Gang patch ban inconsistent with Bill of Rights, High Court finds

A new court decision could send the gang patch ban back to the government for review following a High Court ruling that a Wellington man's conviction for displaying gang insignia contravenes the Bill of Rights.But the Minister of Justice said the point of the legislation was to be "tough" on gang members and the law "will not be changing".This week, the Wellington High Court found the prohibition of the display of gang insignia was inconsistent with the New Zealand Bill of Rights Act 1990.The ruling came in relation to the conviction of a patched member of a New Zealand gang in December 2024 after he was sighted - via CCTV - on the footpath outside a Wellington restaurant.The man was wearing a cap which displayed a family member's name and included the name of the gang in a font and colours commonly associated with the gang.The man's details have been suppressed.The man's lawyer, Chris Nicholls said - if the ruling went unappealed - it would trigger a referral back to Parliament to re-examine the legislation."There's a series of rules that then have to be followed. The matter's got to be referred back to Parliament and then recommendations can get made and Parliament can decide what it's going to do in response."Parliament doesn't have to do anything. However it's my understanding that this inconsistency can be referred to the United Nations. Because the Bill of Rights Act came out of New Zealand's commitment to the provisions of the International Covenant of Civil and Political Rights."So, not only is this Gangs Act law inconsistent with the Bill of Rights, but it's also inconsistent with previous commitments that have been given by previous Parliaments to New Zealand's international obligations to uphold political and civil rights."The conflict between the legislation and the Bill of Rights was acknowledged by Attorney-General, Judith Collins in the lead up to the law being put into place in 2024.Nicholls said this week's High Court ruling was the "aftermath and the reality" of the Gangs Act in operation."My client - who was convicted of a minor offence under the law - is able to seek this public law remedy of a declaration and effectively say 'Whilst I have this conviction - which is correctly entered under the law of the land - never-the-less the circumstances of my conviction were that this law was also inconsistent with fundamental rights that I have under freedom of expression'."So it's an affirmation that fundamental rights have been breached."Nicholls said the Gangs Act targeted a small group of already marginalised people and would be unlikely to be supported by the public if similar legislation was directed toward a wider section of New Zealand society.He said similar declarations of inconsistency made by the High Court were "rare and not made lightly"."This is - in my view - an important safeguard and check and balance on Parliament. Where fundamental rights have been breached it forces Parliament to re-look at issues and I think that's right and that's why we took the case," Nicholls said.Justice Minister Paul Goldsmith.RNZ / Samuel RillstoneJustice Minister Paul Goldsmith was unrepentant of the impact of the legislation on the rights of gang members."This is tough legislation. That is the point."We've said right from the start this legislation will affect and limit the rights of gang members."He said Parliament considered the Bill of Rights when passing the legislation and had chosen to prioritise New Zealander's right " to live without fear and intimidation in their communities"."Gang members make up less than one quarter of 1 percent of the New Zealand adult population, yet are linked to about 18 percent of serious violent crime. We make no apologies for getting tough on law and order."The government will take some advice on this ruling, however, our position remains unchanged. The legislation will not be changing."