About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation which advocates to promote human rights and maintain civil liberties.
2. We wish to make an oral submission to the Committee.

Introduction

3. This Bill is a gross infringement of our civil liberties including the rights to freedom of expression, freedom of association, and freedom of peaceful assembly. 
   
4. Even worse, the Bill is the continuation of the policy of creating a sub-class of New Zealanders who enjoy fewer freedoms than everyone else, not because of what they have done, but because of what we fear they might do. 
   
5. The Attorney General has issued a New Zealand Bill of Rights Act 1990 (BORA) section 7 report (the BORA report).  By doing so, the Attorney General has indicated that this bill cannot be justified in a free and democratic society. The Council agrees with the Attorney General that “Just as [gang members] are subject to the law, including the law proposed by this Bill, they are also entitled to its protection.” 
   
6. This Bill is the latest in a torrent of legislation aimed at reducing gang influence through punitive measures. Other recent legislation includes:
   1. Privacy (Information Sharing Agreement between New Zealand Gang Intelligence Centre Agencies) Order 2018 
   2. Contempt Of Court Act 2019
   3. Firearms Prohibition Orders Legislation Act 2022
   4. Criminal Activity Intervention Legislation Act 2023
   5. Criminal Proceeds (Recovery) Amendment Act 2023
      
7. Successive governments have claimed that these laws are required to finally give police the ability to stop gang crime, but it seems that they’re never enough and there’s always another law required. The Council fears that we will continue to surrender our liberties indefinitely; when will we acknowledge that this approach is not working?
   
8. The Council recommends that the Committee reject this Bill in its entirety.

The Bill

9. This Bill does five principal things. It:
   1. Creates a new process for designating groups as gangs
   2. Bans the display of gang insignia in public places.
   3. Allows police to order a group of people suspected to be gang members in a public place to disperse and and not associate with each other for up to 7 days.
   4. Allows District Court judges to order gang members to not associate with each other for 3 years.
   5. Adds gang membership as an aggravating factor when sentencing.

Civil Liberties infringed

10. This Bill as proposed infringes the civil liberties of New Zealanders.
    1. Banning the display of gang insignia infringes the right to freedom of expression.
    2. Ordering people to disperse infringes the right to freedom of peaceful assembly.
    3. Ordering people to not associate with each other infringes the right to freedom of association.
    4. The process by which it is proposed that police will order these dispersonals infringes the right to minimum standards of criminal procedure.
    5. Non-consorting orders infringe the right to freedom of association.
    6. The process of nominating groups as being gangs infringes the right to justice.

Freedom of expression

11. BORA section 14 enacts our freedom of expression – “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”
    
12. Freedom of expression is a core civil liberty in a democratic system. It is a form of personal autonomy that enables the free exchange of ideas, it enables the search for truth and supports democratic debate. Freedom of expression is generally considered to take a wide view of the types of included expression including speech, writing, artwork, song, and dance. 
    
13. There is no doubt that wearing an insignia counts as a form of freedom of expression. It both counts as artwork and communicates membership of a group. Political parties themselves do this with their logos.

The Bill and freedom of expression

14. The Bill, by setting up a list of proscribed gangs and then banning them from wearing their logo or related insignia, obviously infringes on our right to freedom of expression.
15. BORA only allows for our rights to be limited “as can be demonstrably justified in a free and democratic society.” The Hansen test is often used and can be summarised as “is there a good reason for the limitation, will it be effective, is the limitation as minimal as possible, is the limitation proportionate to the importance of the objective?”
16. The Bill gives three justifications for this limitation:
    1. “Gang insignia displayed in public may cause some people to feel fearful or intimidated”;
    2. “The display of gang insignia as a status symbol may also assist gangs in marketing themselves to potential prospects and future recruits”; and
    3. “As gang members are readily identifiable by their insignia, the display of insignia may exacerbate inter-gang rivalries that lead to gang violence in public spaces.”
17. We find these justifications to be very weak; they do not address real harms such as crimes. Note the use of the weakening word “may” in each claimed justification to indicate that even the authors of the Bill don’t find their arguments convincing. Limitations on such an important civil liberty can’t just be about vague possibilities of harm that might occur.
18. We further suggest that even if the Bill was passed into law, very little would be materially different in all three circumstances given as reasons for this limitation. Gangs already have traditions of wearing a certain colour to identify themselves and even if we went as far as trying to ban shades of colour, human ingenuity will always find a way.
19. A fine of up to $5000 or a 6 month jail term seems highly excessive for wearing gang insignia in public.

Conclusion – freedom of expression

20. We believe the justification for banning the display of gang insignia fails at all levels. The purpose is weak, it seems unlikely to be effective, and the rights infringed are significant. We oppose this measure.

Freedom of peaceful assembly

21. BORA section 16 enacts our freedom of peaceful assembly – “Everyone has the right to freedom of peaceful assembly.”
22. Freedom of peaceful assembly is another core civil liberty in a democracy. It allows people to come together, publicly or privately, to discuss or protest the important issues in their society. It is a key right that enables political activity and is often one of the first that is removed by an unpopular and authoritarian government.

The Bill and freedom of peaceful assembly

23. The Bill allows a police officer to order a group of people who they believe are gang members to disperse if they believe that they will “disrupt activities of other members of the community”. This obviously contravenes the right to freedom of peaceful assembly.
24. We note that the bar for action is incredibly low as “disrupting activities of other members of the community” could be triggered by such commonplace activities such as playing music or engaging in a picnic with noisy children.
25. The power can be exercised by any police officer, even the most junior. We suggest that this will lead to inappropriate use of what is a significant power by inexperienced officers.
26. We are concerned that while the law mentions its use against gang members, it seems that the police officer only has to have reasonable grounds to suspect that they are gang members. As such the dispersal power could be used against a wide range of people going about their lawful business in public, purely based on an individual officer’s stereotypical view of what gang members look like. We can’t help fearing that this power will be used disproportionately against Māori and Pacific Islanders.
27. There is no at-the-time or after-the-fact oversight of the use of the dispersal power by the police. There is not even any provision for tracking how often these notices are issued and in what circumstances.
28. The process to appeal the use of the dispersal power is unwieldy, relying on the subject of the notice applying to the Commissioner of Police in writing. This does not appear to be a serious attempt to provide a usable and accessible way to appeal a dispersal notice.
29. The dispersal notice remains active for 7 days and therefore continues to bar the subjects from a place long after they may have been suspected of committing the sin of “disrupting activities of other members of the community”. Even if we accepted that these orders could be necessary, and we don’t, it would seem that a 24 hour period would be ample.

Conclusion: freedom of peaceful assembly

30. Once again the justification for the infringement of our civil liberties is very weak. This is not to allow police to stop crime, but to cater to the fears of those who believe that a crime could possibly be done in the future. 
31. There are also a number of shortcomings in who can issue the orders, the purpose for which they can be issued, the lack of oversight, the excessive length of the orders, and the unwieldy appeal process.
32. Most concerning of all is that the dispersal orders can be issued against any group who the police suspect might be gang members, leading us to suspect that it will be used disproportionately against Maori, Pacific Islanders, and other people based more on their appearance than their behaviour.
33. Giving this significant power to police is unacceptable in a rights-respecting society like New Zealand.

Freedom of association

34. BORA section 17 enacts our freedom of association – “Everyone has the right to freedom of association.”
35. Freedom of association is yet another core civil liberty in a democracy. It ensures that everyone is free to organise and to form and participate in groups, either informally or informally. It is a vital right in our private, working, and political lives.

The Bill and freedom of association

36. The Bill attacks freedom of association in two parts, through the non-association provisions of the police-issued dispersal notices already discussed, and by requiring District Court judges to issue non-consorting orders.
37. Non-consorting orders block people from associating with each other for 3 years if “the order would assist in disrupting or restricting the capacity of the person to engage in conduct that amounts to a serious offence”. Seeing that all people have the capacity to engage in conduct that amounts to a serious offence, this is a very wide net indeed. The only people excluded would be the very sick or the very young.
38. A fine of up to $15,000 or a 5 year jail term is highly excessive for breaching a non-consorting order.

Conclusion: freedom of association

39. Like the other parts of this bill, the justification for being able to infringe on people’s right to freedom of association is very weak. Non-consorting orders are not a reaction to a conviction or a proven conspiracy to commit crime, but rather on a feeling that the people might commit crime together at some time in the future.
40. It seems obvious to us that an unspecified fear does not meet the requirements to significantly impinge on our right to freedom of association.

Effectiveness

41. We have discussed the problems with how the Bill proposes to do things but also want to comment on the effectiveness of what it promises to do.
42. This hastily drafted Bill does the opposite of the advice offered to parliament and the strategies of the justice sector.
43. The Safe and Effective Justice Advisory Group’s 2019 report Turuki! Turuki! Moving Together, recommended shifting the focus from crime to community.
44. The Office of the Prime Minister’s Chief Science Advisor’s recent Toward an understanding of Aotearoa New Zealand’s adult gang environment report finds that “suppression efforts [are] generally viewed as the least successful approach.” The Council congratulates the Chief Science Advisor for this most excellent report. The Council further strongly encourages the Committee to re-read this report before deliberating on this bill. The report’s findings include: 

enforcement measures that focus purely on gang affiliation have their limitations. In that sense, focussed interventions to target organised crime and harmful behaviours, may prove to be a more worthwhile investment than customised measures to ‘crack down on gangs’ per se.

and

Given the longevity of our gang population, the Gang Harm Insights Centre propose that there is benefit in shifting focus from preventing gang membership and growth, to addressing the underlying causes that influence the associated anti‐social behaviours.

45. Due to the recent election, the Chief Science Advisor’s report gives the public a rare glimpse of the executive arm of government disagreeing with proposed legislation. In reference to this Bill, the report says:

Resurgence of the idea to ban gang patches has been met with criticism, with claims that the proposal was designed for ‘big headlines’ and would be ineffective in practice. Enforcement of wider patch bans would be difficult, if not impossible, and has the potential to be confrontational.

46. This is not a new policy proposal. It has been tried and has failed both in Aotearoa New Zealand and overseas.

Te Tiriti o Waitangi

47. By the government’s own admission “there was no consultation with Māori on the proposals in the bill”.
    
48. The government claims that consultations were skipped as there is a need to pass this legislation quickly. The Council does not believe that the government has made the case for this urgency as a justification for abandoning its Tiriti obligations.
    
49. The people who belong to associations which this Bill has chosen to label as gangs are 77% Māori. Therefore, this Bill, which contains provisions that further the existing discrimination on the basis of alleged membership of an alleged gang, can easily be seen to enable further discrimination against people on the basis of race.
    
50. Paragraph 63.2 of the BORA report reads:

If the Bill was discriminatory under the Bill of Rights Act because of the disproportionate representation of Mori in gangs, this would mean all attempts to protect the public from gangs would be discriminatory.

51. The Council agrees with the Attorney General’s reasoning, but comes to the opposite conclusion, that our legislation against gangs is discriminatory on the basis of race.
    

Conclusion on the whole

52. We have chosen to concentrate on the three important civil liberties that this Bill is directly designed to weaken. We are opposed to the Bill because of the specific serious infringements of our civil liberties that it includes. These civil liberties, the freedoms of expression, association and assembly, are at the core of our democracy and should not be lightly curtailed.
    
53. And yet this is all being done for what the Bill’s explanatory note says is: “The single broad policy implemented by the Bill is to improve public confidence in law and order through creating new offences and Police powers targeting gangs.” “Improving confidence” in no way reaches the bar required to take away people’s rights.
    
54. The Council believes that the government should let law enforcement concentrate on catching those who break real laws with real victims, rather than making up spurious new laws that undermine civil liberties to little effect.
    
55. That the Bill attempts to limit these civil liberties based on not what people have done but on what we fear that they might do makes it worse. These are not well-judged measures that stop a terrible harm at the cost of a little liberty, rather they are measures that pander to the speculative fears and mild discomfort of the more nervous members of the public.
    
56. But more importantly, we are opposed to the philosophy behind the Bill, a philosophy that says we can arbitrarily define certain groups of people who deserve less civil liberties than everyone else. This is not an approach that is compatible with a democratic and rights-respecting society.

Recommendation 1
We think this Bill is an unsalvageable attack on people’s civil liberties and should be withdrawn.

Clause by Clause Analysis

57. However, since we suspect that the Committee will continue with this Bill, in the second half of our submission we make some detailed suggestions about the drafting of some of the clauses.

Right to Justice

The associations themselves

58. Schedule 2 of the Bill establishes a list of associations which have been identified as gangs. Clause 30 of the Bill further establishes that the list of associations may be amended by order in council upon recommendation by the Minister of Police.
59. Articles 7, 8, and 10 of the Universal Declaration of Human Rights (UDHR) provide for the right to a fair trial. Section 27 of the New Zealand Bill of Rights Act 1990 (BORA) enacts this as our Right to Justice. BORA s27 reads:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

60. The process in this Bill seems be no more than the fairly arbitrary determination of the Minister of Police. If we are to have a process by which associations are deemed to be gangs it seems obvious to us that there should be a proper process where the burden of proof is on the crown and the accused has the ability to defend themselves.
    

The word “OR” in clause 30(2)(b)

61. Clause 30(2)(b), which is the primary standard governing which associations become gangs, reads “its members, associates, or supporters individually or collectively promote, encourage, or engage in criminal activity.”
62. Given the optionality of the wording, all that is required for an entire organisation to be branded as a gang is for one of its supporters to engage in criminal activity.  In that interpretation, not only are all of our amateur sports clubs and fan groups for professional sporting teams readily classified as gangs, but so are anyone else with insignia, like our schools, political parties, Police, and NZDF.  For example, more than one MP has been charged with a criminal offence in the past year.

Recommendation 2
Add clause 30(2)(c) which reads “there is no significant political dimension to the organisation, association, or group”

Recommendation 3
Replace 30(2)(b) with “its members, associates, and supporters collectively promote, encourage, or engage in criminal activity.”

The alleged members

63. Everyone has rights to minimum standards of criminal procedure from BORA s25.
64. People identified as gang members under this Bill have no opportunity to challenge the accuracy of that label.  This continues the existing unjust practice from sections 8(3) or 9(3) of the NZ Gang ISA.
65. If we are to discriminate against people for allegedly being members of an association, that membership should be established in criminal court, where the accused can defend themselves, before the Police are allowed to begin discriminating against that person.  Anything less is a breach of BORA s25.

Recommendation 4
Remove the definitions of “gang member” and “prospective member or nominee” from clause 4, and add a new section to the Bill establishing the process by which criminal courts decide who is or is not a member of a gang.

Civil Proceedings

66. Clauses 26 and 27 establish that proceedings from this Bill are civil proceedings, except for prosecutions under clause 23.
    
67. Civil proceedings run on a balance or evidence standard rather than a burden of proof standard. Further, many supports available to defendants in criminal court which are not available in civil proceedings: too many to list here. For the simplest example, legal aid would not be available.
68. The Council condemns this farce. The concept that non-consorting orders are civil proceedings is a convenient fiction to limit our rights without due process. The Bills’ aims and methods do not fit the definitions of civil proceedings. The Bill does not claim that the state has been materially wronged or needs to be compensated. Instead respondents are being persecuted by Police in civil court, rather than being prosecuted by Police in criminal court.

Recommendation 5
Remove clause 26 and replace clause 27 with “Proceedings under this act are criminal proceedings”

Right to Protest

69. Democracy is in decline globally. Recently, previously democratic governments amongst our so-called allies have criminalised protest.
70. Clause 9(3) allows for our right to protest by limiting dispersal notices. There is no equivalent allowance for our right to protest in the non-consorting orders.
71. Clause 22 puts limits on non-consorting orders.  These limits should allow for all forms of political expression.

Recommendation 6
Add clause 22(c) “engaging in any form of political activity, including political protest.”

Half hearted attempt at exhaustively listing government services

72. Clauses 15(b)(i) and 22(b)(i) are attempts to list the reasons why the justice sector requires people to be present. They miss many justice sector causes, like summons for jury duty. Moreover, they do not include the rest of government. This approach is flawed. Rather than attempting to exhaustively list the reasons people interact with government and carving a unique exemption for each of them, the bill should exempt government interaction in general.

Recommendation 7
Replace 15(b)(i) and 22(b)(i) with “in order to access a government service, apply for access to a government service, fulfil a condition of access to a government service, to comply with any government order or summons, or any other reason instigated by the government.”

Public Transport

73. Clauses 15(b)(ii) and 22(b)(ii) are another attempt to exhaustively list reasons, this time reasons why people might be in close proximity without their design.  Again, this approach is flawed.
74. On a very practical level, gangs are a source of employment. So allowing work as an exemption to part 3 defeats the purpose of that part. However, denying people the choice to work is unconscionable. Again, the Council recommends striking part 3 in its entirety.
75. Transport is another common reason why people might need to be in proximity.  There are places, like our outlying islands, which even wealthy New Zealanders can only practically access by shared transport. The people who would be subject to these orders will not be wealthy. Many of them will be dependent on public transport to access basic services and to go to work.

Recommendation 8
Add clauses 15(b)(iii) and 22(b)(iii) which read “by coincidentally sharing public transport”

Petty Tyranny

76. Clause 25(1)(a) grants District Court judges the power to deny people to attend tangi or funerals.  Furthermore, it requires people to apply to the district court in times of grief, taking their time and money. Still further, it unnecessarily clogs our courts, which are already overburdened. As the Attorney General’s report put it:

it is offensive … to the very notion of a free society, that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbours and then obtain a permit to do so.

Recommendation 9
Allow everyone to attend tangi and funerals by moving clause 25(1)(a), which requires court approval, to 22(d) where it becomes a consistent right.  Consequently change the leading verb “attend” to the adjective “attending” for grammatical consistency.

Disproportionately severe punishment

77. BORA s9 establishes our right to not be subject to disproportionately severe punishment.
78. Paragraph 55 of the Attorney General’s report establishes that clause 37 of the bill interacts with BORA s9, and furthermore that s9 limits are “incapable of justification.”
79. The Council rejects paragraph 56 of the Attorney General’s report. Paragraph 56 attempts the mental gymnastics that clause 37 does not limit BORA s9 because clause 37 limits BORA s9 so transparently that the courts will refuse to enforce clause 37.  Therefore, if the courts refuse to enforce the clause, then no actual harm is done and there is no problem.  The Council believes that this is nonsense.

Recommendation 10
Remove clause 37 from the bill.

Thanks

80. The Council thanks members of the Committee for their time and consideration of our submission.