Doubts about gang patch by-law

BELINDA FEEK | 5th April 2006

A Victoria University law expert says the Wanganui District Council's gang by-law potentially breaches human rights and won't work.

Dean Knight, lecturer of the Faculty of Law and acting deputy director for the New Zealand Centre for Public Law at Victoria University in Wellington, says there are two major potential problems with the proposed by-law.

Firstly, it was potentially inconsistent with the Bill of Rights Act ? in this case, banning gang patches.

Prima facie, the by-law breaches the freedom of expression, freedom of association and freedom of movement as it applied to particular clothing being worn by particular group of people who associated together.

Because of these breaches, the onus lies with the local authority to justify the restriction of these rights.

Section 5 of the Bill of Rights states: "the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". "If the council can demonstrate that the restriction is a 'reasonable limit' on those rights, then the by-law is legitimate, but the onus is a high one."

While public safety is an important objective, the by-law had to be in proportion to this objective.

The council also needs to examine whether it can achieve the public safety objective without limiting civil rights to the same degree.

"Applying the restriction to the entire city seems to go a lot further than is necessary. And there isn't necessarily a direct connection between the wearing of gang insignia and street violence or intimidation. That may still happen, even if people aren't wearing gang patches. It's a pretty blunt measure.

"From what I've seen so far, I'm not convinced the council has robustly weighed these issues in the way the Bill of Rights and Local Government Act requires."

Another serious issue the by-law faced was how it was going to be policed.

Under the Local Government Act 2002 it was likely to be ineffective as local authorities and the police do not have the power to arrest gang members for breaching the by-law or to confiscate gang patches.

"I don't think walking up to a gang member and taking his jacket would work," Mr Knight said.

The only area of by-laws that could be policed in this way are liquor by-laws where Parliament has expressly given the police the power of arrest. Local authorities' coercive powers are more designed to deal with "static" things like cars being parked illegally or signs being pulled out, he said... "Not making someone take their clothes off."

If the by-law restricted the rights of citizens and there were no means of enforcing it, there was potential for the by-law to be overturned.