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Prohibition of Gang Insignia in Government Premises Bill (Consistent) (Section 14) [2012] NZBORARp 23 (18 July 2012)
Last Updated: 27 April 2019
Prohibition of Gang Insignia in Government Premises Bill
18 July 2012 ATTORNEY-GENERAL LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990: PROHIBITION OF GANG
INSIGNIA IN GOVERNMENT PREMISES BILL
- We
have considered whether the Prohibition of Gang Insignia in Government Premises
Bill (‘the Bill’) is consistent with
the rights and freedoms
affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights
Act’). The Bill was
introduced into the House
of
Representatives on 28 June 2012 and is currently awaiting its
first reading. The Bill is a Local Bill in the name of Todd McClay MP.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion we have
considered the consistency of the Bill with s 14 of that Act (freedom of
expression). Our analysis is set
out below.
PURPOSE OF THE BILL
- The
purpose of the Bill is to ensure that staff and clients at Government premises
are free from intimidation through displayed gang
insignia where the gang
promotes, encourages or engages in criminal activity.
- The
Bill makes it a summary offence, punishable by a fine up to $2000, to display
gang insignia in Government premises without reasonable
excuse.
CONSISTENCY WITH THE BILL OF RIGHTS ACT
Freedom of expression
- Section
14 of the Bill of Rights Act affirms the right to freedom of expression, which
includes the freedom to seek, receive, and
impart information and opinions of
any kind and in any form. The right is as wide as human thought and
imagination.[1]
- Gang
insignia can be considered a form of expression and may fall under the
protection of s 14 of the Bill of Rights Act. Gang insignia
is, however, at the
lower end of protected expression as it is associated with intimidation and
criminal activity.[2]
Is
this a justified limit under s 5 of the Bill of Rights Act?
- Where
a provision is found to pose a limit on a particular right or freedom, it may
nevertheless be consistent with the Bill of Rights
Act if it can be considered a
reasonable limit that is demonstrably justified in terms of s 5 of that Act.
Following the guidance
of the New Zealand Supreme Court decision in Hansen v
R,[3] the s 5 inquiry may be summarised
as:
- does
the objective serve a purpose sufficiently important to justify some limitation
of the right or freedom?
- if
so, then:
- is
the limit rationally connected with the
objective?
- does
the limit impair the right or freedom no more than is reasonably necessary for
sufficient achievement of the objective?
- is
the limit in due proportion to the importance of the objective?
Important objective and rational connection
- Clause
3 of the Bill states that the Bill’s purpose is to prohibit the display of
gang insignia on premises of departments of
the Public Service and Crown
Entities, and Local Authorities in New Zealand. The underlying objective is to
provide for workplaces
and public services that are free from the intimidation
that many New Zealanders suffer where gang insignia is displayed. We consider
that these objectives are sufficiently important to justify some limitation on
the right to freedom of expression and that the limitation
is rationally
connected with this objective.
Proportionality
- The
issue of banning gang insignia is not a new issue. In 2008, the Attorney-General
presented a report to Parliament stating that
the Wanganui District Council
(Prohibition of Gang Insignia) Bill appeared to be inconsistent with the Bill of
Rights Act. Parliament
amended that Bill to make it more consistent and it was
enacted into law in 2009. Soon after, the Wanganui District Council made
a bylaw
on the prohibition of gang insignia. In 2011, the High Court overturned the
bylaw as being inconsistent with the Wanganui
District Council (Prohibition of
Gang Insignia) Act 2009 and the Bill of Rights Act.[4]
- The
High Court found that the effect of the bylaw was to effectively ban gang
insignia in all public places in the District.[5] In addition, the Court found that the ban
on gang insignia was very broad and could cover brand names and fashion clothing
more
generally.[6] The effect of the bylaw
was, therefore, disproportionate to the objective.
- In
contrast, the Bill specifically defines “gang”, “gang
insignia” and “Government
premise”. All three of
these definitions provide a level of specificity that prevents overreach. The
display must occur in a
Government premise. The premises are explicitly defined
in the Bill and do not cover broad geographic areas. The definitions
specifically
exclude residential dwellings under the authority of the Housing
New Zealand Corporation. The Bill excludes tattoos and implicitly
excludes
colours as a gang insignia means a sign, symbol, or representation that is
attached to clothing.
- The
Bill defines a gang as having a common name and identifying signs, symbols or
representations. The insignia must denote membership
in the gang.[7] In addition, the
definition
requires that the gang’s members, associates or supporters must
individually or collectively promote, encourage or
engage in criminal activity.
The Bill specifies a number of gangs that already meet these requirements and
additional gangs may be
specified by regulation if they meet the above
definition. As the objective of the Bill is to lessen intimidation, it is
appropriate
that the only gangs included under the Bill, or added later by
regulation, are those that are commonly known and associated with
criminal
activity. It is this notoriety and unlawful activity that leads to
intimidation.
- Finally,
the importance of limiting gang intimidation of staff and clients in Government
premises clearly outweighs the expression
value of gang insignia associated with
criminal activity.
- We
consider that the provisions of the Bill appear to limit freedom of expression
no more than is reasonably necessary to achieve
the objective of the Bill and
the limit is in proportion to this objective.
CONCLUSION
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. This advice
has been prepared by
the Public Law Group and the Office of Legal Counsel.
Melanie Webb
Acting Chief Legal Counsel Office of Legal Counsel
Footnote 1
Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, (1999) 5
HRNZ 224 (CA) at
[15] (Tipping J), cited with approval in Living Word Distributers v Human
Rights Action Group
[2003] 3 NZLR 570, 582[2000] NZCA 179; , (2000) 6 HRNZ 28 (CA) at [36] (Richardson P)
Footnote 2
Schubert v Wanganui District Council [2011] NZHC 48; [2011] NZAR 233 at [97]
Footnote 3
[2007] NZSC 7
Footnote 4
Schubert v Wanganui District Council above n 2 at [170] and [171]
Footnote 5
At [51]
Footnote 6
At [66]
Footnote 7
This would exclude brands and devices that can be displayed or worn that are
similar to gang insignia such as skulls; see Schubert at [66]
In addition to the general disclaimer for all documents on this website,
please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the
Prohibition of Gang Insignia in Government Premises Bill. It should not be used
or acted upon for any other purpose.
The advice does no more than assess whether
the Bill complies with the minimum guarantees contained in the New Zealand Bill
of Rights
Act. The release of this advice should not be taken to indicate that
the Attorney-General agrees with all aspects of it, nor does
its release
constitute a general waiver of legal professional privilege in respect of this
or any other matter. Whilst care has been
taken to ensure that this document is
an accurate reproduction of the advice provided to the Attorney-General, neither
the Ministry
of Justice nor the Crown Law Office accepts any liability for any
errors or omissions.
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