National’s anti gang policies and the Bill of Rights

Written By: - Date published: 4:09 pm, June 12th, 2022 - 33 comments
Categories: Christopher Luxon, human rights, labour, law, law and "order", mark mitchell, national - Tags: ,

This weekend National threw out a few hunks of red meat to some of its more rabid supporters.  The recent series of drive by shootings have made it determined to do something.  None of the proposals will actually achieve anything but that is beside the point.

So what have they proposed?

  1. Banning gang patches and insignia in public and on social media sites.
  2. Police will be given the power to issue dispersal notices to gang members gathering in public.
  3. Police will have the power to stop gang offenders associating with each other.
  4. Firearms prohibition orders and power of search at any time.

Some of the details were given in this NZQ&A interview of Mark Mitchell.

You can see they are trotting out the same arguments.  Like the increase in gang numbers.  As stated by Jarrod Gilbert the statistics are shonky.  It is very easy to be added to the list and difficult to be taken off it. And the continuous addition of 501s exported from Australia has certainly buttressed figures.

The problem with the patch ban, dispersal notices and the association provisions are clear.  There are fundamental human rights at stake and the court system will look at the proposals if enacted carefully.

Mitchell was asked repeatedly how the proposals will stop drive by shootings.  He kept answer different questions and did not answer the question.

The absurdity of his position was captured perfectly in this question from Jack Tame:

So do you think that someone who is prepared to fire a military style rifle into someone else’s house in a drive by shooting is going to stop that because police have issued them with a notice saying “don’t hang out with your mates”.

Mitchell’s response made no sense:

What the police can do is stop them talking to each other and organising it.  That’s what they can do with a non consorting order.  They can’t do that at the moment.”

National’s policy breaches some fairly fundamental rights.  Like these:

  1. Retrospective changing of the law against sentencing.  National has proposed that any gang member who in the last 10 years has been convicted of a serious offence could have a firearms prohibition order made against them.
  2. Indiscriminate ability to search.  Currently there is a right to warrantless searches where a police officer has good cause to suspect that a breach of the Arms Act has occurred.  National wants this power of search to be extended to anytime and anywhere.  This makes a mockery of the Bill of Rights protection against “unreasonable search and seizure”.  Although at least the language is tidier now.  Previously it was giving Police power of warrant less searches now at least they are saying that existing powers should be extended.
  3. Freedom of expression.  Like it or not freedom of expression affords considerable rights to be able to say and display what you want and like it or not gang patches are the same.  The situation is clearly fraught as this case involving Whanganui’s attempt to ban gang patches shows.  And extending this to social media makes the proposal even easier to challenge.
  4. Freedom of association.  National is no stranger to actions limiting this right.

Mitchell was asked by Tame if the proposals were legal under the Bill of Rights.  The conversation went like this:

Mitchell: Gang members steam roll and trample over the rights of every day kiwis on a daily basis.  They put them in enormous harm.  They are discharging high powered military rifles through people’s homes.  And actually if they continue to act like that they are going to have to understand there may be some tough legislation which may impinge on some of their rights.  The best way that they can respond and react to that is quite simply this, leave the gang. And leave families out of the gang and rejoin society.

Tame: You would introduce laws that would impinge on the Bill of Rights?

Mitchell: Well we will have to wait and see but …

Tame: But that is what you just said.

Mitchell: Absolutely, absolutely.

Clearly in National’s world rights are only preserved for some people.

And you should contrast these proposals with what National said in response to the proposed Hate Speech laws where Simon Bridges said:

Reports of the Government’s proposed new hate speech laws go a step too far and risk sacrificing the freedoms New Zealanders enjoy, National’s Justice spokesperson Simon Bridges says.

“The reforms are supposedly including protections to every ground listed in Section 21 of the Human Rights Act. That includes political belief.

“The definition of hate speech or incitement would include ‘the incitement of disharmony, based on an intent to stir up, maintain or normalise hatred, through threatening, abusive or insulting communications’.

“If these reforms pass, then insulting communications from a different political party could land you in jail.

“If we lose our liberal democracy we will end up with the type of New Zealand that the March 15 terrorist was trying to create.

“Freedom of speech in a democracy means having to tolerate the expression of diverse views, but there are some things like violent hate speech that are never acceptable.

The interview descended into absurdity when Mitchell refused to comment on how much extra resources for the police will be provided.

National’s proposals feel like the latest reheating of a particular course they have served up many, many times in the past.  The proposals are legally practically indefensible and if passed would be tested in the court almost as soon as you can say “paid mercenary”.

I suppose we should not be surprised.  But I hope the media dig deeper into the proposals and seek comment from people with actual experience in the area.

33 comments on “National’s anti gang policies and the Bill of Rights ”

  • Comments are now closed

  1. Ad 1
    12 June 2022 at 4:34 pm

    Argh I just did a post on this.

  2. ianmac 2
    12 June 2022 at 4:44 pm

    They keep saying high powered rifles fired into houses. High powered Rifles? Shotgun pellets/shot surely?

  3. Ross 3
    12 June 2022 at 6:02 pm

    My old mate, Greg O’Connor, once said:

    The threat of losing their patch if they wear it in banned areas will lead to gangs changing their behaviour, Police Association president Greg O'Connor says.

    Gang patches and other insignia are to be banned in Wanganui after a law giving police the power to arrest, seize and fine wearers was passed in Parliament last night.

    The measure is a New Zealand first, and other areas with gang problems were last night considering seeking their own versions of it.

    Mr O'Connor said he believed it would have a huge effect on the intimidation factor of gangs.

    "You don't go down to Woolworths and buy a patch. These people have to commit serious crime to get it, so they'll be doing what they can to hold on to it," he told Radio New Zealand.

    "The gangs will now change their behaviour. You won't see them strutting their stuff."

    Its great to see bipartisanship between Labour and National. Hopefully we will see more of it.

    https://www.nzherald.co.nz/nz/patch-ban-will-change-gang-behaviour-oconnor/KIT6QXDGEBMUTBQTM6VG2BCLVY/

    • Ross 3.1
      12 June 2022 at 6:21 pm

      And Stuart Nash is a big fan of banning gang insignia:

      “Police have been taking action against Mongols MC members. The gang is an organised crime group with global reach and networks. They are involved in serious criminal activity including the supply and distribution of illicit drugs and the use of violence including assault, blackmail and extortion.

      “The ban on displaying the Mongols MC patches follows Police advice that its members share a common identifying insignia and actively promote, encourage or engage in criminal activity.

      “Gang insignia is intended to intimidate the public and other gangs. It is designed to claim ownership of a physical space and to encourage the recruitment of gang prospects. We will not allow the Mongols MC to advertise its presence in this way.

      We need to make all efforts to disrupt the activities of this gang and others, to reduce harm in our communities. We will deny gang members or associates the ability to display their insignia in any government premises. This includes court buildings and Work and Income offices, libraries, schools, public hospitals, some sports grounds and public swimming pools.

      …

      The prohibition on Mongols MC patches was agreed prior to the lockdown and takes effect from today, 24 April 2020. It is the second gang insignia I have prohibited from government sites, after also banning Comancheros gang patches in 2018.

      I must confess, I haven't seen any criticism of the Government's breach of the Mongols' and Comancheros' human rights.

      https://www.beehive.govt.nz/release/gang-patches-and-insignia-banned

      • joe90 3.1.1
        12 June 2022 at 6:56 pm

        I must confess, I haven't seen any criticism of the Government's breach of the Mongols' and Comancheros' human rights

        Dress codes in Government buildings are within the purview of human rights legislation. Really?

    • JO 3.2
      12 June 2022 at 6:44 pm

      Here you go Ross, looking at the date of an article can help. Chester Borrows saw his hopeful bill passed 13 years ago.

      Borrows, who introduced the bill to allow Whanganui District Council to ban gang patches in the region, agreed it “was very difficult to enforce” and ultimately did not lead to change in the region.

      In 2011, the High Court ruled that the council’s bylaw to ban gang patches in public areas was unlawful, invalid and inconscient with the Bill of Rights Act. The Hells Angels had sought a judicial review of the bylaw.

      https://www.stuff.co.nz/national/politics/300610969/it-will-not-work-excop-and-national-mp-says-partys-gang-policy-is-made-for-headlines

      • Ross 3.2.1
        12 June 2022 at 6:56 pm

        JO,

        You seem to have missed the banning of some gang insignia by the Government. Feel free to comment on that.

        • mickysavage 3.2.1.1
          12 June 2022 at 7:26 pm

          Private premises. They can ban what they want.

          Public areas, totally new rules.

          • Ross 3.2.1.1.1
            13 June 2022 at 7:51 am

            Public areas, totally new rules.

            Absolutely, Micky. But the Government – and councils – can and do set the rules. Many councils have banned drinking alcohol in public. But you seem more concerned with the rights of criminal gangs. I'm not sure that's going to go down well with voters.

            • James Simpson 3.2.1.1.1.1
              13 June 2022 at 11:31 am

              Its a crap policy, and won't do anything to remove gangs.

              But I agree with you Ross that the government has to be careful to not be portrayed as siding with the gangs. Do we really want to be defending the Mongrel Mob's rights to wear nazi insignia in public?

              • Craig H …
                13 June 2022 at 4:17 pm

                Defending anyone's right to wear nazi insignia doesn't strike me as a good PR move, but your first sentence is an excellent point. The government would do well to stick to messaging on the uselessness and unenforceability of the suggested policy rather than anything else.

  4. Ad 4
    12 June 2022 at 6:19 pm

    National's new gang policy is crap.

    • Belladonna 4.1
      12 June 2022 at 7:22 pm

      Agree that it's very light on effective detail. Pretty much just headlines…..

      However, the risk is that if it's not effectively countered by new Labour policy, then National will continue to win hearts and minds with soundbites.

      Labour can't afford to say that what we're doing is working – because it's manifestly not.

    • fender 4.2
      12 June 2022 at 7:23 pm

      Haha, you were keen on it last night, or was that your twin who also uses your handle?

      • Ad 4.2.1
        12 June 2022 at 7:24 pm

        I just did a whole post for you.

        The challenge is on for Labour to respond.

        • fender 4.2.1.1
          12 June 2022 at 7:53 pm

          A whole post for me, oh you're too kind, thank you Ad & Ad2.

          Pretty sad that the National leader excretes diarrhea from a hole in his rather unattractive head and the onus is on Labour to respond to this "challenge". It's a shame politics can't be conducted in a more mature way isn't it.

  5. Binders full of women 5
    12 June 2022 at 6:47 pm

    Gang member life expectancy=45…

    🙁

  6. Mike the Lefty 6
    12 June 2022 at 6:57 pm

    But there was one notable omission: National didn't promise to make gangs illegal, which it has hinted at before. The reason is that even National know that it would make the gangs even more attractive to join. Joining an illegal organisation would be the icing on the cake for many young rebels looking to assert their manhood.

    It is all really just populist politics – which is saying whatever you think the people want to hear.

    • Belladonna 6.1
      12 June 2022 at 7:23 pm

      Unfortunately, populist policies are …. popular. And people vote for them….

      • Mike the Lefty 6.1.1
        13 June 2022 at 6:18 am

        And later on the voters find out that the problem with populists is that they usually have little idea of how they can implement what they promise – they are talkers, not doers.

        • Belladonna 6.1.1.1
          13 June 2022 at 9:27 am

          Indeed, I think that is true of all politicians and political promises. Kiwibuild is, perhaps the outstanding example of a Labour off-the-cuff populist promise prior to the 2017 election (100,000 houses in 10 years), which proved impossible to deliver on.

    • Craig H 6.2
      13 June 2022 at 4:19 pm

      Or at least, making it illegal is not going to stop criminals and would-be criminals from joining.

  7. Peter 7
    12 June 2022 at 8:18 pm

    Any chance the rabid supporters of National's moves extolling the ignoring of the Bill of Rights in a time not so far in the distant past were going berserk about the imposition of public health moves? Rights and freedoms and all that.

    It doesn't matter too that Mitchell's position is braindead and the media might dig deeper into the proposals and seek comment from people with actual experience in the area, people in touch with reality. The masses will believe the red-neck, simplistic rhetoric.

  8. Tony Veitch (not etc.) 8
    12 June 2022 at 9:10 pm

    I think this country has a great deal to fear if a plonker like Mercenary Mitchell ever becomes Minister of Police.

    He seems to have an attitude (left over from his days in Iraq making millions killing people perhaps) of shooting first and asking questions afterwards.

    He truly comes across (to me) as the most dangerous and deranged (and misogynistic) of the shadow ministers of the opposition. And that includes the neoliberal fundamentalist Luxon and the 'off the scale' right winger, David Seymour.

  9. Steve Bradley 9
    13 June 2022 at 12:36 pm

    Gangs are not the problem; they are the symptom of the problem.

    Still waiting to hear Christopher Laxative seriously propose workable policies to address social and economic problems felt every day by poor people in Aotearoa, particularly tangata whenua.

    On the contrary his promised 'tax cuts' will only increase the problem by giving more to the top people and service cuts for the bottom.

    These cuts will only make worse the poverty of existence for children at the bottom.

    Remember it was the neo liberal predecessors of Luxon who killed off the paper-based gun register system in which every fire-arm possessed by a licensed gun-owner was recorded; and by the 'nineties it was legal to import semi-automatic weapons for sale to the general public, and at least one National Party ex-MP was making money in this trade.

    The firearms laws can be made much more restrictive without damaging anybody's human rights. No recreational hunter needs a semi-auto, though licensed vermin cullers may.

    Cheers

    • Tiger Mountain 9.1
      14 June 2022 at 8:29 am

      Agree Steve, “Gangs are not the problem; they are the symptom of the problem.”

      Gangs are perennial favourites of politicians, even Norm Kirk had his “take the bikes off the bikies” in 70s parlance, policy, but not many if any were ever taken! Similar to Harley riding, private Bentley parking Auckland Mayor Banksie’s clampdown on boy racers, or Judith Collins’ “Crush ’em” initiative–how many were actually crushed again?

      Moral panic bollocks. The rights of freedom of association, assembly and speech must be defended even for munters and the alienated.

  10. Maurice 10
    13 June 2022 at 3:35 pm

    AND – how would that play out?

    “William Roper: “So, now you give the Devil the benefit of law!”

    Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

    William Roper: “Yes, I'd cut down every law in England to do that!”

    Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”
    ― Robert Bolt, A Man for All Seasons

    All many of us have wanted is to be left alone …. that ain't gonna be now it is ongoing.

    Have they no awareness at all?

    Not only crossed the Rubicon – but have not even noticed their feet are wet!

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