Tuesday, 6 August 2024
Volume 777
Sitting date: 6 August 2024
TUESDAY, 6 AUGUST 2024
TUESDAY, 6 AUGUST 2024
The Speaker took the Chair at 2 p.m.
Karakia/prayers
Karakia/prayers
TEANAU TUIONO (Assistant Speaker): Te Atua Mana, te akameitaki atu nei matou iakoe no toou takinga meitaki taau i riringi mai ki runga ia matou. Te akaruke nei matou i to matou tu tangata, te akamaara nei matou i te Ariki, e te pure nei matou kia arataki koe i ta matou uriuri anga manako, kia rave matou i ta matou angaanga i roto i teia ngutuare na roto i te pakari, te tuatua tika e te akaaka no te meitaki e te au o to matou basileia Aotearoa. Amene.
Speaker’s Rulings
Parliamentary Standards—Inappropriate and Bullying Behaviour
SPEAKER: Members, in recent days there’s been considerable public comment and interest on parliamentary standards. There’s been considerable focus on the Speaker’s role in curbing inappropriate and bullying behaviour in Parliament, in the parliamentary complex, and on social media and other media. Sadly, this is not a new phenomenon.
In December of 2018, a previous Speaker commissioned Debbie Francis to investigate and report on such matters as it affected both MPs and parliamentary staff here in Parliament. The Francis report was presented in May of 2019. It contained a number of recommendations about how behaviours around Parliament might be improved. One of those recommendations was the appointment of a Commissioner for Parliamentary Standards. That appointment was made in August of 2022. Lyn Provost, a former Auditor-General, having been appointed to the role, took up the position in January of 2023. The commissioner’s role is to receive and investigate complaints that assert contravention of acceptable parliamentary standards. The matters of public interest over recent days most certainly fall into that category.
Parties by majority deemed that the Office of the Commissioner for Standards should be established and that it was necessary. Despite the views of some, the Speaker is not and cannot be omnipresent, nor can all the cross-House comments always be clearly heard from the Speaker’s Chair, particularly if the mike is open to a member speaking. The Speaker can adjudicate when a point of order is raised by a member at the time. However, the safe ground of the Commissioner for Parliamentary Standards provides members and staff with a less time-sensitive opportunity to raise matters which reflect poorly on the culture of this House.
As at 2 p.m. today, the Commissioner for Parliamentary Standards has not received any formal complaints or reports on any matters relating to standards of behaviour in the parliamentary complex since her appointment.
Since becoming Speaker, I’ve taken a view that members should be trusted to behave in an appropriate way and participate in a manner that reflects the choice of voters to send them to this House. That was perhaps too hopeful a position. While free speech is important, any comment that touches on personal reflection, either individually or collectively, is not acceptable. Presiding officers will be much more vigilant as we move forward, and I encourage members to work with the Commissioner for Parliamentary Standards where appropriate.
Petitions, Papers, Select Committee Reports, and Introduction of Bills
Petitions, Papers, Select Committee Reports, and Introduction of Bills
SPEAKER: A petition has been delivered for presentation.
CLERK: Petition of Ava Birkinshaw Janes requesting that the House urge the Government to make New Zealand Sign Language compulsory in all high schools.
SPEAKER: That petition stands referred to the Petitions Committee. Ministers have delivered papers.
CLERK:
2023 annual report of Te Pūkenga
2024-28 statements of intent of the Electricity Authority and the Energy Efficiency and Conservation Authority
2024-25 statements of performance expectations for the Electricity Authority and the Energy Efficiency and Conservation Authority.
SPEAKER: Those papers are published under the authority of the House. Select committee reports have been delivered for presentation.
CLERK:
Reports of the Environment Committee on the 2024-25 Estimates for:
Vote Conservation
Vote Environment
Vote Parliamentary Commissioner for the Environment
reports of the Foreign Affairs, Defence and Trade Committee on the 2024-25 Estimates for:
Appropriations within Vote Business, Science and Innovation related to New Zealand Trade and Enterprise
Vote Customs
Vote Defence and Vote Defence Force
report of the Health Committee on the Pae Ora (Healthy Futures) (Improving Mental Health Outcomes) Amendment Bill
reports of the Justice Committee on the 2024-25 Estimates for:
Vote Attorney-General and Parliamentary Counsel
Vote Corrections
Vote Courts
Vote Justice
Vote Police, Vote Serious Fraud, and appropriations relating to the Retail Crime Subsidy
report of the Māori Affairs Committee on the 2024-25 Estimates for Vote Te Arawhiti
reports of the Petitions Committee on the petitions of:
Craig Dawson
Jennifer Heath
Our Seas Our Future.
SPEAKER: The bill is set down for second reading. The Clerk has been informed of the introduction of a bill.
CLERK: Building (Earthquake-prone Building Deadlines and Other Matters) Amendment Bill, introduction.
SPEAKER: That bill is set down for first reading.
Oral Questions
Question No. 12 to Minister, 1August—Amended Answer
Hon CASEY COSTELLO (Associate Minister of Police): Point of order, Mr Speaker. I seek leave to make a personal explanation to correct a statement that I made regarding police numbers in question No. 12 on 1 August 2024.
SPEAKER: Leave is sought. Is there any objection? There appears to be none.
Hon CASEY COSTELLO: In response to Ms Andersen’s second supplementary question to question No. 12 on 1 August 2024, I wish to correct the Hansard record, which quotes me stating that reaching 2,711 would mean that we will have increased the police force by 500. We will have increased the police force by 500 when we reach 10,711 constabulary. I’m taking the first possible opportunity to correct this, and I apologise for any confusion to the House.
Questions to Ministers
Question No. 1—Regulation
1. MARK CAMERON (ACT) to the Minister for Regulation: What initiative, if any, is the Ministry for Regulation working on to improve the quality of regulations in New Zealand?
Hon DAVID SEYMOUR (Minister for Regulation): Thank you. The Government can really do three things. One is to spend, the other is to own things, and the final thing is to regulate all the property it hasn’t already taxed and doesn’t own. The Government has a Minister and Ministry for Regulation to improve that third area that is adding costs to things that people do, making people forego opportunities because it costs too much to get through regulation, and deadening our culture, as people who try get beaten down by excessive red tape. In response to this, the Ministry for Regulation is working in three areas: carrying out sector reviews on the stock of existing regulation, preparing a revised regulatory standards bill to uphold standards for new regulatory initiatives, and also improving the culture and workforce of regulatory agencies so that those who apply rules to people in their workplaces are better equipped to help them, rather than hinder them, go to work and get home safely.
Mark Cameron: What initiatives has the Minister announced to improve the quality of regulation in the agricultural and horticultural sector?
Hon DAVID SEYMOUR: The agricultural and horticultural products regulatory review will identify opportunities where farmers and growers could have improved access to new agricultural and horticultural products in a timely manner while also maintaining an appropriate balance between access to these products and managing risk. We think of ourselves as the leading-edge agricultural and horticultural nation in the world, and it was a great shock to me to realise that often New Zealand farmers and horticulturalists find themselves without products that their competitors overseas are accessing, simply because the Ministry for Primary Industries and the Environmental Protection Authority can take years to approve products that would be helpful for them raising their productivity.
Mark Cameron: What initiatives has the Minister announced to improve the quality of regulation in early childhood education (ECE)?
Hon DAVID SEYMOUR: I recall, prior to becoming a Minister, attending a meeting of over 500 ECE operators completely beside themselves with the level of red tape and regulation that often subjects them to absurdities, takes up their time, and prevents them from doing the real work of helping the youngest New Zealanders learn and grow into confident and competent citizens. As a result, the Ministry for Regulation has been out and about, talking to people in the sector, hearing about the regulatory roadblocks and red tape they face as they try to rear the next generation of confident and inquisitive New Zealanders. They will soon be reporting a set of initiatives to slash that red tape so people can get on to the very important job of running early childhood education centres that young people are happy to go to, who learn, and where their parents can be confident that they’re safe and well looked after.
Mark Cameron: How will the regulatory standards bill improve the quality of new regulations?
Hon DAVID SEYMOUR: Well, in days gone by in this Parliament, you would see spending and money printing completely out of control in a sort of politicised wild west of fiscal and monetary policy. Since then, the Public Finance Act and the Reserve Bank of New Zealand Act have led to some certainty and some consistency in the way that the Government spends and the Reserve Bank operates. We have no such statutory base for the way that the Government regulates people’s private property and its use and exchange. The regulatory standards bill will ensure that when Governments regulate, they identify what problem we’re trying to solve, what the costs of a solution are, if they are they less than the benefits, who wins and who loses, and if private property rights are impaired. That kind of standard will be a major improvement not just to laws made today but for New Zealand’s long-term future as a regulator.
Question No. 2—Prime Minister
2. Rt Hon CHRIS HIPKINS (Leader of the Opposition) to the Prime Minister: Does he stand by all his Government’s statements and actions?
Rt Hon CHRISTOPHER LUXON (Prime Minister): Yes, I do, and especially our action to teach the basics brilliantly to our Kiwi kids. The maths results released on the weekend are absolutely appalling, when four out of five of our children at year 8 are below where they need to be, and three out of five are more than a year behind where they need to be. It is safe to say that the system has failed. We have to fix it, and now we have a plan to do exactly that—a world-leading curriculum based on the science of learning, top quality resources to support our teachers, regular assessments, and clearer reporting for parents. We have an outstanding Minister of Education, Erica Stanford, who has achieved more, I think, in six days than the last member did and the last Government did in six years, and it is more evidence for what Kiwis already know: that this is a Government that is for the parents and also for education.
Rt Hon Chris Hipkins: Will the new requirements around maths that he announced over the weekend also apply in charter schools; if not, why not?
Rt Hon CHRISTOPHER LUXON: Again, we think charter schools are an important feature of innovation to bring into the education system. They will be held ruthlessly accountable for delivering improved academic achievement, attendance, a number of key metrics, and then left to get on with the job that they need to get on with.
Rt Hon Chris Hipkins: Point of order, Mr Speaker. The Prime Minister himself introduced all the content around maths in his primary answer. The supplementary was directly related to the content that he himself introduced in his primary answer, and he didn’t address the question.
SPEAKER: Well, I think he did, by saying they’ll be required to provide comprehensive, I think was the word, across the curriculum. The Prime Minister, I’m sure, might want to say something more.
Rt Hon CHRISTOPHER LUXON: Well, charter schools will be required to deliver results, and we’ll hold them accountable for doing so.
Rt Hon Chris Hipkins: Point of order, Mr Speaker. My question was whether the requirements that he just outlined would also apply to charter schools. Saying that they’re going to have rigorous standards is all very well, but will the standards that he set out for every other school, in the area of maths, apply to charter schools? That was a pretty straight question.
SPEAKER: It was a straight question, but one of the things that’s sort of interesting is that while the person asking a question may want a particular answer, he can’t guarantee that it’ll be given. The question was most definitely addressed.
Rt Hon Chris Hipkins: Why should the New Zealand public have confidence in his Government’s reintroduction of boot camps and that they won’t result in a repeat of the shocking abuse highlighted in last week’s royal commission report when his Minister for Children said last week that she cannot guarantee that abuse won’t take place?
Rt Hon CHRISTOPHER LUXON: Well, again, what I’d say to you is that the royal commission of inquiry report into the boot camps at Aotea Great Barrier are incredibly different from what we are proposing here—completely different. What we’ve got is unvetted and unqualified staff, as that member would have read in that report. Here we have senior psychologists and two social workers working with 10 kids. We had very isolated conditions, appalling conditions. We have a three-month residential programme that involves the family, whānau, siblings, and community organisations from the get-go. On the other hand, it was focused on punishment and also abuse. This is focused on powerful interventions in these young people’s lives to turn them around. And there was no oversight or monitoring, as the member would understand from that reporting, and there is deep monitoring and protection in place under our military-style academies.
SPEAKER: Just so we’re clear, the primary questioner has for quite some time been getting the first three supps.
Rt Hon Chris Hipkins: Will he do what his Minister for Children refused to do last week and guarantee that no children attending boot camps established by his Government will be subjected to abuse?
Rt Hon CHRISTOPHER LUXON: We are doing everything we can to make powerful, targeted, and safe interventions in those young people’s lives, and we will not give up on them. We’re going to do everything we can. We’re going to try new things. We have a good pilot, with good oversight and good monitoring, but we are going to do things differently to get things done in this country.
Hon David Seymour: Does the Prime Minister have any reflections, in the wake of the royal commission on abuse in State care, on politicising the grotesque, violent suffering outlined in that report by making comparisons that are totally invalid to something that is actually completely separate?
Rt Hon CHRISTOPHER LUXON: As I said, they’re incredibly different, and I think it’s disingenuous to compare them.
Rt Hon Chris Hipkins: If he is confident that abuse will not happen in boot camps, why won’t he give that assurance now?
Rt Hon CHRISTOPHER LUXON: Because I am doing everything we can in this Government to make sure that we are going to make powerful, targeted interventions on these young people’s lives. We are making sure we’ve got qualified and vetted staff. We are making sure we’ve got monitoring and protection in place. We are making sure that we actually have family and whānau and community organisations in place. This is a trial. This is a pilot. We will learn from it. But I can tell you, we’re doing everything we can to make powerful interventions to change the trajectory of where these lives are going.
Rt Hon Chris Hipkins: If all of those things are going to be effective, why won’t he guarantee that no child will be abused in boot camps?
Rt Hon CHRISTOPHER LUXON: Well, I am guaranteeing that we are doing everything we can to turn those lives around.
Rt Hon Chris Hipkins: Will he assure the public that he will not intervene in any future fast-track resource consent applications, as he did in the case of the redevelopment of a disused petrol station in Cockle Bay, which was being redeveloped into 54 apartments, where his objection was cited as one of the reasons it isn’t going ahead?
Rt Hon CHRISTOPHER LUXON: Look, the member has gotten very petty in Opposition. I have to say, look, we are interested in solving problems. One of the big observations of the previous Government was that there were lots of words, lots of post-it notes, lots of strategies, and nothing getting done. We believe in fast-track, one-stop provisions. We think that’s the way that we get things done. We strengthen our regional communities. We strengthen our national economy. We’re going to get it done. Come and join us. Support and vote for fast-track legislation, support and vote for the oil and gas repeal, and get on board.
Rt Hon Chris Hipkins: 54 houses blocked by you.
SPEAKER: I’m not going to stop interjections, but the Standing Orders do require they are rare and reasonable. I don’t want to be the judge of what’s reasonable in this case.
Question No. 3—Finance
3. MILES ANDERSON (National—Waitaki) to the Minister of Finance: What is the operating allowance for Budget 2025?
Hon NICOLA WILLIS (Minister of Finance): No sooner has one Budget been delivered than the next is under way. The operating allowance for the next Budget, Budget 2025, is $2.4 billion. To be clear, that is $2.4 billion per year of additional net spending or revenue reduction, on average, across the forecast period. That is a very tight allowance indeed. In fact, it is the lowest operating allowance since Steven Joyce’s Budget in 2017. The Government is committed to controlling spending and getting the books back to surplus.
Miles Anderson: How much has been pre-committed against the Budget 2025 allowance?
Hon NICOLA WILLIS: The Government has pre-committed $1.37 billion per annum against the Budget 2025 allowance to meet forecast demographic, volume, and price pressures for front-line health services delivered by Health New Zealand. We have done this to give the health sector confidence to plan for the future so that New Zealanders can get the healthcare they need. The Government has also pre-committed funding for additional medicines, including up to 26 new cancer treatments.
Miles Anderson: How much does that leave in the allowance for new decisions?
Hon NICOLA WILLIS: After pre-commitments and some non-discretionary forecast items, there is currently less than a billion dollars remaining in the operating allowance for Budget 2025. Clearly, managing within that remaining allowance will require tight controls on new spending. It is also important to remember that allowances are a net concept. They include savings initiatives as well as new spending, and revenue increases as well as tax relief. So any savings or new revenue initiatives will boost that billion-dollar figure. As I said in the Budget speech, savings and reprioritisation will be a feature of future Budgets, just as they were in Budget 2024. Finding better ways to use public money will be a business-as-usual activity for this Government.
Chlöe Swarbrick: Can the Minister promise that her operating allowance, which is $100 million lower than Treasury says is necessary just to keep the lights on in this country, will not result in front-line service cuts?
Hon NICOLA WILLIS: Well, I think the member clearly drafted her question before she listened to the answers to my earlier supplementaries, because the key point here is that in order to meet cost pressures, we will need to find savings elsewhere. We on this side of the House think that is a good and proper thing to do. Because if that member wants to contend that every dollar of public money being used today is always being used wisely, then I would invite her to reflect on this: in the last Budget, our Government found $23 billion of savings and reprioritisation—that’s $5.9 billion every year over the next four years—and it only took us a few months to find it.
Chlöe Swarbrick: I raise a point of order, Mr Speaker. While that was an incredibly lengthy answer, it didn’t get anywhere near addressing my question, which was about front-line service cuts and whether the Minister could give any guarantee that there would not be front-line service cuts as a result of her operating allowance, which is lower than what Treasury says is necessary for business as usual.
SPEAKER: Well, it wasn’t an incredibly long answer; it was a longer answer, but it most certainly addressed the question. What I would simply say is that if you’re asking for a guarantee, it is in the nature of a yes or no question. So you’re going to probably get the type of answer you got.
Chlöe Swarbrick: Can the Minister of Finance guarantee that there will be no further cuts to front-line services under her Government?
Hon NICOLA WILLIS: I will repeat the commitment I have made in this House many times, which is that we are focused on delivering services that get better results. That does not mean that we won’t strive to find new and better ways to deliver public services, and sometimes that will entail change. Because the alternative is that we accept that every service being delivered by a public agency today is being delivered the best way. That is clearly not the case, and this is a Government that is determined to get better results for New Zealanders and make the changes needed to ensure that.
Miles Anderson: How confident is she in finding savings?
Hon NICOLA WILLIS: I am very confident, and I say that because, as I said to the member earlier, we found an average saving of $5.9 billion per year across the forecast period in the Budget just gone. Despite some members predicting that the sky would fall in if the Government made any savings whatsoever, we found that $5.9 billion per year so that we could direct it to higher-value uses—things like 500 additional police, things like Gumboot Friday, things like new classrooms and maintaining our existing classrooms—and I am confident that across the public sector there are many more savings and re-prioritisation opportunities.
Question No. 4—Prime Minister
4. CHLÖE SWARBRICK (Co-Leader—Green) to the Prime Minister: Does he stand by all of his Government’s statements and actions?
Rt Hon CHRISTOPHER LUXON (Prime Minister): Yes, and especially this Government’s action to turn around the miserable track record of achievement in maths for children from low-decile schools. Our Government believes in giving every child a shot, no matter what school they go to or wherever they grow up. The latest maths data shows that just 8 percent—8 percent—of children in our lowest-decile schools are at curriculum in maths in year 8, and we can and will do so much better than that. I’m proud that we have a Minister who has a plan to turn that track record of underachievement around and to deliver opportunity for every child across New Zealand, in every town. I’d say to that member, if she cares about equality of opportunity, get on board and back these changes.
Chlöe Swarbrick: Does the Prime Minister accept that the major determinant of educational achievement in this country is in fact poverty or parental income?
Rt Hon CHRISTOPHER LUXON: What I accept is that there has been system failure over many, many years in this country on education. What I accept is that four out of five of our kids not being where they need to be at year 8 and three out of five being more than a year behind is utterly unacceptable, and we make no apologies for focusing the education system around academic achievement. We need to teach our kids to read and we need to teach our kids to do maths.
Chlöe Swarbrick: How can the Prime Minister say to the children of this country, “I cannot change the … home that you were born into” when his Government’s decision to lower child poverty reduction targets will intentionally allow for up to 23,000 more children to live in poverty under his Government’s economic and social policies?
Rt Hon CHRISTOPHER LUXON: Well, I’d just say to that member that we are committed to reducing child poverty with this Government’s actions. We are doing that by rebuilding the economy, restoring law and order, and delivering better health and education. I’d just also say the Treasury advised us, in the changes in the last Budget, that we will lift 17,000 children out of poverty. I think that’s a good move.
Chlöe Swarbrick: What does section 7AA of the Oranga Tamariki Act currently do?
Rt Hon CHRISTOPHER LUXON: What we’re doing with section 7AA, just so we’re—[Interruption] We want the legislation to make sure it protects the wellbeing and the interests of our children above and beyond anything else and is unambiguous doing so.
Chlöe Swarbrick: Point of order, Mr Speaker. I don’t think that that went anywhere near close to addressing what section 7AA of the Oranga Tamariki Act currently does.
SPEAKER: Well, I mean, I think the point is that there was an answer about 7AA, and, clearly, if the Prime Minister didn’t know what it was, he wouldn’t be amending it.
Chlöe Swarbrick: Does the Prime Minister know what section 7AA of the Oranga Tamariki Act actually currently does, and can he please outline that specifically for the House?
Rt Hon CHRISTOPHER LUXON: In answer to the first leg of your question, yes.
Chlöe Swarbrick: Does the Prime Minister see any problem at all with his coalition agreement promise to make decisions based on data and evidence, and his complete inability to produce any data and evidence about why he wants to remove the section of the Oranga Tamariki Act which does the bare minimum on upholding Te Tiriti o Waitangi?
Rt Hon CHRISTOPHER LUXON: What we are focused on is actually making sure the wellbeing and the best interests of the most vulnerable children in this country are protected. We want that to come first, above and beyond anything else—above and beyond their cultural needs or anything else. It’s important that children are protected and are safe. We’ll continue to do that.
Question No. 5—Finance
5. Hon BARBARA EDMONDS (Labour—Mana) to the Minister of Finance: Meitaki maata, Mr Speaker. Does she stand by her statement, “Our Budget was very deliberate in the funding of core priorities because our priorities are the same priorities as New Zealanders”; if so, is she concerned that her choices are disconnected from everyday New Zealanders?
Hon NICOLA WILLIS (Minister of Finance): In answer to the first part of the question, yes; in answer to the second part of the question, no.
Hon Barbara Edmonds: Has Cabinet approved funding for KiwiRail to break its contract with Hyundai Mipo for two new rail-enabled interisland ferries; and does she believe paying Hyundai hundreds of millions of dollars not to build ferries is a priority for New Zealanders?
Hon NICOLA WILLIS: The negotiations between KiwiRail and Hyundai are a commercial matter between those two parties and not something that I view that is in the public interest to comment on in this House. I have previously made clear the Government’s view that we can have safe, reliable ferry services and that we will take the action needed to ensure that is the case.
Hon Barbara Edmonds: Is she aware that since KiwiRail contracted for the ferries, the price of new ships has risen by 50 percent in US dollars; and can she guarantee the new ferries and sunk costs from cancelling the ferries will be less than $2 billion?
Hon NICOLA WILLIS: On the advice I have received to date, I can be very confident that the cost of delivering new ferries will be less than the projected cost of the failed and flawed project iReX, even when sunk costs are taken into account. And I had the experience yesterday of visiting CentrePort, where they showed me where hundreds of millions of dollars would have had to be poured in to allow for enormous ships with enormous berths and rail enablement, and I asked them, “How much would it cost to ensure that wharf could take a normal-sized ferry?” And they said, “Zero.”
Hon Barbara Edmonds: Point of order, Mr Speaker. I asked the Minister if the sunk costs in the new ferries would be less than $2 billion. The figure that she points to in relation to it being less than is actually $3 billion according to reports by her comments.
SPEAKER: Well, if the question had been a little more clear in that regard, it might have been helpful, but I can’t rule that the question wasn’t answered.
Hon Barbara Edmonds: Is she aware the E-Flexer ferries the ministerial advisory group recommends are at least 50 percent larger than the largest current ferry, and will need new wharves and infrastructure, meaning she will have to make most of the land-side investments that she cancelled under the Cook Strait ferry project?
Hon NICOLA WILLIS: Well, two things. First, the member is making a series of assertions about a report that is not in the public domain, and I would suggest to her she be very careful about whether or not the sources she is getting her information from are providing her with accurate, fully contextualised information, because it will eventually go to her credibility if she makes assertions in this House that are incorrect. Second, I wish to offer a point of clarification in regards to the previous comments that I made, to be clear to the House. When I said, “Zero”, what I meant was the potential cost to the Crown. It will, of course, cost something to upgrade port facilities. The point is what costs the Crown incurs. [Interruption]
SPEAKER: Just wait for the House to quieten down.
Hon Barbara Edmonds: Is she aware that procuring new ferries that are not rail-enabled will cost $150 to $200 per container; and is putting that extra cost on Kiwi businesses a priority for her Government?
Hon NICOLA WILLIS: Again, the member is, unfortunately, making assertions without grounding in fact. So I would point this out to the member: she is now in the position of defending a project which blew out to a total cost of at least $3 billion. Now, the cost of that project, members—only a tiny percentage, around 21 percent, was actually for the cost of ships; the rest of it was all for building berths and facilities that were big enough to take ships. The previous Government committed to cars that were far too big for the garage, had no plan to build the garage, and then found out halfway through that the garage was going to cost more than the car.
Hon Barbara Edmonds: Is it prudent financial management for her to cancel the Cook Strait ferry project with no alternative plan, to have no idea what the contract break fees would be, and to have no idea how much alternative ferries and infrastructure would cost?
Hon NICOLA WILLIS: Yes, for two reasons—one, because we can be confident that we can deliver safe, reliable ferry services into the future with less cost than would have been required with the project committed to by the previous Government. Second, I’d just like to make this point to the House: today, yesterday, and the day before, there were crossings by the Bluebridge ferry company that were on time and reliable. And do you know how much public money went into those crossings? Zero. [Interruption]
Rt Hon Chris Hipkins: Point of order, Mr Speaker.
SPEAKER: I’m just waiting for the House to come to—
Rt Hon Chris Hipkins: Point of order, Mr Speaker.
SPEAKER: I’ll call you as soon as we’re all tidy.
Rt Hon Chris Hipkins: In light of the Minister’s last answer, Mr Speaker, if it turns out that Bluebridge in fact cancelled sailings this week because one of its own ferries was encountering difficulties, would you expect the Minister to correct that answer?
SPEAKER: Put that point of order again—sorry.
Rt Hon Chris Hipkins: The Minister just made a claim that Bluebridge has had a flawless record this week in its Cook Strait ferry operations. If it turns out that Bluebridge have in fact been cancelling sailings and disrupting its own operations this week because of its own difficulties, would you expect the Minister to correct that answer in the House?
SPEAKER: Well, in so much as the Minister has some responsibility for the timetabling of Bluebridge ferries, perhaps. But if there’s something that the Minister discovers later is incorrect, then I would expect it to be corrected, as we had earlier today.
Hon NICOLA WILLIS: Speaking to the point of order, I’m quite happy, right here and now, to clarify that when I used the rhetorical device of “this week”, perhaps what I should have said, and would have been more accurate, is that, in general, Bluebridge provide reliable services that don’t require public subsidy. And the point that the member makes is a fair one—
SPEAKER: Stop. [Interruption] Just stop—just stop. [Interruption] Sorry—when I say “stop”, I would like the Minister to please stop. That should have been heard with silence because it was part of a point of order. So we’ll just try and get that order back in the House.
Question No. 6—Energy
6. TANYA UNKOVICH (NZ First) to the Associate Minister for Energy: What recent announcements has he made regarding fuel security?
Hon SHANE JONES (Associate Minister for Energy): Ensuring New Zealand is a resilient and self-sufficient economy is a priority for our Government in so far that productivity and a flourishing economy needs reliable access to fuel. I recently announced that a study of New Zealand’s fuel security, including investigating the reopening of the Marsden Point refinery, is getting under way, as per the coalition agreement. Since Marsden Point was permitted to be mothballed by the previous Government, we have seen resilience undermined. It is important that we explore all options. Now, this study, it may come to pass, does not find favour with those who do not support the business community—they sit on the other side of the House, not with me.
Tanya Unkovich: Why is the fuel security study needed?
Hon SHANE JONES: The internal combustion engine is not going anywhere in a hurry. No doubt, we will see a slow growth in electrical vehicles, the growth of which will be determined by investment in the electricity system, and work is under way to ensure that our electricity system does not contain any deficiencies that might impede competitiveness. In recent years, countries around the world have been scrambling to strengthen fuel security. We’ve, sadly, headed off in the opposite direction. We’ve followed a path of flakiness and green ruination, and fuel security is critical to our economic security and the boost of our economy of jobs and exports—something that defines this side of the House; sadly, absent from a distant corner.
Tanya Unkovich: What reports has he received regarding energy security in New Zealand?
Hon SHANE JONES: I have received the report today otherwise known as the quarterly report of the Gas Industry Co., and this is the home of New Zealand’s gas governance advice and data—advice and data demonstrably superior to any loose, random international report that may be doing the rounds in other parts of the world. What it actually says—what it actually says—is that gas production is 20 percent down, and the result and the blame for that degradation of gas resilience can be laid at the feet of that Prime Minister and that Minister, who, in thinking that they were going to enjoy the political upside of the term “a nuclear moment”, cancelled the gas industry in New Zealand.
Tanya Unkovich: Why is energy security critical for New Zealand’s economy?
Hon SHANE JONES: Not only is the ongoing availability of gas and, sadly, Indonesian coal—how perverse that those people who thought that they would improve energy resilience in New Zealand are now reduced to requiring ongoing imports of Indonesian coal. That never featured seven, eight years ago, or six years ago, in the analysis, but that is what is happening in this very day. We cannot afford to have a situation where we are losing our resilience. We’re losing confidence, and there is no certainty for investors. For those reasons, the study is taking place in terms of fuel resilience. Additional work will take place to ensure that the energy settings, the electrical industry settings, are such that it gives a greater level of competitiveness, and we will stand with industry and ensure that industry is not monstered by green termites nibbling away at our economic capital.
Question No. 7—Education
7. CATHERINE WEDD (National—Tukituki) to the Minister of Education: What recent announcements has she made about transforming maths education?
Hon ERICA STANFORD (Minister of Education): This Government has announced four immediate interventions as part of our Make It Count maths action plan to turn around our poor results. We’re accelerating the shift to a new maths curriculum next year. To support teachers, we are delivering targeted professional development focused on structured maths for primary and intermediate teachers, alongside providing quality resources aligned to the curriculum. Thirdly, there will be twice-yearly assessments for maths in primary school, for years 3 to 8, starting from next year so that we can provide the support where needed. In line with this, we are going to provide targeted support in small groups, using structured maths, to give our kids who need extra help the best chance to succeed. Yesterday, I announced faster and overhauled Education Review Office reporting in numeracy and literacy assessment, and the Ministry of Education are going to intervening earlier and more often to provide support to schools who need to raise achievement, because, if we’re going to close the equity gap and raise achievement, we need to have a knowledge-rich curriculum year by year that’s explicitly taught and consistently measured against.
Catherine Wedd: What evidence has she seen to support these announcements?
Hon ERICA STANFORD: Data from the Curriculum Insights and Progress Study show that just 22 percent of year 8 students in New Zealand are at the expected curriculum benchmark in year 8 for mathematics, and it showed that just 12 percent of Māori students were where they should be and that 63 percent of the overall year 8 cohort are more than a year behind. It’s the first time we’ve seen results like this. These results, while shocking, are not any worse than before. Previous assessments just neglected to ask the right questions. This is the first time that we have assessed our kids in comparison to the curriculum benchmark for their year. Until now, New Zealand has assessed students in broad multi-year bands, where a child could be years behind where they should be but they’re still considered to be at curriculum. Essentially, this means many parents were being told that their children were at curriculum or doing just fine when the reality is that they could have been years behind. Parents deserve to know exactly where their kids are at, what they will be learning, and what we can do to help them—and from next year, they will.
Catherine Wedd: What will her recent announcements mean for teachers?
Hon ERICA STANFORD: As part of this announcement, $20 million is being made available within the professional learning and development budget to build confidence and capability in our teaching workforce. We know from a range of studies that too many teachers don’t feel they have the confidence to teach maths to young people. Teachers deserve our support, and we are going to deliver. As part of this announcement, we will be rolling out student workbooks, detailed teacher guides, and other top-quality resources aligned to the new curriculum to support every teacher and child in every classroom in New Zealand. As Minister, it’s my responsibility to ensure the system is working for our teachers to improve these results as quickly as we can, and we’ll continue to work with the sector to make sure that we are achieving what we need to be.
Catherine Wedd: What feedback has she heard from school principals since the announcement?
Hon ERICA STANFORD: One school, Gore Main School, who have embedded structured literacy with outstanding results say, “This year, we started a structured maths approach, and we are seeing similar results. Already we are seeing improvements within our student achievement. We are happy to hear that structured maths is going to be brought into schools, and we know it is long overdue.” Also, I heard from Dr Sarah Brown from Kerikeri Primary School, who has brought in structured maths with teacher guides and student workbooks. She has closed the equity gap. Her Māori students are now achieving at the same rate and, in some cases, above the average students in her school for the first time. This announcement is just one step towards closing the equity gap across New Zealand, giving our children every opportunity to succeed and setting New Zealand up for future prosperity.
Hon Jan Tinetti: Does she agree with the Curriculum Insights and Progress Study from Otago University and the New Zealand Council for Educational Research (NZCER), which says trend data from the National Monitoring Study of Student Achievement (NMSSA) indicates that at year 8 there has been no statistically significant change in mathematics achievement scores since at least 2013; and if so, why is her data so different, when the NMSSA also measured in a single year—not, as she said earlier, in a multi-year band?
Hon ERICA STANFORD: If the member had listened to any of the answers that I gave before, she will have understood. This is the very first time that we have measured our children against a curriculum benchmark at their year level The old results were based on multi-year bands—
Hon Jan Tinetti: That is not right, that is not correct.
Hon ERICA STANFORD: —and I spoke to Charles Darr, who was with the NZCER, who basically said to me that is exactly how we’ve been measuring. But can I just say, if the member can’t understand the gravity of 22 percent, she received, when she was the Minister, 42 percent, and what happened under her watch? Absolutely nothing. Under this Government, we brought in a new curriculum, new resources, and professional learning and development—
SPEAKER: That’s enough. Thank you.
Tākuta Ferris: Given that the Waitangi Tribunal’s report Kei Ahotea Te Aho Matua described kura kaupapa Māori as a proven model where success had been achieved, what actions will she take to expedite the development and expansion of kura kaupapa Māori education as a means of closing the Māori educational achievement gap?
Hon ERICA STANFORD: It’s an excellent question, and for the first time, what we are seeing is a Government who have an excellent relationship with kura kaupapa, who have set aside multiple tens of millions—in fact, $100 million—to make sure that we are building more classrooms and redeveloping more kura kaupapa schools. And, for the first time, in all of our policies, we’re making sure that the resources available to kura kaupapa are available in te reo Māori. Under this Government, for the first time, not only in structured literacy but also in structured mathematics, all of the resources and all of the professional development will be available in te reo Māori. And you can’t say that for the last lot.
SPEAKER: The House is going to be a little quieter before we call your question, and the House will also bear in mind the comments I made earlier about interjections.
Question No. 8—Children
8. Hon WILLOW-JEAN PRIME (Labour) to the Minister for Children: Does she stand by her statement that “stakeholder groups, Opposition parties, Governments, and Māori have all called for Oranga Tamariki to change. This is what change looks like”; if so, why?
Hon KAREN CHHOUR (Minister for Children): In answer to the first part of the question, yes, in the context in which I said it, which was in relation to the proposed Oranga Tamariki organisational restructure. In answer to the second part of the question, because it’s not an option to keep the status quo. To do so would say we’re happy with how the organisation is running now and delivering for children—and we know it’s not.
Hon Willow-Jean Prime: Is the repeal of section 7AA, which requires partnerships with Māori and reducing disparities for Māori, the change that Māori have called for?
Hon KAREN CHHOUR: I have made it very clear since becoming Minister for Children that the best interests and safety of children are at the forefront of every decision that Oranga Tamariki makes.
Hon Willow-Jean Prime: Is the reintroduction of military-style boot camps the change that survivors of abuse in care have called for?
Hon KAREN CHHOUR: My statement is in relation to the proposed restructure of Oranga Tamariki.
Hon Willow-Jean Prime: Is cutting $120 million in community prevention services, like Family Start, the change that community organisations have called for when Social Service Providers Aotearoa chief executive Belinda Himiona is saying that providers are very worried that child safety and that whānau wellbeing is going to be impacted by these reductions?
Hon KAREN CHHOUR: I’ll say it again: my statement was in relation to the proposed restructure of Oranga Tamariki.
Hon Willow-Jean Prime: Was survivor of abuse in care Toni Jarvis correct when he said about a conversation he had with the Minister that “She told me she was not happy in some of the decisions she was having to make.”?
Hon KAREN CHHOUR: I don’t know what that is about, but I have never made that statement.
Hon Willow-Jean Prime: Is the Minister saying that the survivor is being untruthful when he said that “She told me she was not happy in some of the decisions she was having to make.”?
SPEAKER: No, I think you’ve got to get serious about that question. I mean, I think, firstly, the Minister has no responsibility for what someone else has said. If the question could be put in a different way, it might be reasonable, but not the way it was presented.
Hon Willow-Jean Prime: Is the Minister, therefore, saying that she is happy to make the decision she is making about the reintroduction of boot camps, the repeal of section 7AA, the significant funding cuts to community service providers on the front line, and, if so, why?
Hon KAREN CHHOUR: I’ll repeat again: my statement was in relation to the proposed restructure of Oranga Tamariki.
Kahurangi Carter: What would the Minister say to Ngā Puhi who protested the removal of 7AA on the forecourt of Parliament yesterday, and said, “You tell me, how do you know our babies won’t continue to be abused in state care? How do you know what’s best for Ngāpuhi whānau, marae, hapū, and iwi? How do you know that Oranga Tamariki will keep their word, and care properly for our mokopuna when they have never ever done so?”
Hon KAREN CHHOUR: What I would say is that since I’ve started as the children’s Minister, I have always made it very clear that the best interests and the safety of the children should be at the forefront of every decision made, whether you’re Māori, non-Māori, or any ethnicity in this country, because I’m sick to death of us accepting the fact that we lose one baby every five weeks in this country to the hands of somebody who is supposed to care about them.
Kahurangi Carter: What would the Minister say to Teresea Olsen from Kokiri Marae, one of the only 7AA partners to have the status of chief executive over tamariki, who has just found out that they have lost $1.5 million in contracts with Oranga Tamariki and is stripping community providers on the ground already working with whānau of funding what change looks like to her?
Hon KAREN CHHOUR: I’ll say again: my statement was about the proposed restructure of Oranga Tamariki.
Ricardo Menéndez March: Point of order. I raised a similar point of order last week, but our team was abiding by your request to not interject and not to heckle when questions and answers were being given. But I am starting to get really concerned that members of the Government are actually undermining the efforts that some of us are trying to take to tone down the tone—coming from the New Zealand First side—particularly during the answers that the Minister was giving.
SPEAKER: I’ve most certainly taken note of that and will be speaking about that with them very directly after question time.
Question No. 9—Prime Minister
9. DEBBIE NGAREWA-PACKER (Co-Leader—Te Pāti Māori) to the Prime Minister: Kia orana kotou katoatoa i roto i te ʻepetoma o te reo Kūki ʻĀirani. Does he stand by all of his Government’s statements and actions?
Rt Hon CHRISTOPHER LUXON (Prime Minister): Yes, and especially our actions to turn maths achievement around for young Māori. The maths achievement data released on the weekend was deeply concerning, especially for the just 12 percent of young Māori who are not at curriculum in maths at year 8, according to the data from last year. Shockingly, 76 percent were more than a year behind. All Kiwis, Māori or non-Māori, deserve a shot at a better life, and that starts with an outstanding education. That’s why our Government is taking action to deliver a world-leading curriculum and to turn those results around for Māori and non-Māori children.
Debbie Ngarewa-Packer: Does he have confidence in the Minister for Children?
Rt Hon CHRISTOPHER LUXON: Yes.
Debbie Ngarewa-Packer: How can he have confidence in the Minister for Children given that she cannot guarantee that tamariki and rangatahi will not be abused in her boot camps?
Rt Hon CHRISTOPHER LUXON: Well, no Government can guarantee that, but they can do everything they possibly can to make sure there is protection and safeguards in place for our children. These are our most vulnerable children. We want powerful, targeted interventions, and we’re putting huge amounts of service around them to make sure that they are safe. [Interruption]
Debbie Ngarewa-Packer: Supplementary.
SPEAKER: Just wait a minute—no, stay on your feet; wait for that quiet.
Debbie Ngarewa-Packer: Does he stand by his decision to repeal section 7AA from the Oranga Tamariki Act given that the former children’s Minister Tracey Martin said in her oral submission yesterday, “We do not have a child protection service in this country. We have a child crisis service. As a nation, we wait until there is damage done to a child, either emotionally, physically, or spiritually, before we [can] take any action. 7AA is the key to making this change to become a country that supports child protection.”?
Rt Hon CHRISTOPHER LUXON: We do not want any ambiguity. We want the wellbeing and the best interests of the most vulnerable children in our country to be at the heart of what is happening here.
Debbie Ngarewa-Packer: If his primary concern is prioritising “health and wellbeing of the individual child”, why doesn’t he strengthen section 4A of the Oranga Tamariki Act, which makes it clear that “well-being and best interests of the child or young person are the first and paramount consideration”, instead of repealing section 7AA?
Rt Hon CHRISTOPHER LUXON: We want the immediate safety, stability, and wellbeing of a child to be at the heart of what the Government does, caring for our most vulnerable children—period.
Question No. 10—Police
10. SUZE REDMAYNE (National—Rangitīkei) to the Minister of Police: What feedback has he seen about Police’s community beat patrols?
Hon MARK MITCHELL (Minister of Police): The feedback has been overwhelmingly positive. Communities across the country have responded positively to the Government’s approach of getting police back to basics and focused on getting out in their communities. It was great for the Prime Minister and me to get out with one of the beat teams in the Auckland CBD recently. The team told me how much they’re enjoying the public contact. Often, they attend jobs that are very negative, and they highlighted how much they’re enjoying the positive interaction they’re having with the public whilst on the beat. They’re enjoying getting to know their beat and identifying and dealing with the problems and issues that exist. They feel like they have real ownership of it and are proud of the difference they’re making. I am proud of them also.
Suze Redmayne: What feedback has he seen from shopkeepers?
Hon MARK MITCHELL: Well, following a central Wellington retailer reporting a woman putting clothing in her bag, early last month, the beat team responded swiftly. They apprehended the woman, who turned out to be a prolific shoplifter with over $1,000 worth of products on her person from several of the other shops in the area. A store manager contacted police and provided highly complimentary feedback on the beat initiative, the visibility of police staff, and the timely response she received.
Suze Redmayne: Have members of the public had anything to say?
Hon MARK MITCHELL: Yes, my inbox has been inundated with correspondence from the public, who are relieved and happy to see police out and about and providing reassurance. One quote that stood out to me was: “I know it’s only day one, but great to see the first of the new community beat officers out on the streets. A big thumbs up. I feel that will help make me and others safer on our streets.”
Suze Redmayne: Have any other communities benefited from police being highly visible?
Hon MARK MITCHELL: Yes, the hard-working member for Rangitīkei has passed on to me that as she meets with retailers in her communities, the feedback has been extraordinary. Everyone is delighted to see police back on the beat and keeping our community safe.
Question No. 11—Prevention of Family and Sexual Violence
11. Hon GINNY ANDERSEN (Labour) to the Minister for the Prevention of Family and Sexual Violence: Does she stand by her statement regarding the availability of services that support victims of family violence, “sometimes it’s not about just throwing extra money at stuff. It’s about making sure that the money is going to the right places. And we’re working through where those gaps are and where the money we have currently got isn’t being spent well and focusing it to where it is being spent … So that is a process … that takes time”; if so, when will that process be completed?
Hon KAREN CHHOUR (Minister for the Prevention of Family and Sexual Violence): In answer to the first part of the question, yes. In answer to the second part of the question, the Government is currently working on the second action plan to implement Te Aorerekura, the 25-year strategy to address family and sexual violence in this country. This action plan is expected to be published in the last quarter of 2024, and this will help drive collective efforts and investment decisions across Government in the family violence and sexual violence space. Family violence and sexual violence are an important component of the Government target to reduce violent crime by having 20 percent fewer people be the victims of assaults, robberies, and sexual assaults by 2029. The Government targets will also help focus attention and resources on achieving better results that New Zealanders expect and deserve.
Hon Ginny Andersen: Does she agree with Mark Mitchell regarding the 3,000 fewer family violence investigations since December 2023, “Those calls are being triaged and the number has come down”; if not, why not?
Hon KAREN CHHOUR: I just want to make it very clear that my role is to be responsible for leading the whole-of-Government approach, where we work together to identify shared priorities and make trade-offs around funding. Once decisions are taken, individual Ministers and agencies remain responsible for their statements and for what they’re doing.
Hon Ginny Andersen: I raise a point of order, Mr Speaker. I asked if she agreed with a statement made by Mark Mitchell. I don’t think that addressed that. The Minister of Police has said the reduction in family violence investigations is due to triaging. Does she agree with that or not?
SPEAKER: Well, in the end, she can’t speak for Mark Mitchell. I don’t think there was any way you could say that question wasn’t addressed.
Hon Ginny Andersen: Why, then, has there been a reduction in victimisations where the offender is known to the victim, by 24 percent since December last year?
Hon KAREN CHHOUR: That specific issue—if you would like to ask that in writing, I shall get you an answer.
Hon Ginny Andersen: If the reduction in family violence investigations is due to a new triaging process—or is it because police are not attending family violence as they were previously and there is no additional family violence support services in place to take up the gap left?
Hon KAREN CHHOUR: I’d just like to say, police will always play a role when it comes to responding to violence, including family violence or where there has been a crime where someone is in immediate danger. But I would also like to remind them that it’s important to note that the six-month proof of concept trial for this was trialled by the previous Government before we even began this. So this is something that the previous Government was on board with and I would expect they still will be.
Hon Ginny Andersen: If a family violence call to 111 does not meet the new police threshold to attend and there is no support agency resourced in that area to attend, what happens?
Hon KAREN CHHOUR: I would suggest that you direct those questions to the Minister of Police.
SPEAKER: Well, I think also that the Minister can’t have operational responsibility, which you’re asking a question about.
Hon Ginny Andersen: I raise a point of order, Mr Speaker. As the Minister responsible for the prevention of—
SPEAKER: Sorry—start again, I couldn’t hear you.
Hon Ginny Andersen: As the Minister responsible for the prevention of family violence, who is currently undertaking a review of what adequate services are in place, to be able to respond to who is stepping into the space that police have left—I believe that falls within her responsibility as the Minister responsible for preventing family violence.
SPEAKER: Is that within the Minister’s allocated responsibility?
Hon KAREN CHHOUR: My role is just to facilitate all the Government agencies. What happens after that is the responsibility of the individual Ministers.
Hon Ginny Andersen: Is it her plan to achieve the Prime Minister’s target of 20,000 fewer victims of crime simply by making it harder for victims to report family violence and even harder for them to get the help they need?
Hon KAREN CHHOUR: I just reject the premise of that question. [Interruption]
SPEAKER: Just calm it. Could we have silence everywhere.
Question No. 12—Tertiary Education and Skills
12. CAMERON BREWER (National—Upper Harbour) to the Minister for Tertiary Education and Skills: What recent actions have been taken to begin public consultation on the redesign of the vocational education and training system?
Hon PENNY SIMMONDS (Minister for Tertiary Education and Skills): The Government has begun a six-week period of consultation on the proposed reforms for New Zealand’s vocational education and training system. We propose to replace the top-heavy, centralised Te Pūkenga with a network of regional institutes of technology and polytechnics and an industry training system that is closer to industry. These proposals will put the vocational education and training system on a sustainable path and restore accountability and responsibility to communities and industries while removing unnecessary complexity and bureaucracy.
Cameron Brewer: Why is this redesign important?
Hon PENNY SIMMONDS: The vocational education and training sector is an absolutely critical part of our tertiary education system. It provides skills, knowledge, and career pathways for individuals into industries and professions that are vital to the economic prosperity of New Zealand. New Zealand needs a strong vocational education and training system to ensure our people, our industries, and our communities can thrive.
Cameron Brewer: How will it help ensure provision in the regions?
Hon PENNY SIMMONDS: To be successful, vocational education and training must be responsive to local needs, have industry buy-in, and be financially viable. We need to restore our polytechnics to their rightful place as anchors of learning opportunities for individuals and as a regional development tool for communities and industries. For regions like Northland, Taranaki, and the West Coast of the South Island, it is important to have access to online provision so that a blend of on-campus and online delivery can be utilised to ensure financially and academically sustainable provision.
Cameron Brewer: What will the changes do for industry training?
Hon PENNY SIMMONDS: A strong industry voice in vocational education and training is critical. This Government wants a model that is better connected to employers, including small and medium enterprises, so that they have a sense of ownership of industry training. Standard setting in the system also requires a sharper focus on the activities that industries most value. Our industry training must be driven by and for industry. I want to acknowledge the many staff in both industry training and polytechnics who have endured uncertainty for many years and thank them for their ongoing commitment to our vocational education and training sector.
Privilege
Consideration of Report of Privileges Committee
Committee of the Whole House—Conduct of Hon Julie Anne Genter
Hon JUDITH COLLINS (Attorney-General): I move, That the report of the Privileges Committee concerning the conduct of a member during the committee of the whole House be noted.
The Privileges Committee report on this issue has been presented to the House and is on the floor for members to see, and the member in question has offered her apology.
On 7 May 2024, the Speaker ruled that concerns raised by the Hon Scott Simpson and Todd Stephenson about the Hon Julie Anne Genter’s conduct toward the Hon Matt Doocey in the debating chamber on 1 May 2024 gave rise to a question of privilege. The Speaker ruled that the behaviour in question could amount to threatening or intimidating a member acting in the discharge of their duty or threatening a member on account of their conduct in Parliament, contrary to the Standing Orders. Noting that it is the role of this committee to conduct an inquiry into such allegations, the Speaker referred the question of privilege to us for consideration.
The incident in which this question of privilege relates occurred in the debating chamber during the committee stage of the Appropriation (2022/23 Confirmation and Validation) Bill on 1 May 2024. During the debate, the Hon Julie Anne Genter crossed the Chamber floor with a copy of a report. She approached Mr Doocey, who was sitting behind a desk, and spoke to him in a raised manner. Ms Genter leant over Mr Doocey’s desk and showed him the contents of the report, which he then placed on his desk. Ms Genter moved to the side, to stand at the side of Mr Doocey, who was still seated, and raised her hands while continuing to speak in a raised voice. During the exchange, the debate was interrupted while the Chairperson of the committee sought Ms Genter’s attention and asked her to resume her seat. Ms Genter subsequently returned to her seat with the report.
As the exchange happened in the debating chamber, it was broadcast live. Footage of the incident is available, which we reviewed. We requested that a verbatim transcript of the exchange be produced, and we also requested that audio from different microphones in the Chamber be provided so that we could examine the incident and determine what exactly had happened. Based on our review of the video and audio footage, and the transcripts of the debate on 1 May 2024, we consider that the facts of the matter are clear. We asked Ms Genter to provide written comment about the question of privilege, which she has done. Ms Genter wrote to us on 16 May 2024, apologising for her actions in the Chamber. She acknowledged that the behaviour was unparliamentary and disruptive to proceedings in the House and has advised she takes full responsibility for the situation.
As a committee, we have been tasked with determining whether the Hon Julie Anne Genter’s behaviour in the Chamber on 1 May 2024 amounts to a contempt of the House. We find that Ms Genter’s behaviour in the Chamber on 1 May 2024 was such that it could have the effect of intimidating a member of the House acting in the discharge of their duty. We find that, in acting in this way, Ms Genter committed a contempt of the House. Members must be free to participate in debate freely, in line with the rules of debate and established practices of the House. It is not acceptable to physically approach another member in order to engage them in a separate debate on the floor of the debating chamber. It is particularly unacceptable to do so while leaning over another member in a way that could intimidate that member, regardless of whether or not that is the intention.
We consider that it is important for Parliament to be aware of how the public expects elected members to behave and to uphold generally accepted standards of behaviour. We also consider it important for all members to recognise that the behaviour discussed in our report is not acceptable and that this is a serious matter. We therefore recommend that Ms Genter be censured by the House for acting in a manner that could have the effect of intimidating a member of the House acting in the discharge of their duty. We therefore also recommend that Ms Genter apologise to the House unreservedly and without qualification, an action that she has now taken. Thank you, Mr Speaker.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Speaker. The chair of the Privileges Committee and the Attorney-General have traversed the conduct of the committee and its considerations well, and I don’t propose to repeat those, other than to say that I thought the committee process in this instance was very appropriate. Given the evidence that we had, we didn’t need to call any oral evidence, and I thought that that actually assisted in reaching a conclusion and upholding the dignity of this House.
I do note that in terms of the finding of the committee of a contempt, fundamentally that is a decision of the committee comprised of members of Parliament, with the guidance of Standing Orders but reaching its own assessment as to whether the conduct fell above or below what’s fundamentally acceptable in this House. We all concur, I think. Indeed, the member subject to the report has accepted that the conduct in that instance did fall below and was a contempt, but I think it’s important to recognise that it’s not a strict application of a list or a rule, but of the values and ethos of this House to that conduct.
I think it’s important to recognise that there was discussion around what’s sometimes called the robustness of this House and the acceptance that conduct that happens in these four walls might be quite extraordinary outside of these four walls, but there is still a very clear understanding that there is a minimum standard of conduct to which we must adhere, so I don’t propose to really explore the report any further. As I’ve said, the Attorney-General has done that in a fulsome way. The process was a good one, and I must comment, finally, that the member who is the subject of the report responded appropriately at all times and has done the right thing in apologising to this House. Kia ora, Mr Speaker.
Motion agreed to.
SPEAKER: Ms Genter, the House has resolved that you be censured by the House for acting in a manner that could have the effect of intimidating a member of the House acting in the discharge of their duty. Your conduct is unacceptable in Parliament, which is a place of debate and not threatening behaviour.
House in Committee
House in Committee
SPEAKER: I declare the House in committee for consideration of the Gangs Legislation Amendment Bill and the Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill.
Bills
Gangs Legislation Amendment Bill
In Committee
Debate resumed from 1 August.
Part 1 Preliminary provisions (continued)
CHAIRPERSON (Greg O’Connor): Members, the House is in committee for further consideration of the Gangs Legislation Amendment Bill. Members, when we were last considering the bill we were debating Part 1. We’ve been debating this part for approximately an hour and a half, so I’m looking for new material relevant to this part of the bill. The question is that Part 1 stand part.
JAMES MEAGER (National—Rangitata): I move, That debate on this question now close.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair, and good news: I have new material. In fact, I have an amendment looking at the issue of gang insignia, because, as the Minister has made clear, the gang patch ban—which I think is probably what we’d just call it—is about intimidation. One of the concerns I have is that there may be things that are worn—and, in fact, there are plenty of examples of garments or jewellery, in particular, that are simply not intimidating because the insignia that is there isn’t actually visible, and a ring would be a good example.
It’s commonplace in outlawed motorcycle gangs to wear sort of silver jewellery with motifs on it which fit the description of gang insignia. They signify some kind of association with a gang, but, of course, if you’re walking down the road and someone is wearing a silver ring, you’re not going to even notice that it’s a gang insignia. However, that could be used as a reason for the police to detain and remove that ring, and so on and so forth, in a way which is actually at odds with the purpose of the bill, because it wasn’t intimidating at all. So the amendment, which has got a “w” on it—marked “w”—suggests that in the definition of “gang insignia”, a further paragraph is added: “(c) but does not include any insignia or item that is not readily visible and identifiable as gang insignia from a reasonable distance, such as jewellery”.
Minister, I’m really interested not only in your response to this particular paper but in terms of what you’ve said previously; you’ve said that this bill is about stopping intimidation, and I’m interested in your view on whether that’s all it does, or whether it’s just about cracking down on gangs more generally and their insignia, wherever they may be—intimidating or not—because from your responses, it would appear to be the latter, but the bill itself says the former. In terms of the limitations on association, on free speech and expression, and so on, I would be concerned if there wasn’t a proper purpose, if you like. We don’t agree with much of this bill, but stopping intimidation is a proper purpose and it’s a proper thing to pursue, but just cracking down on gang insignia for the sake of it clearly isn’t.
So there’s an amendment which is premised on what the bill says its purpose is—stopping intimidation—and I’d like the Minister’s view on whether he would find that an acceptable amendment but also his view on gang insignia more generally. Is it about just gang insignia and a gang crackdown, or is it about making sure that people aren’t intimidated, because I know he will have read assiduously the amendments on the Table and will have seen that there are some other items there which, again, go to situations where gang insignias are there in the public, but they don’t transgress his intimidation principle, if you like—and I’ll speak to those shortly.
Hon PAUL GOLDSMITH (Minister of Justice): I’d just point out for the benefit of the member that the purpose of the bill is indeed to deal with intimidation by gangs, but that’s not the only purpose. The purpose is to reduce the ability of gangs to operate; secondly, to cause fear; thirdly, to cause intimidation; and, fourthly, to cause disruption to the public. So there are a number of purposes.
Hon GINNY ANDERSEN (Labour): Thank you very much, Mr Chair. I’d like to specifically ask the Minister about the impact on Māori and on Māori whānau as a result of this legislative change. As reflected in the research and also as laid out in the regulatory impact statement that’s been tabled, gang members are disproportionately young male Māori and live in more deprived communities in New Zealand. So the overview of that is that about three-quarters of those on the National Gang List are Māori.
My interest, too, is around not just those individuals—of course we agree we want to see them coming out of gangs—but it’s those people in and around those gang members, those families, who will be directly impacted by this legislation. I’m just wondering if the Minister, being the Minister for Treaty of Waitangi Negotiations as well, is looking at any Treaty implications, or what is the wider impact on hapū and iwi as a result of this?
We know that there is an overarching desire to give young people growing up in New Zealand all of the opportunities and incentives to take up pro-social choices and to have a productive and crime-free life. Really, by having dispersal notices, banning gang patches, and having the impact of those, there is some quite good research that demonstrates that that just entrenches those whānau within those communities. It removes those relationships with the State that could potentially facilitate the next generation of young people making a pro-social choice to come out of that environment.
Given the significant adverse impacts of imprisonment, as described in paragraphs, I think, 74 to 77 in the regulatory impact statement, on balance, the net impact is quite strongly negative, and the downstream effects also are likely to require additional social assistance as a result of disruption to whānau, particularly when one parent is on remand or incarcerated. We also see that playing out in some of the statistics we see in care and protection for children, when one or more parents have been imprisoned. So I’m interested to know what work is being done by the Government to understand the downstream impacts on hapū and iwi in New Zealand, given that they will be disproportionately affected by this change.
It notes in the regulatory impact statement that there’s likely to be an impact on the cohort of tamariki and rangatahi who have parents and caregivers with gang affiliations who will become incarcerated as a result of that. I appreciate that the Minister has stated that he wants to put all gangs on notice and that he’s going to make it incredibly difficult to be in a gang and he’s going to make it unpopular to be in a gang. I would just like to know the fact that he’s turned his mind to it, as young people will also be impacted by these changes, and that he’s turned his mind, if he’s concerned, that this legislation may just push another generation of young people into situations where they don’t have those pro-social choices available to them. So it would also really engage responsibilities to the State, under the Oranga Tamariki Act.
I would propose to the Minister that the introduction of this legislation alongside this Government’s proposal to remove section 7AA from the Oranga Tamariki Act would make Māori tamariki and rangatahi even more susceptible to mismanagement by the State, if they have a primary caregiver who is no longer able to take up that role, as a result of incarceration. So I’m really keen to understand the significant adverse impacts of imprisonment on the next generation of young people in New Zealand, given the fact that those who this legislation is targeted to is heavily disproportionately weighted in the fact of young, Māori, and also male, and the impacts upon their whānau, their iwi, and their hapū.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. I’ll start with pointing out that in the previous session where we considered this, I asked a question about named people and the need for everyone who is a named person in a dispersal notice, which is in clause 4—and I’ve got an Amendment Paper A dealing with it—to be served so that you don’t get the anomaly where one person can associate with the others but they can’t associate with them. Now, I’m sure the Minister’s taken advice on that, but I would like his response.
The other question I have, which is a more policy-based question about the bill as a whole, is how it deals with young people, because the bill as a whole is pitched as having some offences in it but being a civil bill. However, it actually imposes constraints on young people. So, in terms of a young person, a 13-year-old, wearing a gang patch or engaging in disruptive behaviour, what’s the interface there? So, in terms of the purpose of the bill as a whole, the Minister just spoke to those—I think it was four—overarching purposes, but how does that fit with children? Because these are quasi-criminal infringements, if you like. That’s probably the best way to put it. If you’ve been given a dispersal notice, it’s almost like an infringement notice. And yet children, presumably, are subject to this quasi-criminal regime, and it strikes me that there hasn’t been a lot of thinking done around how this bill will fit with the wider framework around the behaviour of young people and the response of not only police courts but also Oranga Tamariki and other agencies to those behaviours. I think that’s actually quite an important point, because, as my colleague was just mentioning, this bill does run the risk of pushing a section of our community further away from Government agencies.
Of course, young people who might be 12, 13, or 14 are the very people we want to be drawing into schools, healthcare, and other agencies rather than dispersing them and having fines for them wearing gang patches or gang paraphernalia. So how children will be dealt with—we’ll be very interested to know. But, as I said, just going back to that need to make sure that everyone who’s dispersed is subject to the same regime and has been served with a dispersal order.
DANA KIRKPATRICK (National—East Coast): I move, That debate on this question now close.
Hon GINNY ANDERSEN (Labour): Thank you, Mr Chair—thank you very much. I would just like to draw the Minister of Justice’s attention—and I appreciate, you know, the Official Information Act (OIA) is an important Act which we all abide by, sometimes challenge, but it’s really interesting: I found that the only section in this entire regulatory impact statement that I can find—there’s a couple of minor ones, but the main one that’s got some information that’s been withheld under the Official Information Act, and it’s withheld under section 6(c) of the OIA, directly relates to implementation challenges. There’s only two paragraphs in this on implementation challenges, and the one that we’re allowed to read reads, “If a public display involves multiple gang members, a larger operational response may be required to enforce a ban on the spot.”—so, you know, that’s Police saying that “If you’re wanting us to do this, we’re going to need a whole lot of cops at once in order to make this work.”
I was just wondering, in terms of the interests of transparency and also the public interest of New Zealanders, who, I’m sure, are very curious as to how this legislation will play out in practice, whether he wants to enlighten us as to what paragraph 118 of the regulatory impact statement actually says. I’d be interested to know: what are the grounds for withholding this information from the general public? You know, if there are clear challenges that police have identified to be able to operationally enforce these new laws, is it not right that when we are debating this legislation, we should know what those are? That would only seem fair and right in terms of having transparency, having an open discussion about how these laws will impact not only our police but also other communities in which these new laws will be played out.
We can only guess—and the mind boggles—as to what those implementation challenges may be. We do know that, since coming into office, this Government has fewer police officers on the front line than it did when it came in. I think that number is currently sitting at around 124, and as we see a new wing graduate, the new wings now have around about—used to have about 90-plus; they’re now looking at, sort of, high 60s for a wing. With the number of police who are retiring or choosing to take on other work, that number of police coming in is not sufficient to meet attrition currently, and that is why the numbers of front-line serving police have decreased under this Government. So I just wonder whether paragraph 118 may be that Police is drawing the Minister’s attention to the fact that there will be significant problems with the operational capability of front-line police to be able to enforce this law right across New Zealand—that, as in paragraph 119, if there is a large gathering, it will require numerous police to do a specific operation in order to enforce the law, and that might potentially act as a deterrent.
There also is the concern that has been raised, quite rightly, by the Police Association that having a law that is not operationally able to be implemented risks undermining the confidence that the New Zealand public have in the New Zealand Police, and that is a real concern. That is a real concern, because what that pretty much says is that this Government is prepared to want to look tough so much that they’re prepared to risk the actual credibility of our police service, who do an amazing job, to actually risk that credibility of being able to enforce the law in order to demonstrate on the tally that they’re looking tough and they’re doing something.
I really consider that the reason this paragraph has been withheld by the Government under the Official Information Act is it gives further insights as to the fact that this law will struggle to be enforced and that this law may, and will, undermine the ability of the police to do their job and be seen by people in New Zealand that the police are able to do their job. There is a fear that that may have a spreading effect to having people immune or saying that this law isn’t—“I won’t abide by it if it’s only applied in Auckland and not in Kaikohe; why should we do it if it’s not here and there?” So it raises some very real concerns, and I think the Minister needs to address some of those.
TĀKUTA FERRIS (Te Pāti Māori—Te Tai Tonga): Tēnā koe, Mr Chair. Look, I just want to probe a bit at some of the underlying things I believe are missing, and it’s based, really, on the fact that, given what we know and understand around things like Māori incarceration as a country, around things like poverty that Māori endure and have endured for centuries as a country, the things that we already know—Māori are overrepresented in incarceration figures, as we know.
It all stems from the early history of this country, when the economic pieces that were available to two societies in this country were either taken by force and one was advantaged and one was disadvantaged—these are things like economic dispossession of Māori, you know, as a result of illegal purchases or invasion and confiscation of lands, effectively castrating Māori economically; the displacement of Māori through education. These are all things that led to the impoverishment of Māori. They’re the things that underpin what grew out of that impoverishment, the social displacement and deprivation of Māori as a result of these things, you know, and the fact that as the country began to develop post the wars, there was a significant and intense privileging of the Pākehā partner in the Treaty of Waitangi, as returned servicemen were granted more than 800,000 acres of farmable land to develop farms for their families. Māori were left out of that equation, and some—
CHAIRPERSON (Greg O’Connor): Mr Ferris, I just remind you we’re on Part 1 of this bill at the moment, so you’ll need to start contexting that and referring back to the bill.
TĀKUTA FERRIS: Oh yeah, that’s all right—yep, ka pai. I’m just setting the scene of where Māori impoverishment—
CHAIRPERSON (Greg O’Connor): We generally allow about two minutes’ context, but we need the bill now.
TĀKUTA FERRIS: Yeah, ka pai. So these are well-known things, yet I just see no attempt, no appetite, to apply or consider any questioning or analysis that addresses these things, which means that the efforts of the current Government are more about dealing to symptoms of problems rather than addressing root cause of problems. So it’s clear to me that this side of the House has no desire to ask themselves, “What’s the impact of my ideas or the bills I’m putting forward on Māori? What will the impact be?” Given that the gang patches legislation has been commented on broadly and it’s quite clear that it will disproportionately negatively affect Māori and their associated communities, why is it that the Government can’t ask themselves that simple question: what is the likely impact of this law on Māori and Māori communities going forward?—not finished.
CHAIRPERSON (Greg O’Connor): Then finish quite specifically.
TĀKUTA FERRIS: Given that the Minister is the Treaty settlement Minister, I would expect that he has been exposed to—at least exposed to—some quite robust Tiriti analysis frameworks as he works through that portfolio of work. Then I would consider: how is he applying those frameworks, a Tiriti-based analysis framework, to his decisions as the Minister of Justice? And what expectation he has of his team who sit on the Justice Committee to know and understand or have some capacity—some capacity—to apply a Te Tiriti - based analysis framework to the decision-making efforts of the Justice Committee, or to apply the same approach to analysis to the questions?
CHAIRPERSON (Greg O’Connor): Mr Ferris, I think you’ve had a pretty fair go. You need to talk about the bill.
TĀKUTA FERRIS: Kia ora e hoa. Āe, tēnā koe—those are my questions.
Hon PAUL GOLDSMITH (Minister of Justice): I hesitate to reply again because on a number of occasions I’ve replied on the issue of the impact of this legislation on Māori.
The previous speaker, Ginny Andersen, was concerned about the adverse impact of this legislation on young Māori. I suppose the only point I would make is: we on this side of the House are more concerned about the adverse impact of gangs on young Māori and on the negative influence of gangs in their community. We recognise that Māori are more likely to be victims of crime than other New Zealanders, and that is why we’re very focused on this legislation reducing the negative impact of gangs on young Māori growing up throughout the country and getting drawn into a very negative way of life.
Now, in response to the observations by our member from the Māori party, Mr Ferris, what I would point out is that if our only response to the increase in violent crime that people have seen in our community and the rise of gang activity—if the only response from this Government was this legislation, he might have a point. But that is not the only response of this Government: we continue to invest widely in many innovations such as Te Ao Mārama, court system, and many aspects of our justice system which are designed very much to work with specific needs and requirements of Māori in relation to crime, and we work very closely with many iwi groups right up and down the country.
Of course, our broader response to dealing with crime involves investing in many, many programmes in relation to addictions, in relation to dealing with the huge challenges that we have around emergency housing, huge challenges around truancy in schools—there’s a wide range of Government policies. So anybody who asserts or assumes that this legislation is our only response to what is a much broader issue—which everybody recognises is a much broader issue—would be false.
KATIE NIMON (National—Napier): I move that debate on this question now close.
Dr LAWRENCE XU-NAN (Green): Point of order. Thank you, Mr Chair. Just a point of order around the fact that we haven’t quite finished—oh, thanks for putting the mike on. We haven’t quite finished part—
CHAIRPERSON (Greg O’Connor): Mr Xu-Nan, perhaps, if you’re going to take a point of order, you’ll wait until a decision’s been made—
Dr LAWRENCE XU-NAN: OK—here and now.
CHAIRPERSON (Greg O’Connor): —and sit down. Now, I’m aware the member has recently come to the House. The member’s also not aware, as I am, of matters that have been discussed in the previous over two hours of this debate. So the member needs to understand that just because he hasn’t been in the Chamber and he hasn’t been part of the debate, it doesn’t mean the issues haven’t been discussed. I make that point for him and for all members that are in the Chamber right now. So now I am in the process of taking a motion from Katie Nimon.
KATIE NIMON (National—Napier): I move, That debate on this question now close.
CHAIRPERSON (Greg O’Connor): And I will make the comment that having looked at the topics that have been discussed, there has been very little new information come forward in the last short while. I’ll be looking for some very, very new information.
Dr TRACEY McLELLAN (Labour): Thank you, Mr Chair. I do have a question that’s quite specific to what I hope would be some new information if the Minister of Justice is able to give it to us. It’s a relatively straightforward question, and it shouldn’t take too long.
When we think about the core purpose of the Gangs Legislation Amendment Bill, as a couple of other people have intimated, at its heart it’s about reducing intimidation, etc., and it’s using this specific means, this specific methodology, as a proxy, so to speak, to enable that to happen. But I noticed in the regulatory impact statement—I think very early on it talks about the limitations and the constraints on the analysis that was able to be done in relation to this bill—it said, “Narrow scope: Agencies were commissioned to fulfil the Government’s commitments on gang policies included in the 100-Day Plan.” It sort of strikes me, therefore, that that in itself has constrained some other counterfactuals or some other information that we could perhaps have brought to the forefront. I think it’s important we consider the rest of that paragraph, where it says “This commissioning and timeframes limited the options … [available] to be considered that would achieve this objective.”
So I’m asking the Minister: as part of the process that he went through, because there is always more than one way to skin a cat, isn’t there, given that the purpose was to reduce the intimidation that gangs have or can partake in, how did he come to the conclusion that removing gang patches, as opposed to—and I’m assuming that he balanced that up against other potential measures. Is he able, therefore, to give us a little bit more information about his own process with regard to that, so that we can perhaps understand a little bit more fully how this particular piece of legislation fulfils that process? Maybe even just one or two examples would suffice.
I think, given there have been several questions asked over the preceding sort of two hours, where we’ve talked about the purpose of this legislation—that have raised really good questions. When we think about not just the impact on young people but the impact on young Māori men, and various other questions that have been raised, I think, more pragmatically, if the Minister could give us any sort of insight as part of this committee stage as to—given that the regulatory impact statement says quite specifically that it had very little opportunity to evaluate properly, given that this needed to be rushed through, so to speak, as part of the Government’s 100-day plan. But even still there must have been some sort of comparison, so I’d love the Minister to tell us about that.
Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I just have a very quick question. So just, first of all, thank you, Mr Chair, for the clarification before. I was a little bit late to the Chamber today, but I would like to check if the Minister of Justice has responded to my question in the previous session around the definition. I think in this particular case, Part 1 is—
Ricardo Menéndez March: He hasn’t.
Dr LAWRENCE XU-NAN: —absolutely crucial—thank you. Part 1 is absolutely crucial when we’re looking at the definition and interpretation, particularly when we’re looking at clause 4, because the interpretation of some of these terminologies has a fundamental impact on how we interpret the rest of the legislation. So if the Minister wouldn’t mind just clarifying what I mentioned in terms of the definition of “immediate family” in the previous session, and who determines what is considered culturally recognised and whether paragraph (a) and (b) under “immediate family” are mutually exclusive or is paragraph (b) under “immediate family” an exhaustive list, which then contradicts and potentially challenges what is considered culturally recognised. So that was my previous question, if the Minister wouldn’t mind clarifying.
The question I have, again around the clarification of terminology, is about the term “serious offence”. In this particular case, when we’re looking at the definition for a serious offence, I wanted to check with the Minister, first of all, in paragraph (a) of the definition of “serious offence”, it contains the same duration for a term of imprisonment that is defined in section 2(1) of the Crimes Act in terms of what is considered a serious violent offence. Now, “violence” is an incredibly important keyword in the Crimes Act, so I wanted to check with the Minister if the term that is a serious offence in this bill and a serious violent offence in the Crimes Act are considered synonymous, because both of them carry the same term of imprisonment of seven years or more.
The other question that I have in line with the serious offence question is around subparagraph (b)(iii), because it lists a number of subsections in the Crimes Act of which there are five of them pertaining to a variety of different terms. Each one of those terms in the Crimes Act carries a term of imprisonment of five years, but (a) states “an offence that is punishable by a term of imprisonment of 7 years”, so I wondered if the Minister wouldn’t mind clarifying. What is the rationale of increasing that (a) to seven years instead of five when some of the other sections in (b) are giving other examples that pertain to a term of imprisonment that have a different year duration for that.
So those are my two main questions. The first one is a clarification of “immediate family” and the second question has two parts, the first part being whether the definition of “serious offence” and the definition of “serious violent offence” in the Crimes Act are synonymous. The second part of that is the rationale behind the term of imprisonment of seven years, noting that in (b)(iii) all of those subsections from the Crimes Act carry a term of imprisonment of five years. Thank you.
HŪHANA LYNDON (Green): Mr Chair—
CHAIRPERSON (Greg O’Connor): Kahurangi Carter.
HŪHANA LYNDON: It’s not Kahurangi.
CHAIRPERSON (Greg O’Connor): Sorry, have I got that wrong? Hūhana Lyndon—my apologies.
HŪHANA LYNDON: It’s Hūhana. Kia ora.
CHAIRPERSON (Greg O’Connor): It’s a long way down there.
HŪHANA LYNDON: She’s gorgeous, so that’s all right. I take it. To the Minister: I want to address something that is really important in te ao Māori, and it is the ability for us to poroporoaki, or farewell our dead. In thinking about this legislation and the fact that you cannot consort together, there is a worry, because, ultimately, whānau will pass, and then how do these gang member whānau poroporoaki or farewell their dead?
Now, my assumption, Minister, is that a marae is not a public place and police cannot enter our marae and take exception to the gang members who might be present and a part of the hui mate. This is my expectation. But the minute that the gang member who might be wearing a t-shirt, who might be wearing a patch or a jacket, then exits the marae and might be in the car park or even where we have—we have the marae ātea and the waharoa. So you gather, as manuhiri, to go on to the marae. I’m assuming, and I’d like to explore with the Minister what his interpretation is of the public space, because out the front of the waharoa and the car park—does that mean that our gang whānau could be targeted by the police who might monitor hui mate of significance in rural Māori communities for this purpose? Because we know in rural Māori communities, we gather large, we gather to mourn and farewell our dead, and gang members are a part of that whānau. So I’d like to understand the interpretation of the Minister in terms of waharoa and car parks around our marae.
Further, I’m also wanting to hear from the Minister in terms of the definition of “vehicle”, because is a hearse deemed a vehicle in this space? Because if you have a wife, a niece, or a mokopuna who will escort that tūpāpaku, that deceased person, in the hearse to the cemetery, will that hearse then open up for the gang member in the hearse to be put at risk through this legislation? Then, of course, we go to the cemetery, and the cemetery could be a community one run by councils. Is that deemed a public place? And then, further, my assumption is—because we have Māori cemeteries on whenua Māori, I’d like to understand if ture whenua Māori, Māori reservations for the purposes of urupā, or cemeteries, are deemed public or not for this legislation.
These are things that I think are really important for the Māori community to understand in terms of how this legislation will be interpreted by the police, because, ultimately, it will be the police in rural Māori communities who will have to manage the situation. So I do want to ask: what feedback has the Police given to the Minister around their ability to prevent? So this is: have you asked the police about their ability to prevent gang members from gathering in public places? Because they have the lived experience, they have the knowledge in terms of what it’s practically going to look like.
So, for myself, I’m from Whangaroa, Kaeo. We have hui mate there, and we have gang members. I fear that our one police officer in Whangaroa or Kohukohu or Te Kao or out in Russell, te Whangaruru, will have to come and monitor a hui mate—a hui mate where the family needs privacy and the ability to poroporoaki those that have passed and to support their loved ones. Gang members could be targeted. That is my deep fear for the mokopuna to watch the police hover around our marae, because they know that a Head Hunter or a Black Power member might have gone on to the marae, and they wait—and they wait—to target our whānau who are going on to the marae for a hui mate.
Not taking away the fact that it’s not just hui mate on marae; we can get married, we can have 21sts, and we can have birthdays. So I do worry about the implication. So I want to understand from the Minister definitions around a cemetery; I want to understand from the Minister definitions around a hearse. Then, are the waharoa areas and the car park around the marae deemed public, because some of our marae do open up on to streets. Then, what has the Police given you as feedback around how on earth are they going to prevent gang members from gathering in public places? Kia ora.
Hon PAUL GOLDSMITH (Minister of Justice): Just very briefly, we have many times raised the issue of the ability of the police to enforce this legislation, and we’ve been very clear that, ultimately, police always have discretion as to when it is appropriate or not to engage, and they will retain that discretion. But we have every confidence that with sufficient planning and arrangements, they will be able to enforce this law.
There’s a number of specific questions, particularly around immediate family members. I’m struggling to understand the member’s confusion. It seems quite clear that an “immediate family” means “family, whānau, or other culturally recognised groups” and then, in (b), “to avoid doubt, [that] includes—” a list of six people. So those six groups are definitely in, although (a) could potentially be broader than those six. So I’m not quite sure what the concern is there.
In terms of public places, it’s very clear that a “public place” is one that “is open to … being used by the public, whether or not [by] payment [or] charge,”. Now, there will be some cemeteries that are not open to the public, and there will be some that are. So that will be dealt with in individual cases.
RYAN HAMILTON (National—Hamilton East): I move, That debate on this question now close.
A party vote was called for on the question, That debate on this question now close.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Motion agreed to.
CHAIRPERSON (Greg O’Connor): The question is that the Minister’s amendments to Part 1 set out on Amendment Paper No 51 be agreed to.
A party vote was called for on the question, That the amendments be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Amendments agreed to.
CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4, inserting the words “and understood” to the definition of gang insignia, be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4, excluding any insignia or item that is not readily visible and identifiable from the definition of named person, be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Greg O’Connor): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 4, definition of named person, be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
A party vote was called for on the question, That Part 1 as amended be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Part 1 as amended agreed to.
Part 2 Prohibition on display of gang insignia in public places
CHAIRPERSON (Greg O’Connor): Members, we come now to Part 2. This is the debate on clauses 7 and 8, “Prohibition on display of gang insignia in public places”. The question is that Part 2 stand part.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I mean, what the heck, because although the Chair said it’s clauses 7 and 8, it’s actually 7, 8, and 8A, because there’s an Amendment Paper on the Table. And I say, “What the heck”, because what kind of Minister of Justice introduces an Amendment Paper that creates a new offence. It’s outrageous and it’s offensive.
Now, if the Minister wanted to create an offence of someone being in possession of gang insignia after having been subject to two or more of these prohibition orders, well and good; let’s give it a good working over at select committee. I can tell you that we’d have real difficulties with it, but we’d address the rights issues that are involved and the procedural issues that are involved. But it beggars belief that the Minister has had months and months to dwell on his gang patch ban, and then, at the last moment, when there is no real ability to scrutinise this proposed offence, he slips it in in the dark of night.
Here we are today, now arguing about an offence which is a serious offence, which is an imprisonable offence—an imprisonable offence under new clause 8A—to have a Hells Angel ring in your top draw at home. This isn’t anything about display. I’m dumbfounded that this is even within scope, and perhaps it’s not. Perhaps the Clerks or the Chair will be telling us something about that a bit later on. But the idea that someone who has been in trouble for having gang patches, all of a sudden because they’ve got their dad’s jacket hanging in the spare wardrobe, can go to jail for a year, that is utterly disproportionate, inconsistent with the purposes of this bill, and the procedure is utterly woeful.
Not one citizen gets a chance to have a say about this because it was slipped in after the select committee process. I would like to know why, Minister, was this not in the bill prior? If it only occurred to the Minister a couple of months ago, why was it not put before the select committee as an Amendment Paper so that the committee could pause, scrutinise it, look for submissions? Regardless of my opinion of it, it still deserves good legislative quality. This is a Government that talks about good regulatory conduct, about good lawmaking, and here we have it introducing at the last moment—not some regulatory labelling of milk powder, no—a criminal, imprisonable offence. That is absolutely abhorrent to due process, whether or not it even warrants it.
I mean, let’s just recognise what this new clause 8A does. It creates an offence punishable by a year in jail. There’s not even provision for an alternative sentence. There’s not even the usual provision or a fine; it’s jail. For what? For owning a symbol. It’s not owning a symbol in public—that’s an entirely separate offence. We’ve got the gang patch ban. It’s for having it at home. Honestly, I am flabbergasted. This Government has done some pretty horrific things, but in terms of due process in criminal justice, it’s just made up a new offence and slipped it in. So here’s my questions to you: why now, why so late, and what is the harm? What is the great evil of grandad’s jacket sitting in the spare wardrobe that you have to imprison someone for that heinous offence of having a hidden piece of gang insignia? Please answer.
Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. So not being a member of the Justice Committee, there are some questions I have for this particular clause, partly because I haven’t been through the select committee process. The first one, in terms of the report on one of the amendments that we do see from the select committee, is around the prohibition of display of gang insignia in a public place. One of the things is addressed on page 5 of the bill, which talks about adding an additional requirement of mens rea. I want to pick up from what the Hon Duncan Webb has mentioned before, and I think the idea of including mens rea in addition to actus reus—the mental component and the physical component of a criminal act—is really important here, and I’m glad to see that that particular amendment has been taken on board in clause 7(1).
However, in the context of criminal law, when we’re looking at a person committing an offence knowingly and without reasonable excuse, now, one of the key elements of actus reus and mens rea is the concurrence of actus reus and mens rea happening simultaneously. So I guess my question for the Minister: the first part of this is the concurrence, which wasn’t, I noticed—I may have missed it—explicitly stated in page 5 of the amendment is still going to be taken into consideration that the knowing and displaying has to happen at the same time. So it goes back again to the example that the Hon Duncan Webb mentioned before in terms of what happens if you know that the jacket that had your grandad’s insignia on it is there, but in a hurry when you left the house had forgotten in that moment in time that it existed, even though you know that it existed in other situations. Considering that it did not happen concurrently, how would one assess that?
So, again, when we come to looking at mens rea and also actus reus and looking at this in the context of criminal law, I would also like to ask the Minister whether there’s been any modelling or any consideration given, other than what is already in the regulatory impact statement, but particularly around the burden of proof being placed on the Crown prosecutor in the context of when something like this happened. So has the Minister considered the broader implication to Crown prosecution in terms of identifying this particular element of clause 7(1)? So the two questions are whether the actus reus and mens rea under clause 7(1) need to happen concurrently. The second part is: has there been any consideration given to the burden of proof that will be placed on the Crown prosecutor in the event that something like this would then need to go to trial? Thank you.
Hon CASEY COSTELLO (Associate Minister of Police): In response to the member’s earlier commentary around new clause 8A, this clause was added to address police concerns about the ability to enforce the gang insignia prohibition. A lot has been said in this space around the police ability to enforce this legislation and the need for protection of police in a process that could result in some conflict areas. So this is an area where police had concerns about the ability to enforce the insignia. I’ll highlight that this is relating to a court prohibition order, so this isn’t a power set upon the police; it’s the court applying a prohibition order.
In relation to the member’s last commentary around knowingly, and the mens rea and actus reus around the commission of an offence, this bill doesn’t seek to undo the justice process; therefore, the commentary around not knowing and acting, I’m a little bit confused, but I can assure the member that the clause 7(1) states: “A person commits an offence if the person knowingly, and without reasonable excuse, displays gang insignia”, and I think that’s relatively straightforward.
Hon GINNY ANDERSEN (Labour): Thank you very much, Mr Chair. Look, I’d just like to ask a couple more questions around this change, which is almost a bit like a tiered approach to banning gang patches, with the sort of final stage being that, as the Minister highlighted, this new offence that if someone’s being prohibited by the court to even possess, even if it’s not publicly displayed—that if they’re found to have that in their possession, even though it’s not publicly displayed, that is then an offence that is punishable by a year in prison.
I’m really interested to know from the Minister how this interacts with the new firearm prohibition orders (FPO) regime, which effectively enables or gives police the broad powers of searching without a warrant or without even a cause. From the way that legislation works—that police believe they have an FPO on them, they are allowed to do a check to see if conditions are being complied with or not. So I would like to understand how that works alongside of this provision.
In a potential scenario, if you had a person with an FPO—maybe they’re before the courts—and simultaneously police request for this person to receive a prohibition for owning any gang insignia and also a firearm prohibition order upon them as well, am I correct in understanding that police would then be within their powers to go around to this person’s house any time they wanted, endlessly, to check for weapons? In the course of that search for weapons, if they did find gang insignia, then that person would be able to be imprisoned for a year?
I think it’s really important that we understand, if we’re introducing these new broad powers, how they can be used in conjunction with different parts of legislation that will come into force in the near future. It’s quite a new thing from what was initially proposed to outlaw or have it as an offence imprisonable by a year for simply having within your possession an item of gang insignia.
I wonder how it also relates to the exemption grounds which are stipulated in clause 8 of Part 2 and the exceptions to prohibition is “a genuine artistic or educational purpose;”. So that’s going to be a tricky one. It’ll be interesting—you know, like what if it’s a former gang member who has got an FPO and a prohibition who draws some art with gang insignia on it and gets searched? Is that grounds or not? I’m also really interested in the grounds of exemption for law enforcement. How does that work? Grounds for exceptions to prohibition is “law enforcement”, so somehow police or law enforcement agencies would need to display gang insignia and that wouldn’t be covered under this.
The one I would quite like feedback on is “genuine artistic or educational purpose”. What does that cover, and how would that play out practically if you had a former gang member who’s not active now doing art of gang insignia? They’ve been subjected to a search of their premises without warning or warrant or even cause if they are suspected of having a firearms prohibition order upon them and then police find artistic or drawings or images of gang insignia in their house. Would that person be up for a year in prison? Or would that simply be used as a way of putting pressure upon people in the community if information was required for another type of offending that had occurred?
So what are the checks and balances—I guess I’m asking, Madam Chair—when you’re having someone up for prison for a year for simply possessing it? It does go into that area of freedom of speech, that you’re outlawing insignia even if it’s not being publicly displayed.
Hon CASEY COSTELLO (Associate Minister of Police): I just thought it was timely to sort of clarify the conflating of issues there around prohibition legislation relating to firearms and this legislation. I think the clarity around the police confidence to understand the legal requirements of the purpose of a search and to maintain that purpose within its remit when they do any kind of search—but I think, to clarify: the prohibition order—and as the member outlined, there are clearly exemptions around that display process. So it is unlikely that a former gang member who is doing art will be subject to a prohibition order given that the member has just referred to them as being a former gang member who’s now doing art.
So I think it’s really important to separate the issues and ensure that we are talking about a prohibition order applied for through the court process and that a maximum penalty to be applied is not the police throwing them in prison for a year. I think we need to make sure we retain that context in that space.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. Look, “What can we do about that?” So there you go. This is not an isolated problem, right? [Holds up a photograph] That’s a gravestone; that one has a Mongrel Mob emblem on it. I’m aware that many civic graveyards now have rules in place which don’t allow gang emblems on gravestones. But a quick search shows up numerous gravestones with gang insignia on them.
Now, the occupier of graveyards is usually a local body. So this flies right in the face of this bill, right? This is the dog’s breakfast that we’ve got here, right? That they’re rushing through this restriction on free speech; they’ve done it in a kind of all-encompassing way with a few carve-outs rather than saying, “We’re addressing gang patches which are used to intimidate”—which was one proposal—they’re actually—[Interruption] No, you’re not supposed to take photos in the Chamber. Your whip should know that.
The problem here is that they’ve taken this approach, which is just ban them all everywhere, and you end up with situations like this, where you’ve got—I mean, don’t get me wrong, I think it’s a very poor form to have a gravestone like that, but they’re out there and we’ve now got to address what we’re going to do about it. You’ll see that I do have a tabled amendment marked “R” which was put in earlier in the last session, last week, which would exclude a permanent memorial, grave mark, or headstone erected prior to the assent of this bill. Obviously, you don’t want to look forward and commit these things into the future—I get that, right? But the challenge is that you’ve got these headstones out there, and on the bill, as it was presented to this committee, would either criminalise local bodies or it would require kind of the painting over—essentially, the desecration—of the headstones.
Now, neither of those are good, and it’s just reflective of the fact that this is poorly thought-out. Not only is it poorly thought-out in the detail—“We didn’t think about headstones.”, I get that; it’s always going to happen—but it’s poorly thought-out conceptually because we’re banning all gang insignia regardless of purpose, regardless of whether they’re used in a particular way, regardless of whether they intimidate or not. Whereas if you had either an intention—you’re intending to be intimidatory—or it has the effect of intimidating, then none of this would be here. The gravestone doesn’t intimidate anyone. It would be consistent with the purposes of the bill, but you’ve got a mismatch here that’s leading to this.
You will have seen my tabled amendment. It may be that the Minister, because he’s got the resources of the entire State behind him, has tidied up my drafting on this, has got something more to say about. It’s hard to believe but it’s possible that he could improve on my drafting. Have you done that, Minister? Would you like to speak to that?
Hon PAUL GOLDSMITH (Minister of Justice): Well, in the spirit of bipartisanship, we have looked at the tabled amendment put forward and decided that there is some merit in what the member has to say. So I have put in an Amendment Paper under my name which achieves half of what he set out to achieve, which is to say, including “a headstone or grave marker erected before the commencement of this Act”, so as to achieve part of the purpose. So I think that’s a useful suggestion that the member made.
As regards to his broader comments about philosophical matters, I don’t have anything more to say.
CHAIRPERSON (Greg O’Connor): Just before I take the next speaker, Ms Redmayne, if you did take a photograph in the Chamber, obvious enough to be seen across the Chamber, as a whip, you should know better. So you will delete that photo, I take it? We do need to maintain some decorum in the Chamber, as the Speaker said today.
Hon WILLIE JACKSON (Labour): Mr Chair, thank you for this opportunity. I wanted to follow up on what Ginny Andersen was saying in terms of—and the Minister of Justice wasn’t in the chair. But there is a high level of worry out there in terms of former gang members and their contribution in terms of communities. I’ve spoken to a number of them over the last few months, and one in particular—Eugene Ryder, who I would hope that this Government has been consulting with—has been very, very clear in terms of insignia being displayed.
Some of these guys have been long-time gang members, but have turned their lives around, and I think that the whole House would agree that people like Eugene, who’s been a real example in terms of Māori communities, Wellington—but he too has major worries in terms of the checks and balances, which is what Ginny Andersen was talking about. You know, they will have their patches, though. Some of them will not have got rid of them, and the opportunity to, I suppose, breach their rights is still very high. I’ve talked with him, and I’ve talked with other gang members who are ex - gang members. I don’t know if he is ex or current, but Denis O’Reilly, another long-time veteran gang member, is worried, again, about the implications of this bill, particularly these clauses 7 and 8, where we’re talking about the display of gang insignia, and particularly when they’ve got them stored away in their houses.
It might be a little bit extreme to think that the police would breach that line, but we need some assurances, given the amount of ex - gang members now who are making a real effort and are turning around people’s lives. What has been the level of consultation from the Minister with regard to this, and it’s a question that’s being asked. Has he spoken to the Eugene Ryders and has he spoken to the O’Reillys, who have been major commentators in this area? I’m interested to hear whether they came through. I wasn’t involved, obviously, in the select committee process, but how many of them came through to the select committee? Is he taking some of their views seriously?
Martin Cooper is someone who is involved with our organisations in Auckland—a long-time Black Power member. He spoke to me a couple of weeks ago too about his concern. Has the Minister got around the former gang members and consulted them about their views with regards to this, because there’s a huge worry.
Can I also ask the member, given his great relationship with iwi, whether this was raised at the iwi leaders meeting in the last week or two. This has been a kaupapa that has been on the table with the iwi leadership because gangs, whether we like it or not, have been—so many of them are part of us. That doesn’t mean to say that we support the actions or intimidation of gangs—not at all. But we do take responsibility when a lot of them, unfortunately or fortunately, are related to us. Did the Minister take the opportunity to consult with the iwi leaders last week in terms of their views on how the Government is dealing with the gang patch view, and did he get any support from iwi leaders with regard to this particular kaupapa? I’m just putting those questions up.
Hon PAUL GOLDSMITH (Minister of Justice): Thank you, Mr Chair. Just in relation to that in terms of consultation, of course we’ve just had a very lengthy select committee process, where there have been more than a hundred people making submissions on the bill, and I can assure the member that the Ministry of Justice, through its many liaison committees with Māori iwi and hapū, will have had many conversations. So that’s important.
In terms of the Iwi Leaders Forum, to be honest, most of the conversation that I had related to other legislation than this. But there were one or two people who raised the general justice matters, whereupon I pointed out—as I have in relation to this bill already in this committee phase—that of course this piece of legislation is one that will give police extra powers to deal with gangs. It does not on its own represent our entire response to gangs and their intimidation in our country and violent crime or crime in general. It is one tool, or four tools, that will be able to help the police. Our broader approach extends into matters of dealing with addictions, dealing with emergency housing accommodation, and dealing with a whole range of issues which are equally important, as well as the broader effort through the Te Ao Mārama courts and many other engagements across the justice sector.
Hon David Parker: You’ve stopped funding it.
Hon PAUL GOLDSMITH: No, we didn’t; we stopped the increase.
TAMATHA PAUL (Green—Wellington Central): Thank you, Mr Chair, for allowing me to take a call on this part of the proposed legislation. So my question—I’m going to try and focus on patches themselves, given that Part 2 is all about the display of gang insignia in public places.
My first question is what evidence has he seen that banning gang insignia helps people to actually exit gangs? I know there was some talk by, I believe, the Minister of Police, the Hon Mark Mitchell, around some of the work that they’ve been doing in Australia in banning gang patches, and I’m interested to know whether that has had any positive public safety improvements in those areas and what the consequences of those provisions have been, particularly reflecting on the Prime Minister’s Chief Science Advisor’s report that is all about minimising gang harm and addresses the drivers of gang membership, where it says, “A stronger focus on prevention and early intervention will slow the flow of young people into gangs and alleviate pressure on multiple systems (justice, health, corrections) in the long‐term.”, and whether he has considered the Chief Science Advisor’s strong advice that we can’t arrest our way out of the gang problem.
So I would like to hear your reflections on that. What evidence is there that banning the visual presence of gangs and gang patches within our communities actually decreases the number of people exiting gangs? Particularly because we currently do have legislation in place that prohibits gang places in public places—that Act has been around since 2013 and yet, as the Minister of Justice continues to quote, the membership of gangs continues to rise. If that legislation in itself has not been effective at driving down membership, why does he believe that this iteration of banning insignia would be any more successful?
Then, I have some questions around freedom of expression. So, obviously, the Attorney-General wrote to us with a number of different considerations around human rights and how they are embedded or contravened within this piece of legislation. Within the New Zealand Bill of Rights Act report, it talked about how restricting what people can wear can be a contravention of freedom of expression. I’m surprised to see that my colleagues in the “Freedom of Speech” Party have not made any strong statements about freedom of expression and what people are allowed to wear—but anyway.
What are the checks and balances in terms of that violation of a human right? What does that mean for other alternatives that people might turn to, to indicate their gang membership? So, for example, you might see people wearing particular colours more prominently. I grew up in Tokoroa, which is sometimes known as a Black Power town—we don’t have any or many Mongrel Mob there. Because of that, we don’t really wear red in Tokoroa, and that’s just the way that things are. Some towns you can go to them and you can only wear blue; some towns you go to, you’re not allowed to wear red—that’s just the way that things are. I wonder: does this create a precedent for colours and sports logos and brands to also be banned? You know, where do you draw the line in terms of that freedom of expression?
As I talked about in the first reading of this bill, could it even extend so far as hand signs? Obviously, that’s a big part of that culture. [Makes hand gesture]—you know, we might think this is hang loose, but this also could be another symbol; or fists as well. That leads me to think about symbols, because, obviously, there are different symbols that are part of insignia. For the Mongrel Mob, it’s a bulldog; and for Black Power, it’s a fist. But those are symbols of all sorts of different things. You have schools and universities that use bulldogs as their insignia. You have various different social movements that use the fist as a symbol of power, of workers’ rights. The Black Lives Matter movement uses the fist, but also Black Power uses the fist. We know this because when Eugene Ryder came and spoke to us at the Justice Committee, he wore a number of different T-shirts and asked which one was the Black Power T-shirt. It turned out that all three of them were completely irrelevant to gang insignia, but it shows that some of the symbolism that gangs use are prominent in other ways. What happens if a police officer sees a fist T-shirt or a bulldog on a T-shirt and assumes that that’s gang insignia?
So how are you going to differentiate between colours and symbolism, and how are police going to know whether to enforce these rules or not, and what is exempt and what is not?
Hon PAUL GOLDSMITH (Minister of Justice): Well, I think that the member Tamatha Paul’s speech made the point very well for us around fear and intimidation when she referred to some towns—I think Tokoroa was the one she referred to—where people just don’t wear red. Well, I suppose the question is: why don’t they wear red? Ultimately, it is because of fear of doing so, that there is a chance that if one does, one gets confused and gets beaten up or is subject to some threat of violence. That, indeed, is partly why we’re doing this legislation—to deal with the fear and intimidation that gangs have imposed in many parts of this country, as exemplified by the very thing that that member has said: that people live in towns and it’s an unwritten rule in that town that you don’t wear a particular colour because, if you do, there will be consequences. That is precisely why we want to deal with the broader issue of fear and intimidation of gangs in our society and is why this legislation is bringing forth four new tools for police to deal with an increase in gang membership.
The member also referred to a ban currently being in place. Yes, there is a ban on gang insignia in public buildings—and that is hospitals and schools and courts. So that has been in place and has been largely successful. This legislation builds on that—to all public places. It doesn’t extend to private places; it’s just all public places.
In terms of the impact on the freedom of expression, yes, we accept that it does impinge on freedom of expression. So, ultimately, Parliament and New Zealanders have to decide—there are balancing and competing rights. Of course the rights of people to be able to go about their normal life without fear of being intimidated or preyed upon by organised crime is also a freedom that we stand up for. So, in many instances, we have to weigh up those freedoms. On this occasion, we believe that the impact on freedom of expression by banning gangs and gang patches in public places is justified in order to deal with what is a real issue confronting our many communities.
Hon GINNY ANDERSEN (Labour): Thank you very much, Mr Chair. Look, I would just like to examine the legislation a bit further in terms of the outlay or the expense or the investment that the Government will need to put into this particular initiative or legislative change, in terms of weighing up what the overall safety outcome is for New Zealanders and whether that’s a good investment.
This is a Government that has been really strong on giving very strong messages to a number of our NGOs who work in a variety of social services—that there is a clear expectation that has been delivered by this Government that they’re required to demonstrate their return on investment by going through an organisation such as ImpactLab and having their spend assessed, through looking at what each dollar provided will give in return. So, given that this expectation has been provided to NGOs and those working in various social service provisions, what work has the Government done on itself to be able to evidence what the cost of this is in terms of the taxpayer and in terms of law enforcement—the type of resources that Police will need to be putting into this? What is the overall outcome, in terms of safety, that it delivers?
I guess what I’m getting at is whether this is a wise investment of that Police resource, because what it does appear to quite a few people out there—and I’ve received a few emails on this one—is that it’s a cosmetic approach to addressing what is quite a deep-rooted problem within our community. It’s a very superficial approach to simply remove the stuff that looks ugly and take away the stuff that looks scary, but all it really does is drive it underground. We only need to look back in history to when anything is made illegal, whether that be a drug, whether that be alcohol; ways of subverting and driving that underground typically start to take shape.
I’ll add an additional point in there that the Minister may like to address, because I think this is very relevant: as soon as you make something illegal, it also becomes a whole lot more appealing to people who don’t want to abide by the law. Technically, you’re going to make this even cooler for gangs to defy the State and to display gang patches, because it is a direct challenge that you are entering into. When you enter into, essentially, a proliferation sense—you’re upping the ante, they’re upping the ante—you’re engaging in this engagement with the overarching umbrella that this is going to make everyone safer, but effectively it’s just taking resources away from dismantling organised crime. You’re taking resources away from pursuing money laundering, from pursuing methamphetamine manufacture and distribution. You’re taking resources away from family violence, where young people are growing up in homes where they’re witnessing repeat instances of family violence. Those are the long-term drivers of crime that enable criminal organisations to thrive and to embed their roots in our communities. The jackets they wear are merely a window of that.
So I’m interested to understand from the Minister—you know, he’s a smart guy, this Minister; he’s done his homework. He can demonstrate to us where the evidence is that the taxpayers’ money put into this is not in fact being diverted away from things that have a real impact on the drivers of crime. All this does appear to be, to many New Zealanders, is a cosmetic and superficial way of looking like more resources are being put into restoring law and order when in reality, in the last Budget, Police received $107 million less than in the previous Budget. This Government is giving Police reduced resource, asking them to do more, and expecting a different outcome, and that does seem quite ludicrous.
Hon PAUL GOLDSMITH (Minister of Justice): Well, I think the member the Hon Ginny Andersen is a little bit confused on a couple of matters. In relation to taking away resources from other things that the Police might be doing to deal with organised crime, of course, nothing in this legislation changes the absolute independence of Police in deciding what the priorities are, in an operational sense of how to enforce the law. The Police are able to make those judgments, and in any circumstance, where they put the resources in any given moment in relation to crime in a particular community, that will be for the Police Commissioner ultimately to decide. What we’re giving here, through this legislation, is additional tools that the Police may use at their discretion.
Secondly, in relation to banning gang patches being sort of some minor thing on its own, I’d make the point that I made to the previous speaker, which is that, yes, that would be true if this was the only thing we were doing. But, of course, on no planet is this the only thing we are doing; this is part of a broader response from this Government to deal with violent crime in our community. There are a number of things that this legislation does, but it fits within a much broader response across Government, dealing with long-term social issues, dealing with housing, dealing with education—all these other things that continue apace. So any suggestion that we’re standing here saying all we need to do is ban gang patches and we’ve got the problem solved is, of course, ludicrous, and nobody is making that suggestion.
Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I first want to pick up a couple of things that the Minister mentioned before. I think the first part is sort of picking up on the idea of the New Zealand Bill of Rights Act. The Minister said, “We understand that some of these infringe on the rights of the people.” I wondered, in this particular case, whether we are able to rely on page 2 of this particular bill and the reports from the Attorney-General on the New Zealand Bill of Rights Act, or whether under the principle of legality that that infringement of rights, and particularly “Freedom of expression” in section 14, needs to be explicitly stated in Part 2 of this bill in order for it to take effect. I’m just thinking in terms of other precedents in terms of case law around the principles of legality and particularly around the Schubert case where the ambiguity that is created by the by-law at that stage meant that the infringement on the right of expression doesn’t really stand. So I want to get some clarification based on what the Minister said regarding the principles of legality and the ambiguity it creates over here in Part 2.
Now, the second thing I want to pick up on, in terms of what the Minister has also mentioned, if the Minister wouldn’t mind clarifying, is the idea that the Minister said that the bill is introduced to make communities safer. But I want to draw people’s attention also to the regulatory impact statement on page 30 where Option Three that was suggested, which is what we are doing right now, specifically says, “Reducing”—and it’s got a plus-plus next to it—“displays of gang insignia may make communities feel safer.”—“feel” being the keyword, not necessarily safer. So I wanted to check with the Minister if that is the intention that the Minister was mentioning before—that the banning of the insignia will give the feeling to communities that they’re safer, not necessarily safe.
The other thing I want to pick up on with what the Minister mentioned is regarding the Hon Willie Jackson’s comment before around consultation. The Minister said that “The Ministers believe that the Ministry of Justice has consulted quite widely around this particular bill.” But I also want to draw the attention—if the Minister wouldn’t mind clarifying that if the Ministry of Justice has done all of this consultation and the Minister is taking advice from the ministry, why did the Minister not take up the advice from the ministry? This is paragraph 138 on page 31 of the regulatory impact statement, it says, “The Ministry of Justice’s preferred option is option one”, which is the “status quo”. So if the Minister wouldn’t mind clarifying that, as well, on why, if the Ministry of Justice has gone through all this trouble of consulting the Minister, this bill doesn’t reflect the advice from the ministry itself.
Now, coming back to the question that I was going to ask, because those are just clarifications based on what the Minister has already mentioned just now, my question’s around clause 7(2), which is around “a term of imprisonment not exceeding 6 months or a fine not exceeding $5,000.” I couldn’t see it in the regulatory impact statement, but I want to know from the Minister: what was the balancing and proportionality test that was undertaken to determine that imprisonment length and also that fine amount, and what other examples were used as part of that?
I also wanted to check this, in the context of other things they introduced, on whether this “imprisonment not exceeding 6 months”, I’m assuming, is on the context that there is a criminal charge that is involved here—that this particular criminal charge, for example, pertaining to this Part 2 of this bill, isn’t going to be part of their three strikes. Is this going to be one of their three strikes? If not, it will be good to get that clarification, and, in that case, if in subclause (3), “If a person pleads guilty”—and then there is also a criminal charge involved with that—whether there is the opportunity, if a guilty plea was initiated, that there isn’t going to be a criminal charge or it isn’t going to be counted towards one of the three strikes, which is something else the Minister is introducing. I think it will be exceedingly unfair to stack the deck in a way that can potentially have the unexpected consequence of further punishing gang members by increasing opportunities for them to fulfil the requirement of the three strikes. Thank you.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I’d just like to talk about what we’re going to do about this—[Holds up Patched: The History of Gangs in New Zealand by Jarrod Gilbert]. So, here we go: a great book, a good academic study. I don’t read it for education. Having said that—but that’s got a photo on the front of it. If that’s sitting in Scorpio bookshop in Christchurch, it’s a display of a gang patch. The irony is, of course, that it’s the Outcasts on there. They’re a prohibited gang under Schedule 2 there. The irony is that if it’s an online book, it’s allowed. Look, to be fair, this is a scholarly study, so there’s at least an argument that it falls within education, even if it’s not within a university, and even if you just buy it for your own interest. Maybe. I don’t think it falls squarely within that exception, but there’s plenty of other magazines.
What if you pick up Motorcycle Monthly, and in there or on the cover, you’ve got a gang patch. It just happens to be they’ve taken a photo of a ride, and someone’s got their gang patch on it. What if you’ve got your Woman’s Weekly on the stand at the supermarket and it’s got someone with a gang patch there. You could think of any number of situations where you’ve got a publication of some sort, and it’s not being used for educational purposes. It’s not media, and it’s not art. It’s just a book. It’s just a magazine, and it doesn’t fall within the exceptions. But, once again, because you’ve taken an it’s-all-banned-unless-it’s-accepted approach, we’re in trouble.
So there’s a really good argument that my—once this has passed, reading this book on the bus would be displaying gang insignia. It’s not for a genuine artistic or educational purpose. It’s displaying the gang insignia. So I’m subject, then, to the force of the law here. It’s clearly wrong, and you can look at it and go, “Well,”—and I’ll sit down soon because I think it’s really worth an answer. I’ve got an Amendment Paper. You’ll know this. You’re probably drafting a way to try to usurp my Amendment Paper as we speak. But there’s an Amendment Paper that talks about excluding “a book, magazine, or other publication”. It gets around the inconsistency of publications online being allowed. But this, now is Fahrenheit 451 stuff. This becomes a prohibited publication. Let’s burn the books. So, Minister, I’m not going to take all the time, but this book is more educative than some. There’s plenty of others out there which are going to fall foul of this rule. Are you banning the books?
HELEN WHITE (Labour—Mt Albert): Thank you, Mr Chair. I would like to focus on the regulatory impact statement and get your answers to some of the problems I have there, reconciling it with the view that the Minister has taken. So, in the regulatory impact statement, as my friends have said on this side of the House, it does prefer the option of a status quo. But I want to dig down into why, and I want to understand from the Minister why he is setting aside the advice, which is always his prerogative, but it’s very necessary that the New Zealand public understands why that is being exercised.
What I want to know is if the Minister has a regulatory impact statement with him—and he can look at paragraph 110, on page 26. This is where the ministry says this is their preferred option. It talks about the particular issue of the displaying of gang patches, and it says that there is already existing legislation which does this. If you go to paragraph 115, it’s very clear as to what that’s about, and it says in that, in fact, the current legislation, which is the Insignia Act, is already there if you are “actively displaying or wearing the insignia.” It says the extension here is that it will now cover “passive displays of insignia in private places viewable by the public”—so the window of a house or on social media. So it’s talking about something much more cursory.
Now, I appreciate that the public are really very freaked out about gangs, and I understand, because I’ve been in those situations, and I do understand what it’s like. But will this help them, Minister? If it is somebody walking past a window, that’s not actually what’s frightening the New Zealand public. What is frightening the New Zealand public is quite different, and it’s already covered by an Act. What the Ministry of Justice goes on to say, after paragraph 110, is that this law is already kicking in, and what the Minister is doing by bringing in what is, in fact, a red herring and a whole lot more things is getting in the way of what the Police are moving towards achieving through enforcing the Insignia Act. So it goes on.
It says, in those later paragraphs, that the “ban may require more effort from Police to gather intelligence … support their operations, as various patches and insignia can indicate a person’s role in seniority within [the] gangs.”, etc. So they’re basically saying it seems that this law is just not going to work. In fact, it goes on, in paragraph 116, to say the “option risks criminalising minor behaviour.” So we’ve dealt with the big fish; we’ve dealt with the ones that I understand have been freaking out the public. The Police have this tool. What the Minister seems to be doing is actually just fiddling around the edges and making it a crime for somebody in their own private house to walk past a window. That’s what this seems to be saying. So I’d like a really good answer as to why there is this going on if he does not agree with the suggestion that this is, in fact, just sort of a signifier, it is just an attempt to placate a public by pulling the wool over their eyes. What is really going on here?
I’ll just go on, and I want to talk about one other thing in this report while I’m here. But if you would like to then talk about that and then I can ask my next question. Thank you.
Hon PAUL GOLDSMITH (Minister of Justice): Yes, I’ll be very happy to. The member asked for a really good answer, and it’s my intention to give a really good answer. She was referring to the regulatory impact statement and the fear that it might lead to criminalising minor acts, such as people being able to see a patch from somebody wearing it in their home in a window of a house. Of course, this regulatory impact statement was made and delivered prior to a number of Cabinet decisions, and one of the Cabinet decisions we made was not to include the ban on private property visible from the outside, which is what this part of the regulatory impact statement is referring to. So we didn’t go with that. What she’s referring to was about something that was considered and not followed up on. I’d encourage her to keep up to date as to what’s actually happened since the regulatory impact statement was drawn up.
In relation to the previous speaker and his waving of the book by Jarrod Gilbert, I’m afraid I don’t agree greatly with Jarrod Gilbert on many topics, but I am sure that he would be strongly of the view that his books are educational in their purpose and would be well and truly captured by the exemption that the display of insignia for educational purposes are excluded.
The final point I wanted to make was in relation to this deep concern that we might not have agreed with the recommendation from the Ministry of Justice. The only point I’d make on that is the parties of this Government campaigned on a set of policies and won the election and included in their first 100-day plan the intention to deliver what they promised during the campaign. Yes, you might raise the question: “Well, it’s a very interesting approach for the Ministry of Justice to say that notwithstanding that you’d campaign on this and you’d won the election, our advice is not to do it.”, but that was their advice, and that’s up to them to make that advice. But we weren’t going to follow it, because we had made commitments to the people of New Zealand and we are keen to carry on. But there were a number of issues that were raised that we did consider, such as not including situations where people would breach the Act if they were wearing their gang patch on their private property and happened to be seen by somebody walking past.
HŪHANA LYNDON (Green): Thank you, Mr Chair. I’m wanting to address the really important issue of Te Tiriti o Waitangi and what Te Tiriti o Waitangi provides for tangata whenua, for article 2, and their ability to execute their manawhakahaere according to their own tikanga.
Now, if we think about te iwi Māori and the way that we have been impacted by colonial structures to date, we only have to look at two weeks ago and the report from the royal commission into abuse in care and faith-based institutes. Our whānau came and they filled this Whare. They filled this Whare and they shared stories of harm. They are the products of harm by the biggest abusers in this country, which is the State. I say that gangs are full of these harmed individuals, these harmed whānau, through intergenerational State abuse.
When I think about some of our whānau who are in gangs, the way that they try to poipoi—they try to bring together a sense of whānau and connection—is their ability to find a place of connection. As per the regulatory impact statement, it shares that “Historically, as children and young people, many gang members suffered abuse and neglect in state and faith-based care, creating mistrust and resistance to authority. The disproportionate rate of Māori tamariki placed in state care [has] contributed to the … overrepresentation among gangs.” So it is a Te Tiriti issue because we have had the gross breach of the right to protection, the gross breach of care for these young people, these whaikaha, these tamaiti, and these adults who were placed into the care of the State or faith-based institutions, and then, huri rawa ake, [when it finally comes around] they come out and join gangs. They are the product of State harm.
When I consider what our regulatory impact statement has already shared with us—and, in fact, there’s more learnings within this statement—it really outlines the connection of State abuse with these whānau trying to find a sense of connection, and then they’re in a gang. Now, some of these gangs are doing quite positive things within our community, so I do worry about this part whereby it will prohibit their ability to congregate. I can think of a couple of recovery groups that we have in the North, that are—
CHAIRPERSON (Teanau Tuiono): Just to inform the member that part is in Part 3; this is about insignia.
HŪHANA LYNDON: Getting there. OK. I will go back to what I was talking about in terms of our ability for our whānau to exercise their rangatiratanga. Same as the New Zealand Bill of Rights Act, Te Tiriti guarantees them the ability to express themselves according to their tikanga, and, in fact, if gangs are the place where they feel safe for once in their lives, how come they can’t wear their patch to find a sense of belonging and a sense of purpose?
So my question to the Minister in terms of this is: what analysis or what consideration has the Minister given to these breaches of Te Tiriti and, then, the impact of the breaches in terms of this legislation for iwi Māori who are members of gangs? Because they do have rights through Te Tiriti, they do have rights to express themselves, and they do have rights to be equal citizens; not othered in a society that says, “No, you cannot wear your patch in public, and, in fact, we’re going to charge you. We’re going to fine you $5,000 or chuck you in jail.” Kia ora.
Hon GINNY ANDERSEN (Labour): Thank you very much, Mr Chair. I’m pleased that the Minister referred to some of the work that officials have done, because it’s always quite interesting—and I know there’s some on that side of the committee as well who like to solve a good problem—to define a problem and to look at the possible ways to address the problem that’s being addressed.
You always know you’re in an interesting situation when the title in the regulatory impact statement says, “What is the policy problem or opportunity?” The first line is: “The Government’s coalition agreements commit to progress the policies in the Government’s 100-Day Plan. This includes prohibiting the display of gang insignia.” So the problem is that they came and they campaigned on stuff, and said, “We’re going to do some stuff.”, and irrespective of there actually being a problem, this is where we land now. It makes it really tough when you’re trying to be analytical and come up with a definition of the problem, when it’s just that it’s been campaigned on—that’s the problem that’s in the problem definition. So I think it will be really interesting as this plays out, because, as the Minister stated, New Zealanders did vote for change. This Government campaigned hard on cost of living and also law and order issues. I think there are quite high expectations that this legislation will, in fact, make a meaningful difference to public safety. So I’ll be interested to hear the views of the Minister.
If the overarching objective of this legislation is to reduce gang harm, how does taking off gang patches reduce gang harm? It seems to me, from reading this analysis, that there is no real clear way of demonstrating what the impact of that is when you’re looking at the different options. So the options that are laid out here, in terms of the criteria used to compare different options to the status quo—the criteria they’ve developed are improving public confidence, reducing gang membership, reducing rates of offending, and also compliance with the New Zealand Bill of Rights Act—so we’ll rule out the last one now! But those are the ones that we’ll have to come back to once this legislation has, in fact, been enacted, to look and see whether it’s been effective in what it set out to do in the first place.
Improving public confidence, as has already been laid out, is that there are some real questions here that have been withheld under the Official Information Act. If there’s not the ability to actually enforce this legislation, it has the antithesis effect, so it would actually go against the paragraph here that has a criterion showing that we want to improve public confidence. If that legislation or that new law is unable to be enforced, it holds quite strong potential for the antithesis to happen, which would be to undermine or destroy public confidence in having law and order being able to be enforced.
Reducing gang membership—that’ll be interesting. We keep a close eye on that one because we know that gang membership increased particularly since the 501s came back from Australia and added a layer of complexity that New Zealand had not seen before in criminal organisations. We will be watching very closely to see how that gang list tracks and also to see who’s taken off it as well as put on it, because the Government does have the ability to reassess who’s going on there and take people off. So it wouldn’t be great if some criteria were being changed or people were being taken off just to give the appearance of a reduction in gang numbers, when, in fact, there was just a bit of a vetting exercise to take people off. It’s important that we are holding the Government to account on being able to assess if those criteria are, in fact, being met.
And, of course, reducing rates of reoffending is one of the criteria in deciding upon a policy option to address the problem. Reducing rates of reoffending is one that we’re really interested in, because, from what I can see, what this legislation does—there will be a lot of reoffending going on in this space as people are repeatedly penalised and brought before the courts for wearing gang patches, to the point of imprisonment. I actually think that the legislation we’re debating right now will do the complete antithesis of what the criteria say. It is going to increase reoffending, particularly for gang members, to the point where you’re seeing those numbers go. The question is—[Time expired]
Hon PAUL GOLDSMITH (Minister of Justice): We talked a great length about the 50 percent increase in gang membership over the past six years under the previous Government. There were a whole host of reasons for that, and the previous member Ginny Andersen referred to the 501s from Australia. We also referred to the very mixed response from the previous Government to gangs. It was a bit confusing. Sometimes they were against them, and sometimes they wanted to give them money to do certain things and run drug rehabilitation courses, and so it was a mixed message.
I think that was rather perfectly exemplified by the Greens speaker Hūhana Lyndon too before, who said that some gangs are doing quite positive things in our communities.
Hūhana Lyndon: They are.
Tamatha Paul: They objectively are.
Hon PAUL GOLDSMITH: Well, I’m sure they are doing the occasional positive thing, but I think the positive things are greatly outweighed by the negative impact of gangs in our community. I don’t think that big gangs are a force for good in our community, on balance. I think most New Zealanders recognise the fear and intimidation that comes with gangs operating in our country and the association with violent crime and with drug crime. That is why we’re setting out to reduce the harm caused by gangs.
Now, there was a reference made to the royal commission of abuse in care, and of course everybody in this Chamber is very conscious of the recommendations and the pain of the survivors and the many people that went through it—of course. It’s not particularly a Treaty thing in the sense that under any universal human rights, people should be able to expect not to be abused in State care—any New Zealander. Nobody would justify that, and that is why very serious stories have been told through that period, and it’s why the previous Government had formed the royal commission and why this Government is taking that extremely seriously and working our way through that. But, of course, we have to deal with not just the past but today, and no society can function if people aren’t held responsible for decisions and actions that they make today—whether or not to attack somebody, whether or not to peddle drugs in our community, whether or not to commit any crime.
Reference was made to the science advisors, and it’s not a binary choice. You don’t choose between, on the one hand, only dealing with the long-term causes and drivers of crime and dealing with what we have here today and ensuring that people are caught and held to account for actions that they are responsible for today. You have to do both. This Government, of course, recognises that you have to deal with those long-term issues, and we recognise the reports of many people making that case, and we continue to do so through the many billions of dollars that are spent across this country in social care and welfare and development. Yes, you have to do that, but, of course, it doesn’t work if you don’t also hold people to account for their actions today. No society can function if people are not responsible for their actions and there are not consequences for violent actions and for causing and peddling misery in our communities.
TAMATHA PAUL (Green—Wellington Central): Thank you, Mr Chair, for allowing me to take another call on Part 2, which mainly focuses on the prohibition of gang insignia in public places.
I’m not sure that I got a good answer from the Minister in relation to Te Tiriti and how that has been considered in the development of this aspect of the legislation. My colleague talked about Te Tiriti and article 2 in particular and mentioned how article 2 speaks to tino rangatiratanga and self-determination. I really want to understand from the Minister: what advice did he receive around Te Tiriti considerations and the impact on Māori that this particular part would create in terms of prohibiting gang insignia within those public places? Because we know that a majority of people who are in gangs are Māori and we know that for wearing a patch, they could end up with a $5,000 fine or they could end up in prison—even though they might not even commit a crime while wearing that patch.
First of all, who’s got $5,000 to pay a fine in the first place; but, second of all, putting more Māori into prison when the Minister knows very well that Māori are already over-represented in our justice system—Māori are more likely to be heavily policed, which we’ve heard about in this committee of the whole House. Myself and Hana-Rawhiti talked about Huntly and Tokoroa and South Auckland and all of the communities that are more heavily policed. We know that Māori are more likely to be imprisoned, and we know that we are over-represented in our prisons and we’re more likely to receive harsher punishments and to be the subject of surveillance more than our non-Māori counterparts. But this is obviously not a concern for the Minister. Does the Minister even care that this piece of legislation and particularly that this part will lead to more Māori being imprisoned simply for what they’re wearing?
I don’t feel the Minister has at all addressed our Te Tiriti concerns and how that has been taken into account and how this piece of legislation contravenes people’s right to their own individual self-determination as well. Self-determination means that you can wake up in the morning and choose the things that you want to do—you are determining for yourself—and that includes what you choose to wear every single day.
So I would like the Minister to talk about the implications for Māori that he has considered and what that advice and evidence has been; what the Treaty implications are; and, given Treaty provisions are set to be removed from over 40 pieces of legislation and are in the process of being removed from the Corrections Amendment Bill, how will we even consider those things in the first place? I would like the Minister to respond to that aspect of the bill.
Hon PAUL GOLDSMITH (Minister of Justice): I’m very happy to respond. I have to say I’m a little confused, because that member has stood up before and said—I think it was that member—that in Tokoroa, everybody understands that you can’t wear red because that’s not the local colour, and I would have thought an understanding around self-determination to be about what one can or can’t wear is relevant in that context. That is why we’re not comfortable with the current fear and intimidation by gang members across the many communities of our country and why this legislation is part of the Government’s response to it.
And, look, I’ve dealt with this and I’m just conscious of the fact that this is probably the 15th time that I’ve responded to questions in relation to its impact on Māori, and I’ve made the same point many times, which is to say that Māori are more likely to be the victims of crime in this country as well. So our care and our attention and our focus is on the law-abiding citizens of New Zealand—Māori and everybody else—who want to go about their life without fear and intimidation from gangs and from the crime that they cause. This legislation is about giving some extra tools to the police to help deal with the impost of gangs in our community.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. Now, I have a number of Amendment Papers in respect of this part and so I would like an opportunity to speak to them. What I propose to do is speak briefly, as is anticipated by the Standing Orders Committee, and then the Minister of Justice perhaps can affirm that he’s going to adopt them or perhaps not—but we’ll see.
The first is in respect of clause 7(1), which is the offence clause for the gang patch ban. It currently reads, 7(1): “A person commits an offence if the person knowingly, and without reasonable excuse, displays gang insignia at any time in a public place.” My proposed amendment simply adds the words “in a manner which would be threatening or intimidating to a reasonable person”, because that is the whole purpose of this legislation. The whole idea is that if there’s, you know, a person in Tokoroa that’s wearing known gang insignia and that person is doing it to intimidate the public so that they don’t wear red, as the Minister said—well, fair enough, we don’t want that going on. Let’s create the offence which is consistent with the purpose. Minister, will you support that amendment paper?
ARENA WILLIAMS (Labour—Manurewa): Thank you, Mr Chair. While the Minister of Justice is considering his answer to my colleague the Hon Dr Duncan Webb’s question, I just have a discreet line of new questions for him. It’s about, in Part 2, the meaning of a “person”, because, in situations like, say, a funeral, where you have a deceased person who was a member of a gang and might have a preference to display gang insignia on their coffin, as might be a common practice in a gang funeral—the question I have for him is: who is the person who is liable for the offence? Is that person the funeral director? Is that person the person carrying out the funeral? Is that person the executor of the estate?
This is not a frivolous question; this is a common situation which we experience in New Zealand Aotearoa. And whether we disagree or agree with the ability of a deceased person’s wishes to be carried out in that way, there is still a question there about whether the executor of the estate, in carrying out that person’s wishes, would be liable for a criminal offence or a fine under this part. And, further to this point, would it then be an offence for, say, the operator of the public place where that insignia was displayed—say, for instance, the hospital or the transportation for the deceased person or the cemetery—to allow the display of that insignia? I’d like for the Minister to turn his mind to each of those four places where you might have this situation—where a deceased person’s wishes are being carried out with the display of gang insignia—and to clarify, I guess, for the record who might be liable for a punishment under this part if that was carried out in this way, or if it is, in fact, not the intent to punish in this way the executor of someone’s wishes when they have died, for that kind of a breach of these provisions.
I also want to ask the Minister, in the context of a tangi where gang insignia is to be displayed at a funeral, by the person who is deceased, who the person is in that context, given that there is often no one proprietor of a marae. Often in these arrangements where there is communally held land and a communally managed marae, you might have two legal bodies—legal persons—who are in charge of carrying out the business of that marae. One would be the underlying landowner or the land block. It is often a piece of Māori land with several thousand owners. And then, in the situation where you have a marae which is run by a committee that is a body corporate, is that the legal person that would then be held to account under this part? Thank you.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Mr Chair. Moving to my next tabled amendment, I wonder if the Minister of Justice, firstly, might—it’s about clause 8(a)—give his response to my initial speech, which was to say, “Well, what the heck? Why has this been introduced at the last moment and when did this spring into his head? Why didn’t the Justice Committee get a chance to look at it?” And in terms of the debate on this part, this is the only chance we get to debate this offence provision in respect of mandatory gang insignia prohibition orders for repeat offences.
My tabled amendment, which is marked “v”, addresses the problem in clause 6, because the only punishment given in clause 6 for someone who breaches this order is imprisonment not exceeding one year. Now, in every other offence clause that we look at, there’s a fine alternative. Now, it may be—and I don’t have the Sentencing Act to hand—that in the Sentencing Act, if there’s imprisonment, it’s kind of inferred somehow that you can do a fine or community work or some other thing. But that should be clear, and certainly the absence of “or a fine”—and my tabled amendment uses “a fine not exceeding $5,000”; I’m not even sure if that’s the right number. But, certainly, a fine should be an alternative because, you know, an offence for your kid having grandad’s gang patch jacket in the spare wardrobe clearly doesn’t warrant any imprisonment. It might warrant a modest fine, but imprisonment? No.
So, Minister, I can see you’re taking advice, and I’m really glad about that because I’m hopeful that you’ll be able to respond to this, because it does strike me that you need to be consistent in your drafting. The Parliamentary Counsel Office has clearly drafted this, and they would usually always have a fine alternative. So I wonder, Minister, if you’d like to respond to that.
HŪHANA LYNDON (Green): Tēnā koe, Mr Chair. Thank you for the opportunity to speak on this part of the legislation. I want to explore with the committee and with the Minister, particularly, around the knowledge of an individual that they are even in a public place, because we are criminalising kākahu—we are criminalising clothes—and the ability for an individual to wear whatever kākahu they want to.
Now, in terms of the legislation, in clause 7(1), it says that “A person commits an offence if the person knowingly, and without reasonable excuse, displays gang insignia at any time in a public place.” I go to page 5 of the commentary on the bill, where we’re talking about prohibiting gang insignia in a public place, and there were submissions on this, because how do you actually prove that an individual knew that they were in a public place? How does the individual actually know that the cemetery that they are at for a poroporoaki to their loved one is a public place—just your average community cemetery run by a council? Or how does the individual know when they are running up the road to the supermarket that “Oops! I got caught with my patch on. So, therefore, I could be locked up for six months, away from my whānau, or charged $5,000, which I can’t afford.”?
I want to explore how we are going to get successful prosecutions, knowing we’ve already had advice as to how you are going to prove that an individual knew that they were in a public place. It puts a harder burden on the individual police officer or the person who is watching and reporting on this to prove that the individual actually knew, because they could be at the laundromat and they could be just drying their clothes. Would that individual know that wearing their T-shirt is actually breaking the law?
I raise T-shirts because we wear T-shirts and whānau wear T-shirts with slogans all the time, slogans like “Tino rangatiratanga”, “He Whakaputanga”, “Toitū Te Tiriti”—oops! Heads up. When we have gangs who might have T-shirts, at what point do we deem it a gang insignia and a symbol when, actually, it can be just average kākahu, because we are criminalising kākahu. Is it just the leather patch? Is it just the patch? Shucks! I should have asked my uncle for his patch and brought it into the House. Is it only just the patch, or is it the jersey, is it the T-shirt, is it the bandana, or is it the colours that I wear? I know, just like in Tokoroa, not to wear red. Don’t wear red in Whangārei, unless your head’s up.
That’s what I want to explore with the Minister: how on earth are we going to successfully prosecute that a person knowingly knew that in the laundromat that they were drying their clothes in, they were breaking the law by wearing a gang T-shirt, and the gang T-shirt might just say “Black Power” or “Mangu Kaha”. It may not even be the entire insignia. How does the police officer define what gang insignia is? “Mangu Kaha” could be black power of a range of things. It could be related to a marae or a hapū.
So that’s what I’m wondering about: first, what is the definition in terms of what the insignia is and what the kākahu will be—because we’re criminalising it—and, further, how on earth do we prove that the person knew that it was public? Because if you’re in the supermarket, if you’re at the cemetery, and if you’re going about your daily business and you didn’t realise that you were in a public place, like the playground, with your tamariki—how are the police going to prosecute a mother with her children, who is just strolling along to the playground locally, just down the road, and she just happens to be wearing a bandana and a “Mangu Kaha” T-shirt? Kia ora.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Well, thank you, Mr Chair. I just want to speak briefly to the tabled amendment marked “u”, and it’s about the Minister’s proposed clause 8A. Now, I object to the clause full-stop, but in terms of what is the triggering prohibition, I understand that possession of gang insignia, which you’ve fallen foul three times already—possessing gang insignia is one “controlling gang insignia”. That’s having it in your room perhaps or in the house that you have exclusive possession of. But the one I have trouble with is clause 8A(2)(c), “gang insignia being present at the person’s usual place of residence.”
Now, the fact of the matter is that many people live in relatively communal living circumstances. If we take, for example, a small boarding house or a flatmate situation, the person subject to the order might actually be happy to be living in a house with gang members. That goes on, right? Now, if they’re living there and someone down the hall in their own room, with exclusive control over that room, might have their own gang patch hanging up in the cupboard. Yet because this person subject to the order knows about it, it would appear that they are intentionally breaching that because they’re in a house—in their usual place of residence—where there is a gang patch. It’s not their gang patch. They don’t have control over the gang patch, but they know it’s there, and they’re intentionally in that house, so they would fall foul of that.
My point is this: despicable as this whole clause is, you simply don’t need (c), because the person, if it’s in that boarding house situation or in a gang house situation, can’t have possession of the gang insignia and they can’t have control of the gang insignia. But you can’t insist that they control other people who are in the same residence. It’s extending the scope. So I’d be interested in whether you’d look at getting rid of that “present [in] the person’s usual place of residence.”, because it does not work, and it expands the scope of it quite unreasonably. What it, in effect, does is it imposes the order on third parties.
Now, Minister, you’re not exactly leaping to your feet in response to my question, so I might, if I may, go on to a further tabled amendment on that same clause—the clause that you’ve slipped in by stealth, thinking that perhaps we’re going to debate it, but this is the only chance we’ll get—and that is why I want to talk about the clause 8A(1), which starts off, “A court must make a gang insignia prohibition order”. I guess my question is this: why do you need a “must” in there? Why can’t you leave it up to the court to see whether it’s appropriate in all the circumstances? The prior offences may have been trivial, or it may be clear that it’s simply not necessary, because this is, once again, a constraint on freedom of expression, and not only is it about public expression; it goes to private expression. This is almost kind of creating a thought crime in the sense that you’re not allowed to have, in your own bedroom, a symbol on the wall which represents a gang affiliation. That’s it, right? This is like 1984 stuff. In people’s private spaces, they can’t have an expression of gang affiliation. That is alarming.
Now, you’re telling a court that they “must” make that order, and I don’t understand why you need that compulsion. If there is some reason for it, then let’s give the court that discretion. But to say more on this, it’s, essentially, three strikes. You’ve mixed up three strikes, firearm prohibition orders, and gang patch bans. You’ve got a three-strike gang patch prohibition order. So I’d be interested in knowing whether the Minister has kind of determined that a District Court judge “must” make that order or whether he’s just going to trust a District Court judge to make an order where appropriate.
Hon PAUL GOLDSMITH (Minister of Justice): Look, I just wanted to respond. In terms of the Amendment Papers around someone being convicted three times for flouting the gang patch ban, there is a series of consequences that flow, so as to give the judicial system greater ability to deal with recidivist offenders in this way, and we think that’s appropriate.
I think this debate has been enlightening, because it has, I think, underlined the confusion in attitudes on the other side of the House in relation to this, because we keep on hearing that the gangs are really quite good, they’re misunderstood, they do good things in the community, and their expression is important, and yet at the same time we hear members say, “Well, of course, you don’t wear red in Whangārei.” [Interruption] Well, that’s what the member said—“We know we don’t wear red in Whangārei.
Well, why do we not wear red in Whangārei? Because of fear and intimidation of the consequences for doing that, and that is precisely what we’re trying to deal with in this. Many people have suffered the violent consequences for wearing the wrong thing in the wrong place, and the only reason why it would be an unwritten rule that we don’t wear red in Whangārei is because of precisely the matters that we’re trying to deal with in this legislation.
Dr LAWRENCE XU-NAN (Green): Thank you, Mr Chair. I don’t know, I feel like one of the reasons we kind of go back to all of these points—I just want to clarify for the Minister of Justice that it is because we have yet to get proper clarification from the Minister in answering some of these questions, because the Minister kind of goes back and talks about what colour people are wearing as opposed to addressing some of the questions.
Just picking up on a couple of things the Minister said—before I go into my question as well—the Minister mentioned before about greater authority for the District Court. I would like to just clarify to the Minister that it is not greater authority. The principle of comity states that it is already the rights of courts to be independent and for the judiciary and for the legislature not to impede on the independence of the judiciary. So I think that very much addresses what the Hon Dr Duncan Webb before mentioned in terms of clause 8(a) on why do we need to mandate the court to do certain things, which is one of the very core principles of law and the separation of power.
Now, when we are looking at one of the things that was also mentioned before by my colleague Hūhana Lyndon around knowing, and if a parent is with a child—I think I’m more interested in knowing the impact that it will have on tamariki, on the children, when the family is being approached by the police. Again, it’s something that could happen because the police and the constable are within their right to go and identify if someone is wearing gang insignia.
I want to, again, go back to the regulatory impact statement, page 32, where it says, “People indirectly impacted by the prohibition of the gang insignia”. And it states that the impact is high where there’s an indirect impact on children and whānau of the person subject to arrest or court proceeding, or even in this particular case, I would extend it to the identification of the insignia. So I just wanted to know from the Minister if that has been a consideration, and what kind of cultural competency training will the police—for their own wellbeing as well as the wellbeing of people they approach—need to undertake in order for something to be properly and appropriately implemented.
Now, the question I have to the Minister goes back to my earlier question around clause 7(2), where I still haven’t got a clarification from the Minister on the six-month term of imprisonment or fine not exceeding $5,000—where did that sort of come from and what are some of the proportionality tests that have been conducted to determine those two particular convictions and whether they are going to be a part of the three-strike legislation later on as one of their strikes. But I want to extend on that to talk about a few other things.
First of all, how does this interact with the Sentencing Act? The first thing is in the context of what happens if the gang member is someone who is under the age of 18. What sort of precautions are there around that in terms of potential charges or potential sentencing? The second question I have around that is in terms of the definition of who is eligible for home detention under the Sentencing Act, which suggests someone who has an imprisonment rate of less than 12 months. And, in this particular case, if the prison rate is six months, does that mean that the person is then also entitled to potentially—I mean, this is obviously up to the court, because the court has independence in terms of what the judges may rule. But, in terms of that, I wondered if there’s any modelling that’s been done in terms of the potential impact it will have to the Department of Corrections around the way that they are able to monitor.
Now, the third part of my question comes down around what is, again, on page 32 of the regulatory impact statement—and this is still to do with the conviction and sentencing and fine—where it says for the Department of Correction, the impact is slow, “We expect most convictions will result in a fine (rather than a sentence).” If there is an expectation that most will be result in a fine, why do we need to have a fine or sentencing? What is the rationale for having both of those sort of things?
So I have three questions for the Minister in terms of clause 7(2). What happens if the gang member is under 18? Is there going to be any modelling done around eligibility or resources that will be required for home detention if they have been sentenced? And have any considerations been given in terms of the proportionality around six months or the fine of $5,000?
MILES ANDERSON (National—Waitaki): I move, That debate on this question now close.
Hon PAUL GOLDSMITH (Minister of Justice): I just wanted to respond to one of the questions that the previous speaker, Dr Lawrence Xu-Nan, raised in relation to the three-strikes legislation—and I’m sure that he’s fully aware of this: that three-strikes legislation has particular offences that are included in strike offences, which does not include the gang patch one. Of course, it also has 24 months’ imprisonment as a threshold as well, which is obviously more than six months. So in relation to that matter: not included.
CHAIRPERSON (Teanau Tuiono): Just before we take the next call, I do want to note that there has been some new material—so thank you for that—and that has been specific. But then, also, some of the contributions are starting to get peripheral. Now, it is fair for members to ask questions, and you might not like the answers that the Minister gives, but, once those have been addressed, it’s important that we move on.
ARENA WILLIAMS (Labour—Manurewa): Thank you, Mr Chair. There are two parts to this question. The first is my question about the deceased person. This is an important question because there are situations where gang insignia is displayed on a coffin. I was just explaining this to one of my colleagues who’s not familiar with this practice, and so I’ll do so for the benefit of the Minister. It is common practice within gang tangi or gang funerals for insignia to be displayed on a coffin, either in the form of a jacket or in another form—
Grant McCallum: Repetitive.
ARENA WILLIAMS: —say, a picture. The reason this contribution isn’t repetitive, for the benefit of the member—I think the member from Northland—is that the Minister hasn’t considered this. So I’ll explain quickly to him what the problem is. This is a common practice for gang funerals, and so it will come up in opportunities where often police are asked to intervene in gang funerals, and these are often high-profile events that are of considerable gravity and stress for the police who are asked to enforce them, and we see that they attract a lot of political attention but also public attention and media attention.
So the question that I’m asking the Minister is an important one. When courts or police are asked to come back to what the intention of Parliament was when this bill was passed, I want to be clear as a Parliament that the Minister has not answered my question, and so they must conclude that it is the intention of Parliament that undertakers, that people who carry on the business of funeral direction, that hospitals, and that people who conduct the affairs of the marae as the legal owners of the marae are not intended to be considered as persons under his provision at Part 2, clause 7(1). So it’s important now that we acknowledge in this Chamber that there is no disagreement from the Minister that persons do not include anyone who is giving effect to the wishes of the deceased person, which should also include the executors of the will or the executors of the person who is deceased and the funeral director. So when it’s read back, we would accept that this was the case.
My second set of questions to the Minister is a separate one. Given his interest and the interest of the Minister of Police in stopping the membership and recruitment of gangs for young people—and this is a particular concern of mine; it was the issue that I raised at the first reading of this bill—I am really concerned here that this bill isn’t clear about the punishment for people who are family members of young people, people who are under 18, and who would be wearing gang colours and gang insignia. There should be a harsh punishment for parents or for immediate family members who are dressing young people in their control in gang insignia, and there should be a harsh punishment for people who wish to recruit young people to gangs and have them wearing gang insignia. That is not included in this bill. And I’m asking the Minister whether that’s an oversight or whether it’s intended that Part 2, clause 7 does include young people and the intention is to punish young people who are put in that position.
Hon PAUL GOLDSMITH (Minister of Justice): Just in reply to the first part of the member’s questions in terms of the responsibility in terms of gang patches and funerals and so forth, the law is very clear: it is the person who displays the gang patch who is responsible, and it needs to be in a public place. Those are the matters that are relevant.
HELEN WHITE (Labour—Mt Albert): Thank you. Mr Chair, you may recall I sat down before I’d finished making a contribution, because an answer came and I was going to come back and the Minister took on that line and answered my question and was very reassuring, saying that this was only about public places. But when the discussion has gone on in this committee stage, we have talked about proposed clause 8A, which actually talks about insignia inside of the home and a prohibition occurring there. Now, I am concerned by where that came from, because the Minister seemed to be saying that he had considered what the Ministry of Justice said and had walked away from the kind of private application to private space, and yet here it is.
What I would ask the Minister, which is of great concern, is: if somebody had a Nazi sign in their house, would that be something that this would be subject to? If they had swastikas; if they had material that we would consider at the deepest end of harmful and connected with things like that, would that apply, or are we just applying it in a way that means that we are not being consistent in our sense of justice and our morality? Especially since we’re combining this with going into people’s bedrooms.
Now, that was my initial concern—I raised it; I was reassured I had got the wrong end of the stick and this was all about the public space—but 8A clearly says that it isn’t. I’d ask the Minister to answer that and consider whether, in fact, that’s something that we should be amending, that’s something that we should be looking at, and I’d really like an answer to that question. What would happen with a swastika under this law? And why is a swastika—where people have been seriously harmed and victimised in our society as a result of it—if I’m right, not subject to the same kind of rules and proportionality? Because, remember, people are going to be imprisoned for this. So what’s going on? Thank you.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I know repetition’s not good, but there are three things I’ve asked, and the Minister simply hasn’t addressed them. The book question: I didn’t like his answer, but he addressed it, so that’s done. But he didn’t address the question of whether a court should have discretion under section 8A—“must” or “may”. He didn’t address the question of the need for the residence in clause 8A(2)(c), and whether that (c) paragraph is even necessary there.
The other one that is a no-brainer is why on earth there’s not an alternative to imprisonment in clause 8A(6). We’ve only just seen this clause. I accept that these are detailed questions; they’re not wide-ranging objections to the policy. They are saying, “We’re trying to do this. In respect of the ‘must’ or ‘may’ question, what is the great evil that means that you’re going to impose an obligation on a court to make an order when a judge is well placed to determine whether in all of the circumstances it’s proportionate and it will address the social harm that is sought to be addressed by this clause?”
In terms of the residence question, the point is that this is a truly extraordinary intrusion into someone’s personal life in that you’re not only prohibiting them from having gang insignia in their possession or in their room; you’re prohibiting their flatmates from having gang insignias—if they know about it—in another room. In terms of workability, it’s an absolute dog’s breakfast and it’s a horrendous piece of legislation. But, for goodness’ sake, let’s not make people liable for a year imprisonment because they know that their flatmate has a gang patch. That is true madness. In terms of the fine, we just need to sort that out. Will you support my tabled amendment saying a $5,000 fine is also an alternative?
ARENA WILLIAMS (Labour—Manurewa): Thank you, Mr Chair. This is a new line of question from me, and this is about the importance of not only restricting the use of gang insignia as something which is intimidating but also restricting the use of gang insignia when it is glamorising. I am particularly concerned about this issue, with what I’ve raised in my first reading contribution. I do not think that anyone should be able to glamorise the use of gang insignia, and so, at clause 8, “Exceptions to prohibition”, my questions for the Minister in the chair, Louise Upston, are on 8(a)(ii), the “media reporting of news”. My question to the Minister is: is it necessary for the news to show the full image of gang insignia, or would it be more appropriate for gang insignia to either be blurred or to be used in a way which does not show the full picture? I would put it to her that media reporting about gangs can be done in a way which does not glamorise gangs, does not use their insignia, and does not promote the way that gangs display themselves in a sort of uniform to signify that they are together and that they are an organised movement. Media reports should be really careful to not use gang insignia in exactly the way that gangs intend for it to be used when they are wearing it, and so I would ask the Minister whether that is necessary at all.
CAMERON BREWER (National—Upper Harbour): I move, That debate on this question now close.
A party vote was called for on the question, That debate on this question now close.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Motion agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Minister’s amendment to Amendment Paper 51 set out on Amendment Paper 64 be agreed to.
A party vote was called for on the question, That the amendment to the amendments be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Amendment to the amendments agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 51 to replace “must” with “may” in new subclause 8A(1) be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 51 to delete new subclause 8A(2)(c) be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Hon Dr Duncan Webb’s tabled amendment to Amendment Paper 51 to insert “or a fine not exceeding $5000” into new subclause 8A(6) be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Minister’s amendments as amended to Part 2 set out on Amendment Paper 51 be agreed to.
A party vote was called for on the question, That the amendments as amended be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Amendments as amended agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 7(1) be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 8(a)(vi) relating to books, magazines or other publications be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Teanau Tuiono): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 8(a)(vi) relating to educational purposes be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Teanau Tuiono): The Hon Dr Duncan Webb’s tabled amendment relating to grave markers and headstones is out of order and the same in substance as a previously agreed amendment.
A party vote was called for on the question, That Part 2 as amended be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Part 2 as amended agreed to.
CHAIRPERSON (Teanau Tuiono): Members, the time has come for me to leave the Chair for the dinner break. The committee will resume at 7.30 p.m.
Sitting suspended from 6.02 p.m. to 7.30 p.m.
Part 3 Dispersal notices and non-consorting orders
CHAIRPERSON (Maureen Pugh): Members, the committee is resumed. Members, when we rose for the dinner break, we had concluded the debate on Part 2. We now come to Part 3. This is the debate on clauses 9 to 26, “Dispersal notices and non-consorting orders”. The question is that Part 3 stand part.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): The Minister might not be surprised to know that I have a number of Amendment Papers in respect of discrete matters here. I must say, I was really disappointed that in respect of three of those Amendment Papers—and none of them are trivial papers; none of them are kind of joke papers—they’re all making reasonable points that the Minister may or may not agree with, and in respect of three of them, he didn’t mention them. So I’m hopeful that when we come to talk about those further Amendment Papers, he will at least have the decency to mention the paper and mention his position on it, and perhaps he can find it in his heart to give a reason why he takes the position he does.
I see this part deals largely with dispersal orders and non-consorting orders. Now, it’s well recognised. The Attorney-General recognises that these are both limits on freedom of association, and that’s really important to note at the outset, so the fundamental point being that any limit must be justified in a free and democratic society to be New Zealand Bill of Rights Act compliant. The Attorney-General says, “No, that’s not the case.”
I’ll come in particular to why that is the case, but I guess my first point that I’d like the Minister to address is actually a practical one: I’d like him to address how this is actually going to work, because there are two sides to this. Firstly, this is about breaking up intimidating gatherings, and so the point is that it’s about doing something in the moment. Then the second point is that the archetype that they’ve been talking about is these large gatherings, such as sort of the motorcades around tangi and things like that. It’s pretty well established that there are not the police resources in many modest towns and provincial centres to break up a big motorcade, and once that motorcade has come and gone, the whole purpose of a dispersal order is expired, so you’ve got a strange situation where you can’t do it when it’s happening because you haven’t got the resources, and then once it’s occurred, it doesn’t matter anymore anyway because it’s of historical significance only.
Now, I know in the legislation—and I’ll talk about it in more detail when I come to Amendment Papers—it talks about issuing dispersal notices after the event has happened, but given the purpose of this is not to punish, it’s really important that this isn’t punitive, because if it is it’s criminal and we need to have a whole different framework for it. This is actually protective of the community, and so we don’t take steps to limit human rights which aren’t directly protective of the community. So if there’s been a gathering and then the next day the police officer goes and issues a dispersal notice, that’s not protective; that’s punitive. Because unless it’s clear there’s an intention—and I don’t know how it would be clear—to have another gathering which is disruptive in the future, then you’re just doing it, essentially, out of spite.
Now, don’t get me wrong, gang members who are intimidating in large groups—I get the problem, but once again, it’s a totally ham-fisted approach, and I really don’t understand how on earth you’re going to make this work. There are a whole lot of other details around there in terms of how we effect service on gang members and the really significant problems with that, but the first question I have that I’d like the Minister to address—and I’ll keep my contributions short in so far as I can so that he can respond in the way he anticipated—is how it’s going to work.
Dr TRACEY McLELLAN (Labour): Thank you, Madam Chair. When we turn our mind to Part 3, as has just been said, it really does focus on those dispersal notices, and in itself it might seem sort of relatively straightforward on the surface, but when you start looking or trying to picture the practicalities of how they’re going to work, all sorts of things arise. So I think there’s a number of questions that do require further information and, certainly, further response from the Minister in the chair, Paul Goldsmith, so that we can have a level of confidence that not only is the activity of issuing a dispersal notice worthwhile—achieves what it says it’s going to achieve—but also isn’t a risk and doesn’t put someone in jeopardy or harm.
As the Hon Dr Duncan Webb just said, when faced with a group of three or more people who you believe or have reasons to believe are gang members and therefore are in a group and therefore could be disorderly or cause intimidation, a constable then has to go and not just tell them that they’ve got to go away from each other but issue them in writing. As we’ve heard, you know, police don’t carry paper and they don’t have that in written form—so we’re certainly led to believe throughout this process—so it’s a matter of asking those people individually for their emails so that they can be issued that infringement notice via email, and, if they don’t give that email or don’t see the rationale behind what the question is, even asking them if they will accompany that police officer to a police station, presumably so that something can be prepared for them, printed out, and given to them. So it feels like there’s an awful lot of cooperation involved in a process that by its very nature is a dispersal notice and therefore is probably not likely, necessarily, to come with that requisite cooperation from those parties.
I’m wondering if the Minister can just give us a little bit more detail, particularly in relation to the paper, because I know the Minister has said in prior stages—I think, in Part 1, he specifically made mention of the fact, when he responded to a question, almost made light of the fact—that it was as simple as just providing that written notice there at the time. I’m certainly under the impression that that’s not necessarily possible, so that leaves me to wonder, then, what is the alternative, and has that even been thought about to the point where we’re all satisfied that this is something that actually can happen. So my question to the Minister is: how does the dispersal notice get issued if a person doesn’t provide their email and doesn’t choose to accompany a constable or a police officer to a police station to receive such a notice?
TAMATHA PAUL (Green—Wellington Central): Kia ora, Madam Chair. Thank you. My question is around the dispersal notices aspects of Part 3 of the Gangs Legislation Amendment Bill. There was a little bit of commentary made by the Minister before the dinner break about pro-social activities that gangs perform within communities. So my question is around why the Minister chose to ignore advice from justice officials around enforcing this ban on gangs gathering in a public place and how it is likely to undercut “efforts to cultivate pro-social activities within gang communities, for those groups that have moved towards adopting such behaviours”.
For context—because there was maybe a bit of scepticism about the pro-social role that gangs play in particular communities—I just wanted to bring to the Minister’s attention, for context, some of those pro-social activities. During the COVID-19 lockdowns, there was a real emphasis from the Government to try and reach hard-to-reach communities who may be a bit more distrustful towards the public health system and distrustful towards Government departments, because of the prevalence of abuse that they might have experienced as part of those systems. We know there is a really strong connection between the abuse in State care and how that led to an overall distrust of institutions and how many people who are in gangs were victims of abuse in State care.
We know that Mark Pitman, leader of Black Power, was instrumental in getting vaccinations into the Black Power community. He went on national TV and got vaccinated. We know that Harry Tam, as well, who is a lifetime affiliate of the Mongrel Mob, was also involved in encouraging his community to get vaccinated. This was an approach that was taken by the former Government to actually engage in the communities that they’re talking about and to actually work with gang leaders in order to encourage overall societal outcomes, which is increasing the vaccination—
CHAIRPERSON (Maureen Pugh): Can I ask the member, is this going to relate to dispersal notices?
TAMATHA PAUL: Yes. This is talking about those pro-social activities that I’m concerned will get interrupted with these dispersal notice laws. I’m just giving some examples because, before the dinner break, it seemed the Minister wasn’t aware of some of these pro-social activities.
There was the gang involvement in increasing our vaccination rates, but also when gangs stood guard outside the mosques after the Christchurch terror attacks. To quote from an article, “Members of the Mongrel Mob appeared to act as security at the Christchurch vigil for the 50 terror attack victims today.” When asked about that protection that the Mongrel Mob provided, they said there were three reasons for them providing that protection. It was, first, that they had brothers and sisters and family members who practised the Islamic faith. The second was, he said, “Number two, we have a duty as a community to be there in time of need.” And three, “If we look at effective policing, it’s more effective when they are working with the community. They can’t do it all on their own.” Similarly, in Hamilton, the Waikato chapter of the Mongrel Mob turned out in protection for the prayer that happened following the March 15 attack. So here you can see examples of gang members who can see something going on in their community and they’re getting involved. That is providing a positive social outcome for that community, which would not be possible had these laws been in place, because these laws would be used against them.
There was also another story of a pro-social gang activity when the protesters from Parliament decided that they were going to take over the marae in Wainuiomata. And, actually, lots of different people joined together to stop them from going on to that marae. It was a combination of local leaders, Rotary members, gang members, league players, teenagers, as well as elderly knitters, who stood side by side blocking the entrance to the marae. But we also know that there are many gangs that provide really important family violence prevention services and addiction-based health groups, such as the Kahukura marae-based programme run by the Mongrel Mob that helped its members and its community to move away from methamphetamine use. That was a subject of a lot of political scrutiny. However, we can’t deny that it was performing a positive role, because it was people from a gang community helping their members to deal with issues of mental health and addiction.
So it’s clear that there are gangs that are moving towards doing positive things in their community. The Minister might not have seen it himself, but I’d invite him to come to one of those communities and see for himself that there—
CHAIRPERSON (Maureen Pugh): The member’s time has expired
Hon PAUL GOLDSMITH (Minister of Justice): Well, look, I thank the previous member, Tamatha Paul, for her comments. I understand her desire to emphasise the good things that gangs sometimes do—and nobody denies that sometimes they do. Our clear understanding is that, on balance, they do more harmful things for the community, and that’s why we have this piece of legislation that is giving the police extra powers to deal with gang activity. But with respect, the member is mistaken when she’s suggesting for a moment that the so-called pro-social activities of gangs will be stopped by this process, because police need to reasonably believe that the dispersal notice is necessary to avoid the gang unreasonably disrupting the activities of other members of the public.
If the gang members are gathering in order to encourage people to have a vaccination, I don’t think that’s going to fall in that category. If gangs are gathering to encourage people to stop taking meth—which would be ironic, but if they were—then that wouldn’t be unreasonably disrupting the activities of the members of the public. And if they were gathering to run a sausage sizzle in order to raise funds for victims of crime, then that wouldn’t be unreasonably disrupting the activities of the public. That is the clear test for this legislation, so it won’t be capturing those things. She also referenced protests and so forth. Again, I’d refer to clause 9(3), “Limit on issuing”, that “A dispersal notice may not be issued to a person who is a member of any group of persons who are gathering in a public place for the primary purpose of demonstrating support for, or opposition to, or otherwise publicising, a point of view, cause, or campaign.” So I’d point the members to those details.
In terms of how the dispersal notices would work, which was asked by another member: the police need to have a concern that the notice is necessary to avoid unreasonably disrupting activities or other members of the public. Now, issuing the notice—well, there are options. One can detain somebody to issue and serve the notice. They could serve the notice in person at the event—a hard copy—or they could send an email. Or if they didn’t have an email, which has been raised if someone didn’t offer up an email address, then the police have the power to take them to the station to provide a printed-off copy if that is what is required. Obviously, as we’ve said many, many times, the police have the discretion to determine for themselves what’s the appropriate way to deal with any given particular situation. They could issue a notice after the gathering, and the purpose of that is obviously to stop them regathering in another event, which would be disrupting the activities of other members of the public.
Why are we doing all this? Because this is providing the police with one extra tool in order to help them deal with the disruptive activities of gangs in the public sphere following a 50 percent increase in gang membership over the past six years, and widespread public concern.
CAMILLA BELICH (Labour): Thank you, Madam Chair. Thank you for the opportunity to take a call—my first call—on the Gangs Legislation Amendment Bill in Part 3, dealing with dispersal notices. This is something that I have been looking into, as to whether these dispersal notices fulfil the purpose that they purport to need to achieve, and I have to say I have some concerns and I would like the Minister to look at some of the alternative ways that this particular provision in clause 9 could be used that isn’t in the way that he’s envisaged.
I’ve heard his answers to my colleague Tamatha Paul that there are certain examples where, in his view, dispersal notices wouldn’t be issued, and I wanted to ask him whether he had received any advice on dispersal notices in relation to activities which would fall outside of what could reasonably be expected to be covered by this clause. The reason that I ask that is because there are human rights issues associated with this particular part of this bill—and the reason for that is it’s not unreasonable for most New Zealanders to be able to expect that they are able to gather in a group. For these particular New Zealanders, if they are seen as or are suspected to be a gang member and if there are more than three of them, they could be issued with a dispersal notice. So that freedom to associate, which is one of the fundamental freedoms, would be impacted by this bill.
My first question is: has he received some advice about those? Because when I read through it, it doesn’t appear to me that there are any particular protections in this section that mean that the dispersal notice could only be issued for what we would expect it to be for—for a gang activity. So I wanted to know from the Minister, would he consider amending clause 9(1)(b) to change it from “to believe that issuing the notice is necessary to avoid unreasonably disrupting the activities of other members of the public.” and to add an additional part to say that it connected to a gang activity, because there may be situations where—and, I mean, I know and I think most members of the House would know through their experiences of being in public places in summer that sometimes there are people who are disruptive. Whether that’s unreasonably disruptive might be a question of judgment, and it might be, in cases of illegal activity, a question for the police. But what this bill does is it puts a huge amount of responsibility on the person issuing the dispersal notice to, first of all, determine whether that person is a gang member and then it also asks them to look at whether it’s an unreasonable disruption, and that isn’t connected to their gang activity.
So my question to the Minister is about whether he has looked at that, and I do have some further questions. I’d like to allow the Minister to respond to those, but I do have some other questions around the practicalities of this particular section. I know that he’s said—and I appreciate—that for the purposes of protest, this is not meant to be the purpose of this section. I appreciate that and I think that’s clear, but I’m talking about other activities. I wonder if the Minister could respond.
Hon GINNY ANDERSEN (Labour): Thank you, Madam Chair. I just have a couple of questions for the Minister of Justice, because we did tease this out quite a bit at the Justice Committee, but I think there’s potentially been subsequent changes to what we saw at select committee. I’m particularly concerned, in clause 17 of Part 3, in relation to “Breach of [a] dispersal notice”. It specifies here that a person commits an offence if they’ve been served with a dispersal notice and then knowingly, without any reasonable excuse, associate with a named person in a public place during a period of time in which the notice is in effect. That’s, effectively—and he might want to clarify—like a non-association order.
So I just would like clarification that, if there’s three or more in a main street who are considered by police to be intimidating the public, once the police go through the process of telling the gang members that they’re being issued a dispersal notice, asking them if they have a valid email address, if they offer one, they can email it to them; if they don’t, they’ll then offer to go down to the police station and print it off for them. Then, once they say, “You’ve been issued a dispersal notice”—to those three or four members—the next stage of establishing whether a breach has occurred is the part that I’m quite interested in, to understand how that occurs.
We weren’t able to get the full answers out at select committee. While it will depend on, potentially, the police officer on duty and how long he’s been on duty in that area and how well he knows known gang associates or people affiliated with a particular gang, the difficulty I perceive is that, if those gang members do not give the correct identity, do not give a Yahoo! or Hotmail email address at the request of the officer and also do not want to accompany the officer down to the station—would the police officer then take a photograph of those members in order to be sure of their identity? Would that be the best practice possible, so they’re able to be identified and then loaded into the National Intelligence Application (NIA)—so that there’s a flag in NIA to say, “We believe”, and name who they think they are and to match that with a profile that may or may not be, I understand, on the national gang list. Then, once police have corroborated some intelligence, along with local knowledge, about what the names and identities of those gang members are, then they would be in a position of establishing that a breach had occurred.
I guess these things may play out in the courts, but it would be good to have an understanding from the Minister, because if that is then punishable by—I think it’s five years. Is it five years? Sorry, six months—“A person who commits an offence against subsection (1) is liable” for conviction of six months and a fine not exceeding $5,000. It’s $5,000, not five years. Then, there’s got to be sufficient evidence before the judge who’s convicting for that offence that, in fact, it was the same person who in the first instance didn’t have an email and didn’t come down to the station and the police officer issued—that it was, in fact, that same person, within the seven-day period, who breached that dispersal notice.
Also, reading this, they’re also prevented from associating with one another. Say those five gang members from the main street have all been issued with a dispersal notice and are subsequently at another house where they’re not doing illegal activity but they are together and a police officer comes across them, then how will the police officer prove, how will the prosecution prove, that in fact they are the same two members who should not be associating together, who have breached that dispersal notice and are therefore liable for a six-month imprisonment period or a fine of up to $5,000?
I know these may seem quite specific and detailed for the Minister to respond to, but I think it’s really important that we have a practical understanding and—sometimes there’s not clear intelligence about who’s in a gang and who’s not in a gang. That will have to be, really importantly, ironed out if people are going to be convicted for breaching these dispersal notices.
HŪHANA LYNDON (Green): Tēnā koe, Madam Chair. I’m just wanting to address Part 3 and ask the Minister a few questions in relation to the powers to issue dispersal notices.
Following on from my colleague in Labour, I definitely worry about the impact that this will have on whānau, on tamariki, and on the ability for that person to feel connected into the wider community, particularly when I was looking at clause 9, “Power to issue dispersal notice”, subclause (1)(b), it is upon the shoulders of the police officer at the time “to believe that [issuing the notice] is necessary to avoid [unreasonable] disrupting [of] activities of other members of the public.” Now, that can be up for debate, in terms of what these occasions are. Gang members might be at a local rugby game for JMB, supporting their children, and if you have three gang members there and they just happen to maybe have a “heads up” or a “Mangu Kaha”, and their children are running around with Rippa Rugby, is their mere presence intimidating, or are we recognising that they are members of a community, and their babies are playing JMB? So do the police have to act every time that they see three or more gang members in a public place? I would argue that we need some common sense in the way that police are empowered in this legislation but also to exercise caution.
Further, in clause 9(2), we see that the dispersal notices don’t even have to happen at the time. They could be after the gathering. Is it an assumption that the police officer will see said gang members doing whatever they’re doing—they might be just chilling or walking down the street—and the police officer has to follow those individuals to issue that notice? Or how do you even know that they were the original gang members in the first place? Some of our communities are quite large, and then others are quite small. Again, as per previous contributions, there is worry for the individual police officer who might be the sole officer in that community, whether it be Kuhukuhu, Kaiaua, Ōpōnoni, or Whangaruru. Those are some things there in terms of that burden on the police officer and also their judgment.
Further, in terms of the prohibition orders of five years, that’s quite taimaha, that’s quite a heavy burden, again, for the individual, for over a five-year period not to associate with their whanaunga with gang affiliations. So I’m wanting to unpack that, really, in terms of what considerations has the Minister taken into account for the tamariki, the mokopuna, the wider whānau, and these individuals who might be under a prohibition order, to be able to operate and function within their whānau community—understanding, also, that there’s an acknowledgment that there’s been no consultation with Māori on the proposal of this bill. Māori, being the most impacted people by this legislation, have not been consulted or engaged with. Instead, officials said that they consulted with themselves and other Government agencies to analyse the proposal against the principles of Te Tiriti o Waitangi and the Crown’s obligations.
So if the Minister can also share what he views in terms of how the Crown, through this legislation, are upholding their obligations to Te Tiriti o Waitangi, with this legislation here—
CHAIRPERSON (Maureen Pugh): I remind the member that we are up to Part 3.
HŪHANA LYNDON: Yes, yes. Te Tiriti is etched right through this legislation. There is compliance right through.
We are going to place the burden of making these judgments on police officers in our community. Are the police officers going to be trained in a relevant way that they will know how to engage with these communities? Have we considered the impact on tamariki mokopuna and the wider community? Five years is a long time. How are we going to support these individuals to actually reintegrate at the conclusion of their five-year prohibition orders, as well? Kia ora tātou.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I think the Minister may want to speak.
CHAIRPERSON (Maureen Pugh): Sorry, I didn’t see him.
Hon Dr DUNCAN WEBB: I’ll yield.
Hon PAUL GOLDSMITH (Minister of Justice): Sorry, just in relation to the concerns that the member has raised about whānau and important relationships, it’s worth noting that both the dispersal notices are for seven days or the non-consorting orders do have exemptions for immediate family members and for those engaging in activities like work or education or healthcare, so you’re not going to be stopped from consorting with your family members and your co-workers if you happen to have a job, and exemptions can be applied for lawful attendance at tangi, for example. But an exemption would have to be applied for. So we think that makes reasonable flexibility there.
In terms of the consultation, I will remind the member that the bill has been before a select committee with the opportunity for anybody to engage and have their views on this legislation over the past four months, which is how the process normally works, and people get an opportunity to have their say. What we’re trying to achieve through this part is to provide the Police with two extra tools to deal with situations where gatherings are made, which are unreasonably disrupting the activities of the members of the public. The member referred to three gang members watching football or rugby on the sideline and watching their kids playing rugby, and it would be surprising that that would be a case of unreasonably disrupting the activities of other members of the public. What we are thinking of, though, is if there were 50 motorcycle gang members taking over a town and meeting in the middle of town; that would be something that is potentially disrupting the activities of other members of the public. Quite rightly, if there was one constable on duty in that town and there was nobody else within 100 kilometres, then a discretion may well apply. That is why we have given the ability for the dispersal notices to be issued later as an option. So the legislation provides for that opportunity. Again, of course, the Police always have discretion as to how to apply or enforce the law in any particular circumstance as regards to their ability to do so.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. Look, it does seem that what the Minister’s just said demonstrates how unworkable this is, because at one end you’ve got sausage sizzles and at the other end you’ve got 50 motorcyclists. We’re not interested in the extremes; we’re interested in the middle, and I’d be really interested in the Minister saying where the line lies.
If we have three people with a couple of dogs which some people might find a little intimidating, and loud music, clearly gang members, at the park yahooing, does that cross the line? Is that unreasonably disrupting the activities of other members of the public? Because some members of the public would be disrupted. They’d be disrupted whether they were gang members or not, and perhaps unreasonably so. Does there need to be some connection with their gang-ness and the disruption, or is that just an incidental? So I think it’s all very nice to talk about the extremes, but that’s not where the problem is; the problem is where the rubber hits the road.
The other thing I want to ask you about: you said that the purpose was to stop these people congregating again and being disruptive. Now, if that’s your purpose, that’s not what the bill does. Does the Minister intend that to breach a dispersal notice, you’ve got to be being disruptive again? Because if that’s the case, we’ve got work to do.
I’m going to keep my contribution short, because I really want to hear from the Minister and have that exchange which we’re supposed to be having here. I want to talk about the fact that, once the dispersal has occurred, the purpose for the issuing of the notice is actually expired. So giving a notice after the event—two days after the event, conceivably—becomes more and more meaningless. That’s why I’ve put in Amendment Paper D, which suggests deleting the words “or were gathered”, so when you serve the notice, you can serve it on someone at a gathering or who are gathered. The “were gathered” makes no sense, because to pop round their house the next day utterly undermines the very purpose of this bill, which is to disperse. They have dispersed, and so to issue a dispersal notice after the dispersal is an absolute nonsense. Of course, it’s time-bound from the moment of the initial meeting, so the longer you wait, the shorter the period of dispersal, which again undermines it.
So my Amendment Paper says, “Look, let’s not be silly. Let’s accept that if we’re going to have these silly dispersal notices, make them so that they disperse, not so that they tell people to disperse after they’ve dispersed.” So that’s my Amendment Paper D. I’d be interested in the Minister’s comments.
Hon PAUL GOLDSMITH (Minister of Justice): I do think the member is somewhat lacking in imagination, because it is quite possible that certain gang members might be in the habit of gathering regularly every day for a week in a manner that unreasonably disrupts the activities of the members of the public, and so the purpose of having served the dispersal notice would be to stop the re-gathering in that particular circumstance.
INGRID LEARY (Labour—Taieri): Thank you, Madam Chair. I have a number of questions which I’ll keep really short to also make the point that the practicalities of this are really difficult. One of the issues that I have is in Part 3, clause 9 when it talks about “a gang member;” or “3 or more gang members”, and I know when I go to the definition that that includes prospecting gang members.
One of the phenomena that we have seen—certainly in communities that I know—in Auckland is young people who are being groomed to be gang members who may not actually realise that they are being groomed. This is a real phenomenon; it is sort of uncles taking them for boxing classes and so on, really just ingratiating themselves to the family while perhaps the father is in prison. Those young people would not consider themselves to be prospecting, and yet a police officer at an event under section 9 may look at that young person and say they are prospecting. So my question to the Minister on that is whether that young person, for the purposes of this Act, is a prospector or not.
Then when it says about dispersing the activities of other members of the public, my second question is: does that include family members of the gang members? So if, for example, there was a ruckus happening and the people that were being affected were whānau members at, say, a public gathering—it might be a Christmas party or whatever; it wasn’t mainstream—would a constable come in and say that is disturbing some of those other members? Would it apply in that case?
My third question is in relation to the really problematic clause 9(3), which talks about the “primary purpose” and the political things that could be happening and the decision that somebody has to make about what the primary purpose of the gathering is. Now, my question is: is that a subjective or objective test? Is it a reasonableness test? Or is it a little bit more like the criminal case where, say, for example, if one was to put some bombs on a plane in order to blow up the plane when it’s in mid-air to get insurance, and yet it is completely reasonably foreseeable that everybody on the plane would die, would that be manslaughter or murder? The intention is there for insurance purposes, but that would be seen as murder.
Now, if I apply the same logic for this, in whose mind is the primary purpose? Is it the primary purpose of the gang members of the reasonable person on the—what is it, omnibus?
Hon Dr Duncan Webb: Clapham omnibus.
INGRID LEARY: Clapham omnibus? Is it the person who is the constable who is making the determination? And what happens, for example, at a tangi, where we’ve seen some of the dispersal type of rationale used to say a tangi has got out of hand. Now, nobody, in my mind, would question that the primary purpose that has caused people to come into town and to gather would be a tangi. If that got out of hand, then arguably this “primary purpose” section doesn’t work. So that is my question to the Minister.
The last question I have is around requiring somebody to go to the police station, and I’m just wondering whether he has turned his mind to the safety of the officers in that? How is that going to be operationalised? Is a constable going to require somebody to come into a police vehicle? Are they going to require them to walk down? What happens? What is the Crown’s liability if somebody is requiring a gang member to come down and due care hasn’t been followed? Like, what kind of advice has he sought to make sure that this is workable for the police who might not be able to issue that dispersal notice on the spot and has to very delicately and politely ask a gang member to come down to the police station with him?
I’d also say in that example, it would be really good, again, to go back to the young prospector who may not consider themselves to be being prospected but the officer may think they are. Would they be required to go down to the police station as well? Has the Minister thought about the age ramifications on that; whether it is safe to bring young people down when there is a question over whether they’re prospecting or not?
There’s a lot of devil in the detail on this and it feels completely unworkable to us. I think the more the Minister can clarify in these scenarios exactly what will happen, the more confidence, particularly the police will have, that this terrible piece of legislation could actually have some validity. Otherwise, it really does seem like a terrible piece of lawmaking.
CHAIRPERSON (Maureen Pugh): Members, I’m hearing quite a bit of repetition. I’m just looking for some new material in the coming speeches.
HANA-RAWHITI MAIPI-CLARKE (Te Pāti Māori—Hauraki-Waikato): Tēnā rā koe e te Pīka. Otirā tēnā rā tātou e te Whare. E tū ana ahau ki te pātai i ētehi pātai ki te Minita e pā ana ki tēnei o ngā pire.
[Thank you, Madam Chair. Indeed, greetings to all of us in the House. I stand to ask some questions of the Minster reading this particular bill.]
I have a few questions to the Minister, and I have asked different questions last week as well. However, I’m just going to ask a few questions in relation to Part 3, and I quote, “A constable may issue a dispersal notice to a person if the constable has reasonable grounds—(a) to suspect that the person—(i) is a gang member;”. That is so dangerous, because, in my eyes and within our experiences, that is stereotyping 101, and I circle the definition of what is “reasonable grounds”, and to use the word “suspect” is very, very dangerous, because we know, and the data shows, that we are over-profiled.
Last week, I came in here saying that I am consistently being pulled over, in a small town like Huntly, for no reason. Since the elections and we moved to Wellington, not once have I been pulled over. We already know from experience that we are over-profiled, and it shows where 50 percent of the male population in jail and 65 percent of female are of Māori descent. So I want to ask the Minister: what measures does the Minister have in place to mitigate Māori profiling, if we’re using words such as “to suspect the person is a gang member”? To put that into context for whānau watching at home, if three Māori boys are coming together and they look like gang members, does that mean that the police officer has authority to give them a dispersal notice? Why I’m asking questions like that is because we know that it will happen. I’ve seen my brother get pulled over by a paddy wagon for no reason during fireworks. I’ve seen it and we watch it constantly. So this is why we’re coming with questions that may sound silly to some, but we have to bring them into the House to keep Ministers accountable. Will this happen in our communities? And we know it will.
Another question is: what training are police taking to issue a dispersal notice, and how will this work? Recently, with experiences given from members across this side of the House, it was only last week—two weeks ago actually—that a whānau member of mine who had a gang affiliation passed away and we had a tangi for him, and it was only last week that we had our grand final in Rāhui Pōkeka, and there were many different gang members there. I was associated with them. I interacted with them. So does that mean that I am liable to get a dispersal notice? These are the questions that I want to ask even for ourselves, even for our party. Then I’d also like to ask—and you can correct me if not, Madam Chair—some questions on Schedule 2, if possible, for identified gangs.
CHAIRPERSON (Maureen Pugh): Next debate.
HANA-RAWHITI MAIPI-CLARKE: OK. Well, that’s all I’ve got for this one.
Hon GINNY ANDERSEN (Labour): Thank you very much, Madam Chair. I just wanted to get a bit of further detail about how someone can challenge a dispersal notice. I think this is really important, because these are not administered or laid by a court; so you don’t have a right of appeal or any way to challenge that. If a person has received one of these dispersal notices and they believe that they’re not a gang member or, furthermore, it wasn’t a fair issuing of that notice, what is the process for having that revoked? It does really reflect the fact that it is a police officer and that they’re a short duration of time, and a review would need to be completed pretty quickly.
It’s important there is a review mechanism to enable citizens to have an opportunity to remove that dispersal notice in a timely manner if they quite clearly believe that those grounds weren’t met. There is, obviously, a degree of operational discretion in place there when they’re making those determinations, but I would really like some reassurance from the Minister that while revocations must be determined by the commissioner within 72 hours—we know that, but there’s not really any further detail about how that might operate. Once the alleged gang member who is illegally dwelling somewhere has been issued with one of these, what happens if they’re not a gang member and they were in fact just chilling, or they were with two people, not three? What are those situations? What are the natural justice grounds for someone who’s been issued with one of these who honestly believes that it was not a fair situation?
I think it’s important that there is clear understanding of how this is going to be implemented. I note that in the regulatory impact statement it does state that there is a risk that it could be quite a significant resource burden on Police if you were implementing some kind of appeal mechanism. These are being made as easy as possible to lay on somebody, but it doesn’t seem quite so clear what the process is for retracting one if it was not done in the right way.
The second point I’ll make in this call is that, in this analysis here, there are three options, and the preferred option to progress, from officials, who did all of this work, is to stick with the status quo. I think it’s important that we mention that the recommended advice from officials is to stick with what we’re doing now, because it’s working. The current approach with the transnational organised crime strategy and also resilience to organised crime in our communities—that long-term way of reducing organised crime—will have a long-term effect on reducing gang membership in a far more effective way than dispersing people and driving them underground and, effectively, just doing this cosmetic stuff.
They list out the changes that have occurred in the past few years that actually enable Police to have more tools in their kit to do these things. There have been changes in terms of the criminal activity intervention legislation that provide those increased search powers over a 14-day period when there are inter-gang tensions and even violence. The fact that there has been a whole range of programmes—and I just want to read out one part, because I think this is really important: “making the above distinction may be more effective at improving public confidence in the long term … Targeting gangs as groups—including where their conduct is not harmful—is likely to have minimal impact. This is because the majority of the public have little or no contact with gang members, and policing non-harmful conduct will not address those high-visibility instances of serious crime that cause people to feel unsafe.” I’d like the Minister to respond to that, because I think those are wise words.
Hon PAUL GOLDSMITH (Minister of Justice): The member asked about the review process, and the previous speaker asked whether she could be, as a non - gang member, issued with a dispersal notice. Of course, the requirement is to be a gang member, part of the three or more, and it’s necessary to avoid unreasonably disrupting. If somebody feels that they have been issued with a dispersal notice and they shouldn’t have been, the process is to apply to the Commissioner of Police, and the Commissioner of Police has to reply within 48 hours. If they point out that they’re not a gang member or that there wasn’t three or more people involved or that the issue wasn’t necessary to avoid unreasonably disrupting the activities of the public, then the decision can be revoked. The decision and the communication to the person who’s applied needs to be done within 48 hours. That is the process, and it’s done quickly through the Commissioner of Police because this is a seven-day period, so you want to move quickly. That’s the process. If somebody feels like they shouldn’t have been issued a dispersal notice and can demonstrate that they’re not actually a gang member, well, then, that was how they would go about it.
Dr VANESSA WEENINK (National—Banks Peninsula): I move, That debate on this question now close.
CAMILLA BELICH (Labour): Thank you, Madam Chair, for the opportunity to keep debating Part 3. I have to say, I have noted that Part 3 is quite a significant part of this bill and goes up to clause 26, and I feel there’s a number of them that haven’t been touched on yet. So the motions that we move on or that the debate end I think are very premature. I also note the Minister hasn’t answered my questions in relation to clause 9(1)(b). But I don’t want to talk about that any more. I want to move on to another part of the bill, which I feel also needs to be addressed.
The Minister accused my colleague Dr Duncan Webb of lacking an imagination. It’s not a way I would describe Dr Webb, and I wanted to perhaps draw the Minister’s attention and utilise his imagination. In clause 9(3), which I believe hasn’t been discussed yet, which is looking at whether this is, in fact, workable—and I know that this has been brought up as a potential criticism of this bill—but I would like the Minister to engage in whether it is in fact workable. From my reading, all that people would be able to do to avoid a dispersal notice under the overall area of clause 9, given subclause (3), is to invite members to attend something which is for a point of view, cause, or campaign in a public place. Inviting people to a protest for Toitū Te Tiriti could be a cause that if any gang member or group of gang members decided to put that sign up and say, “That was the reason we’re gathering”, then surely no dispersal notice could ever be granted. That’s not to say that people would necessarily do that when that wasn’t the cause, but it would be almost impossible to ascertain if that was, indeed, true. It could be used for many other different causes. I think that, in this respect, it does appear to be very unworkable from a practical perspective.
Additionally, moving on to clause 10, the service of the dispersal notice has limb after limb of different expectations that constables have that they must fulfil in order to proceed on to the next section. I haven’t worked a lot in criminal law but I have had some experience when I was a very young lawyer, and it appears to me that there are fishhooks everywhere here in terms of the actual workability of this legislation. I mean, just to take one example: in clause 10(2), there is an expectation that the constable requests that the person give them their email address or other method of serving electronically, which I imagine is an electronic address, but presumably in the future could include some other forms of address which are not specified in this piece of legislation. But if that does not occur, then that person may accompany the constable to the police station.
Then, moving on to clause 11, if that person again refuses, we then end up in a situation where there are ever-increasing penalties for noncompliance. If you think about someone who’s wrongly caught up in this legislation—which I think is what we’re afraid of. We’re not afraid of making sure that gangs are less intimidating. We’re not afraid of challenging situations where gangs seek to intimidate. What we’re afraid of is people going about their legitimate, normal activities, and being caught by this piece of legislation, and ending up with a significant fine; which, in my experience, people who are already vulnerable to being involved in the justice system often may not pay. Then what goes on from that is we end up with the very unjust situation for people who are wrongly connected with this.
So I would like, actually, the Minister to answer my first question. I would like him to talk about how clause 9(3) is, in fact, workable from a practical sense because it doesn’t appear to be workable to me to achieve this bill’s aims. I would also like him to expand on how he thinks someone who is—[Time expired]
RAWIRI WAITITI (Co-Leader—Te Pāti Māori): Thank you very much, Madam Chair. It’s a privilege to take the first call on this particular silly bill. I’ve just heard the Minister in the chair, Paul Goldsmith, in his answer, talk about how he’s giving the police extra tools to be able to deal with people going about their everyday business. It is an issue for us when “on reasonable grounds”, which is very subjective for police officers, many who we have found in the past—and many reports have come out of the police, that there is racial profiling in the police department. There have been reports—and I’m sure you’ve done your due diligence and read those reports, because there’s racial profiling within the police. I find this bill really concerning when you’ve got words like “reasonable grounds”. It’s absolutely subjective to suspect that a person is a gang member.
We’ve got a lot of rangatahi that walk around with hoods, with hoodies—my boy is one. Now, if a police officer suspects that he is a gang member—
Hon Member: Which will happen.
RAWIRI WAITITI: Which will happen, because we’ve already had the racial profiling, and there have been already reports come out about the police already having racial profiling within the police. It has been happening for many, many years. Like my colleague talked about, Hana, 50 percent of the male prison population in Aotearoa are Māori; 65 percent of the female prison population are Māori. That already tells us that we’ve been racially profiled. I have issues with the reasonable grounds. It’s absolutely subjective.
I just want to talk about my experience with the gangs. There’s no gang in whānau, but there are whānau in gangs, and not all of them are criminals. Here is the problem: if you deem it reasonable grounds to suspect that somebody is a gang member, there’s going to be huge problems. I worked with the gangs when—I heard one of the other colleagues talk about vaccinating. I worked with many gangs; I have a whole lot of proof to show that they did their part for Aotearoa. The Black Power, the Mongrel Mob—the whole lot. I worked with Harry Tam; I worked with Eugene Ryder. I worked with them all to ensure that they did their part when it came to the vaccinations. They also stood on the iwi border controls. You ask any police officer right now: they had no issues—they had no issues.
How far-reaching does this bill go—how far-reaching does this bill go? Does it reach into marae? Does it reach into marae, where many of our gang members in my community are doing the hāngī? They’re feeding the multitudes that come on to our marae, to our tangihanga. They’re the ones cutting the wood for the hāngī, they’re the ones killing the meat, they’re the ones going to do all the diving, gather the kai. How far does this reach—how far does this reach?
We’ve already got police officers who do a good job. Community policing is the answer, and I already know because we have community policing down there in Whangaparāoa Cape Runaway, where a police officer actually plays rugby with the Mongrel Mob members. We all live together; we’re all related. But these are the answers—community solutions are the answers, not these types of bills.
Now, “A person … is detained under subsection (1), may, after being cautioned, be arrested without warrant if the person—(a) fails or refuses to remain at the place where the person is detained; or (b) fails or refuses to give their biological details”. If that was my boy and he refused to give this detail because he is not a gang member, what does that mean? This bill has the ability to reach into his home because of reasonable grounds that a constable has to suspect a person of being a gang member.
These are the questions that I have for you, Minister, tonight, and my community deserve the answers in this committee. Do the police have the right to walk on to marae, the last bastion Māori have for rangatiratanga? Your Prime Minister agreed that article 2 was to be undisturbed of our property rights—of our taonga, of our moana, of our kāinga. Now, does this bill go against what the Prime Minister admitted to in question time last week? These are the questions that I have—Madam Speaker, I haven’t finished—
CHAIRPERSON (Maureen Pugh): The member’s time has expired.
Hon PAUL GOLDSMITH (Minister of Justice): Thank you to the member for his questions. I’d like to reassure him that if somebody thought that they were issued with a dispersal notice and they weren’t a gang member, then the process is set out very clearly in clause 18, which is to say they can apply immediately to the Commissioner of Police and the Commissioner of Police has to reply back within 48 hours, and if the individual is not a gang member, then they wouldn’t meet the grounds for the dispersal notice.
In relation to helping out with vaccination campaigns, again, that is not captured by this legislation, because it would be very hard to describe that as unreasonably disrupting the activities of members of the public. Going out and getting some meat for a hāngī wouldn’t strike me as an activity that’s disrupting the activities of members of the public. What we’re talking about is a large gang activity stopping people moving around Ōpōtiki or a place like that—is what is in mind through this legislation.
In terms of racial profiling, I think the only point I’d make there is, you know, it’s very easy to say and very damaging for the many thousands of young men and women in the police force who do their very best every day to keep the community safe. It’s a very easy allegation to throw at them, and it’s one which—we back the police to do their job, and of course recognise that over the past and in our history, and there are claims that are made that need to be dealt with carefully. We’re going through that process through the State abuse inquiry, and that’s something that all New Zealanders would want to see dealt with more effectively. The reality is that no society or no institution will ever be completely free of bad actors, but a good Government has things in place to ensure that few of those people can get anywhere near places where they can cause damage, and, if they do, they’re called out very quickly and dealt with very quickly and effectively. That was, I think, one of the primary things that we learnt from the dreadful circumstances of the past, where things happened and nothing changed for many, many years, and people didn’t deal with those situations.
So I hear what the member is saying but can give him this assurance that the process is laid out quite clearly and it only relates to unreasonably disrupting the activities of members of the public, and there is a very clear process for that to be challenged in a quick and easy fashion.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. After that sweeping speech by Rawiri Waititi, I’ll want to dig down into the detail of it. I have a number of Amendment Papers and I’m just going to crack into them because I just would like to see as many answered as the Minister of Justice can.
The first is around service. My Amendment Paper “f” suggests that clause 10 should simply read “A dispersal notice must be served by personal service.” because this idea of serving a notice by email is deeply problematic—even just the technical point, right? The question is this: is an email notice served when the officer presses send on his device or when it arrives in the inbox? Now, that might sound like—isn’t that the same thing? The answer is absolutely not. We’ve got an Electronic Transactions Act that deals with this very problem, and it says that something is delivered only when it enters the information system of the recipient. So my question in respect of service is: if we’re going to have this email service, does the email have to be successfully sent and enter the information system of the recipient? Otherwise, it would be like saying a notice was served when it was put in the postbox but never delivered into the homeowner’s letterbox. That can’t be right.
The other thing is this: there are so many things that can go wrong with email service. The officer might type in the wrong email address. You’ve got to remember, the whole idea about this is you’ve got this gathering which is unruly, might have had a few beers, might not be entirely happy to be giving their details to a police officer. Now, how can we be sure that the person is then going to disperse, go back to a home—perhaps have a few more beers, let’s face it—and actually open their Gmails.
I get it. I get that the officers don’t like paper. They don’t want to have to go to the car and get out a clipboard and a carbon copy form and write out things. But let’s just be clear about this, and we looked at this in select committee: there is no other situation where you’re given a notice by email and if you don’t comply with it, you can go to jail. There’s nothing—nowhere in the law. The nearest we get is speeding infringements, which are an infringement notice which trigger an obligation to pay or to turn up in court and defend it. If you have to turn up in court, you’re going to get a summons—a summons delivered to you; served on you. So my Amendment Paper looks to get rid of email service because it’s utterly unreliable, unrealistic, and doesn’t meet the kind of seriousness requirement.
The other point I have is around clause 11A—and I’m going to keep going on so that the Minister can respond to more than one—and that’s the idea of a duty to explain. This was added at select committee. It’s a good thing. Obviously, if there’s an obligation to explain, it must have some impact. But clause 11A(3) says “A failure to comply with this section does not affect the validity of the dispersal notice.” So you’ve got an obligation to explain, but if you don’t do it, it doesn’t matter. What’s that going to do? What incentive does that give to an officer to explain properly what this dispersal notice means? They can just utterly ignore it and all of the legal implications fall on it anyway.
So my Amendment Paper G says to get rid of that because, yes, we need a duty to explain. If you’re going to email someone a notice and it’s going to have a very significant impact on their human rights—their right to associate—and very significant consequences if they breach it, then absolutely you should have to say, “Look, chum, listen carefully. This is a serious matter. Here’s what’s going to happen now. You’ve got to disperse and you’ve got to not associate with these other two or three people for seven days. Do you understand?” You absolutely need to have that explanation, and if you don’t give it, the dispersal notice should be of no effect because you haven’t told them what it’s about.
TOM RUTHERFORD (National—Bay of Plenty): I move, That debate on this question now close.
A party vote was called for on the question, That debate on this question now close.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Motion agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Minister’s amendments to Part 3, set out on Amendment Paper 51, be agreed to.
A party vote was called for on the question, That the amendments be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Amendments agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 9(1) deleting the words “or were gathered” be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 9 deleting the words “after the gathering has ended” be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment replacing clause 10 be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 11A be agreed to.
A party vote was called for on the question, That the amendment be agreed to
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The Hon Dr Duncan Webb’s tabled amendment to clause 13 is out of order as inconsistent with a previous decision of the committee.
The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 15(b)(iii) be agreed to
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 16 be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 18 be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Maureen Pugh): The question is that the Hon Dr Duncan Webb’s tabled amendment to delete clause 26 be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
A party vote was called for on the question, That Part 3 as amended be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Part 3 as amended agreed to.
Part 4 Miscellaneous provisions
CHAIRPERSON (Maureen Pugh): Members, we now come to Part 4—
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Point of order, Madam Chairperson. I’m just seeking some clarification because, through that debate, we were methodically working through Part 3 and had debated a large part of Subpart 1, but there have been no calls taken on Subpart 2, which is non-consorting orders. Now, it might be an oversight, or maybe I’ve got it wrong, but are we now going to debate Subpart 2, because the calls were on Subpart 1 and they were coming to Subpart 2, and there has been no debate on those important orders. If the Chair could clarify that, that would be appreciated.
CHAIRPERSON (Maureen Pugh): I’d just remind the member that I was seeking new material. I did ask members to introduce new material. There were 13 calls during that debate on Part 3. I can’t control what the members want to debate, and so the repetition—I did warn members that there was a quite a bit of repetition. The decision has been made and I’ve made a ruling, and we’re moving now—
Hon GINNY ANDERSEN (Labour): Speaking to the point of order, Madam Chair. There is a significant new power being introduced through legislation—
CHAIRPERSON (Maureen Pugh): Are you now arguing with my ruling?
Hon GINNY ANDERSEN: Are we allowed to bring up the non-consorting orders in later parts of the bill, or is that it—we’re not ever allowed to raise that again?
CHAIRPERSON (Maureen Pugh): The ruling is that we are moving on to Part 4—
Hon GINNY ANDERSEN: So you’re preventing us debating non-consorting orders? You took a vote before we were able to talk on that issue—
CHAIRPERSON (Maureen Pugh): The 13 calls we have just had have covered it in—
Hon GINNY ANDERSEN: Not non-consorting orders—there were no calls.
CHAIRPERSON (Maureen Pugh): I can’t control what the members want to debate at the time. If you want to use all of your calls to debate clause 9, that’s your call. We are moving on to Part 4. This is—
CAMILLA BELICH (Junior Whip—Labour): Point of order, Madam Chair.
CHAIRPERSON (Maureen Pugh): Is this a new point of order?
CAMILLA BELICH: This is a new point of order. I just wanted to address the statement that you made in your ruling, which I didn’t recall being part of this debate for the entire—since the dinner break. The first part was that you reminded members about repetition. I think you did that once, very early in the debate, and I think that was addressed by members. But there are about 15 clauses that were not debated at all in that part. I know that you have discretion and you’ve made a ruling, but you do have some discretion to allow for material in the subsequent discussion, and so I’d just like to request that in order that democracy is best served and those non-consorting orders are addressed, there is some leeway given to reference non-consorting orders, because without that there will not be an opportunity for this committee of the whole House to scrutinise this quite considerable power that the Government has had and—
CHAIRPERSON (Maureen Pugh): I understand the member. Part 3 has ended; the House has voted. We are moving on now to Part 4. Part 4 is the—
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Point of order.
CHAIRPERSON (Maureen Pugh): Is this a new point of order?
Hon Dr DUNCAN WEBB: Yes. I seek leave of the House that Subpart 2 of Part 3 now be debated.
CHAIRPERSON (Maureen Pugh): Leave is sought for that purpose. Is there any objection? There is. Part 4: this is the debate on clauses 27 to 35, “Miscellaneous provisions”, and Schedule 3. The question is that Part 4 stand part.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I’ll take these clause by clause to ensure that there can be no repetition. So let us first talk about clause 27. This is the clause which says that in matters of fact arising in this proceeding, it is a civil standard of proof. I would talk about clause 26, but that’s in another part and we won’t talk about that here—although we’d like to.
The idea that the questions of fact here are to be dealt with “on … balance of probabilities.” is deeply problematic. Because what we actually have here is a series of provisions which are punitive in nature. They are criminal in all but four—
Hon Shane Jones: Stuff the gangs!
Hon Dr DUNCAN WEBB: —and the fact is that—well, you want to be careful, Mr Jones. You’ll be profiled like Rawiri Waititi said.
Rawiri Waititi: Profile him! Arrest him!
Hon Dr DUNCAN WEBB: There certainly is a bit of disruption going on over in the far corner.
Now, the fact is that the provisions of this legislation—things like being a gang member, because being a gang member under this series of legislative measures impacts significantly on a person’s rights and freedoms. It’s, essentially, a limitation on liberty. That can’t be denied, because the Attorney-General herself outlined that.
The question is: to what standard of proof do we have to establish, for example, the keystone of this legislation, that someone is a gang member? This is basically it, right? More likely than not or beyond reasonable doubt. Now, if you’re going to stop people gathering in public places or consorting or displaying emblems that are significant to them, then you’d better be bloody sure. And that’s not more likely than not—that’s beyond reasonable doubt.
I do have an Amendment Paper on the table that talks to the section and says in respect of this standard of proof, it should be the criminal standard. Because, essentially—and I don’t think the Minister would disagree with this—this piece of legislation pushes gangs across the line from members of civil society into members of the criminal class. That’s what it essentially does: it says it is now fundamentally criminal to be a gang member, regardless of anything else that’s going on.
So let’s be honest about this and, if we’re going to do this outrageous thing, let’s at least have the decency to apply the right burden of proof—and the correct burden of proof is a criminal standard. If someone’s going to be proven to be a gang member, let them be proven beyond reasonable doubt. If they’re going to be proven as being disruptive, let’s prove it beyond reasonable doubt. If they’re going to be proven to be congregating after a dispersal notice has been issued, let’s prove it beyond reasonable doubt.
To have a civil standard of proof is not just lazy, it’s unconstitutional. It’s actually undermining pretty much the golden thread that has run through our law: that if the State is going to deprive you of liberties, it has to be absolutely sure of the grounds upon which it does it. Not “We reckon.”; not “We think it’s more likely than not.”; not “A police constable has reasonable grounds to suspect ‘on a balance of probabilities’ “., but the State is sure you’ve transgressed the standards it set. That’s why we should get rid of section 27, we should adopt my Amendment Paper, and we should have a criminal standard of proof for all issues of fact in this piece of legislation.
HŪHANA LYNDON (Green): Tēnā koe, Madam Chair, and thank you. I’d like to endorse fully my colleague from Labour in debating the balance of probabilities and considering the civil standards that our people will be judged on.
Now, I need to remind the House on 21 July 2024 that the police were found to be in breach; that they had not met the deadline set by the Privacy Commissioner to delete thousands and thousands of photos of young Māori people. As we’ve talked about tonight from my colleagues from Te Pāti Māori, we’re getting profiled every day. Police are taking casual photos of us everywhere doing anything, and the police themselves since 2021 have been called out and been snapped, and the Privacy Commissioner said, “No more! Delete!”, and the police have missed that deadline. How can we trust that the police are not going to use that type of approach with us when we see a young person in the street with the hoodie? And that young person might have a blue pair of shoes on and a blue bandana out of their pants, and then next minute they’re a gang member?
That’s the worry there: where we have the balance of probabilities that young people could be vulnerable to prosecution through this legislation just because they’ve had a photo by a policeman—you know, how long ago—because they were just sitting casually at a bus stop, and then next minute they’re deemed a gang member because they’ve got a hoodie on. That’s the type of prejudice that this legislation is going to cause to young Māori people. Don’t say they’re not being profiled—they absolutely are. We know this to be true because there are thousands of photos on cellphones across New Zealand that the police have failed to delete.
Now, I want to revisit what the regulatory impact statement said in terms of how the proposed penalties across this legislation are out of step with other offences in New Zealand in this context. The Ministry of Justice actually proposed that the breaches should be a fine not exceeding $2,000 and a maximum of one year imprisonment. But in this legislation it’s five years and it’s $15,000. How on earth are our young people, our whānau, going to afford that when we know many of these gang members are products of the State? These gang members have been produced out of a system that has abused them for far too long, and we’re going to abuse them again because they’ve been racially profiled for how long?
Further, I want to go into the list of gangs you have in Schedule 2. Can we all turn to that page, please? Let’s have a look at the gangs. It’s an interesting bunch: Aotearoa Natives, that’s actually a T-shirt brand, e te whānau. It’s a T-shirt brand, but apparently it’s a gang too. So I better tell Tribal Roots to stop producing the T-shirts saying, “Aotearoa Natives”, because that’s for sale at every Māori event. These gangs here are brown gangs. Where are the skinheads? Where are the white supremacists? Where are those that went into the mosque and killed our whānau? They are not listed here. Why are we being marginalised in this list? Why are our people being identified here? Oh, there’s no Bloods, but there’s Crips. I’m just wondering—Taupiri MC. Well, we’ve got Hana-Rawhiti here from that electorate, and I’m sure she doesn’t know who the Taupiri MC is or the Uru Taha. I am worried that even this list prejudices us. This list prejudices us because, actually, some of the biggest killings going on in New Zealand are white supremacist.
We’ve already heard from my colleagues in the Labour Party who said, “Where are the Nazi signs? Where are the skinheads?” They’ve already asked that question, and yet they’re not even listed here. So we have a marginalised group of people who are victims of an abusive State, who have been profiled for years because the police have been taking random photos of us, and then we are falling victim to the “balance of probabilities” and that a civil standard will be applied on our people and—oh no, we’re lucky: we get legal aid. Kia ora tātou. We’ll be lucky to get legal aid to support our nephews and nieces out of trouble because, ultimately, they’re going to end up with five years in jail and a $15,000 fine. Well, kia ora tātou.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. As I said, we’re going to go through this clause by clause—
CHAIRPERSON (Barbara Kuriger): It’s helpful, actually, if people actually do state the clauses that we’re up to.
Hon Dr DUNCAN WEBB: Thank you—very happy to do that. I won’t talk to clause 28, which is a relatively standard clause, but clause 29 actually bears some elucidation, because it refers to the Evidence Act and section 128. Section 128 is the section in the Evidence Act which talks about judges being able to assume evidence which is incontrovertible. This is clearly alluding, here, to what is gang insignia. Now, this is a slippery slope because whilst there may be some things which are gang insignia and, basically, the rule is everybody knows it—you don’t have to go out and get proof of it—that is certainly not the case in respect of all gang insignia. And what we don’t want to see is this creep towards police turning up and saying, “Look, here’s the Road Knights patch. Everybody knows it’s the Road Knights patch.” and kind of giving evidence from the position of a lawyer, and the judge going, “Oh, I guess everybody does.”
Judicial notice, which is the old-fashioned term for this kind of evidence, should be very carefully constrained. It should be so abundantly clear. Everybody knows Thorndon Quay is in Wellington—that kind of abundantly clear, not “This insignia, this patch, is associated with this named group.” That’s not usually what judicial notice would be used for at all. Now, that’s awkward for the police—I get it—because what that requires them to do is call evidence as to whether this insignia is associated with this named gang, but that’s what they should be doing. They should be proving their case and, once again, not using lazy procedure to kind of slip in that this is a gang patch and it’s the Road Knights or it’s the Outcasts or whomever it might be. I certainly don’t know what those particular gang patches are—and if I don’t know, it certainly isn’t widely known, I’m sure! But that’s the point—that we’ve got to be cautious because this is about human rights, this is about preventing freedom of expression using symbols and emblems. So we’ve got to be very cautious.
So I would like to hear from the Minister exactly what his view is—I think that’s how I say it, even though it’s a different Minister in the chair, Louise Upston—in respect of the use of judicial notice in respect of gang insignia.
CHAIRPERSON (Barbara Kuriger): Just before I take the next call, could I just ask those people that are having conversations around the Chamber—it’s difficult for the Hansard people to pick up the conversations because there’s quite a lot of conversation going on around them.
HANA-RAWHITI MAIPI-CLARKE (Te Pāti Māori—Hauraki-Waikato): I just want to pick up from the last questions that I had asked previously around Schedule 2 and the list of 41 different identified gangs. I’m really, really interested in seeking clarity from the Minister: who identifies these gangs? What do you deem as a gang and how is the process of these gangs being identified? I would strongly argue that some of these groups or gangs are not gangs, and I would strongly argue that a lot of gangs are actually missing on this list.
Some of these groups are, I would say, wearing a gang patch and driving a motorcycle, but they would not do the typical gang behaviour that you would see. So I really want to seek clarity from the Minister: what is the process of getting this list? This list—some of these gang groups should not be on here and some gang groups should be on here. So it goes back to the pātai that I asked previously, and I just want to quote before I finish. The pātai that I asked previously is around the kupu “suspect” and the kupu around stereotyping and the process in getting these gangs on to this list and how you identify them, because it goes back to the kupu in clause 9(1), I quote, “A constable may issue a dispersal notice to a person if the constable has reasonable grounds (a) to suspect that the person (i) is a gang member;”. So I just want to seek clarity from the Minister for that gang list. Thank you.
Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. To be consistent with what the previous members have shared, I will also confine my contribution to clause 29. I think, in this case, with clause 29, with the application of the Evidence Act, I want to seek clarification from the Minister in terms of if he had any consultation—because it’s not in the regulatory impact statement—with the District Courts in terms of the application of this particular part.
Now, the reason I mention in terms of the consultation here is with the application of section 128 of the Evidence Act around the notice of uncontroverted facts, it also puts the District Courts in an awkward situation where they are making a call that is potentially contrary to their own independence, to their own plan, particularly around their current strategy of Te Ao Mārama.
With this particular part, one of the things about what the District Court is trying to do and the dilemma that the District Court might be facing in this case is how are they able to implement, number one, their level of independence but also implement their long-term plan and strategy, Te Ao Mārama, in light of this particular legislation that’s being put through.
So I just wanted to check if that work has been done with the District Court, because the District Court’s strategic plan is very specific, mai i te pō ki te ao mārama [from the night to the enlightened world]. They’re supposed to rehabilitate and redeem people in this, and whether this particular section, in the greater context of the need to make District Court judges make certain decisions on everything we’ve discussed in the previous section actually achieves that. Thank you.
Hon LOUISE UPSTON (Minister for Social Development and Employment): Thank you, Madam Chair. I just want to address the member prior Hana-Rawhiti Maipi-Clarke’s question around the list of gangs in Schedule 2. So there are criteria that are already specified. When this matter was before the Justice Committee, the police did update the list of gangs by adding four, separating two, and removing several, and that list can be amended for Schedule 2 by Order in Council.
Dr TRACEY McLELLAN (Labour): Thank you, Madam Chair. Again, going through in a systematic way so that we don’t miss any clauses: clause 30, as the Minister’s just alluded to, provides the opportunity, on the recommendation of the Minister of Police, to add to or to take away from that list of gangs that appears in Schedule 2. I think we just need a little bit more clarity on how that happens, because, when we look at Schedule 2, we can see, as the Minister’s just pointed out, that some gangs have been removed, some gangs appear to have had their names slightly updated, and some gangs we can only assume have been added. But because it’s on the recommendation of the Minister of Police—and you alluded to the fact that there was some criteria, but I’m not entirely sure that that’s not as ad hoc as we would not hope it to be.
It says under clause 30(1) that the Governor-General, on the advice of the Minister, can “(a) add the name of an organisation, association, or group of persons identified as a gang for the purposes of this Act to the schedule:” or “(b) remove the name of an organisation, association, or group of persons identified as a gang for the purposes of this Act from the schedule.” I’m wondering, firstly, if the Minister can give us a few more details about what that specific or specified sort of criteria that she alluded to was, and how robust that was, or at least walk us through that process so that we can determine. We’ve certainly heard stories, whether it be anecdotal, whether it be evidence through select committee, various fora, about the difficulty in identifying what is a gang, whether the gang is still relevant in the New Zealand context.
We know that with any kind of activity that involves human beings, let alone human beings that have a lot at stake in so far as their organised crime activities or whatever involvement they have with each other, it’s a particularly fluid environment out there and it becomes a little bit of an arms race. So one can only imagine that as soon as some specified and specific criteria that you alluded to—not you, Madam Chair—is defined, there needs to be a much more robust process behind the service to make sure that that is up to date, that we can trust it, and that the Minister of Police is making those recommendations, particularly to add to that list, in a well-formed and meaningful way that doesn’t overstep those marks. So that’s my first question, and I will allude to the second one, but I would like an answer to that one.
Just in so far as giving the Minister a bit of time, clause 30(2), “The Minister of Police may not make a recommendation under subsection 1(a) unless satisfied on reasonable grounds that the organisation, association, or group … (a) has a common name or common identifying signs, symbols, or representations;”—that’s just that (a), and that kind of brings us full circle round to what is the theme of several things we’ve heard tonight with regard to how we decide that. How do we know that it’s real? And, more importantly, given the nature of this piece of legislation and the impact that it has on people, which is significant, how do we know that the people involved know that these are the criteria under which they’re being judged?
We heard earlier tonight about prospects, for instance, not even knowing that they’re in the process of being a prospect. And yet you can imagine several scenarios where young people in particular could be associating with a group of people who are in the process of being repatched or in the process of doing something different. How do they know if this new formation is going to constitute a gang, and, therefore, end up on Schedule 2, and then end up being subject to all of the measures that are in this piece of legislation? I’ve got a couple more questions just relating to Part 2, but I’ll leave that for now.
Hon LOUISE UPSTON (Minister for Social Development and Employment): Thank you, Madam Chair. The member Dr Tracey McLellan asks questions about clause 30. She goes on to ask about the criteria, which is clearly stated in the bill—she started reading from it. I’m not going to waste the committee’s time by repeating things that are done and have been traversed in the Justice Committee or written in the bill.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. I’d like to talk about clause 37. That is the clause that just slips in—actually, I won’t talk about clause 37, because that’s in the wrong part; that’s in Part 5, and I will stick to the part.
What I do want to talk about is clause 30—and it’s a very narrow point—and the reviewing of the gang list. What it, essentially, says in clause 30 is that the Minister of Police can put gangs on or off the list and has the discretion to do so. My argument is this: that if an organisation—and this is a tabled amendment before the committee—doesn’t absolutely meet all of the criteria of being a gang, then surely the Minister must take the gang off the list. It’s not discretionary, because, again, this is a significant incursion. The threshold must be high—again, quite arguably, should be beyond reasonable doubt—that they are, in fact, a criminal organisation. But, at the very least, if the Minister is satisfied that the appropriate threshold isn’t reached, then the Minister must remove the gang name from the gang list. To do otherwise would be to infringe on the rights of a group of people who are not gang members, because it is not a gang—the Minister has actually satisfied him or herself that it’s not a gang, but has just thought, you know, “We won’t”—and, in fact, it’s deeply problematic that it’s a five-year review and not a continual review.
So I’d like the Minister to explain: is it the case—I guess there’s a public law argument that “may” means “must” in that kind of circumstance. But I would actually like the Minister’s assurance that if the Minister of Police reviews the list, receives the evidence, is satisfied appropriately that it’s no longer a gang—and it happened; we just went through this process in select committee—that the Minister is obliged to and will remove that gang from the gang list.
FRANCISCO HERNANDEZ (Green): Thank you, Madam Chair. I do have a question that was kind of spurred on by reading the list in Schedule 2 of the identified gangs. While my question might seem kind of absurd on the face of it, I do ask the Minister and the committee to bear with me. This question came to me when I was reading through it. It says one of the gangs that were struck off was—and please forgive my pronunciation; I’m not Irish—Sinn Fein: “Sinn Fein … (not being a branch, or an associated organisation, of the political party known by a similar name)”.
Now, my question is—and this might seem like an absurd question, but we do know that some gangs do have a history of appropriating the imagery of political parties or political movements; for example, the Mongrel Mob does use Nazi imagery—what would happen if, for example, a gang were to appropriate the image of a political party? Now, I don’t want to give offence to any members in the House, so I’ll construct a hypothetical political party. For example, let’s say there was a party called the “Golden Party” with the symbol of the sun. I think this question relates to clause 29, where a judge may apply section 128 of the Evidence Act in deciding whether a sign, symbol, or presentation is gang insignia for the purpose of the Act.
Let’s look at what section 128 of the Evidence Act actually is—and I’m quoting from this. It says, “(1) A Judge or jury may take notice of facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned. (2) A Judge may take notice of facts capable of accurate and ready determination by reference to sources whose accuracy cannot reasonably be questioned and, if the proceedings involve a jury, may direct the jury in relation to this matter.”
I’ve read through that and I’m still none the wiser as to what would actually happen if a gang were to steal the clothes of a political party, so to speak. Would that political party’s insignia be banned? And, in some cases, a gang might—there are some circumstances where a gang might transform into a political movement. We’ve seen, for example—I don’t want to name people, so I’m not going to name political figures in New Zealand; but it could potentially happen. What would happen in that case, where a gang was either trying to appropriate a legitimate political party and a political party was against the gang doing that but it became claimed as gang insignia? Would that political party insignia be banned?
Then the other kind of side of the question is if a gang transitioned to being a political party or a political movement or some sort of kind of civil society—you know, there is a little clause here that, in clause 30(2)(a): “Nothing in subsection (2)(c) applies to conduct that consists primarily of civil disobedience for the purpose of political activism.” But sometimes there are kind of grey lines about different sides of a political movement and different kind of wings or factions of it. So I’m really curious about the answers to these questions. Thank you.
CHAIRPERSON (Barbara Kuriger): I’m going to take a call from Lawrence Xu-Nan. I think we’ve had some really relevant questions about the list of how these decisions are made. I don’t think we can expect a Minister in the House to answer questions about specific groups of people, as such. So can you just identify the clause in there—I’m not assuming that this is what your question is about, but please identify which clause you’re going to speak on and why.
Dr LAWRENCE XU-NAN (Green): Of course. Thank you, Madam Chair. My questions of clarification for the Minister are still centred around clause 30. I think, by and large, we haven’t moved on from 30—at least I’m assuming that’s one of the reasons why people are waiting for us to move on from that. So, in terms of clause 30, I have a couple of questions of clarification.
The first one is subclause (1) in terms of the fact it’s made on the recommendations of the Minister of Police, as opposed to other Ministers. I’m just curious to know whether the police, in this case, are the ones with the most readily available information and evidence that would suggest any sort of new recommendations in the power that is granted, in terms of adding or removing any name of an organisation—as opposed to, let’s say, previously in clause 28, maybe the courts will see a lot of this evidence. I’m kind of curious to know how information is transferred from one to the other, because often police also don’t deal with sentencing. Please correct me if I’m wrong. One of the recommendations is that “the Minister of Police may not make a recommendation … unless”—this is subclause (2)(c)—when the “members or associates … individually or collectively … within the last five years, engaged in conduct that amounts to—(i) a category 3 offence”, etc. So would this be under the jurisdiction of the Minister of Police or of the Minister of Justice? That will be a good clarification for my first question.
The second question, which other people have contributed on, is in terms of the specificity of the list of names under Schedule 2, but I wanted to check whether all of those names that do exist under Schedule 2 have also fulfilled the requirement of subclause (2)(c)—if the Minister is able to highlight that. If new names that are added or removed from the list are required to fulfil those requirements from subclause (2)(a) to (c), I’m assuming the current numbers on that list already fulfil those requirements. So that’s the second point of clarification from the Minister.
The third point of clarification is around subclause (3A) and also (3B). It says, “The Minister of Police must review … (a) before making a recommendation”. Now, can I get a clarification from the Minister that what that means is, before the Minister of Police is able to make a recommendation of adding or removing, they need to review every name on that list? If you’re going to be adding or removing names anyway, presumably that is a review. So I’m curious to know why (3A) came about.
The last one is around (3A)(b) and (3B), where both of them say “within five years must review” and also “The Minister … must review the list of identified gangs in Schedule 2 at least once every 5 years”. Again, we’re seeing this duplication where surely subclause (3A)(b) is redundant, because it is already implied that something will be reviewed under (3B). So I just want to check why there is a duplication in terms of that particular clause as well. Those are the four points of clarification, if the Minister wouldn’t mind clarifying. Thank you.
TANGI UTIKERE (Labour—Palmerston North): Kia orana. Meitaki maata, Madam Chair. Thank you. It’s a pleasure to take what is my first call on this bill, the Gangs Legislation Amendment Bill. I would like to ask the Minister a question that relates to clause 28. It’s a very discrete clause. I don’t think it has perhaps been touched on yet, so I’ll make sure that I do that. It relates to the filing of a charging document for an offence. This is the situation where there is an alleged offence against this Act and there needs to be a mechanism by which this kickstarts a charge, by way of the charging document.
The clause itself indicates that only a constable may file a charging document. The interesting situation there is that the constable is defined in the legislation. One has to turn to the Policing Act, and it basically indicates that a constable is “a Police employee who—(a) holds the office of constable (whether appointed as a constable under the Police Act 1958 or this Act) and; (b) includes a constable who holds any level of position within the New Zealand Police”. There are situations where there are individuals who are authorised to undertake constabulary duties but they do not fall within the definition contained in the Policing Act. A good example might be someone like an authorised officer. Often you see these in cellblocks and police stations. They may be in a position where they may actually be able to perhaps file a charging document.
So my question is whether that is consistent with other pieces of legislation, be it a strict definition of a constable, or whether there are other pieces of legislation where the responsibility for filing a charging document, which is an absolute necessity in terms of triggering what will come under this Act, does actually sit with other individuals who might be Police employees. If we’re thinking about potential circumstances where some situations or contexts may actually be appropriate for someone who is a Police employee—and the definitions that are contained in the Policing Act are also quite clear and specific in that space. So my question is whether there are other pieces of legislation that this aligns with to incorporate other individuals, or whether the Minister believes that, actually, only a constable would be an apt definition for the purposes of effectively filing the charging document.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. Perhaps I was not sufficiently articulate before, because I asked what I thought was quite an important question, and the Minister simply has not responded to it, and that is about the classification of gangs. Clause 30 sets out the power and the Governor-General makes an Order in Council on the recommendation of the Minister of Police. Now, once you’re categorised as a gang, significant constraints on your freedoms exist and significant powers are given to the police in respect of you and, indeed, under the Sentencing Act, which we’ll get to. Now, my question was: is the Minister obliged to make a recommendation to take off someone from the gang list when they do not meet the grounds set out in subclause (2)?
Let’s face it: these gangs are not going to go to the Minister of Police and say, “Excuse me, would you mind taking us off the gangs list? We’re no longer a criminal organisation.” It might have been organised crime, but they’re not organised in many other respects. It’s actually really important because if the Minister runs the ruler, as he or she must every five years, and says, “These organisations or these groupings either no longer exist or no longer meet the criteria.”, then it’s really important that they’re taken off this list. So my question’s really simple: if the Minister of Police finds that an organisation on the list no longer satisfies the criteria, will this legislation require the Minister of Police to make a recommendation that they get taken off to the Governor-General, which will trigger the appropriate Order in Council?
Hon LOUISE UPSTON (Minister for Social Development and Employment): This was considered, but, actually, decided it wasn’t necessary. The police will undertake a practice that they will go about the criteria listed in the bill. So it’s not necessary for the process that you are speaking about to be included in the legislation.
CHAIRPERSON (Barbara Kuriger): I’ll take a call but I’m looking for very new information. I think we’ve exhausted the list of questions now. If we could relate to other clauses, it would be very helpful. Thank you.
HELEN WHITE (Labour—Mt Albert): My question relates to clause 30, and it’s a question that’s quite substantive. If the Minister looks at subclause (2)(c), we’ve got a clause there that says that people are in trouble if members of the association have been involved in offences, even individually. I wanted the Minister to tell me what that means if an organisation’s innocuous but members within it have acted and have been criminally culpable individually because they haven’t acted as a collective—it’s not the gang, it’s not the association with a gang that has created those offences.
I can actually think of examples where that would be quite often the case—people who would join a church, they might be rehabilitating, so they would be in an organisation with symbols, etc., but their behaviour would not necessarily be linked. In fact, their rehabilitation might be linked to the organisation that they’re part of. I wanted to know what would happen in that situation if the individuals have actually been involved in criminal acts of this kind but not as a collective. Is that the intention of the bill that it would catch people in that situation and that the organisations they were involved with could actually be considered gangs?
CAMERON BREWER (National—Upper Harbour): I move, That debate on this question now close.
A party vote was called for on the question, That debate on this question now close.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Motion agreed to.
CHAIRPERSON (Barbara Kuriger): The question is that the Minister’s amendments to Part 4 set out on Amendment Papers 64 and 51 be agreed to.
A party vote was called for on the question, That the amendments be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Amendments agreed to.
CHAIRPERSON (Barbara Kuriger): The question is that the Hon Dr Duncan Webb’s tabled amendment to clause 27 be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
CHAIRPERSON (Barbara Kuriger): The question is that the Hon Dr Duncan Webb’s tabled amendment to insert clause 30(3C) be agreed to.
A party vote was called for on the question, That the amendment be agreed to.
Ayes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Noes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Amendment not agreed to.
A party vote was called for on the question, That Part 4 as amended be agreed to.
Ayes 68
New Zealand National 49; ACT New Zealand 11; New Zealand First 8.
Noes 55
New Zealand Labour 34; Green Party of Aotearoa New Zealand 14; Te Pāti Māori 6; Tana.
Part 4 as amended agreed to.
Part 5 Amendments to Sentencing Act 2002
CHAIRPERSON (Barbara Kuriger): Members, we now come to Part 5, and this is the debate on clauses 36 to 38, “Amendments to Sentencing Act 2002”, and Schedule 4. The question is that Part 5 stand part.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. I’d like to talk first to the Sentencing Act amendment, and this is actually quite a surprising amendment, because there’s a pretty basic concept with sentencing that the conduct and the aggravating factors have to bear a rational relationship with a sentence.
You’ll see that section 9 of the Sentencing Act, which is being amended, is the list of aggravating factors. So it becomes an aggravating factor that at the time of the offending, the participant was “in an organised criminal group”—a gang—and that’s it. It’s important to note what’s being replaced. What’s being replaced is that they were involved “in an organised criminal group” and that it had a connection with the offending. Now, that makes perfect sense, because if you’re in a gang and the gang goes and does a robbery, that is aggravated, and absolutely you should have a more serious offence because you’ve been part of an organised criminal group doing organised crime—that’s what the law is at the moment.
Now—and if I’ve got this wrong, Minister, I hope you’ll correct me—if you’re a gang member and you drive carelessly and crash your car, the judge has to give you a harsher sentence because you’re a gang member, because that’s an offence, right? Careless use is an offence—no rational causal relationship between gang membership and the aggravating factor. Now, my amendment marked “l”—I still don’t like it, but I think that it would be an improvement if my amendment marked “l” was adopted, which, essentially, says let’s at least get rid of the minor offending. Let’s at least get rid of disorderly conduct, or whatever that minor offending might be, because if we’re interested in serious offending—let’s say it’s an aggravating offence. If you’re a gang member and you’ve been convicted of a serious offence as defined in this piece of legislation—because we’ve set out what serious offending is—it triggers a whole lot of stuff.
If we’re going to say, “OK, if you’re a gang member, it’s aggravating when you do serious offending because gang members do serious stuff.”, that would make a lot more sense, because just remember what we’ve got at the moment. There is no rational connection—there doesn’t have to be a connection, by definition—and this is the wider point about this legislation. It’s the criminalisation, not of the conduct of gangs but of being in a gang. It’s making it criminal to be in a gang, and that’s problematic. What my amendment “l” would do would be to say, “Well, look, at least restrict this to serious offending.”, and not to driving offences and not to regulatory offences, health and safety Act offences—who knows? There are all kinds of offences under other Acts which gang members might be liable to be sentenced for, and where there are two identical people but one is a patched member, the patched member gets a harsher sentence, not because of their intent, not because of their conduct, not because the crime is gang-related, but simply because of the patch that they’re wearing on their back.
Now, no one likes gang members in this party, but we don’t want to distinguish between gang members and non - gang members on irrational, unfair, unjustifiable, and unconstitutional grounds. So that’s what this does. That’s what my amendment goes some way to fix, and I’d like the Minister’s response to that.
HŪHANA LYNDON (Green): Kia ora, Madam Chair. Following on, once again, from my colleague in Labour, who’s talking about the things that I want to share as well. It is true that if being a member of a gang is an aggravating factor when you get a parking ticket, well, that’s going to be an issue for many of our people, because, ultimately, don’t we have the right to freedom of association? Don’t we have a right to mix and mingle with our whānau according to our own tikanga? Freedom of expression as well, and it might be in wearing a gang logo or insignia.
What I do want to ask the Minister is: in terms of the judiciary, there’s already existing legislation in relation to aggravating factors to do with gang members, so why is the Government overriding the judiciary, in this case? So that’s one question.
I’m also wondering: is there any evidence base to what we’re doing, this legislation itself? And that by making gang membership an aggravating factor in sentencing, will this actually help our people to exit gangs? Is this something that correlates to helping gang members out of the gang system?
Further, I’m really keen to understand what the Minister may have researched or thought about a cost-benefit analysis, in terms of maybe the increase of imprisonments and how much this is going to cost the New Zealand taxpayer? As a result of this bill, we could see quite a few more Māori in prison—fill up that mega-prison at Waikeria.
So those are some key questions around imprisonment; cost-benefit analysis—how much is this going to cost the taxpayer? Also, in terms of existing legislation on aggravating factors and why we are adding this provision within this legislation when it already exists. But also is this pathway—and what are we doing? Is this actually a part of the Government’s plan to help our people out of gangs?
I want to also think about the cycle of criminalisation of our people, and going back again, because we do have to keep returning, to the release of the royal commission of inquiry into State care and abuse a couple of weeks ago.
CHAIRPERSON (Barbara Kuriger): The member makes good points, but not so relevant to this clause. I’ve heard a couple of times about “aggravating” and “mitigating” factors. Could we keep to the point of the clause, instead of a broader debate. Thank you.
HŪHANA LYNDON: What I’m wanting to ask the Minister, in thinking about that factor that influences gang membership, is: why are they looking to incarcerate these communities who have a right to freedom of expression and right to freedom of assembly, when they’re just gathering in a public place?
Further, are there any new ideas to reduce harm in our communities that don’t involve locking up Māori? Kia ora.
Hon LOUISE UPSTON (Minister for Social Development and Employment): Thank you, Madam Chair. This part is very short, and it relates to the Sentencing Act. So just in terms of Dr Webb’s proposed amendment, it doesn’t align with the purpose of the Sentencing Act amendment, which is, of course, to give greater weight to gang membership at sentencing.
Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you, Madam Chair. I do have another point, and it’s actually quite important. It’s tucked away in Schedule 4, section 17 in new Part 5 inserted in Schedule 1AA of the Sentencing Act 2002. It’s interesting because it’s there in the depths of the last dying words of this piece of legislation, and it’s actually about when the sentencing rules apply from. And we know there’s a pretty fundamental principle that it is in the New Zealand Bill of Rights Act, and I can’t give you the clause, that you are entitled to the sentence—to the benefit at the time of your offending. So if the sentence goes up after you’ve offended, you’re entitled to the benefit of the sentence at the time you committed the offending.
Then, clause 17 says this: “To avoid doubt, section 9(1)(hb) of this Act”—the one we’ve just been talking about—“(as replaced by the Amendment Act) applies only to proceedings commenced on or after the commencement date.” Now, that’s not right, because it should say “offences committed”, not “proceedings commenced”, because an offence could be committed a year ago under the old regime. So this is deeply retrospective because the offender will now be sentenced under a sentencing regime that was not in place at the time they committed the offence.
Now, that is dealt with by my amendment marked “p”, which suggests we delete the words “proceedings commenced” and replace those words with “offences committed”. That is actually a deeply problematic and retrospective penal provision. If we’ve got an offender, a serious offence, and the judge is like, “I’ve got to impose an aggravating factor”, and they’ve got a very clear mandate, or a very clear direction, here, that it’s at the time the proceedings were commenced rather than the offence was committed—that’s problematic. And I can see that there’s a bit of busyness over in the corner of officials there, so I hope I’m going to get an answer. I’m imagining the answer’s going to be, “Well spotted. Thanks for that. We’ll be voting for that.”
Dr LAWRENCE XU-NAN (Green): Thank you, Madam Chair. I want to pick up on the fact—so, first of all, going off what the Hon Dr Duncan Webb mentioned before, I think this is particularly highlighted in the Pora case at the turn of the millennia. In this case, I want to talk about the fact that Part 5 probably is one of the most significant parts because of the potential ripple effect it can have in terms of our sentencing system.
Now, the Sentencing Act works hand in hand with the Crimes Act, and when we’re looking at aggravating factors within the Sentencing Act and the fact that the original terms of imprisonment, for example, come from the Crimes Act, I want to get some clarification from the Minister or the officials on two particular sections that I think have a certain impact under this particular clause and on whether the Minister or officials have considered them.
The first one is section 66 of the Crimes Act that talks about party liability. Now, in this case, when it comes to party liability—and we’re looking particularly at section 66(1)(d), which talks about “incites, counsels, or procures any person to commit the offence.” If we are adding gang insignia or gang membership as an aggravating factor, that potentially applies to a lot of circumstances, and a person could be considered to get a higher sentence because of that. Party liability, in this case, would be treated very carefully, and it should be treated very carefully.
The second part is section 220 around theft in a special relationship. Now, understandably, when we’re looking at theft in a special relationship, most of the time it results in a fine, but sentencing has occurred. So when you’re looking at theft in a special relationship, it comes back to the fact that that particular circumstance and situation may very well have nothing to do with the person being a gang member, but by association, the sentencing must consider that as an aggravating factor. Once again, it doesn’t need to be tied in together. It actually creates a lot of concerns.
The final clarification I want to check from the Minister is how this then works with the three-strikes legislation. Now, previously we heard from the Minister that the limit is 24 months in terms of sentencing, but, in this particular case, if it’s an aggravating factor which increases the sentence, which then also increases the number of people who are gang members who will meet that 24-month threshold, we’re also further compounding the offence that they will create and further make it easier for gang members to trigger that three strike legislation. I want to check with the Minister whether that has been considered as well.
Has the Minister considered the way the Sentencing Act and aggravating factors will work with section 66 of the Crimes Act, section 220 of the Crimes Act, and whether this is going to create a higher probability of those people triggering the three-strikes legislation? Thank you.
Progress to be reported.
House resumed.
Report of Committee of the Whole House
Report of Committee of the Whole House
CHAIRPERSON (Barbara Kuriger): Madam Speaker, the committee has considered the Gangs Legislation Amendment Bill and reports progress. The committee has also considered the Resource Management (Extended Duration of Coastal Permits for Marine Farms) Amendment Bill and reports no progress. I move, That the report be adopted.
Motion agreed to.
Report adopted.
ASSISTANT SPEAKER (Maureen Pugh): Those bills are set down for further consideration in committee next sitting day. Members, the House stands adjourned until 2 p.m. tomorrow.
The House adjourned at 9.59 p.m.