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Image: Tina Tiller
Image: Tina Tiller

PoliticsFebruary 28, 2024

Parliament isn’t where the gang patch ban might stumble – it’s in the courts

Image: Tina Tiller
Image: Tina Tiller

New legislation to prohibit gang insignia in public places will be passed into law in the coming weeks, even if it’s deemed inconsistent with the Bill of Rights. How it will be interpreted in the courts is another matter, writes Andrew Geddis.

I hear that the new coalition government is going to make gangs disappear! How will it manage that?

Well, maybe not “disappear” as such. However, it is proposing legislation to “ban all gang insignia in public places [and] create greater powers to stop criminal gangs from gathering in groups and communicating”, with the intention of “reduc[ing] gangs’ ability to engage in criminal behaviour and prevent them from further endangering and intimidating Kiwis”.

Ah! Kind of an ‘out of sight, out of mind’ deal, then?

I guess so. The argument would seem to be something along the lines that gangs rely on their public branding and numerical power to operate, so taking this away will make them less effective and attractive for others to join.  

There’s a sort of surface logic to that … but will it work?

Dunno. Lots of people have expressed their doubts, including Chester Burrows, the MP who sponsored local legislation back in 2007 that purported to allow a ban on gang patches in Whanganui’s public places. Others issuing similarly downbeat assessments include the opposition parties, legal academics, and gang members themselves. And while broadly supporting the government’s policies, the head of the Police Association, Chris Cahill, also admits that “the ability to police [the ban] in some communities will be much more difficult than others”.

Mongrel Mob members at a Royal Commission of Inquiry into Abuse in State Care hui in 2023 (Photo: Tommy de Silva)

What’s that about Whanganui? Have we tried this before?

Yes – sort of. Back in 2007, parliament passed legislation that allowed the Wanganui District Council (as it was then) to make bylaws to ban gang insignia in designated public places in order to prevent the public from being intimidated. However, the council’s subsequent bylaw effectively created a blanket ban on displaying gang insignia in all public places in the Whanganui district. Following a legal challenge, the high court found that the extent of this ban exceeded the powers that parliament had devolved through its legislation. The bylaw thus was of no legal effect, and a new council opted not to replace it with something more narrowly tailored.

Then, in 2013, parliament passed the Prohibition of Gang Insignia in Government Premises Act 2013, which pretty much does what it says on the lid. Under this enactment, it is an offence to “display gang insignia at any time in government premises”. Anyone doing so can be arrested and fined up to $2,000, while any gang insignia that has been displayed in the premises can be seized and destroyed. 

I’m a bit confused. A ban on gang patches in Whanganui was not lawful, but the current ban on gang patches in all government premises is lawful? 

Yes, because of the way each ban was imposed. The Whanganui ban was imposed by the council using legal powers given to them by MPs. Because those legal powers were exceeded, the ban was “ultra vires” and so invalid. In comparison, the government premises ban is contained in primary legislation enacted by MPs directly. Because parliament can pretty much do what it wants with the law, no one can say this legislation is invalid.

So, if the government gets parliament to impose a blanket ban on gang insignia in all public places, that makes everything OK?

Well, it would make it legally effective (subject to any issues with interpreting and enforcing the legislation). But … there is a but. Any bill that goes before parliament must be assessed by the attorney general (the government minister in charge of ensuring the government abides by its legal obligations) for consistency with the New Zealand Bill of Rights Act 1990 (NZBORA). Basically, she – Judith Collins currently holds this office – has to determine whether the bill limits one of the rights guaranteed by this legislation; and if so, whether that limit can be “demonstrably justified in a free and democratic society.” If she thinks a rights limit cannot be so justified, then she must tell parliament of her conclusion through a “section 7 notice”.

Why might this be an issue for legislation banning the wearing of gang insignia in public?

Because prohibiting someone from displaying “insignia” due to how it is perceived limits the right to freedom of expression. In addition, the proposed legislation’s provisions empowering the police to “issue dispersal notices, which will require gang members to immediately leave the area and not associate with one another for seven days” also limits the rights to associate and peacefully assemble. That means the attorney general is going to have to decide if these limits are demonstrably justified in terms of their objectives and the way that those objectives are being achieved.

It’s important to note that this analysis won’t just be Judith Collin’s own personal reckons, based on what her gut tells her. Rather, she gets advice from government lawyers about how courts have approached this demonstrably justified test in previous cases and how that legal analysis applies in this situation. She can then accept or reject that advice – the final call is hers – but it’s more than simply “do I like what’s being proposed?”

What is the attorney general likely to say about that issue?

That’s unclear, in part because we don’t exactly know what the bill will say! However, past assessments of rights limits in relation to this issue have reached mixed conclusions. Let’s just say for now that there’s at least a 50-50 chance that Collins will conclude the rights limits are not justified and so issue a section 7 notice, informing parliament that the proposed legislation is inconsistent with the NZBORA. 

So the proposed gang bill might be declared inconsistent with the New Zealand Bill of Rights? If so, surely that’s a big deal?

Sort of, yes. But also, not really. A section 7 notice from the attorney general only records her conclusion that the relevant rights limits haven’t been adequately justified (based on how this legal test has been understood and applied previously). Whether MPs – or more accurately, government MPs who have the majority in parliament – take any notice is another matter. On that front the minister of justice, Paul Goldsmith, has stated that “we campaigned on bringing in these policies, we’ve been elected, the Cabinet’s made the decisions, we’ve prepared the legislation and we’re going to do what we said we’re going to do”.

He can take this stance because section 7 notices don’t impose any additional restrictions on parliament’s law-making powers. They do have to be sent to select committee along with the bill, assuming that this stage isn’t skipped under urgency. But the decision on whether the rights limit is or is not justified ultimately is left to MPs to decide, just as they do any other policy issues with proposed legislation. 

So a section 7 notice from the attorney general is worth … what, exactly?

It really depends on the issue at hand. Let’s just say that while everyone may have rights, the rights of some are more important than others. Legislation that limits the rights of socially unpopular groups like gangs won’t attract the sort of concerned attention that apply to measures that limit the rights of more “worthy” groups. Indeed, the legal academic Paul Rishworth has speculated that getting a section 7 notice attached to some bits of legislation represents a “badge of honour” in that it announces to the world that the government is really serious about cracking down (or similar rhetoric). 

After all, the idea of a section 7 notice is to be a “red flag” warning MPs they are being presented with a proposed law that unjustifiably limits some individual right regarded as important enough to be recognised in the NZBORA. The hope was that should MPs then pass this law, the voting public would be so outraged that those MPs would pay a political price for their decision. But, what if the majority of the voting public don’t notice? Or, don’t really care? Or, even applaud the decision? Then the section 7 notice loses any power.

Are you saying that individual rights and how these are perceived and valued is socially conditioned and subject to systemic prejudices?

Yes. Yes I am.

Bleak. Where is all this going to end up?

Well, the bill is going to get introduced and passed into law irrespective of any NZBORA assessment. There’s no way that the coalition government is going to back down on it, given that every news cycle carrying the message “government cracks down on gangs” is exactly what they want the median voter to hear. Which means that the real issue isn’t the general policy – that’s a fait accompli – but rather the precise details. Can the legislation be worded clearly enough to achieve its ends, particularly in the face of what may be some sceptical, rights-focused interpretation in the courts.

I mean, here’s but one potential issue for down the track. Gangs are hardly alone in making use of icons like bulldogs, bees and clenched fists to signify group identity. What odds, then, that members or associates of New Zealand gangs suddenly become big fans of the University of Georgia’s football team or the Burlington Bees baseball team, or strong supporters of black power political activism? And, if they do so, will they be in breach of whatever the new law says?

Keep going!
the green interior of parliament with big alarm clocks
Urgency allows politicians to get things done in a hurry (Image: Tina Tiller/supplied)

PoliticsFebruary 28, 2024

Parliament is in urgency this week – here’s what that means

the green interior of parliament with big alarm clocks
Urgency allows politicians to get things done in a hurry (Image: Tina Tiller/supplied)

Passing legislation under urgency certainly saves time, but it cuts a few corners too.

To get big changes in legislation achieved for its 100-day plan, the government has put parliament into urgency, increasing the amount of time MPs have in the house to pass bills. This week is a sitting week, and parliament is in urgency to pass laws including repealing Auckland’s regional fuel tax, repealing Te Aka Whai Ora and removing cultural reports from legal aid eligibility. 

Urgency means that more bills can be introduced into the House and passed into law, but also means that there is less scrutiny of the process by which they do so. Here’s a quick guide to understanding urgency.

two men sitting on parliament chairs chuckling
PM Christopher Luxon and deputy Winston Peters in parliament (Photo by Marty MELVILLE / AFP) (Photo by MARTY MELVILLE/AFP via Getty Images)

How do bills get passed? 

Every bill must get three readings in the House of Representatives and be signed off by the governor general before it becomes an “Act of Parliament”, and part of our law. At each reading stage, a majority of members of parliament  must vote to support a bill for it to continue. Assuming all MPs vote on a bill, that means at least 62 votes in favour of it becoming law.

If a bill passes its first reading, then it usually goes to a select committee for closer scrutiny and a report. Select committees are smaller groups of MPs that each deal with a particular subject area. During this scrutiny process, which usually lasts for six months, members of the committee examine not only the bill’s general policy aims, but also the exact wording used to try and accomplish those goals. Members of the public usually get to engage with the bill at this stage through written submissions or by coming to select committee hearings to give their feedback directly. 

In its report on the bill, the select committee may recommend that the House adopt amendments that it believes will improve the proposed law. If the revised bill then passes its second reading, it is discussed and debated by the entire house during a “committee stage”; other politicians have the opportunity to ask questions of whichever MP is sponsoring the bill. The house then votes for the bill again at a third reading, and if it passes this the bill becomes law. 

Normally, parliament’s rules require pauses between each of these stages to allow MPs to reflect on the proposed legislation and consider whether they wish to continue to support it. However, these requirements can be set aside if a bill is accorded “urgency”. Where this occurs, readings can take place without a break being taken between them. A bill considered under urgency can even skip the select committee stage altogether. When urgency is taken, the house also sits for longer, so MPs literally have more time in the chamber to vote for legislation. 

Select committee chairs before the MPs come and fill them up (image via Parliament)

Why does parliament go into urgency? 

Urgency is useful when there’s a lot to do and the government wants to do it relatively quickly. One example is budget bills: the government has already decided how it wants to spend money for the year and wants to get that decision confirmed as quickly as possible. The government also may want to use urgency when it has made various commitments that it needs to pass into laws – if there’s a stacked list of everything that needs to be passed, then the extra sitting hours and truncation of process means it can be done more quickly. 

The House might also go into urgency to fix a piece of legislation – like if an accidental loophole in a law is uncovered or there is a need to revise a failure to comply with the existing law (for example, this has happened twice when police officers were improperly sworn in, which could have called into question the legality of their subsequent actions.)

Who gets to decide when the House will go into urgency? 

Any minister can move a motion to accord urgency to a particular piece of business. Usually the minister to do so will be the leader of the House, who manages the government business and makes sure it goes through the House in the right order – they’re usually a pretty senior and well trusted figure. At the moment the leader of the House is Chris Bishop. The minister has to explain why they want to take urgency, but there is no debate on those reasons. If a majority of MPs vote to support the motion – which they always will, if the government has decided that it wants it – then it passes and urgency commences. 

National MP Chris Bishop
National MP Chris Bishop is currently leader of the house (Photo: Getty Images)

What are the downsides to urgency? 

Passing legislation more quickly risks the legal equivalent of the old “marry in haste, repent at leisure” maxim. As the authors of a 2011 book on parliament’s use of urgency noted,  a faster process makes it harder to follow principles of good lawmaking. In particular, skipping the select committee process means there’s less scrutiny on the government, and there’s also less debate about what a bill might mean. The public has less chance to be informed about the law, there is reduced transparency, and legislation might simply be less good – imprecise wording or unintended effects can slip through. 

Why doesn’t the urgency happen all the time? 

All governments constantly face calls to “get more done”. Urgency seems like a solution to this: just blast through as much as possible as quickly as possible. Politically, urgency can be (and often is) a way for the government to escape scrutiny, especially on contentious bills.

The current government’s use of urgency has been criticised by Te Pāti Māori, who requested an urgent debate around the use of urgency yesterday. “The governments use and abuse of urgency has created a dictatorship in what should be a Tiriti-led democratic state,” said co-leader, Debbie Ngarewa-Packer.“We have seen urgency used to abolish three waters legislation, workers’ rights including fair-pay agreements, 90-day trials, and section 27 cultural reports.

“Urgency deprives both legislators and the public of adequate time for scrutiny and deliberation on significant legislative measures such as the disestablishment of the Māori Health Authority and abolishment of Smokefree legislation.

However, there are some in-built limits to the use of urgency as it takes time to actually draft the bills that MPs have to consider. Furthermore, the long hours required when the House is in urgency are tiring; in particular, extending sittings past Thursday makes it much harder for MPs who live outside of Wellington to get home to their families. And finally, using urgency too often opens a government up to accusations that they are ramming law into place without due consideration of its effects. Over time, those criticisms may come to stick.

Are there any weird quirks or fun facts to urgency rules that you would like to tell me about? 

I’m so glad you asked! If the House enters into and remains in urgency  from one day to the next, then it pretends that everything is still happening on the day it entered urgency. So if parliament enters into urgency on a Tuesday and remains under urgency on Wednesday, all debates and votes held on Wednesday are treated in parliament’s record as having happened on Tuesday. Turns out politicians can control time (when they want to). 

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