Gilbert, Jarrod --- "Making gang laws in a panic. Lessons from the 1990s and beyond" [2022] NZLFRRp 4

I would like the thank the New Zealand Law Foundation for a grant that made this research possible, and for being supportive throughout the research and report writing processes; particularly given some of the changes in methodology necessitated by Covid-19 restrictions.

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Thanks, too, to the Police for granting access to the data they hold, and to the New Zealand Herald for access to their archives.

I would also like to thank my colleagues Ben Elley, Laura Johnstone and Danielle Moore from Independent Research Solutions for their assistance in the research process, and to Emeritus Professor Greg Newbold and Adjunct Professor Chris Gallavin for peer reviewing this report; their ideas and advice were invaluable, but the findings and opinions expressed here are my own.

This research was originally conceived when I first started studying gangs, which eventually led to the book Patched: the history of gangs in New Zealand. In that publication, I outlined New Zealand’s most significant legislative drive targeting gangs that occurred in the mid-1990s, and drew some tentative conclusions as to their lack of efficacy despite, or because of, the tremendous political rhetoric that preceded the passing of those laws.

Thanks to funding from the Law Foundation, I have now been able to investigate these laws further by examining longitudinal police charge data.

The timing of the current project is important, because there are significant parallels between the gang situation of today, and that of the mid-1990s.

To provide insights around what a contemporary legislative drive may look like, I have looked across at Australia and their recent efforts to legislate against gangs. Both the local and international examples offer insights into the creation of gang laws, and more importantly offer caution at this time. I argue that the scene is set for a renewed legislative drive against gangs in New Zealand.

With that in mind, I conclude by offering suggestions on what we should look for in any new gang law proposals.

To understand both the laws and the environment around the legislative thrust against gangs in the mid-1990s, a range of secondary sources was collected and analysed, notably: the laws themselves, relevant New Zealand Parliamentary Debates, submissions for and against the laws, and numerous media reports.

These sources were used to analyse the assumptions that supported the legislation, and also to test the claims that were made at the time the laws were drafted and passed. Media archives were analysed to discover what parts of the laws were emphasised in bulletin headlines and article content, and what arguments were covered and which ones were not.

These assumptions and claims were compared with the results of the quantitative data analysis to see how accurate and well-informed they were.

Specific documents such as police reports were also collected and analysed as necessary.

The quantitative elements of this research are based on data acquired from the New Zealand Police regarding the use of each of the laws. These data show the number of individuals charged with each offence code, broken down by year and by gang alerts (that denote gang association or membership).

These data were used to determine how often the laws in question have been employed and how often they had been used against gang members. This was achieved by comparing the number of people charged with offences against the gang-busting laws, who were recorded by police as having gang alerts, against the number who did not.

Where possible, each law change was connected with a single offence type, but not all were connected with specific offences. Intimidation, for example, returned 11 separate offence types, covering offences under the categories of Demand to Steal and Threaten to Kill.

The data set contained a total of 378,806 charges, 75,303 of which were against by those with gang alerts, and 303,503 by those without alerts. A total of 168,501 people were charged with these offences, 22,251 of whom had gang alerts, and 146,250 who did not.

The gang alert data maintained by police is a central feature that has allowed this research to proceed, but it does present some limitations. These alerts are designed to be a tool for use by police in the job of everyday policing, and as such represent an imperfect tool for research.

The most notable of these limitations is in classification. Rather than separating individuals by gang status – such as member or associate – this dataset makes no distinction between levels of gang association and involvement. Those marked with gang alerts may be gang members, prospects, or simply people with known associations with gangs or gang members. This is a very broad categorisation, and as a result the number of individuals with gang alerts recorded in the data provided by police was 22,251, which is substantially higher than the number of gang members believed to currently exist in New Zealand. Recent statistics provided by the government have placed the number of gang members at 8175, but even this figure has also been acknowledged to be inflated by the inclusion of many individuals who have since left their gang, or who have a gang association but not membership.

That this gang alert dataset includes a large number of individuals who are merely associates of gangs – but not actual gang members – means that the where ‘gang’ status is indicated, the numbers will necessarily be inflated.

We therefore need caution in reading the ‘gang’ numbers used in this report because the ‘gang alerts’ used in this research without question include a large number of associates who are not actual gang members.

There is a number of provisions in the legislative drive under study for which no data are held. Given this, the analysis cannot be fully comprehensive. For example:

Many of the gang-busting measures broaden the criteria under which police can apply for warrants to intercept telephone communications.

A request for interception warrant data was made to the Ministry of Justice, but the Ministry advised that they do not hold data regarding the number of interception warrants issued, and they do not believe that any other government agency holds the data either:

...applications for interception warrants and the outcomes of these applications are not recorded in the Case Management System for courts (CMS). I am therefore refusing this part of your request under section 18(g) because this information is not held by the Ministry and I have no reason to believe it is held by another organisation that is subject to the OIA.

The absence of data regarding these measures means that it is not possible to quantify the impact of that provision.

Similar problems were encountered with non-association orders. Data regarding non-association orders were requested from the Ministry of Justice, but the Ministry advised that it could only provide data for non-association orders issued from 2004, when their Case Management System first became operational.

Once again, this deficit impeded our ability to assess the impacts of the amendments to the Criminal Justice Act (1985).

Importantly, there are important criteria against which these laws are not assessed here; such as, whether they are fair and equitable laws, and whether their application has positive outcomes for society in general. Anti-gang laws have been criticised overseas as presenting civil rights concerns, and having disproportionate impacts on marginalised communities (Curry et al., 2014; Bartels et al., 2021; Trujillo & Vitale, 2022) – elements that this analysis does not have the capacity to assess.

In 1996, two unrelated gang wars in the South Island erupted – wars that were to provide the springboard for the most aggressive legislative thrust against gangs in New Zealand history. While the episodes of inter-gang violence in 1996 were no more serious than a number of past conflicts, they were seized upon by police and politicians and used to create widespread concern, generating a huge political wave. This wave led to a raft of legislative changes that took shape in 1996 and 1997, and in the process led to a significant reframing of the gang issue in the public eye; one which has lasted into the present day.

Nineteen ninety-six was described by one national newspaper as a year of “unprecedented” gang warfare (Sunday Star Times 21.12.1996). While it was true that the year was punctuated by significant inter-gang violence, it was by no means without precedent, and indeed serious and protracted conflicts have occurred periodically since the early 1970s (Gilbert, 2013).

It is perhaps instructive that the legislative drive against gangs occurred in 1996, a politically unique year in which the country elected its first Mixed Member Proportional (MMP) government. Under the new electoral system, a greater number of parties had a realistic chance of entering parliament. Both the National and Labour parties, which had dominated New Zealand’s political landscape since the late 1930s, were aware that they needed to make a significant impression on the electorate in order to transfuse as few votes as possible to the minor parties. Law and order issues are often seen as valuable election tools and they had played an important role in a number of New Zealand elections since 1949 (Havemann & Havemann, 1995: p.229). In election year 1996, gangs provided an important electioneering plank for Labour, and the National government was forced to respond.

The genesis for this country’s most substantial anti-gang legislative effort were events in the cities of Christchurch and Invercargill, where two gang wars, both involving the Road Knights, resulted in significant concern and media attention. In Christchurch, a new chapter of the Road Knights was at war with the Epitaph Riders and, in Invercargill, the Knights were attempting to stop the establishment of a Black Power chapter in that city.

It is not surprising that these two conflicts occurred when new gang chapters attempted to form in areas already established as another gang’s territory. By the 1990s, the gang geography of New Zealand was well defined. As one gang member put it to me, the country was in ‘checkmate’ – there was little room left on the board to move. In the cities and towns where gangs existed, different areas tended to be dominated by different gangs, or, where groups did share space, they generally coexisted peacefully, with occasional conflicts more often incidental than deliberate. But when a new gang or gang chapter attempted to set up in another gang’s territory, violence was likely. Partially because of

this geographical détente large-scale territorial battles – and overt gang violence generally – were less prevalent than they had been in the past. This situation of relative tranquillity is why, when inter- gang warfare did break out in 1996, it caused so much community alarm.

Tensions between the Epitaph Riders and the Road Knights began in earnest when the Road Knights established a chapter in Christchurch in 1993. In an undated letter, the Road Knights said they were prompted to move into Christchurch because of “strong business ties”, because they had a number of members in Christchurch prisons, and because they had members “living and working” in the city. The Road Knights said the move was “not out of malice or disrespect for the Riders but merely a step in the right direction for us”. Despite the benign rationale, however, the Knights must have known that establishing a chapter in a city claimed by the Riders meant that conflict between the two gangs was inevitable.

Although their fierce reputation had diminished somewhat by the 1990s, the Epitaph Riders remained a strong outlaw club in Christchurch, while the new Road Knights chapter soon established a reputation for itself as one of the country’s most formidable and dangerous outlaw motorcycle chapters.

In March 1996, members of the Road Knights fired at a car driven by an Epitaph Rider near the Riders’ headquarters in the Christchurch suburb of Addington, shattering its rear window (NZ Herald 20.3.1996). Less than two weeks later, the gangs were involved in another public shooting, this time in Riccarton (NZ Herald 27.3.1996). Although nobody was hurt, shots being fired in residential suburbs raised considerable public and police concern, and upset the fragile balance between the gang and its surrounding community (Gilbert, 2013). Christchurch’s district police commander, Superintendent Paul Fitzharris said, “We are very concerned if such incidents spill out into the public arena” (NZ Herald 28.3.1996). Police acted quickly after both shootings and arrested seven members of the Road Knights (NZ Herald 28.3.1996). Although not seen as the aggressors in the war, the police also placed pressure on the Epitaph Riders, serving a search warrant on the gang’s headquarters by crashing through the front wall with a front-end loader, although only one arrest – for possession of cannabis

The war continued and sporadic – often public – encounters were frequent, largely because the Road Knights regularly travelled past the Epitaph Riders’ Addington headquarters to get into the central city from their base in Halswell. However, the gang code of silence, which prevents gang members from laying complaints to police, meant that the majority of incidents went unreported. In March 1996, for example, a member of the Road Knights went to hospital to seek treatment for gunshot wounds to the face, but discharged himself before police arrived to question him (New Zealand Police, 1996: p.9).

In April 1996, one of three occupants of a car owned by the Road Knights fired a pistol at a group of Epitaph Riders on their motorcycles at an intersection in Lincoln Road, Addington. The shots missed their intended targets and instead hit a nearby car driven by a couple and their child – the man was injured by glass fragments while the woman was struck by a bullet that passed through her arm and lodged in her chest (NZ Herald 29.4.1996). The public nature of the attacks and the serious injury of an innocent bystander disrupted the gang/community balance further by sparking even wider public concern; thereby guaranteeing significant police and political reaction. It was, to use Huff’s (1990: p.312) phrase, a ‘catalytic event’ that helped gain political attention, not least because Ron Mark – an unsuccessful Labour party candidate in the 1993 election, who six months after the shooting was elected to parliament as a New Zealand First MP – had a family member who was close to the danger: “But for 0.5 of a second either way, my daughter or her boyfriend could easily have been the person shot” (NZPD, vol.564, 1997: p.4969). While a political response was by then inevitable, the close involvement, albeit indirectly, of an MP meant that political concern was arguably heightened.

Intense policing in the wake of the shooting took a heavy toll on both outlaw clubs. Indeed, 23 members and associates of the Road Knights were sent to prison in the aftermath of the shootings (Dennehy &

Newbold, 2001: p.186). Utilising a strategy that had proven effective for controlling gang wars in the past (Gilbert, 2013), the gangs were pursued on even relatively minor matters, and a total of $13,000 traffic fines were issued to members and associates of the Road Knights during the police crackdown (Newbold, 2000: p.209). The greater targeting of the Road Knights is perhaps an indication that the police knew that it was the Knights’ move to Christchurch that had sparked the war. The Harris Gang

– the forerunner to the Christchurch Road Knight chapter – had also been implicated in the 1991 bombing of the Sydenham Police Station, which no doubt intensified the police’s eagerness to bring the group to heel.

As could be expected, the constant police attention and the arrests and fines that followed eventually quelled war, which went ‘cold’ by the middle of 1996, although a truce was not officially declared until 2005. But the political fallout of the burst of violence in Christchurch was given further impetus by a gang war in Invercargill that same year, which was equally fierce and, importantly, just as public.

The gang composition of Invercargill was originally established by the break-up of a recreational group called the British Motorcycle Club, which in 1983 splintered into two outlaw factions – the Damned and a chapter of the Road Knights. The Damned were initially the stronger of the two groups, but after the Road Knights killed at least two Damned members in separate incidents in the 1980s, the Knights became ascendant. In an attempt to survive, in 1989 the Damned patched over to become a chapter of the Devil’s Henchmen, but this failed to stop their total collapse just a year later. Thus, the Road Knights fought for and won Invercargill, giving them feelings of territorial proprietorship and a right to exclusivity. This situation was maintained until the mid-1990s when Black Power attempted to establish a chapter in the city. For the Road Knights, an all-white club, the establishment of another gang was unacceptable, especially one made of predominantly Māori members. By 1996, the battle for gang control of Invercargill had commenced once again, but this time with significant political consequences.

Early in 1996, the Road Knights tried to end the war quickly by attempting to bomb Black Power’s headquarters. Although the bomb failed to explode, a series of shotgun blasts destroyed a car window at the Black Power address (NZ Herald 7.3.1996). Further shootings occurred, causing local police to take up arms. Southland police district commander, Neville Cook, said, “If my staff are going to meet them we will do it on equal footing” (NZ Herald 6.3.1996). The numbers of both gangs swelled in the immediate aftermath of the initial conflict as out-of-town chapters came in to lend support (NZ Herald 7.3.1996). The Road Knights and their supporters – most significantly a skinhead group called the Bandenkrieg – began making their presence felt with nightly appearances on the main streets (Midweek c1996)1. Black Power cars were rammed and members and associates of the gang were attacked on sight. The police delivered notices to gang leaders informing them that they would be charged with disorderly assembly if they gathered in groups causing people to fear violence (NZ Herald 6.3.1996).

An editorial in The Southland Times (13.3.1996) pointed the finger at police, saying they should have stopped Black Power from establishing themselves in the area in the first place. Police, however, had no power to do that. In a letter to the Times editor the following day, the Southland district commander, Superintendent Neville Cook said, there was no law against gang membership and that, “police can do nothing if gangs behave, which the Black Power members have been careful to do up until now. Remember too who started this present round of violence...the Road Knights and their supporters, all of whom come from within this community” (Southland Times 14.3.1996).

Superintendent Cook’s frustration and aggravation were not unwarranted. Under the law, police had no power to stop the formation of the Black Power chapter, particularly since the gang’s members

1 The footage I have obtained, from a gang source, cannot be more accurately referenced.

were not committing any obvious crimes. In fact, as the police pointed out, in the majority of attacks, the Road Knights were the perpetrators.

For their part, the Road Knights claimed that Black Power had no right to establish a chapter in Invercargill and, therefore, their attacks were defensive. If there was no Black Power, they reasoned, there would be no trouble. As the conflict escalated, the Road Knights’ president in Invercargill, Grant Percy, agreed to a rare (and very brief) interview for a television 60 Minutes programme, in which he said, “Nobody’s got anything to fear. As long as Black Power packs up and goes home, everything will be sweet as. So, it’s up to them, they’re the ones looking for trouble”. However, Black Power was intent on staying, and with neither side willing to cede, the attacks continued. In April 1996, a member of Black Power was injured when he was shot in the head while driving near the Road Knights’ headquarters (NZ Herald 18.4.1996).

With public shootings occurring in both Invercargill and Christchurch in the early months of 1996, there was certainly cause for community concern. More importantly, however, it was the input of political opportunists, sensing there was voter capital to be gained in the run-up to the 1996 General Election, that made gangs a national law and order issue and opened the gate for the legislative drive that followed.

In the final outcome, the problems in Christchurch and Invercargill were able to be successfully quelled by intensive policing using existing laws.

As the crackdown proceeded, Invercargill police said that they had adequate means to control the situation true – but the city’s Mayor, David Harrington, was unconvinced. He declared that “More power needs to be given to police to prevent more clashes occurring” and he started a petition calling for changes, which he presented to Parliament in April 1996 (NZ Herald 18.4.1996). This signalled the beginning of a wave of political activity that led to the wide-ranging legislative measures enacted the following year.

This was certainly not the first time that gangs had become a highly politicised issue, but as the 1996 election loomed, never before had gangs been held up as such a clear and urgent threat.

Although it was gang violence that lit the fuse of public concern, the issue quickly widened to include, and then be dominated by, gangs as organised criminals. New Zealand Police Association president Greg O’Connor said the street violence was just the “tip of the iceberg” and that, “Gangs control crime in every major centre in New Zealand”. As such, he said, new powers were needed to combat them (NZ Herald 30.4.1996). O’Connor became a leading voice calling for greater police powers – and resources – to control gangs. Although many of his claims were bereft of evidence, he became extremely influential and attracted high levels support. Among O’Connor’s most vocal supporters was Labour MP Mike Moore, who rehearsed O’Connor’s views and quickly became the country’s most vocal anti-gang spokesperson. In May 1996, Moore called for legal measures “at a level of intensity and vigour so that it’s just not worth being associated with these kinds of people” (NZ Herald 1.5.1996).

To begin with, the National Government’s initial response to the South Island violence was circumspect. Responding to Moore’s calls for action, the Minister of Police John Luxton, appealed for calm, saying that police had the resources to deal with the issue. However, O’Connor lambasted those opinions: “For the Minister to claim that police have the problem under control when innocent bystanders are being shot, gang fortresses stand in most major population centres and teachers and police are intimidated by gang members shows a minister with poor information or judgment” (NZ Herald 2.5.1996).

The government’s response was swift. Just three days later, the Minister of Justice announced that the Justice and Law Reform Select Committee would begin an investigation into the issue of gangs, beginning in June 1996 (NZ Herald 9.5.1996). Sensing the opportunity for political advantage, Labour put forward Mike Moore as one of their members on the committee, thus providing him with a platform from which to continue his campaign. With a certainty that masked a lack of objective data and without providing any evidence, he announced that people had to realise that gangs dominated the drug trade and organised crime and that, “Alas, many New Zealanders and most MPs don’t understand the depth of the problem” (NZ Herald 6.6.1996).

Following discussions, I had with the Right Hon Mike Moore (now deceased) in 2004, I was left with little doubt he had a genuine concern regarding gang activities and that he was responding to concerns from his constituents, and he was a skilled political operator. But these qualities notwithstanding, Moore’s understanding of the gangs was shallow. He had no long-term interest in gangs and he had no background within the police or as a lawyer. Despite this, he became New Zealand’s most outspoken anti-gang commentator and activist and in doing so, by default and by the strength of his convictions, he became New Zealand’s most influential gang commentator.

In 1971, academic and Māori activist Ranginui Walker said of the gang issue that there was a need for “competent research by social scientists”. He warned that without it, those lacking sufficient training or knowledge to understand the problem sufficiently, such as the police and politicians, would inform and define the gang issue (Walker, 1971: p.43). Walker’s comments proved to be prophetic, and the commentaries provided by Moore, which he told me came largely from police sources, were carried in the media largely without question.

With the South Island gang wars having died down by June 1996, it became the Select Committee’s investigation into them that created the media headlines. In Christchurch, the Committee sent a legal summons to Road Knights members Daryl and Ricky Harris and Darrin Baylis to appear before it (NZ Herald 8.6.1996). When they failed to do so, Moore was incensed, demanding that the men be charged with contempt. He was equally incensed when the committee decided not to pursue the matter. On a televised debate on Ralston Live in June 19962 with the committee’s chair, National’s Alec Neil, Moore said “the gangs are laughing at us...it’s a shameful day for parliament”. Neil responded by saying, “I’m not prepared for my select committee to be turned into a circus...The only thing I’m interested in is getting tough laws introduced into this parliament so that the people of New Zealand can be confident that police have the powers to deal strongly to gangs”. Thus, in just a few weeks, Police Minister Luxton’s observation that the situation was under control had been eclipsed by rhetorical urgency for new laws.

In Invercargill, Black Power representatives did appear before the Select Committee and suggested that racism was at the root of the problem. Local Black Power president Harry Katene said, “This town is racist, full stop. It’s activity that we’re sick of sitting around to take. We can’t even walk along the street by ourselves. Even young kids can’t walk the streets...because they’re getting harassed all the time or beaten up” (NZ Herald 6.6.1996). But members of the committee were unmoved. Labour’s Phil Goff “fired a barrage of questions” at Katene claiming that racism was not the problem and that the problem was the gangs themselves (NZ Herald 6.6.1996). Mike Moore said that, “Claims of racism by Black Power are as outrageous as claims by members of the white Road Knights gang that they are genetically superior” (Moore, 1996: p.78).

Unsurprisingly, given it was in their cities that the wars occurred, both the Christchurch (1996) and Invercargill (1996) city councils made submissions to the Select Committee demanding greater action against the gangs. But the most sensational submission came from the new the Police Commissioner,

2 The footage I have obtained, from a gang source, cannot be more accurately referenced.

Peter Doone, who had been appointed in June 1996. He said that New Zealand had just five years to destroy gangs or they would grow so large and powerful that they would be completely beyond control, comments that Moore applauded as a “powerful wake-up call” (NZ Herald 10.6.1996).

Mike Moore took advantage of, and enhanced the profile the committee brought to the gang issue. He was a constant media presence – and began writing large opinion pieces for publication in major daily newspapers. Moore claimed, again without any supporting evidence, that gang leaders in Christchurch were “infuriated” by the publicity generated by the gang conflicts and wanted to negotiate peace so they could continue their organised criminal activities (NZ Herald 10.6.1996). Outside the Fort Street Police Station in Auckland in June 1996, Moore, with fellow Labour MP Phil Goff, told reporters that he wanted the Select Committee to travel further than just the South Island cities. For him, the problem was not regional, but of immediate national importance. Of particular concern was Auckland. Auckland, he said, was where the most serious problems existed: “What we have learned about Auckland is it’s more disciplined, it’s better organised” (NZ Herald 14.6.1996). It was a part of Moore’s belief that the gangs “are no longer groups of hoons who smash the occasional pub. They have graduated into serious organised crime” (NZ Herald 11.5.1996). This was a significant change of tack, and it led to a shift in the wider public’s perception of the gangs as dominating profit-driven crime in New Zealand.

At this time, the biggest concern with regard to gang involvement in organised crime was around cannabis. By the latter half of the 1990s the police were directly linking drug dealing to gangs (AJHR, G.6, 1997: p.4). Although the common rhetoric was that gangs dominated the drug trade, supporting evidence was lacking and research showed it to be incorrect (Wilkins & Casswell, 2003) and the trade extended far beyond the gangs. Nevertheless, there is no doubt that gangs were becoming increasingly involved in the drug trade and profit-driven crime became the rationale for new legislation.

During the Select Committee’s investigation, Moore brought attention to the construction of a new clubhouse being built by the Devil’s Henchmen in Timaru. In 1996, Moore went on Ralston Live3, a current affairs programme, and questioned how the gang could afford to build it, intimating that the club must have been funding it through criminal activities.

Furthermore, in June 1996, Moore tabled before parliament a leaked confidential police intelligence report titled, The ‘Fat Mexicans’ Are Coming4, which linked Highway 61, New Zealand’s largest outlaw motorcycle club, with the Bandidos, which since forming in Texas in 1966, had become an international organisation with thousands of members (Veno, 2003: p.64; Winterhalder, 2007). Police intelligence led one officer to comment, “Highway 61 MC New Zealand were being wooed as prospective members of the Bandidos MC international organisation” (New Zealand Police, 1995: p.3). The report rated the probability of a patch-over at 95%. The report said that there would be dire consequences of such a move in the form of gang warfare in New Zealand due to the international antagonism between the Bandidos and the Hells Angels.

In tabling the report, Mike Moore successfully called for an urgent parliamentary debate, tying the report to the pressing need for gang laws (NZPD, vol. 556, 1996: p.13350). Although Moore probably did not scrutinise the report for deficiencies, he must have known that it was more than a year old and that during the Select Committee’s investigation the police had not raised any of the concerns mentioned within it. (NZPD, vol. 556, 1996: p.13359). Perhaps unsurprisingly, the feared Bandidos- Highway merger never occurred but the report and its content commanded significant media attention.

Moore also made a number of sweeping statements that were not supported by the report or any other evidence, including that the “villains” had better technology than the “good guys”, (that is the police) (NZPD, vol. 556, 1996: pp.13352 & 13353).

3 The footage I have obtained, from a gang source, cannot be more accurately referenced.

4 ‘Fat Mexicans’ is a reference to the sombrero wearing cartoon figure on the Bandidos back patch.

Labour Party colleague Phil Goff now joined the rising chorus asserting, again without evidence, that “We know that the gangs control machine guns, that they have military-style semi-automatic weapons” (NZPD, vol. 556, 1996: p.13358). Despite the lack of evidentiary support, the claims went unchallenged leaving little reason for the wider public not to accept them as fact.

For their part, the gangs remained characteristically silent in the face of the claims. Apart from the appearance by Black Power at a Select Committee hearing in Invercargill (where they were roundly attacked), neither the patched street gangs nor the outlaw bike clubs spoke out publicly about these issues which concerned them. Although journalists were undoubtedly excited by the sensationalist claims that made for great copy, they had limited information upon which to balance their reports, had they wished to do so. The gangs were generally ill-equipped to deal with journalists’ enquiries and most had adopted an ethos which banned talking to the press. Moreover, I believe the gangs had become somewhat inured to political attack from past experience, having watched it flare up, die down and ultimately disappear. Life soon returned to normal. Ever since the failure of Prime Minister Muldoon’s vehicle confiscation laws in the mid-1970s, various government policies had had little effect on the gangs (see Gilbert 2013). But this time, the political fire was much larger than it had ever been in the past and without a counterbalance it was able to proceed unhindered.

Mike Moore’s use of the media was powerful and deliberate, and intended to gain public attention and support his calls for political action. In a remarkably frank admission, he told me that,

Politicians respond to public opinion, respond to stories...I had a huge file on it, I was pumping it all the time, and the public was getting outraged ...You’ve got to build it up and then get the Government to respond to it.

The ‘outrage’ that Moore deliberately provoked produced a classic Cohenesque ‘moral panic’ (Cohen, 1972). Cohen believed that exaggeration and sensational media reports led to an issue being inflated to such a degree that all sense of perspective becomes lost. The media, as well as political figures, create ‘folk devils’ around which a mythology is produced. Cohen (1972: p.44) suggested that one element of a moral panic is that the threat, bolstered by sensational commentaries and media stories, is framed as a threat to the moral fabric of a society. As if scripted by Cohen himself, Moore told parliament that, “Gangs are a time bomb lodged against the heart of the nation...They are a threat to our democracy” (NZPD, vol. 556, 1996: p.13351). This claim he repeated in a long opinion piece in the New Zealand Herald (10.6.1996) to which he added, “We are engaged in a fundamental battle to preserve peace and civil order in New Zealand”. The rhetoric had reached a crescendo.

During the parliamentary debate in which Moore first made these claims, Justice Minister Doug Graham, a lawyer turned politician who enjoyed a level-headed reputation, attempted to calm matters. Apparently aware that the issue was being blown out of proportion, he said that the subject was not new and that care needed to be taken in enacting new laws: “I am always reluctant to keep incrementally adding to the police powers. One never gets them back. So each year we give more, and we have to be very, very careful about that. I would need to be satisfied – and I am certain we all do – that what they [the police] seek is justified, that it will do some good...and that it is the proper thing to do as a Parliament” (NZPD, vol. 556, 1996: p.13367). He was supported by fellow National MP, and former police officer Ross Meurant, who said, “Overreaction just before election time results in silly legislation” (NZPD, vol. 556, 1996: p.13363).

But the drive for new laws, and the creation of the gangs as ‘folk devils’, had become politically irresistible for the government, and on 9 July 1996, with the general election just three months away, Justice Minister Doug Graham outlined the broad principles of proposed measures that would be introduced in an effort to combat gangs. Then, on 20 August 1996, less than two months before the election, those measures were fleshed out in the form of the Harassment and Criminal Associations Bill, which was introduced to Parliament for its first reading. In an attempt to avoid being usurped by

opposition proposals (most notably by a Private Member’s Bill drafted by Mike Moore), the changes outlined in the Bill would become the country’s most wide-ranging deterrent and suppressive thrust aimed at gangs, and importantly they ensured the National Party did not look soft on the issue of gangs as election day loomed.

As expected, this first MMP election of November 1996 failed to provide a clear majority for either of the two main parties, and the third-placed New Zealand First, with Winston Peters at its helm, held enough seats to create either a centre-Right or centre-Left government. After protracted negotiations, New Zealand First joined forces with the National Party, enabling it to remain in power.

Police feared that the more representative MMP parliament might slow the progress of the proposed laws, “and that the impetus achieved prior to the election may be lost” (NZ Herald 16.1.1997). The New Zealand Herald reported that, in a briefing paper to the new government, police “express concern about the now well-established links between home-grown and international gangs and their control over illegal activities and commodities” and repeated their claim that “to facilitate their criminal activities many gangs are attempting to lower their public profile” (NZ Herald 16.1.1997). The intent of the police report was clear: to press home the urgent necessity of new laws, despite the apparent quiescence of the gang scene.

Police fears that the proposed laws may stall were not without foundation. Given that the violent incidents in Christchurch and Invercargill had long since been quelled, the calls for haste that had been so strident before the election quietened considerably. The new government seemed to be dragging its heels in reappointing members to the Justice and Law Reform Committee that would consider the Harassment and Criminal Associations Bill. Ordinarily, as with moral panics generally, the issue may have died naturally but as the proposed legislation had already been drafted, the subject was kept alive. And police concerns that the progress of the laws would falter were eventually allayed.

Following the election, the reformed Justice and Law Reform Committee was made up of five National/ New Zealand First MPs, three Labour MPs, with one MP each from Act and the Alliance parties. Former police officer and New Zealand First MP Rana Waitai was appointed as Chair. After 28 April 1997 – the closing date for submissions on the Bill – the committee considered the proposed legislation, and it had much to consider.

Before examining reaction to the proposed law changes, and ultimately their effect, a brief summary is in order. The planned measures were originally bundled together, and moved through parliament and the Select Committee process, as the Harassment and Criminal Associations Bill. By the time they were introduced into parliament for the final reading, however, they had been split up into a series of new laws and amendments to existing laws.

The provisions in the Harassment Bill included both criminal and civil harassment, and recognised that “individual acts that may appear trivial or innocent on the surface may amount to harassment when viewed in context” (Harassment and Criminal Associations Bill 1997 No.215-2: p.iii). The law would make it an offence to “harass another person so that the person fears for his or her safety or the safety of members of his or her family” (ibid).

The offence of criminal harassment was directed at more serious forms of harassment. Under this provision, a person would commit criminal harassment if they harassed another person causing the victim to fear for the safety of themselves or those with whom they shared a family relationship. The act of harassment had to occur at least twice within a 12-month period in order for the law to be applied.

Subjective/objective tests were proposed to judge what constituted harassment, as this “recognises that acts that may cause fear in an elderly person who lives alone may not instil fear in a different class of persons” (Ministry of Justice, 1997: p.21).

A number of amendments were sought in relation to the Crimes Act. One of these was a proposal to create a new offence of participation in a criminal gang. In order to be charged under this section, a person would have to have participated in a criminal gang, defined as three persons having previously committed or attempted to commit three or more serious offences. The maximum penalty for participation in a criminal gang was set at three years imprisonment. Given that there were already many existing laws that targeted aiding and abetting criminal activity, this new offence would be used when, “for some reason, a gang member is not able to be charged as a party to a specific offence” (Ministry of Justice, 1997: p.47).

Provisions were also sought to extend police powers to intercept private communication. These provisions took the form of amending the definition of “organised criminal enterprise” to reduce the number of people who need to be involved in an enterprise from six to three. Further amendments sought to make interception warrants available for:

A final amendment sought to extend powers relating to vehicles stopped under the Act by allowing the police to search vehicles in a wider range of situations; to require a person to supply his or her date of birth; and to arrest without warrant for breach of section.

Amendments to the Act were intended to give greater power to the court in issuing non-association orders. Primarily this occurred through giving judges the discretion to impose non-association orders when sentencing offenders for periods of twelve months or less. Also, a court’s power to impose non-association orders would be increased so that non-associating conditions could last for longer periods (twelve months instead of six). This order would prohibit an offender from associating with a specified person or class of persons and could be imposed where:

This amendment sought to replace section 695A of the Local Government Act, a section dealing with gang fortifications and allowing for their removal under certain circumstances. The section 695A had been enacted in 1987, but had proven ineffective and essentially impossible to enforce. The proposed changes, as well as broadening the grounds on which removal orders could be made, aimed to make dismantling these structures quicker and more effective. Primarily this would be achieved through streamlining the procedure for making applications, and making general laws of evidence relevant in applications, for example establishing that a person within the premises had been convicted of an offence and thereby linking fortifications to criminal enterprise.

Under the law as it existed at that time, police had the power to obtain an interception warrant if there were reasonable grounds for believing that a class A or B controlled drug offence was being, or was about to be, committed. This amendment meant that interception warrants would be available in a wider range of situations, and, most significantly, such warrants could be obtained in relation to dealing in or cultivating cannabis (a class C controlled drug).

Three main changes to the Summary Offences Act were proposed. Firstly, two new offences would be created, based on an existing law that prohibits people from associating with convicted thieves. The new law would make it an offence for a person to habitually associate with violent or drug offenders when it could reasonably be inferred that the association would lead to the commission of a crime.

For someone to be convicted of these offences, they would first need to be given three warnings by police, and the drug/violent offender with whom they were associating would have to have been previously convicted of two or more drug/violent offences.

Secondly, under the existing law (Section 21) there was a range of behaviours that made certain acts relating to intimidation, an offence. A new clause (Clause 88) would make two amendments: a) stopping, confronting, or accosting a person in a public place was added as a further category to the list of behaviour deemed to be intimidation; b) the mens rea element was reduced so that the offender just had to be “reckless” as to whether or not their behaviour was intimidating. Therefore, offenders only needed the knowledge that their behaviour was “likely to reasonably cause” a person to be frightened or intimidated. These changes were aimed at the menacing nature of gang behaviour in public places that was seen to affect the public’s daily lives (Ministry of Justice, 1997: p.108).

The final significant amendment to the Act proposed to increase the level of fines for most of the offences that it incorporated. With few exceptions, penalties had not been amended since their original enactment in 1981. It was proposed that most penalties be doubled.

The main purpose of these amendments was to regulate the obtaining of call-associated data – obtained through the use of telephone analysers or by other technology – by both the police and customs. This is not to be confused with interception communication, as the data obtained under the Telecommunications Act does not provide the content of calls, but only information on who people have been calling, and when these calls occurred.

On face value at least, the proposed measures were the most wide-ranging legislative attack on gangs that the country had ever attempted. Away from the political spotlight, the laws were given sober analysis and scrutiny by a number of groups, and were questioned as to their necessity, their potential for efficacy and their impact on liberties and human rights.

Notwithstanding the significance of these new laws in toto, some of the provisions, for example, the changes relating to the Telecommunications Act, were uncontroversial. Similarly, changes to the Crimes Act that widened interception warrants to involve dealing in cannabis were largely seen as fair and reasonable. Equally uncontroversial were the proposed increases in certain penalties, for instance within the Summary Offences Act, where such penalties had not been reviewed since their inception in 1981. Other changes, however, were more contentious.

Several rights-based arguments were offered in relation to the proposed new offence, under the Crimes Act, of participating in a criminal gang, with fears they would undermine a fundamental freedom of living in a democratic society (Auckland Council For Civil Liberties, 1997), and diminish control over a person’s own life (Privacy Commission, 1997a). The proposal was also questioned due to its “troubling” vagueness and uncertainty (Privacy Commission, 1997a: p.12); and because the policy behind the offence was unclear (Human Rights Commission, 1997).

A rights-based argument was also offered against extending the powers of non-association orders, which were seen to give “wide discretion” enabling them to be used for quite different situations than those explicitly proposed (Human Rights Commission, 1997: p.3). The right to associate freely has long been recognised in human rights documents and the New Zealand Bill of Rights Act 1990 (s17) seeks to protect such freedoms, stating that, “Everyone has the right to freedom of association”.

Although few submissions expressed concern over increasing the number and variety of offences, the Privacy Commissioner (1997a), the Christchurch Community Law Centre (1997), and the Human Rights Commission (1997), were all concerned by the whittling away of the threshold that constitutes an organised criminal enterprise from six people to three. Privacy Commissioner Bruce Slane said in his 1997 annual report that: “There is no ‘magic’ in the figure six and therefore it is difficult to offer a cogent case in favour of that figure as against the figure of three. However, I consider it is incumbent upon state authorities seeking to obtain extra powers of intrusive surveillance to make the case, and not for others to have to establish the reasonableness of the status quo” (Privacy Commission, 1997b). Such a low figure also appeared inconsistent with police assertions that high numbers of gang members were involved in criminal operations (Christchurch Community Law Centre, 1997a).

The need for an extension of police powers to intercept private communication was also questioned, due to the proposed changes being “a major expansion of the powers to intercept private communications” (Privacy Commission, 1997b). When enacted in 1987, interception powers in Part XIA of the Crimes Act 1961 – phone tapping and premises bugging – were intended to be extraordinary powers for dealing with sophisticated criminal activity, influenced by the spectre of growing Asian organised criminal syndicates. At that time, the number of participants (six) was deliberately framed to ensure it was targeting organised criminal groups, and thus reflecting Parliament’s intent that such intrusive powers should not become an ordinary law enforcement tool (Ministry of Justice, 1997: p.60). Indeed, it has long been established by New Zealand courts that a warrant to intercept communication “is a step never to be lightly authorised in New Zealand society” (Privacy Commission, 1997a: p.1).

Although academics were conspicuously absent during the submission process, at least one, Kevin Dawkins, a criminal law expert from the University of Otago, questioned some of the changes in an article for the New Zealand Law Review. Specifically, he addressed the proposed new offence

of criminal harassment. There already existed many provisions targeting types of harassment: threatening (Crimes Amendment Act 1961, ss 306, 194 and 196; Summary Offences Act 1981, s 21); intimidation (Summary Offences Act 1981, s 21); intentionally or recklessly causing psychological harm or injury (Crimes Act, ss 188 and 189); making annoying, disturbing, or malicious phone calls (Telecommunications Act 1987, s 8); loitering and trespass (Summary Offences Act, ss 3, 4, 8, and 12); disorderly or offensive behaviour (Summary Offences Act, ss 3, 4, and 5); causing a criminal nuisance (Crimes Act 1961, s 145). There are also related provisions under the Domestic Violence Act 1995, Summary Proceedings Act 1957, the Human Rights Act 1993, and even the Employment Contracts Act 1991. These considerations led Dawkins (1997: p.23) to conclude that, “the very idea that we need a charter on harassment is disputable”.

The necessity of creating new offences for associating with violent or drug offenders was also challenged. The new offences were based on existing law that made it illegal to associate with convicted thieves, but since the mid-1980s, there had only been two convictions for that offence. This extremely low rate of prosecution seemed anomalous with an extension of such powers. The Christchurch Community Law Centre was opposed to the changes saying: “Certainly it would be hard to say the equivalent offence of associating with convicted thieves has reduced the incidence of theft or receiving stolen property” (Christchurch Community Law Centre, 1997: p.2). Indeed, of the seven submissions relating to the proposed offence, only the Police Association and the Invercargill City Council supported it, while organisations not in support included the Human Rights Commission, the Auckland Council for Civil Liberties, and the New Zealand Law Society.

Concerns were also raised in relation to the proposed new power, outlined under the Crimes Act, to stop and search vehicles without a warrant. The Christchurch Community Law Centre felt that the police could simply use the laws to go on “fishing expeditions” without the restraints of the existing law provided via the prerequisite of warrants (Christchurch Community Law Centre, 1997a: p.3). The New Zealand Law Society felt that such fears could be mitigated by applying procedural requirements such as those required by the Misuse of Drugs Act (New Zealand Law Society, 1997). Similarly, the Legislation Advisory Committee thought that safeguards ought to be considered because the new provisions would be available for general law enforcement use and not merely in relation to criminal gangs (Legislation Advisory Committee, 1997: p.4). This argument was particularly notable given that such measures had been requested for general law enforcement by police in 1988 (when a Select Committee examined search warrants) and in 1993 (when the Crimes Act was amended). On both occasions the powers had been deemed unnecessary by parliament, yet now, when proposed as gang laws, the same measures gained favour.

Indeed, the framing of the new laws as ‘gang laws’ served to inhibit greater public debate about them. Lost within the political rhetoric was the fact that the new laws, while ostensibly targeting gangs, were not formally restricted to such groups. Judge Steven Erber later expressed this in relation to non- association orders when he said there was no doubt “that the primary target was gangs, but it is clear that an order may be made against a person who is not and has never been associated with a gang” (Police v Harris, Unreported, District Court, Christchurch, Erber S, July 1998). Regardless of the stated intent, once these measures were put into law, police could use them against anybody.

As with the media flurry before the election, the gangs remained silent and none chose to make submissions to the Select Committee.

Predictably, police input into the proposals suggested that many of the measures did not go far enough. For example, police felt the number needed to form a criminal enterprise (in order to gain interception warrants) should be just two (Ministry of Justice, 1997: p.59); that only one warning should need to be given before a charge could be brought against an individual for associating with a violent or drug offender (Ministry of Justice, 1997: p.104); and that the police should be able to apply for an order to remove a fortification – an order that could not be appealed – “even if it would infringe the respondents’ rights” (Ministry of Justice, 1997: p.96).

Where concerns about the laws were raised during the submission process, the committee either disagreed with the submitter and moved on, or made counter arguments to nullify such concerns. The latter was the case in relation to rights-based concerns. For example, the committee countered issues raised in relation section 98A of the Crimes Act which sought to criminalise participation in a criminal gang. They asserted that the changes were consistent with the Bill of Rights because the proposed law had “a number of thresholds and was therefore properly targeted” (Justice and Law Reform Committee, 1997: p.vii).

They were similarly resolute when countering concerns levelled at the changes to interception warrants. The committee acknowledged that interception powers should not be available for general law enforcement purposes and recognised questions over the lowering of the threshold for the number of people constituting an organised criminal enterprise from six to three. However, they were ultimately persuaded by police arguments that the existing law’s definition was too restrictive and thus recommended that the “threshold of three persons be retained in the bill” (Justice and Law Reform Committee, 1997: p.viii).

The committee also dismissed the concerns that were raised regarding the proposal to stop and search vehicles without a warrant. The committee again acknowledged the queries, but were “satisfied the amendments...are justified and expect that Police will use the new powers in a reasonable way” (Justice and Law Reform Committee, 1997: p.xi).

Similarly, the committee did not agree with doubts about the efficacy of many of the measures, but in one instance at least, it wavered slightly. In relation to the extension of powers regarding non- association orders, the committee said, “We consider there is a lack of information to help assess how well orders are enforced, how often they are imposed and their overall effectiveness” (Justice and Law Reform Committee, 1997: pp.xii). They did, however, conclude that the extended powers were “important and provide a means of enabling offenders to break their connections to the gang. In this way we see the orders as something which may be beneficial to the offender” (Justice and Law Reform Committee, 1997: pp.xii-xiii). This was a rare show of uncertainty, however, and the resolve of the committee was ultimately firm.

The committee’s resolve was not built upon a great deal of evidence. Although the Ministry of Justice felt it was “clear” that police and public concern about gangs had “some basis”, it conceded that “it is not possible to point to independent data or research that assesses the nature and level of gang involvement in organised crime or the extent of public concern about gang behaviour” (Ministry of Justice, 1997: p.3).

Having been the strongest proponents for legal change, largely through Mike Moore but also Phil Goff, the Labour Opposition endorsed the proposals as they returned to parliament from the Select Committee in an unusual show of political bipartisanship. Indeed, the only political advantage available to them was to argue that the legislation was not strong enough. Mike Moore welcomed the moves but suggested they only went “half-way” (NZ Herald 9.7.1996) and went further to propose that gang members should have any court sentence given to them immediately doubled (NZ Herald 20.9.1996). With few exceptions, the debate in the House during the Bill’s readings reflected the politicking that had occurred during the drafting of the laws, as politicians sought to outdo each other in appearing to be tough on gangs. With his early reticence clearly swept away by the tide of political opinion, the Minister of Justice Doug Graham introduced the final reading of the Bill saying, “Society is no longer prepared to tolerate the activities of gangs and other criminal association. The time has come to get tough” (NZPD, vol.565, 1997: p.5532). His National Party colleague, Wayne Mapp, reinforced this view, saying “Undoubtedly, gangs are the great scourge of our times...It is clear that gangs are an evil force and that society must find a way to break them down” (NZPD, vol.565, 1997: pp.5549-5550). Select Committee chair and member of the coalition Government, New Zealand First MP Rana Waitai said,

“when we talk about gangs these days we are talking about organised crime...This Bill adds strength to the arsenal of the police to deal with crime and gangs on behalf of society” (NZPD, vol.565, 1997: pp.5536-5537).

Reflecting the fact that the gang problem had been redefined from violence and disorder, and toward profit driven criminal enterprise, Phil Goff said, “When we talk about the gang problem today, we are not talking about the usual street violence and stand-over tactics that were once associated with gangs in New Zealand: we are talking about organised crime.... It is important that the police have the powers we give them in this Bill” (NZPD, vol.565, 1997: pp.5534-5535). He was joined by his colleague George Hawkins who said, “this is a very, very important Bill...What is behind those fortifications? It is not a little fairyland; it is not where Father Christmas is, but it is where serious crime goes on. There are drugs, guns, distribution networks, computers, faxes, and everything. It’s sophisticated illegal business” (NZPD, vol.565, 1997: p.5542). He argued that the National/New Zealand First Government was “soft” in not making certain measures more severe, suggesting that the Bill was an improvement but “perhaps it does not go far enough” (NZPD, vol.565, 1997: p.5542). Fellow Labour MPs, Lianne Dalziel and Mark Peck were equally emphatic. Dalziel said, “It is important we are tough on the criminal element...They are the Business Roundtable of the underworld” (NZPD, vol.565, 1997: p.5549). While Mark Peck, in a rare acknowledgement of the type of behaviours that had actually sparked the law changes, said the laws were “sending a very clear message to the gangs not to expect any sympathy from this House because they will have none, and they deserve none. Their very reason for being is crime... The citizens of my city are entitled to safe streets. They are entitled to know they can go about their normal business without having to put up with these unsavoury characters, who would harass and intimidate them every step of the way” (NZPD, vol.565, 1997: p.5551-5552).

The bipartisanship of the two main parties meant that any meaningful debate on the necessity or efficacy of the laws was lacking. Indeed, when members of the left-wing Alliance Party questioned the measures, they were castigated. Alliance Justice Spokesperson, Matt Robson said, “In this Bill we are actually perpetuating a fraud on the people of New Zealand. We are saying to them that when crime rises and when there is violence, we deal with that by taking already strong laws and punitive powers and strengthening them” (NZPD, vol.565, 1997: p.5538). In response, National’s Pansy Wong said, “I remind every individual out there who is fearful of intimidation by gangs, that the Alliance is against this Bill. I remind everybody who is frightened of gang activities and feels the police should be given more powers for community protection, that the Alliance is against the passage of this Bill” (NZPD, vol.565, 1997: p.5540). It reflected the extent to which the debate on gangs had swung toward a suppressive approach, that anybody seeking to offer alternatives was quickly dismissed as soft on crime.

But, as evidenced by many of the submissions to the Select Committee, the enthusiasm of politicians was not shared by everyone. Although the sober reflections of legal experts and other concerned bodies expressed during the submission process did not gain much – if any – media attention, the media did begin to carry alternative views as the proposals progressed through parliament. With moral panic long over, the media began to perform its ‘fourth estate’ duties.

Perhaps sparking this turnaround was the research of an academic who challenged the prevailing knowledge of gangs. In 1997, prominent New Zealand sociologist Greg Newbold wrote a paper on organised crime in New Zealand for an American academic journal. In that, and in turn publicly, he opined that, while the gangs were involved in profit-driven crime, the majority of New Zealand gangs were “guileless” and criminally “incompetent”, and that the threat they posed to the country was relatively minor (Newbold, 1997: p.91). In stark contrast to the prevailing popular opinion, this view generated media interest in the basis of the laws, which were founded on the idea that gangs dominated organised criminal activity and were a threat to public order. Newbold told the New Zealand Herald that the gangs were “disorganised” and if the Harassment and Criminal Associations Bill became law

it would be “unlikely to have any significant effect on criminal gang activity” (NZ Herald 6.8.1997). Although, in the same article, these issues were disputed by the president of the Police Association, Greg O’Connor, others began publicly to voice concerns over the proposed legislation.

Barry Wilson, the vice president of the Auckland Council for Civil Liberties, told media that the changes within the Harassment and Criminal Associations Bill were “clearly another attack by Government on basic civil liberties” and predicted that they would not be limited to use against gang members (NZ Herald 10.9.1997). Prominent Queen’s Council (QC) Peter Williams lamented the lack of effective opposition from the Left. He believed the paucity of debate compounded a New Zealand tendency to accept police authority to the detriment of civil liberties: “The so-called Labour party in this country has always been pretty right wing when it comes to penal matters. Instead of an active left wing acting as a sanction and reviewing such moves, people like Mike Moore and Phil Goff are in many ways trying to outdo the right wing by being even more draconian” (Sunday Star Times 26.10.1997). He also expressed concerns about the reach of some of the legislation, saying the general nature of the provisions could mean those with family members in gangs would find themselves caught up in the laws (Truth 19.12.1997). Auckland solicitor Chris Read said “many” lawyers were concerned by the proposals, but in highlighting his fears he demonstrated that strong rhetoric was not just the domain of the advocates of the legal provisions: “I find it offensive. It’s exactly the sort of thing Hitler did and it will be the poor and those with little knowledge of the law who will suffer most” (Truth 19.12.1997).

Scott Optican, senior law lecturer at the University of Auckland, was more analytical but equally sceptical about the laws, saying that law makers needed to assess whether the gang problem was big enough to require new police powers and to ensure it was not simply a “knee-jerk political reaction” (NZ Herald 10.9.1997). He said:

Whenever we look at creating new police powers because we’re worried about a certain class, or group of people or criminal conduct, we’d better make darn sure that the problem is big enough to warrant the powers and that the existing powers are inadequate...Laws which may look neutral on the face of it can end up being abused because of their application (NZ Herald 10.9.1997).

Further to his earlier statements, Newbold was blunter in his appraisal, “I think this bill is largely a sop to public opinion. I think it’s a political device to make people feel that something is being done about something that the public has been encouraged to feel frightened about” (NZ Herald 10.9.1997). But these public critiques were not only rare, they came about after the debate had been framed and thus had little or no effect on the political discourse. By this time the passing of the laws was all but a fait accompli.

Of significant interest was the transformation within the overall political discussion. Conspicuously missing in the discussions on gangs were the wider social and economic considerations that had dominated political thinking relating to gangs in the 1970s and 80s (Gilbert, 2013). This is not to say they were forgotten, rather that they appear to have been ignored. The Ministry of Justice reported that:

It became clear during the development of the bill that no single legislative initiative would achieve the desired result of reducing gang activity. A longer-term broader strategy to deal with gangs and their offending needs to be developed. This is likely to involve action a number of fronts and to include measures that will not require legislation (Ministry of Justice, 1997: p.3).

Passing comments by politicians from both sides of the political spectrum made similar references. However, no such strategy was developed and arguments of this kind were conspicuously side lined, confirming that the issue was one of political expediency instead of a serious attempt at countering the problems of gangs.

The new laws finally passed through their third reading in parliament in November 1997 and came into effect between January 1 and June 1, 1998. Of the six parties in parliament, only the Alliance MPs opposed the measures.

Given its well-constructed lobby to push for the new laws, it was of little surprise that police leadership enthusiastically embraced their passing, and promised to use them to “crack down” on gangs. Assistant Commissioner Neville Trendle said the laws gave police more power to target the gangs and he thanked all those in the police who had contributed to getting the legislation passed: “I want to thank all staff who contributed and provided feedback and information. This has helped get legislation through that will make a big difference to our job” (Ten-One 19.12.1997). The head of the National Bureau of Criminal Intelligence, Detective Inspector Cam Ronald, said officers around the country were following a directive to “put police on the front foot” by using the new legislation (NZ Herald 8.7.1998). In Christchurch, where gang activity had helped spark the calls for legislative change, police gang liaison officer Detective Richard Neale, said the new laws gave police more “weight”. “We’ll be stronger, we’ll be able to detect offences a lot more quickly and deal with them more appropriately than we have been able to do” (NZ Herald 8.7.1998).

As will be shown, however, little of this optimism has been borne out in the way that the laws have been used.

Based on the critiques and challenges that were identified in 1997, the effectiveness and suitability of these laws can be measured against three criteria. These criteria are based on the arguments used to pass the laws: that that being that they were urgently necessary for gang control. Specifically, I ask:

In response to the above three questions, I can divide the laws into three primary categories:

As noted in the limitations section, the absence of relevant data for non-association orders and interception warrants makes quantitatively analysing these laws impossible. Moreover, use of the intimidation laws could not be measured using the data provided by police. Thus, we need to add a further category.

Given what was publicly said about the urgent need for the laws, perhaps their most basic test is their use.

Figure 1: Individuals charged with Habitually Associating with a Violent Offender, 1998-2020

Figure 2: Individuals charged with Habitually Associating with a Drug Offender, 1998-2020

The laws added two offences of habitually associating with a violent offender, and habitually associating with a drug offender, which were designed to allow police to limit associations between problematic gang members. The offences carry a maximum penalty of three months’ imprisonment or a $2000 fine.

The offences of habitually associating with violent or drug offenders were essentially never used. Police data show that two individuals were charged with associating with violent offenders in 2003, one of whom had a gang alert, but that no other charges have ever been made for that offence. No charges for associating with drug offenders have ever been laid at any point. No warnings have been recorded for these offences either.

The changes to the Local Government Act (1974) to allow for removal of gang fortifications replaced an older section that had been added in 1987 for the same purpose. This prior version had run into difficulties because any definition of the target problem tended to omit certain gang fortifications or include some common house fences. Subsequently, police applications to remove fortifications simply got bogged down by gang appeals and a Ministerial Report (1989) late in the decade concluded that the law was unworkable.

Although somewhat more workable, the version drafted in 1997 proved to be no more effective, with removals requiring lengthy court processes and achieving outcomes that were of little or no practical value. After some early attempts, this law appears to have once again fallen out of use.

The examples below indicate the problems that arose in attempting to apply the law.

In September and October 1998 respectively, police obtained court orders under section 695a of the amended Local Government Act to remove the fortifications of the Black Power and Highway 61 headquarters in Christchurch. In making his judgement on the Highway 61 property, Judge Graeme Noble said he was satisfied that the fences and associated structures (platforms and security cameras) were being used for the concealment of weapons and drug sales (Perry v Kingi, Unreported, District Court, Christchurch, Noble G, May 1999). Under the new legislation, the gangs had 30 days to remove the fences or appeal the judgment. Otherwise, police could forcibly remove the fortifications.

Highway 61 fought the measures. Although their appeal was unsuccessful, ongoing legal uncertainties meant the fortification remained in place until July 1999 when, amid much media fanfare, it was destroyed using an excavator (The Press 21.7.1999). In the end, the new ‘streamlined’ measures had taken nearly a year to implement. Moreover, as soon as the original wall was removed, the gang replaced it with two-metre-high fence which was legal. Interestingly, the feelings of the gang’s neighbours were mixed. While one said, “I think it’s [pulling down the wall] a good idea” another said, “I think it’s disgusting. It’s not as high as other fences around here. It now means all of us neighbours have to put up with noise” (One News 20.7.1999).

The order against Black Power also ran into difficulties, though in this case these were due to uncertainties over who actually owned the property (The Press 29.6.1999), before being pulled down by the gang, which they quickly replaced; and with a structure covered by the court’s ruling (NZ Herald 15.10.1999).

Having proved largely ineffective, section 695a was later replaced with a new and differently worded section in the Local Government Act (2002). Despite police saying more fortifications would now be targeted, attempts to remove them using these newer provisions appear to have been limited. I have only been able to find one successful example, a removal order made against the Outcasts MC in Hamilton in mid-20055 (Gray v Hamilton Property Investments Limited, Unreported, District Court, Hamilton, Wolff R P, August 2005). Other removal orders have been sought, such as those made against the Mongrel Mob in Invercargill in 2009 (Southland Times 31.1.2009) and the Hells Angels in Whanganui in 2010 (Steven Rollo 2021 pers. comm.), but none appear to have succeeded.

Thus, even after refinement and amendment, the new provisions appear to have failed. Gang fortifications, erected primarily to secure gangs from opposition groups, have proven remarkably resilient to police and legislative challenges.

In this section, I look at laws that have been used, and assesses at whom they have been targeted. As we have seen, the legislative approach of the mid-1990s was pitched as a drive against gangs. The intention was clearly to use the laws overwhelmingly against gang members and their associates.

5 Judge Wolff ruled that much of the fortification had to be removed but that the fence could remain, along with a single video surveillance camera.

The legislative drive created a new offence of criminal harassment. Under this provision, a person would commit criminal harassment if they harassed another person causing the victim to fear for the safety of themselves or those with whom they share a family relationship. The act of harassment had to occur twice within a 12-month period.

As shown, the number of people who have been charged with this offence in the years since has remained largely consistent, with an average of 71.4 individuals charged each year.

While its use may show value, its connection to gangs is obscure. Charges of criminal harassment have been overwhelmingly brought against non-gang affiliated individuals. On average, only 9.5% of those charged with criminal harassment since 1998 have been the subject of gang alerts. The percentage of those charged with gang alerts was at its highest in 2000, at 19.4%, but was as low as 3.3% in both 2015 and 2016. On this basis there is little reason to conclude that this was a gang law in any sense. It has proven merely to be a general law and order provision.

The amendment made to the Misuse of Drugs Act (1975) expanded the police’s ability to gain drug interception warrants by including cases relating to dealing in, or cultivating, cannabis (a class C controlled drug). Although unsupported by data and indeed highly challengeable (see Wilkins and Casswell, 2003), the change was made under the assumption that gangs dominate the cannabis trade in New Zealand.

As noted in the ‘unmeasurable’ section below, data regarding the number of interception warrants issued are not available from any government source. Thus, the application of the law cannot be properly analysed. Nevertheless, it is possible roughly to gauge the impact of the amendment by examining various cannabis charges over time.

As a measure designed to make it easier for police to pursue cannabis suppliers, it follows that this law change can be considered effective if it resulted in an increase in the number of individuals charged for cannabis supply in the years following its passage.

Data for a variety of cannabis related offences were provided to us by police. These included the supply of cannabis, and possession of cannabis for supply, which are shown in Figure 4 and Figure 5 below. Police also provided us with data for a number of other cannabis-related offences that have not been included here. Some offences, such as aiding cannabis offending outside of New Zealand, or conspiracy to deal cannabis, were used rarely (with an average of 3 and 8 individuals charged each year respectively) and therefore did not provide enough data to draw clear conclusions. Others were related to possession, which predictably garnered high numbers of charges, but which had only a limited relationship to the types of supply offending that would be eligible for an interception warrant.

Figure 4: Individuals charged with Sell/Give/Supply/Administer/Deal Cannabis Plant, 1992-2020

Figure 5: Individuals charged with Possession of Cannabis Plant for Supply, 1992-2020

There is tentative evidence that the addition of interception warrants positively impacted overall cannabis supply charges in the years following 1997, but no evidence that the warrants had any greater effect on those with gang alerts. As can be seen in Figure 4 and Figure 5 above, charges for supply and possession for supply both increased somewhat from 1998 onwards. The increase was clearest for those without gang alerts, meaning that it primarily affected those not associated with gangs.

However, it is not clear that the increase in charges was related to the new interception warrant options. Charges had also increased in 1997, before the laws were enacted, and then numbers of charges fell away again in the early 2000s. So, the impact of the law is uncertain. In the case of both offences, the proportions of those charged that had gang alerts was generally slightly higher in the period prior to 1998.

It is also notable that these data show a level of gang participation in cannabis supply offending that is much more limited than was widely believed, and they demonstrate that claims of gang dominance in cannot be substantiated at any point in the 28-year period between 1992 and 2020. As shown in Figure 4 and Figure 5, supply of cannabis and possession of cannabis for supply, are offences that have historically contained a minority of individuals with gang alerts. On average, 23.7% of those charged with supply of cannabis in the 1992-2020 period had gang alerts, with the proportion peaking in 1995 at 32.8%. Gang alerts were similar in the offence of possession of cannabis for supply, with an average of 24.1% of those charged having gang alerts, and a peak of 29.5% in 1997.

Overall, therefore, this new law appears to have had little application to gangs. It can truthfully be seen as a general law and order provision that has primarily been used against those without gang connections.

Individuals charged with Participation in an Organised Criminal Group, 1998-2020

Has this law been used regularly? No. It took a rewording of the law in 2002 to make it workable.

Figure 6: Individuals charged with Participation in an Organised Criminal Group, 1998-2020.

Of all the measures enacted in 1998, participation in an organised criminal group is the only one that has been used more often against those with gang alerts than those without. Since 1999 (it was not used in 1998), an average of 59.8% of those charged with this offence have had gang alerts.

While an average of 59.8% gang members and associates is large relative to the other laws under study, it must also be acknowledged that even this is relatively low considering the rhetorical target against which the laws were aimed, particularly if we recall the broad criteria for a gang alert. The fact that nearly 40% of those charged with this offence were not affiliated with a gang at all, and yet were still considered to be participating in organised criminal groups, speaks to the degree of non- gang participation in organised criminal offending – a fact that has been acknowledged in literature (Newbold, 1997).

In terms of its use, this law appears to have been somewhat successful, having eventually come into relatively regular use, particularly from the start of the 2010s.

The law as it appeared in 1998 was not fit for purpose. It was not until the law was amended in 2002 by redefining what constituted a criminal group, that it began to see semi-regular use. Due to flaws in its original form, it had very limited use within the first five years. Of the 51 individuals charged, the large majority were in 2002.

The 2002 amendment also allowed for the interception of communications in an increased range of circumstances, but as noted, no government source holds data regarding the number of such warrants granted. Thus, no analysis of the impact of this element of the law is possible.

Participation in an organised criminal group is a measure which can clearly be applied to gangs and has been one of the most regularly used. Of the laws whose impact could be quantitatively assessed, this has the greatest potential to have an impact on gangs and gang behaviour. But the law has generally been used to load charges – that is, it is used to add to charges against a person for more serious offending. In these instances, a conviction for participating in a criminal group seldom attracts any extra penalty (due to concurrent sentencing). Given that fact, there is little reason to expect that it has had any genuine deterrent effect on organised criminal activity.

As noted, some of the provisions lack the data to be measured in any meaningfully way. This notwithstanding, some minor observations can be made.

Data regarding the number of interception warrants issued under these provisions were requested from the Ministry of Justice. As noted in the limitations section, however, the Ministry advised they could not be provided because such data are not held by any government agency.

This is an area in which it appears clear that the data held by the government is insufficient. Data regarding the number of such warrants issued, and, where possible, the number of charges (or lack thereof) that result from these warrants, is something that it is clearly in the public interest. As demonstrated here, failure to collect suitable data is a serious impediment to the study of how warrants are being used, and the impact that legal changes have on that use.

While intimidation was already an offence prior to 1997, changes in the Summary Offences Act (1981) expanded the definition of intimidation to include stopping, confronting, or accosting a person in a public place, and reduced the mens rea element so that the offender only had to be “reckless” as to whether or not their behaviour was intimidating.

The data provided by the police covered some forms of intimidation – under the categories of threats to kill/do GHB and demands to steal – but no offences which appeared to correspond to the type of harassment added in clause 88 of the Summary Offences Act (1981). With only limited data available, it was not possible to draw conclusions about the effectiveness or value of the law change relating to intimidation.

These amendments increased a court’s ability to impose non-association orders, giving judges the discretion to impose non-association orders when sentencing offenders to twelve months imprisonment or less, and allowing the imposition of orders that lasted twelve months instead of six.

In 2021, the Ministry advised that data regarding non-association orders were limited. It was able to provide data for all non-association orders issued from 2004 onward, which was the point at which their Case Management System became operational.

The data provided are shown in Figure 7 below. They show some interesting changes in the use of non-association orders, with a substantial decrease in the number issued in the period from 2011 onwards.

Figure 7: Number of non-association orders issued, by calendar year the order was issued, 1 January 2004 to 31 December 2020

Although the Ministry figures do not differentiate gang members from non-gang members, data provided by the police indicates the proportion of non-association order breaches that involved people with gang alerts (see fig 8 below). On average, only 25% of those who were charged with breaches of non-association orders per year, had gang alerts. The number of breaches overall was very low, however, averaging around six per year, meaning that drawing meaningful conclusions about the value of the law itself from those data was not possible.

Overall, little can be gleaned about the use of non-association orders from these data. Given the limited timeframe available and the absence of gang-specific data, it is not possible to discern whether non-association orders increased after 1998, or how often they were used against gang members.

Has this law been used regularly?		Can it be seen primarily as a ‘gang law’?	Was this law emphasised within the five-year timeframe?
Habitual association with drug offenders	No	No	No
Habitual association with violent offenders	No	No	No
Fortification removal	No	Yes	No
Criminal harassment	Yes	No	Yes
Cannabis changes	N/A	No	N/A
Participation in a criminal group	Yes	Yes	No

Under the measures used here, success would be defined by many answers of ‘yes’. This is not what we find.

Despite the putative need for urgency when these laws were being drafted, the majority saw little use during the five-year timeframe we have examined.

Charges for the two types of habitual association were essentially unused, with two charges laid for associating with a violent offender, and none for associating with a drug offender. Attempts were made to use the provisions for fortification removal, but the law proved ineffective and difficult to apply, and were seldom successfully employed.

Overwhelmingly, the ‘gang’ laws created in the mid-1990s have been used against non-gang members more often than those with gang alerts.

Despite being justified as a response to a gang problem, the new laws contain remarkably little that is of direct relevance to gangs. The majority of measures, in fact, proved to be general law and order provisions that were primarily used against those with no association with gangs.

Of the laws considered, only two have a majority of gang targets – fortification removal and participation in an organised criminal group. Fortification removal was used exclusively against gangs, but the law was difficult to apply and was essentially a failure. With regard to participation in a criminal group,

59.8% of charges were laid against those with gang alerts. These can therefore be considered as gang laws.

The other two laws whose impact could be measured, did not have a clear relationship with gangs. In the case of criminal harassment, on average only 9.5% of those charged had gang alerts. Cannabis supply charges were primarily made against those without gang associations, with an average of less than a quarter having gang alerts.

As noted, in 1996 Commissioner of Police Peter Doone claimed that New Zealand had just five years to tackle the gang problem or it would veer out of control. The laws were argued for on the basis they were needed urgently.

Of the laws for which data were available, only one appeared to have been used significantly within the five-year timeframe. Only criminal harassment was put into immediate and consistent effect. Criminal harassment was not used primarily against gang members, however, and was not used any more heavily during the five-year timeframe than beyond it. Fortification removal has seldom been used successfully. Participation in an organised criminal group was eventually used relatively regularly, but only after a law change in 2002, and was essentially unused during all but the last year of the five- year period.

It needs to be acknowledged, though, that my analysis is far from exhaustive and there is a chance that the provisions with little or no data did have an impact. However, there is no evidence to draw a conclusion in these cases.

It is possible that the broadening of criteria for interception warrants has reduced gang crime in some areas, but there is little supporting evidence. As noted earlier, charges against gang members for cannabis supply, for example, showed no meaningful increase after 1997. So, the creation of interception warrants for cannabis offences appears not to have had any effect on gang activity in that area.

The new offence of criminal harassment has proven without doubt to be a general law and order provision rather than a gang-specific one, and there is no reason to expect that it has had any notable influence on gang activity. Only a small fraction of those charged with criminal harassment have gang alerts.

Participation in an organised criminal group had potential value as a deterrent to gang members, given that it is regularly used. In practice, however, its impact is softened by the fact that it is usually combined with other charges and that penalties for it are usually given concurrently with those other charges.

Overall, then, we can conclude that there is little evidence that the new laws have had any meaningful impact gang activity or offending.

One of the most interesting features of this suite of laws is their lack of connectivity. They are a disparate collection of individual measures, and there is no apparent strategy that binds them together in any obvious way. Ostensibly the laws were designed to confront a gang problem, but instead they highlight a political problem with the way in which they were promoted, devised and implemented.

As will become clear, there are a number of striking parallels between what occurred in the lead up to the mid 1990s legislative drive and what is occurring in the New Zealand gang scene now. This begs the question: if a similar drive for a concerted legislative agenda against gangs were to occur today, what might the outcomes be? The answer may lie in Australian initiatives. But before examining those, it is worth contextualising the efforts targeting gangs in both countries.

A review of initiatives targeting gangs throughout the world show a vast array of responses. Broadly speaking, these efforts can be categorised in five ways: community organisation, social intervention, opportunities provision, suppression, and institutional change and development (see Curry et al., 2014). Suppression, which tends to be the most prevalent measure, relies on legislative and policy measures that empower police to tackle gang problems. They are reactive measures, which do not target the underlying causes of gang membership.

This was acknowledged by the Ministry of Justice when the 1996 Bill was drafted, whereby it was stated that a more comprehensive long-term strategy would be required (Ministry of Justice, 1997: p.3), but that was never pursued. Indeed, all state inquires and research around gangs since the late 1960s in New Zealand have tended to acknowledge the social and economic factors that feed gangs. By the mid 1990s, however, serious consideration of such influences had all but disappeared (Gilbert, 2013). A suppressive approach based on law enforcement was the only answer offered.

Thus it was suppression that New Zealand looked to with regard to in the 1990s, and it is suppression that we find in Australia more recently as well. For purposes here, it is enough to acknowledge that suppression on its own is a narrow focus.

There are a number of lessons, and warnings, that emerge from the gang legislative drive of the mid-1990s that are particularly important right now. At present New Zealand is experiencing issues in regard to gangs that have some significant parallels to those seen in 1996.

It will be recalled that the serious gang violence that sparked the 1990s laws was driven largely by territorial disputes, a situation similar to what we are facing now. Since around 2010, bolstered by swelling numbers and an influx from across the Tasman, the establishment of new gangs and new chapters has meant traditional territorial borders have been disrupted. Territorial disputes are now making headlines and causing public concern. For example, the Comancheros,6 established in

Auckland in 2018, primarily by gang members deported from Australia (NZ Herald 18.02.2018). The Comancheros have since had conflicts with the Head Hunters in Auckland (NZ Herald 26.11.2021). Similarly, another new group with a core of Australian deportees, the Mongols,7 was established in the Bay of Plenty in 2019 and has engaged in violent conflicts with the local Mongrel Mob including shootings and arson attacks (NZ Herald 03.02.2020). In the Hawke’s Bay, the expansion of a number of new Mongrel Mob chapters, including the Fatherland and Red Coat chapters, as well as a swelling of gang numbers generally, led to a renewal of tensions with the Black Power in that region. This has given rise to a number of incidents including a public shoot-out in January 2020 (Stuff 19.01.2020) and another the next year that injured innocent bystanders outside a nightclub (Stuff 11.11.2021).

This re-emergence of gang conflicts is often being labelled as characterised as ‘unprecedented’, just as the clashes of 1996 were. Predictably, rising community concerns and an opportunity for political advantage have once again brought gangs to the political fore. In 2020, the opposition National Party said it would “crack down” on gangs and create new criminal offences targeting violent gang crime, with tougher sentences for gang members. Other ideas included changing the onus of proof for gang members, and allowing police greater access to gang members’ homes to recover illegal firearms (Star News 11.07.2020). National also said it would set up a dedicated police unit to target gangs, which they had previously described as being modelled on Strike Force Raptor, established by the police of New South Wales (Newshub 27.11.2019).

Adding to this is the fact that the organised crime element within the gangs has certainly increased since the mid-1990s, and while gang involvement may be overstated and not properly understood, it nevertheless remains a valid and significant concern.

This makes for a ripe environment for a mid 1990s-style legislative onslaught against gangs that creates ill-conceived measures rather than sound policy making.

Before considering this further, it is instructive to briefly look at what has happened in Australia. Not only has National signalled copying of some components of what is happening there, but in recent times New Zealand First’s Shane Jones has also stated: “We need to learn the lessons of when the Australians clamped down on their gangs” (Stuff, 22.3.2022).

In Australia in the early part of the century, a cluster of violent incidents drew a series of political responses in different Australian states. In 2009, a 29-year-old Hells Angels associate was beaten to death by around ten Comancheros in a broad daylight brawl at Sydney airport (Welch et al., 2009). On a Saturday morning in 2012, a Mongols member fired a gun at an opposing gang leader who was with his children in a busy shopping area of the Robina Town Centre on the Gold Coast (Gold Coast Bulletin 16.04.2015). In June of 2013, a violent clash occurred between the Finks and the Nomads at a classic car festival in Coolangatta (Gold Coast Bulletin 16.04.2015). Of particular note was the ‘Broadbeach bikie brawl’, which happened on the Gold Coast on 27 September 2013 (Crooke & Fitzgerald, 2014; Goldsworthy & McGillivray, 2017). This incident involved about 20 Bandidos storming into the Aura restaurant at Broadbeach, sparking a violent public brawl (Ravn et al., 2013). This brawl was used to justify the implementation of sweeping laws across a number of Australian states and particularly in Queensland (Crooke & Fitzgerald, 2014).

As was the case in New Zealand in the 1990s, the events that set in motion this legislative agenda were violent and real. And like New Zealand, the incidents also broadened to capture issues around organised crime.

A comprehensive cross-jurisdictional review of legislation in Australia governing outlaw motorcycle gangs shows that most Australian states and territories have attempted to repress gangs with various new laws allowing for control orders, removal and prevention of fortifications at clubhouses, and increases in police intelligence powers (Bartels et al., 2021). Between 2009 and 2019, there were 79 new pieces of legislation passed that in some way target gangs (Bartels et al., 2021). These include the Crimes (Assumed Identities) Act 2009 and the Crimes (Serious and Organised Crime) Legislation Amendment Act 2016 of the Australian Capital Territory; the Crimes (Serious Prevention Orders) Act 2016 and the Crimes Legislation Amendment (Organised Crime and Public Safety) Act 2016 of New South Wales; the Police Offences Amendment (Prohibited Insignia) Bill 2018 of Tasmania; and at the federal level, the Migration Amendment (Character and Visa Cancellation) Act 2014 of the Commonwealth of Australia (Bartels et al., 2021).

In Queensland, legislation aimed at the gang problem were particularly extensive. The state of Queensland created ten separate statutes aimed at stamping out the gang problem (Bartels et al., 2021). These included the Serious and Organised Crime Amendment Act 2016, the Statutes Amendment (Serious and Organised Crime) Act 2012, the Vicious Lawless Association Disestablishment (VLAD) Act 2013, and the Tattoo Parlours Act 2013.

To give flavour to these provisions: in Queensland, patched clubs were declared illegal by political decree, and the clubs had no right to appeal. If anyone went to an ‘illegal’ clubhouse or if members met in groups of three or more, they could be arrested. Bail was forbidden, and those convicted serve a mandatory term of six months in prison. If a person was wearing any regalia denoting membership in a banned club, the same penalties apply. Furthermore, if a club member committed certain specified crimes, he must receive the ordinary punishment plus an additional 15 years imprisonment or, if he is an office holder in the club, an additional 25 years. For example, while an ordinary citizen might commit a relatively minor offence and be sentenced to two years in prison, if he was identified as a club member, he would instead serve either 17 or 27 years.

Politicians and police were highly supportive of the new measures. Queensland Premier Campbell Newman said at the time of their passing that “they are very tough laws - the toughest in Australia,” and that gang members who “persist as members of criminal gangs, with criminal activities, creating fear and intimidation across Queensland ... will be destroyed and we make no apologies for that” (ABC News, 17.10.2013). As was the case in New Zealand in the 1990s, rhetoric often framed the laws as a panacea that would have far-reaching consequences for public safety. Queensland Police Minister Jack Dempsey said that with the law in place, when people “go to bed at night and the darkness of the evening comes over ... they can sleep safely in their beds” (ibid).

Many of these measures were questioned around the time of their passage under urgency. For example, Terry Goldsworthy, an academic at Bond University and a former police officer, called the Queensland legislative thrust more about politics than policy, saying it does “not match the scale of the crime threat posed by bikies...and risks undermining some basic principles of the criminal justice system” (Sydney Morning Herald, 17.10.2013).

Tony Fitzgerald QC, who headed the Fitzgerald inquiry into political corruption in Queensland in the late 1980s, joined with another QC, Gary Crooke, and argued that the threat to democracy from the misuse of power inherent in these laws is far more concerning than the gang menace itself. In their view, the threat of gangs is a perceived crisis, one which has led to the overuse of harsh legislation to bolster political support (Crooke & Fitzgerald, 2014).

The question being asked in Australia is whether the introduction of the laws has achieved its desired effect, or whether the laws are simply an attempt by the government to answer a call for a ‘tough on crime’ approach and quell a moral panic caused by high profile gang incidents (Bartels et al., 2021).

In 2015, a Taskforce on Organised Crime Legislation was established to review the effectiveness and impact of the Queensland legislation (Queensland Government, 2016). The Taskforce found that of the 202 people charged under the VLAD Act 2013, 82% had no known link to gangs (Queensland Government, 2016: p,261).

Similarly, in New South Wales, of the first 84 people charged with knowingly participating in a criminal organisation under the Statutes Amendment (Serious and Organised Crime) Act 2012, only ten (12%) were gang members (Wilson, 2015).

As was the case in New Zealand in the 1990s, the laws were heralded as ‘anti-gang’ but proved to be used more extensively on non-gang members than gang members.

Interestingly, failures in prosecution are much more common in cases with gang members than with the general population. Goldsworthy and Brotto (2021) found that, “the failed prosecution rate for bikie gang members in Queensland is 23%, compared to 6% for the general population. In the ACT, the rate is 27% compared to 4% (ibid).

A number of cases captured public attention, but perhaps none more than that of Sally Kuether. In December 2013, Kuether and her partner, a member of the Life and Death Motorcycle Club, were having a drink with another member in a hotel in Dayboro, Queensland. All three, including Kuether, were arrested and locked up. A librarian who had been awarded the Lord Mayor’s Award for her actions during the 2011 Brisbane flood disaster, Kuether had never previously been in trouble with the law. But she found herself in prison for six days before being released on bail, merely for having a drink with her partner and a friend who were gang members. After more than a year, with the threat of a three-year mandatory prison sentence hanging over her head, the charges were dropped.

Cases like this undermined the laws and raised a raft of other concerns, eventually leading to the repeal of the VLAD Act. Others laws in different jurisdictions also faced challenges, notably New South Wales’ Crimes (Criminal Organizations Control) Act 2009, provisions of which were found to be “repugnant to the institutional integrity” of the court and struck out (Queensland Government, 2016: p.25).

The Queensland taskforce (Bartels et al., 2021) also found that the levels of crime committed by gang members do not match the political rhetoric, undercutting the very basis for the strong legislative measures:

On any view of all the statistics, [outlaw motorcycle gangs] account for a very small proportion of the overall reported crime in Queensland – definitively, less than 1%.

Scholars have also researched the levels of crime committed by gang members in Australia as a whole, and have found them to be similarly low. Goldsworthy and Brotto (2021) found the following in their research:

...our analysis of crime data in two Australian jurisdictions shows outlaw motorcycle gangs in both Queensland and the ACT contribute less than 1% to most organised crime offence categories.

For example, in Queensland, between 2008 and 2014, bikie members represented 1% of murders and 0.1% of reported robberies. In the ACT between 2000 and 2019, gang members represented 0.4% of reported drug offences and 0.3% of unlawful weapons possessions.

They note that these low rates exist even with the over-policing and intensified scrutiny that gangs are subject to (Goldsworthy & Brotto, 2021).

A Commission of Inquiry on organised crime undertaken in Queensland also noted that in a 21-month period under review (October 2013-June 2015), the outlaw motorcycle gangs accounted for just 0.52 percent of criminal activity in that state and that “the heavy focus on outlaw motorcycle gangs has

meant the CCC [the Crime and Corruption Commission] has lost visibility of other areas of organised crime active in Queensland” (Organised Crime Commission, 2015: p.2).

Further, research has also shown that criminal offending is far from uniform across different gang members and groups. Morgan et al. (2020) found that offending among gang members was concentrated among a relatively small group of people, with around five percent of members committing 42 percent of offences. This was particularly significant in relation to organised crime, where they found that just four percent of members were responsible for 70 percent of criminal enterprise offending. In a similar vein, Lauchs and Staines (2019) found that Queensland’s gang members commit serious crime at a higher rate than that of the general population, but this was because of a high concentration of offending in two specific gangs, and they found ‘little to no evidence” of outlaw clubs “acting as criminal organisations”. The majority of offending tends to be inter or intra gang offences, meaning the risk to the public is relatively low (Lauchs & Staines, 2019, p.69).

Notwithstanding these issues, unlike the New Zealand laws on the 1990s, many of the measures in Australia have had some obvious impacts on the outlaw clubs.

A number of the laws (particularly the consorting and non-association) have reduced gang visibility and reduced the number of clubhouses throughout Australia, and potentially reduced public gang violence. But even here there is an argument that this has just moved the problems around rather than fixing them, with suggestions that such measures have simply driven gangs further underground, making investigation and infiltration of organised crime more difficult (Goldsworthy, 2016; McGarrity, 2012).

Furthermore, the relatively extensive powers provided for by the various legislative measures in both Queensland and across Australia have been criticised for eroding human rights obligations particularly relating to the freedom of association, predetermining the guilt of gang members, and reversing the onus of proof (Bartels et al., 2021; Gilbert, 2016; Goldsworthy, 2014b; Morrissey, 2014). In New South Wales, the Ombudsman found the laws to be ineffective and an unnecessary devotion of resources that is not in the public interest (Bartels et al., 2021). Academic commentary has similarly reflected the views of the Ombudsman and has noted that some of the provisions are an unnecessary foray into contentious human rights issues (Bartels et al., 2021; Lauchs & Staines, 2019; McGarrity, 2012; Sarre, 2013). Bartels et al. (2021) argue that these laws have been passed with little empirical evidence of their effectiveness, and that most of the laws are considered not only to impede on human rights in general, but also to target unintended and already overrepresented minorities, rather than gang members. For example, an internal memorandum from the New South Wales police watchdog agency found that motorcycle gang laws are overwhelmingly and disproportionately impacting indigenous Australians (McGowan, 2020).

While much of what has occurred in Australia shares parallels with what occurred in New Zealand such as the political rhetoric and the lack of systematic research, one thing divides them cleanly. The impacts of New Zealand laws were limp, while in Australia they have been significant.

It is not clear, however, that this has been linked to overall efficacy of the problems targeted (i.e. reductions in overall organised crime or violent offenses) and the added and broader concerns around overreach against non-gang members and rights are obvious.

The legislative drive against gangs in New Zealand in the mid-1990s was sparked by a series of violent offences committed during two gang wars that occurred in Christchurch and Invercargill. These events created a significant and understandable degree of community concern, which in turn sparked a concerted political drive around gangs. Long after those acute issues had been quelled with existing provisions, the political drive remained; indeed, it grew in the fertile environment of a looming election in October 1996.

Lead by the opposition Labour Party, the government was forced to respond and respond it did.

The rush to pull the agenda together meant that there was a dearth of research – something that, as previously mentioned, was even acknowledged in the omnibus bill containing the laws (Ministry of Justice, 1997: p.3). The measures were not based on evidence but rhetoric.

The legislative drive garnered only modest scrutiny. Still, many of the criticisms or observations that were levelled at these measures by the academics and lawyers proved to be remarkably prescient. The primary concerns were, in short, that they were not gang-specific measures, that many were likely never to be used, and that the legislation overall was a sop to appease public discontent; all of which proved to be accurate.

But the political mood of the time – largely in line with public opinion, I would suggest – meant that both the select committee looking at them, and ultimately parliament, were unmoved. The laws were near universally supported. Indeed, those who questioned the measures in parliament were roundly and sharply criticised.

The result of this political environment was that this raft of legislation, seen as so urgent and criti- cal, demonstrably failed to achieve the purposes for which they were ostensibly created. Many were not used or underused and those that did see significant use were targeted more often at non gang associated people than those who were.

While a number of the provisions have clearly fallen spectacularly flat, it is entirely possible – in fact likely – that some of these measures have proven to be useful general law and order provisions, that was not the rationale for their creation. And, indeed, that framing of them as ‘gang laws’ almost certainly stopped them gaining the scrutiny they would have ordinarily.

The conclusions of this paper do not mean that there were not – or are not – significant problems caused by gangs in New Zealand. It does, however, conclude that the political rhetoric escalated those issues away from evidence and rationality, and led to a rushed legislative response that did not meaningfully tackle the issues.

In 2008, when I first looked at this legislative drive, it appeared clear many were underused. At the time I was told by gang liaison officers who were active at the time of the drafting of the legislation that they were not consulted on what was required. One said:

There was no expert advisory panel for the government on gang stuff, where they talk about how you’re actually going to apply this law and how’s it going to work, what are the benefits and what are the short comings...They bring in laws without talking to the practitioners at street level that have got to go and enforce them, and they sort of miss the point (in Gilbert 2013, p.230).

The timing of this project examining gang laws is, I believe, particularly important. As outlined, the current climate, in which gang violence has come back to the fore, is ripe for another political drive targeting gangs. With this in mind, a look across at the Australian examples is instructive, both because of what we can learn from them, and particularly because certain New Zealand politi- cians have referenced them as potential templates.

The legislative drives against gangs in New Zealand (in the mid-1990s) and in Australia (between 2009 and 2013) share a number of parallels, which are instructive to thinking about responses to gangs. In both countries, these pushes were driven by serious violent events that spurred urgent political action. Both responses lacked solid evidential basis for the measures proposed, but they diverge in that the New Zealand responses fell very flat and the Australian ones did not. But despite the impact of the Australia approach, the evidence for the overall efficacy of those changes is equivocal at best, while some are impacting disproportionately on non-gang members including indigenous people, and raising significant issues around human rights generally.

Given what we know based on the experience from the mid-1990s, there two things it seems clear we should be alert to if new laws are developed in New Zealand: the process by which any new laws are developed, and the climate in which those laws are derived.

The experiences of the mid-1990s shows us that the primary factor that inhibits a considered approach to gang law making as described above is a highly charged political environment whereby political considerations dictate terms, often driven by high profile events. We should be mindful, and in fact scornful, of legal efforts that stem from political rather than policy considerations. This is not to say that politicians should not respond to significant community concerns, but that it is essential that we think about optimising that response to create effective measures and avoid kneejerk reactionism.

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New Zealand Law Foundation Research Reports

Gilbert, Jarrod --- "Making gang laws in a panic. Lessons from the 1990s and beyond" [2022] NZLFRRp 4