What We Know About The Likely Consequences Of The New Gangs Act

Thursday, 21 November 2024, 9:12 pm
Article: RNZ

Katie Kenny, Digital Explainer Editor

New gang legislation comes into effect from today.

Based on what we know about how similar laws have worked in Australia, and measures taken in New Zealand previously, experts have some idea of how this is likely to play out.

The coalition government made clear its intention to crack down on gangs, with the introduction of the Gangs Legislation Amendment Bill as part of its 100-day plan.

Some argued the legislation was unnecessary. Others questioned its legality and enforceability. But the government said it had a mandate to press on, pointing to Western Australia and Queensland's tough anti-gang laws as effective examples. Are they?

The Gangs Act 2024

From 21 November, police will have new powers to disrupt and directly target gang activity through the Gangs Act 2024.

The legislation prohibits the display of gang insignia in public. It also allows police to order gang members in public to disperse, and to apply for a court order banning "association and communication" between specified offenders for three years.

Gang membership will also be an aggravating factor at sentencing.

A person convicted for publicly displaying gang insignia will be liable to up to six months' imprisonment or a fine up to $5000. A person breaching a dispersal notice faces the same consequences. And breaching a non-consorting order can result in up to five years' imprisonment or a fine up to $15,000.

The Act shifts the government's response to gang harms closer to that of Australia, where criminal law suppresses the public visibility of gangs, and away from jurisdictions like the United Kingdom and the United States, where criminal law responds to specific activities carried out by organised crime groups, a Treasury paper noted.

In particular, the Act draws from Western Australia's anti-bikie laws, passed in 2021. Police Minister Mark Mitchell has previously said it didn't make sense to "reinvent the wheel".

Western Australia's Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021 prohibits public display of "insignia of identified organisations". It also allows for the issue of dispersal notices to members of identified organisations, and makes consorting unlawful between certain offenders.

A much-discussed difference is that New Zealand's law doesn't ban gang tattoos.

The Law Society in a submission on the Gangs Bill said: "an unintended consequence of not criminalising tattoos may be that gangs are increasingly likely to turn to facial tattoos as a sign of membership."

Mitchell has told reporters he did not think that was likely.

Effectiveness of Australian laws

Queensland was the first to introduce tough anti-bikie laws in 2013, reformed again in 2016.

The Law Society pointed out there was limited data and analysis on Western Australia's reforms. However, despite 130 cases of recorded charges using the reformed laws (and an 80 percent conviction rate), there had been no associated drop in overall crime statistics.

"The statistics in fact show an increase in crime, including for violent and serious offending, and drugs offences [...] associated with gang activity."

Even Queensland, where anti-bikie laws have been in place for longer, has not reported a decrease "in the actual rate of crime".

Queensland University of Technology associate professor and expert in outlaw motorcycle gangs Mark Lauchs told RNZ there can be two goals when it comes to relevant legislation: "Are you trying to stop organised crime, or to get rid of clubs in the community? Because the non-display [of patches] and inability to congregate tackles the latter."

From that perspective, Queensland's anti-bikie laws have been a success, he said. Mainly because members relocated to Victoria and Canberra.

Canberra went from being a "one-club town" to "about a six-club town". "There was almost no gang violence prior to 2013. Now, there's public violence, drive-by shootings, brawls. Canberra has inherited this problem, that it's not going to address."

Of course, not all gangsters left: "A lot of blokes still ride around with their jackets inside out. But the problem, the reason for the laws, has been solved in Queensland.

"Can New Zealand replicate this success? Probably not at all. Because the gangsters can't relocate. And your clubs, they're very different."

Gang membership in New Zealand: the numbers

On the campaign trail, Prime Minister Christopher Luxon criticised the government at the time for a rapid growth in gang membership under its watch.

He quoted figures from the National Gang List. In April 2017, there were 4915 patched and prospect gang members recorded, and in April 2023, 8875. The number as at September 2024 was 9384, according to police.

It's important to note the list, maintained by the Gang Harm Insights Centre, is regarded by relevant agencies as one tool to help them understand gang-related harm, not as a reliable count of membership numbers.

"The gang environment is fluid and as such it is a dynamic list and subject to change," a spokesperson said.

Gang associates told RNZ the list counted many former members, some dead.

But Luxon's language was familiar. The Labour government also talked about reducing gang-related harm and making communities safer.

Politicians have swung left and right, "wielding stick and then carrots to deal with the issue", Waikato University professors of law and authors of People, Power, and Law: A New Zealand History, Alexander Gillespie and Claire Breen wrote in 2022.

"There has also been a plethora of legislation. As well as the continually evolving criminal law, there have been laws on everything from fortified houses and the recovery of criminal proceeds, through to the prohibition of gang patches in public spaces."

However, they pointed out that "none has stemmed the tide".

New Zealand's 'unique' gang culture

A 2023 report from the Prime Minister's Chief Science Advisor on reducing gang harm noted the country's gang population was unique, "with some gangs adopting sophisticated business structures while some of our oldest gang communities are made up of actual whānau with shared whakapapa connections".

Colonisation, marginalisation, and assimilation were viewed as drivers of Māori gang membership, along with abuse and neglect in state and faith-based care.

A professor of criminology at Melbourne University, Juan Tauri (Ngāti Porou), told RNZ the new legislation did not appear to be based on evidence, but ideology.

New Zealand's gang culture, and reasons for membership, were different from those in Australia, he said.

Australia's motorcycle gang culture was an American export. Meanwhile, the evolution of New Zealand gangs "involved mainly dislocation of Māori and Pacific people" and was intergenerational.

"Banning patches [in New Zealand] isn't going to dissipate the reasons people join gangs."

Gangs will develop other ways of signalling membership, he said. He feared this could lead to police "using broader powers to pretty much harass Māori or Pacific people".

"Will police start arresting Māori boys wearing blue or red? As a critical indigenous scholar, I'm worried that without patches, officers will use other criteria to identify gang members.

"We've seen this happen in Queensland, where officers [...] were stopping Māori and Pacific boys with [cultural] tattoos.

"You're going to get a lot of non-gang members and whānau caught up in this."

There have been ongoing questions about the legislations' human rights implications. The Human Rights Commission in April highlighted it was "problematic for human rights".

Police Association president Chris Cahill has said he anticipated gangs would fight the changes in court.

Tauri agreed: "Gangs will challenge this, very soon."

A timeline of promises and policies

It's generally accepted New Zealand gangs as we know them today emerged in the 1950s. The Mongrel Mob and a local chapter of the Hells Angels were putting down roots by the early 1960s.

In 1972, Labour leader Norman Kirk, who became prime minister later that year, campaigned on taking the bikes off bikies.

In 1987, a year after Mongrel Mob members raped a young woman at Ambury Park in Māngere, amendments to the Crimes Act allowed for greater powers of surveillance, such as electronic bugging.

This marked the beginning of National and Labour battling to position themselves "as the party taking the toughest line on gangs", wrote Canterbury University senior lecturer Jarrod Gilbert, in Patched: The History of Gangs in New Zealand.

The Prime Minister's Chief Science Advisor report said laws targeting gangs implemented during the 1980s and 1990s "proved to be largely ineffective".

However, the Proceeds of Crimes Act in 1991 proved "highly effective for curbing gangs despite not being developed with gangs in mind". (The Act was repealed and replaced by the Criminal Proceeds (Recovery) Act 2009, allowing the seizure of criminal gains even if there had not been a conviction.)

The authors noted "you can't just arrest your way out of the problem", and the World Health Organisation has recommended a public health response to the issues of violence and offending.

Gang membership increased from the 1980s to late-1990s, before a decline until about 2010, according to a 2022 Parliament Library research paper.

Fast-forward to 2009, when the Whanganui District Council passed a bylaw prohibiting gang insignia in public places. A year later, the Hells Angels gang sought a judicial review of the ban, which the High Court upheld, ruling the bylaw invalid. Justice Denis Clifford found the bylaw had not properly specified in which public places the legislation applied.

In 2013, Parliament passed the Act banning gang insignia on government premises.

In 2023, Parliament passed legislation giving police further powers to disrupt criminal - and gang-related - activity by amending four acts: Crime, Land Transport, Search and Surveillance, and Anti-Money Laundering and Countering Financing of Terrorism.

Harry Tam, a lifetime Mongrel Mob member and co-director of H2R research and consulting, in a journal article published in July argued: "We contend that the proposed [Gang Legislation Amendment Bill] will do nothing to reduce gang membership as it does not address the causes of gang membership."

Instead, "there is significant potential for unintended consequences" such as: "gangs coming up with different forms of identification that will make it more difficult for law enforcement to pick up, the potential for an increased propensity for facial tattoos which arguably are more intimidating than patches, the potential to drive gangs underground, and the perpetuation of alienation into future generations".

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