, if we’re going to do this outrageous thing, let’s at least have the decency to apply the right burden of proof—and the correct burden of proof is a criminal standard. If someone’s going to be proven to be a gang member, let them be proven beyond reasonable doubt. If they’re going to be proven as being disruptive, let’s prove it beyond reasonable doubt. If they’re going to be proven to be congregating after a dispersal notice has been issued, let’s prove it beyond reasonable doubt.

To have a civil standard of proof is not just lazy, it’s unconstitutional. It’s actually undermining pretty much the golden thread that has run through our law: that if the State is going to deprive you of liberties, it has to be absolutely sure of the grounds upon which it does it. Not “We reckon.”; not “We think it’s more likely than not.”; not “A police constable has reasonable grounds to suspect ‘on a balance of probabilities’ “., but the State is sure you’ve transgressed the standards it set. That’s why we should get rid of section 27, we should adopt my Amendment Paper, and we should have a criminal standard of proof for all issues of fact in this piece of legislation.

Tēnā koe, Madam Chair, and thank you. I’d like to endorse fully my colleague from Labour in debating the balance of probabilities and considering the civil standards that our people will be judged on.

Now, I need to remind the House on 21 July 2024 that the police were found to be in breach; that they had not met the deadline set by the Privacy Commissioner to delete thousands and thousands of photos of young Māori people. As we’ve talked about tonight from my colleagues from Te Pāti Māori, we’re getting profiled every day. Police are taking casual photos of us everywhere doing anything, and the police themselves since 2021 have been called out and been snapped, and the Privacy Commissioner said, “No more! Delete!”, and the police have missed that deadline. How can we trust that the police are not going to use that type of approach with us when we see a young person in the street with the hoodie? And that young person might have a blue pair of shoes on and a blue bandana out of their pants, and then next minute they’re a gang member?

That’s the worry there: where we have the balance of probabilities that young people could be vulnerable to prosecution through this legislation just because they’ve had a photo by a policeman—you know, how long ago—because they were just sitting casually at a bus stop, and then next minute they’re deemed a gang member because they’ve got a hoodie on. That’s the type of prejudice that this legislation is going to cause to young Māori people. Don’t say they’re not being profiled—they absolutely are. We know this to be true because there are thousands of photos on cellphones across New Zealand that the police have failed to delete.

Now, I want to revisit what the regulatory impact statement said in terms of how the proposed penalties across this legislation are out of step with other offences in New Zealand in this context. The Ministry of Justice actually proposed that the breaches should be a fine not exceeding $2,000 and a maximum of one year imprisonment. But in this legislation it’s five years and it’s $15,000. How on earth are our young people, our whānau, going to afford that when we know many of these gang members are products of the State? These gang members have been produced out of a system that has abused them for far too long, and we’re going to abuse them again because they’ve been racially profiled for how long?

Further, I want to go into the list of gangs you have in Schedule 2. Can we all turn to that page, please? Let’s have a look at the gangs. It’s an interesting bunch: Aotearoa Natives, that’s actually a T-shirt brand, e te whānau. It’s a T-shirt brand, but apparently it’s a gang too. So I better tell Tribal Roots to stop producing the T-shirts saying, “Aotearoa Natives”, because that’s for sale at every Māori event. These gangs here are brown gangs. Where are the skinheads? Where are the white supremacists? Where are those that went into the mosque and killed our whānau? They are not listed here. Why are we being marginalised in this list? Why are our people being identified here? Oh, there’s no Bloods, but there’s Crips. I’m just wondering—Taupiri MC. Well, we’ve got Hana-Rawhiti here from that electorate, and I’m sure she doesn’t know who the Taupiri MC is or the Uru Taha. I am worried that even this list prejudices us. This list prejudices us because, actually, some of the biggest killings going on in New Zealand are white supremacist.

We’ve already heard from my colleagues in the Labour Party who said, “Where are the Nazi signs? Where are the skinheads?” They’ve already asked that question, and yet they’re not even listed here. So we have a marginalised group of people who are victims of an abusive State, who have been profiled for years because the police have been taking random photos of us, and then we are falling victim to the “balance of probabilities” and that a civil standard will be applied on our people and—oh no, we’re lucky: we get legal aid. Kia ora tātou. We’ll be lucky to get legal aid to support our nephews and nieces out of trouble because, ultimately, they’re going to end up with five years in jail and a $15,000 fine. Well, kia ora tātou.

Thank you, Madam Chair. As I said, we’re going to go through this clause by clause—

CHAIRPERSON (Barbara Kuriger): It’s helpful, actually, if people actually do state the clauses that we’re up to.

Hon Dr DUNCAN WEBB: Thank you—very happy to do that. I won’t talk to clause 28, which is a relatively standard clause, but clause 29 actually bears some elucidation, because it refers to the Evidence Act and section 128. Section 128 is the section in the Evidence Act which talks about judges being able to assume evidence which is incontrovertible. This is clearly alluding, here, to what is gang insignia. Now, this is a slippery slope because whilst there may be some things which are gang insignia and, basically, the rule is everybody knows it—you don’t have to go out and get proof of it—that is certainly not the case in respect of all gang insignia. And what we don’t want to see is this creep towards police turning up and saying, “Look, here’s the Road Knights patch. Everybody knows it’s the Road Knights patch.” and kind of giving evidence from the position of a lawyer, and the judge going, “Oh, I guess everybody does.”

Judicial notice, which is the old-fashioned term for this kind of evidence, should be very carefully constrained. It should be so abundantly clear. Everybody knows Thorndon Quay is in Wellington—that kind of abundantly clear, not “This insignia, this patch, is associated with this named group.” That’s not usually what judicial notice would be used for at all. Now, that’s awkward for the police—I get it—because what that requires them to do is call evidence as to whether this insignia is associated with this named gang, but that’s what they should be doing. They should be proving their case and, once again, not using lazy procedure to kind of slip in that this is a gang patch and it’s the Road Knights or it’s the Outcasts or whomever it might be. I certainly don’t know what those particular gang patches are—and if I don’t know, it certainly isn’t widely known, I’m sure! But that’s the point—that we’ve got to be cautious because this is about human rights, this is about preventing freedom of expression using symbols and emblems. So we’ve got to be very cautious.

So I would like to hear from the Minister exactly what his view is—I think that’s how I say it, even though it’s a different Minister in the chair, Louise Upston—in respect of the use of judicial notice in respect of gang insignia.

Just before I take the next call, could I just ask those people that are having conversations around the Chamber—it’s difficult for the Hansard people to pick up the conversations because there’s quite a lot of conversation going on around them.

I just want to pick up from the last questions that I had asked previously around Schedule 2 and the list of 41 different identified gangs. I’m really, really interested in seeking clarity from the Minister: who identifies these gangs? What do you deem as a gang and how is the process of these gangs being identified? I would strongly argue that some of these groups or gangs are not gangs, and I would strongly argue that a lot of gangs are actually missing on this list.

Some of these groups are, I would say, wearing a gang patch and driving a motorcycle, but they would not do the typical gang behaviour that you would see. So I really want to seek clarity from the Minister: what is the process of getting this list? This list—some of these gang groups should not be on here and some gang groups should be on here. So it goes back to the pātai that I asked previously, and I just want to quote before I finish. The pātai that I asked previously is around the kupu “suspect” and the kupu around stereotyping and the process in getting these gangs on to this list and how you identify them, because it goes back to the kupu in clause 9(1), 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;”. So I just want to seek clarity from the Minister for that gang list. Thank you.

Thank you, Madam Chair. To be consistent with what the previous members have shared, I will also confine my contribution to clause 29. I think, in this case, with clause 29, with the application of the Evidence Act, I want to seek clarification from the Minister in terms of if he had any consultation—because it’s not in the regulatory impact statement—with the District Courts in terms of the application of this particular part.

Now, the reason I mention in terms of the consultation here is with the application of section 128 of the Evidence Act around the notice of uncontroverted facts, it also puts the District Courts in an awkward situation where they are making a call that is potentially contrary to their own independence, to their own plan, particularly around their current strategy of Te Ao Mārama.

With this particular part, one of the things about what the District Court is trying to do and the dilemma that the District Court might be facing in this case is how are they able to implement, number one, their level of independence but also implement their long-term plan and strategy, Te Ao Mārama, in light of this particular legislation that’s being put through.

So I just wanted to check if that work has been done with the District Court, because the District Court’s strategic plan is very specific, mai i te pō ki te ao mārama [from the night to the enlightened world]. They’re supposed to rehabilitate and redeem people in this, and whether this particular section, in the greater context of the need to make District Court judges make certain decisions on everything we’ve discussed in the previous section actually achieves that. Thank you.

Thank you, Madam Chair. I just want to address the member prior Hana-Rawhiti Maipi-Clarke’s question around the list of gangs in Schedule 2. So there are criteria that are already specified. When this matter was before the Justice Committee, the police did update the list of gangs by adding four, separating two, and removing several, and that list can be amended for Schedule 2 by Order in Council.

Thank you, Madam Chair. Again, going through in a systematic way so that we don’t miss any clauses: clause 30, as the Minister’s just alluded to, provides the opportunity, on the recommendation of the Minister of Police, to add to or to take away from that list of gangs that appears in Schedule 2. I think we just need a little bit more clarity on how that happens, because, when we look at Schedule 2, we can see, as the Minister’s just pointed out, that some gangs have been removed, some gangs appear to have had their names slightly updated, and some gangs we can only assume have been added. But because it’s on the recommendation of the Minister of Police—and you alluded to the fact that there was some criteria, but I’m not entirely sure that that’s not as ad hoc as we would not hope it to be.

It says under clause 30(1) that the Governor-General, on the advice of the Minister, can “(a) add the name of an organisation, association, or group of persons identified as a gang for the purposes of this Act to the schedule:” or “(b) remove the name of an organisation, association, or group of persons identified as a gang for the purposes of this Act from the schedule.” I’m wondering, firstly, if the Minister can give us a few more details about what that specific or specified sort of criteria that she alluded to was, and how robust that was, or at least walk us through that process so that we can determine. We’ve certainly heard stories, whether it be anecdotal, whether it be evidence through select committee, various fora, about the difficulty in identifying what is a gang, whether the gang is still relevant in the New Zealand context.

We know that with any kind of activity that involves human beings, let alone human beings that have a lot at stake in so far as their organised crime activities or whatever involvement they have with each other, it’s a particularly fluid environment out there and it becomes a little bit of an arms race. So one can only imagine that as soon as some specified and specific criteria that you alluded to—not you, Madam Chair—is defined, there needs to be a much more robust process behind the service to make sure that that is up to date, that we can trust it, and that the Minister of Police is making those recommendations, particularly to add to that list, in a well-formed and meaningful way that doesn’t overstep those marks. So that’s my first question, and I will allude to the second one, but I would like an answer to that one.

Just in so far as giving the Minister a bit of time, clause 30(2), “The Minister of Police may not make a recommendation under subsection 1(a) unless satisfied on reasonable grounds that the organisation, association, or group … (a) has a common name or common identifying signs, symbols, or representations;”—that’s just that (a), and that kind of brings us full circle round to what is the theme of several things we’ve heard tonight with regard to how we decide that. How do we know that it’s real? And, more importantly, given the nature of this piece of legislation and the impact that it has on people, which is significant, how do we know that the people involved know that these are the criteria under which they’re being judged?

We heard earlier tonight about prospects, for instance, not even knowing that they’re in the process of being a prospect. And yet you can imagine several scenarios where young people in particular could be associating with a group of people who are in the process of being repatched or in the process of doing something different. How do they know if this new formation is going to constitute a gang, and, therefore, end up on Schedule 2, and then end up being subject to all of the measures that are in this piece of legislation? I’ve got a couple more questions just relating to Part 2, but I’ll leave that for now.

Thank you, Madam Chair. The member Dr Tracey McLellan asks questions about clause 30. She goes on to ask about the criteria, which is clearly stated in the bill—she started reading from it. I’m not going to waste the committee’s time by repeating things that are done and have been traversed in the Justice Committee or written in the bill.

Thank you, Madam Chair. I’d like to talk about clause 37. That is the clause that just slips in—actually, I won’t talk about clause 37, because that’s in the wrong part; that’s in Part 5, and I will stick to the part.

What I do want to talk about is clause 30—and it’s a very narrow point—and the reviewing of the gang list. What it, essentially, says in clause 30 is that the Minister of Police can put gangs on or off the list and has the discretion to do so. My argument is this: that if an organisation—and this is a tabled amendment before the committee—doesn’t absolutely meet all of the criteria of being a gang, then surely the Minister must take the gang off the list. It’s not discretionary, because, again, this is a significant incursion. The threshold must be high—again, quite arguably, should be beyond reasonable doubt—that they are, in fact, a criminal organisation. But, at the very least, if the Minister is satisfied that the appropriate threshold isn’t reached, then the Minister must remove the gang name from the gang list. To do otherwise would be to infringe on the rights of a group of people who are not gang members, because it is not a gang—the Minister has actually satisfied him or herself that it’s not a gang, but has just thought, you know, “We won’t”—and, in fact, it’s deeply problematic that it’s a five-year review and not a continual review.

So I’d like the Minister to explain: is it the case—I guess there’s a public law argument that “may” means “must” in that kind of circumstance. But I would actually like the Minister’s assurance that if the Minister of Police reviews the list, receives the evidence, is satisfied appropriately that it’s no longer a gang—and it happened; we just went through this process in select committee—that the Minister is obliged to and will remove that gang from the gang list.

Thank you, Madam Chair. I do have a question that was kind of spurred on by reading the list in Schedule 2 of the identified gangs. While my question might seem kind of absurd on the face of it, I do ask the Minister and the committee to bear with me. This question came to me when I was reading through it. It says one of the gangs that were struck off was—and please forgive my pronunciation; I’m not Irish—Sinn Fein: “Sinn Fein … (not being a branch, or an associated organisation, of the political party known by a similar name)”.

Now, my question is—and this might seem like an absurd question, but we do know that some gangs do have a history of appropriating the imagery of political parties or political movements; for example, the Mongrel Mob does use Nazi imagery—what would happen if, for example, a gang were to appropriate the image of a political party? Now, I don’t want to give offence to any members in the House, so I’ll construct a hypothetical political party. For example, let’s say there was a party called the “Golden Party” with the symbol of the sun. I think this question relates to clause 29, where a judge may apply section 128 of the Evidence Act in deciding whether a sign, symbol, or presentation is gang insignia for the purpose of the Act.

Let’s look at what section 128 of the Evidence Act actually is—and I’m quoting from this. It says, “(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned. (2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.”

I’ve read through that and I’m still none the wiser as to what would actually happen if a gang were to steal the clothes of a political party, so to speak. Would that political party’s insignia be banned? And, in some cases, a gang might—there are some circumstances where a gang might transform into a political movement. We’ve seen, for example—I don’t want to name people, so I’m not going to name political figures in New Zealand; but it could potentially happen. What would happen in that case, where a gang was either trying to appropriate a legitimate political party and a political party was against the gang doing that but it became claimed as gang insignia? Would that political party insignia be banned?

Then the other kind of side of the question is if a gang transitioned to being a political party or a political movement or some sort of kind of civil society—you know, there is a little clause here that, in clause 30(2)(a): “Nothing in subsection (2)(c) applies to conduct that consists primarily of civil disobedience for the purpose of political activism.” But sometimes there are kind of grey lines about different sides of a political movement and different kind of wings or factions of it. So I’m really curious about the answers to these questions. Thank you.

I’m going to take a call from Lawrence Xu-Nan. I think we’ve had some really relevant questions about the list of how these decisions are made. I don’t think we can expect a Minister in the House to answer questions about specific groups of people, as such. So can you just identify the clause in there—I’m not assuming that this is what your question is about, but please identify which clause you’re going to speak on and why.

Of course. Thank you, Madam Chair. My questions of clarification for the Minister are still centred around clause 30. I think, by and large, we haven’t moved on from 30—at least I’m assuming that’s one of the reasons why people are waiting for us to move on from that. So, in terms of clause 30, I have a couple of questions of clarification.

The first one is subclause (1) in terms of the fact it’s made on the recommendations of the Minister of Police, as opposed to other Ministers. I’m just curious to know whether the police, in this case, are the ones with the most readily available information and evidence that would suggest any sort of new recommendations in the power that is granted, in terms of adding or removing any name of an organisation—as opposed to, let’s say, previously in clause 28, maybe the courts will see a lot of this evidence. I’m kind of curious to know how information is transferred from one to the other, because often police also don’t deal with sentencing. Please correct me if I’m wrong. One of the recommendations is that “the Minister of Police may not make a recommendation … unless”—this is subclause (2)(c)—when the “members or associates … individually or collectively … within the last five years, engaged in conduct that amounts to—(i) a category 3 offence”, etc. So would this be under the jurisdiction of the Minister of Police or of the Minister of Justice? That will be a good clarification for my first question.

The second question, which other people have contributed on, is in terms of the specificity of the list of names under Schedule 2, but I wanted to check whether all of those names that do exist under Schedule 2 have also fulfilled the requirement of subclause (2)(c)—if the Minister is able to highlight that. If new names that are added or removed from the list are required to fulfil those requirements from subclause (2)(a) to (c), I’m assuming the current numbers on that list already fulfil those requirements. So that’s the second point of clarification from the Minister.

The third point of clarification is around subclause (3A) and also (3B). It says, “The Minister of Police must review … (a) before making a recommendation”. Now, can I get a clarification from the Minister that what that means is, before the Minister of Police is able to make a recommendation of adding or removing, they need to review every name on that list? If you’re going to be adding or removing names anyway, presumably that is a review. So I’m curious to know why (3A) came about.

The last one is around (3A)(b) and (3B), where both of them say “within five years must review” and also “The Minister … must review the list of identified gangs in Schedule 2 at least once every 5 years”. Again, we’re seeing this duplication where surely subclause (3A)(b) is redundant, because it is already implied that something will be reviewed under (3B). So I just want to check why there is a duplication in terms of that particular clause as well. Those are the four points of clarification, if the Minister wouldn’t mind clarifying. Thank you.

Kia orana. Meitaki maata, Madam Chair. Thank you. It’s a pleasure to take what is my first call on this bill, the Gangs Legislation Amendment Bill. I would like to ask the Minister a question that relates to clause 28. It’s a very discrete clause. I don’t think it has perhaps been touched on yet, so I’ll make sure that I do that. It relates to the filing of a charging document for an offence. This is the situation where there is an alleged offence against this Act and there needs to be a mechanism by which this kickstarts a charge, by way of the charging document.

The clause itself indicates that only a constable may file a charging document. The interesting situation there is that the constable is defined in the legislation. One has to turn to the Policing Act, and it basically indicates that a constable is “a Police employee who—(a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this Act) and; (b) includes a constable who holds any level of position within the New Zealand Police”. There are situations where there are individuals who are authorised to undertake constabulary duties but they do not fall within the definition contained in the Policing Act. A good example might be someone like an authorised officer. Often you see these in cellblocks and police stations. They may be in a position where they may actually be able to perhaps file a charging document.

So my question is whether that is consistent with other pieces of legislation, be it a strict definition of a constable, or whether there are other pieces of legislation where the responsibility for filing a charging document, which is an absolute necessity in terms of triggering what will come under this Act, does actually sit with other individuals who might be Police employees. If we’re thinking about potential circumstances where some situations or contexts may actually be appropriate for someone who is a Police employee—and the definitions that are contained in the Policing Act are also quite clear and specific in that space. So my question is whether there are other pieces of legislation that this aligns with to incorporate other individuals, or whether the Minister believes that, actually, only a constable would be an apt definition for the purposes of effectively filing the charging document.

Thank you, Madam Chair. Perhaps I was not sufficiently articulate before, because I asked what I thought was quite an important question, and the Minister simply has not responded to it, and that is about the classification of gangs. Clause 30 sets out the power and the Governor-General makes an Order in Council on the recommendation of the Minister of Police. Now, once you’re categorised as a gang, significant constraints on your freedoms exist and significant powers are given to the police in respect of you and, indeed, under the Sentencing Act, which we’ll get to. Now, my question was: is the Minister obliged to make a recommendation to take off someone from the gang list when they do not meet the grounds set out in subclause (2)?

Let’s face it: these gangs are not going to go to the Minister of Police and say, “Excuse me, would you mind taking us off the gangs list? We’re no longer a criminal organisation.” It might have been organised crime, but they’re not organised in many other respects. It’s actually really important because if the Minister runs the ruler, as he or she must every five years, and says, “These organisations or these groupings either no longer exist or no longer meet the criteria.”, then it’s really important that they’re taken off this list. So my question’s really simple: if the Minister of Police finds that an organisation on the list no longer satisfies the criteria, will this legislation require the Minister of Police to make a recommendation that they get taken off to the Governor-General, which will trigger the appropriate Order in Council?

This was considered, but, actually, decided it wasn’t necessary. The police will undertake a practice that they will go about the criteria listed in the bill. So it’s not necessary for the process that you are speaking about to be included in the legislation.

I’ll take a call but I’m looking for very new information. I think we’ve exhausted the list of questions now. If we could relate to other clauses, it would be very helpful. Thank you.

My question relates to clause 30, and it’s a question that’s quite substantive. If the Minister looks at subclause (2)(c), we’ve got a clause there that says that people are in trouble if members of the association have been involved in offences, even individually. I wanted the Minister to tell me what that means if an organisation’s innocuous but members within it have acted and have been criminally culpable individually because they haven’t acted as a collective—it’s not the gang, it’s not the association with a gang that has created those offences.

I can actually think of examples where that would be quite often the case—people who would join a church, they might be rehabilitating, so they would be in an organisation with symbols, etc., but their behaviour would not necessarily be linked. In fact, their rehabilitation might be linked to the organisation that they’re part of. I wanted to know what would happen in that situation if the individuals have actually been involved in criminal acts of this kind but not as a collective. Is that the intention of the bill that it would catch people in that situation and that the organisations they were involved with could actually be considered gangs?

I move, That debate on this question now close.

The question is that the Minister’s amendments to Part 4 set out on Amendment Papers 64 and 51 be agreed to.