Ban on Gang Insignia

The Wanganui District Council's Prohibition of Gang Insignia Act 2009 and the subsequent WDC bylaw breaches basic liberties.

Even if the by-law is successful in stemming gang activity within the Whanganui district (and NZCCL has considerable doubt that that will be the case) the by-law itself breaches basic liberties. The argument that the end justifies the means was used by the US to justify the use of torture in Iraq and Afghanistan. This legislation legalises intimidation and harassment of gangs on the grounds that gangs themselves may intimidate or harass other people.

The Wanganui District Council (Prohibition of Gang Insignia) Act 2009 and the subsequent WDC bylaw are examples of a how laws should NOT be made. Because of its potential breach of the Bill of Rights Act, the Wanganui District Council needed to have an act of parliament to sanction its determination to ban gang insignia from Whanganui. However the act was passed only by 62 votes to 59, with three Act Party votes being gained through an assurance by the government that it would support Act’s three strikes legislation (already ruled out as breaching the Bill of Rights).
This means that the PGI act was passed with only a minority of actual support.

Details of the act
One can see why it was not supported. The act specifies a number of named gangs and also “any other specified organisation, association, or group of persons” identified by the Council.
There are restrictions. It must be an organisation identified by a “common name or common signs, symbols or representations” whose “members, associates or supporters individually or collectively actively promote, encourage, or engage in a pattern of criminal activity”, and only “to prevent the likelihood of intimidation or harassment of members of the public” or avoid or reduce confrontation between gangs.
The ban only affects public places as specified by the Council, but including roads even if they are not in the control of the Council. The ban must NOT mean that all public places in the district are specified places.

Bylaw imitates act
The council bylaw is in effect a copy of the act, with the addition of a map and description of the public places that needed to be specified under the act. In the rest of this discussion the arguments relate to both the act and the bylaw, except where specified.

Concerns about the legislation
1. Definitions
There are no clear guidelines as to how to determine what constitutes a “pattern of criminal activity” or “intimidation and harassment”. “Criminal activity” may include the occupation of Motua Gardens, or other protest activity. It may be an assumption that criminal activity is being conducted, but without the support of convictions. Similarly with intimidation or harassment. Some people might view a black power member taking a child to school as intimidatory. Other people might regard a police officer as being intimidatory. There is no defence for gang members to argue that intimidation or harassment was not likely to take place.
2. Separation of powers
In effect this legislation removes from the courts to the executive (the council) decisions relating to criminal activity. The legislation is based around sets of assumptions – that organisations are engaged in criminal activity (if so then they should be prosecuted) and that their members might be considered to be engaged in intimidation or harassment by virtue of the insignia they bear. These assumptions must be made not by police or by councils but by the judiciary, and should be based on evidence. This legislation therefore undermines the legal process.
3. Freedom of expression
The council believes that a dangerous precedent is set if people are restricted in their ability to wear whatever clothes they like. This rule applies equally to women wearing trousers in the Sudan, or the burqa in New Zealand, as it does to people wearing gang insignia. If people are offended or intimidated by a person’s clothes then they need to make a case for themselves. A few years ago in New Zealand the police regularly harassed gay and trans people. This legislation regarding the wearing of gang insignia legalises the same form of harassment.
4. The council’s definition of ‘specified places’
In the bylaw passed by the Wanganui District Council, the map of ‘specified places’ includes the entire urban area, as well as a number of halls, parks and reserves and other public places outside the urban area, as suggested by the police. It also includes State Highway 3 and other arterial routes.
This broad specified area would seem to be in conflict with the Act, which states that the effect of the act must not be that all the public places in the district are specified places. The council map includes all the Whanganui urban area, even though council press releases generally refer only to the CBD.
5. Freedom of passage
Because of the broad scope of the ban, it would seem to prevent freedom of passage of other gang members not related to the Whanganui region, but merely passing through on the open road. These gang members may be stopped by the police and their vehicles searched, even if they are not wearing patches at the time.
6. Potential for abuse
Because there are no clear guidelines as to who is or is not covered under the definitions of ‘gang’, ‘criminal activity’, ‘intimidation’ or ‘insignia’ it is entirely possible for the council to extend the legislation to include protest groups or other organisations it wishes to suppress. Similar legislation has been used overseas to restrict the activities of environmental and human rights groups.

The ends do not justify the means
Even if the by-law is successful in stemming gang activity within the Whanganui district (and NZCCL has considerable doubt that that will be the case) the by-law itself breaches basic liberties. The argument that the end justifies the means was used by the US to justify the use of torture in Iraq and Afghanistan. This legislation legalises intimidation and harassment of gangs on the grounds that gangs themselves may intimidate or harass other people.
A number of other councils have expressed a wish to introduce a similar ban. Each of those will require the passing of a specific act of parliament. It is to be hope that, given the closeness of the vote on this act and the strong criticism of the Act Party deal by its own members, that no future act will get through the parliamentary process.

Batch Hales
On behalf of NZCCL

11 September 2009

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