On The Flaws In Anti-gang Laws

Google “Christopher Luxon“ and “mojo” and you get nearly 60,000 matching responses. Over the past 18 months – here and here and again, here – Luxon has claimed that New Zealanders have either lost their mojo and/or are in the process of re-finding it. With mojo in hand, New Zealanders will once more become a nation of over-achievers, blessed with the feisty Kiwi can-do spirit of yore.

But here’s the thing. According to Luxon, we’re naturally bold, inventive and self-reliant. Yet according to him, we’re also “wet, whiny and inward-looking”. In fact, we’re so fearful and so easily intimidated by the sight of a gang patch, or by seeing a group of big Maori bikers riding down the road… That we tend to be reduced to a state of gibbering helplessness, such that the state must intervene to protect us from these horrors.

Here’s another paradox. The coalition government is a staunch defender of us being able to say what we like, but is happy to decree what we can wear. In the past, ACT Party leader David Seymour has defended free speech, and (specifically) the right to be “insulting” “abusive” and “offensive.” Seymour’s message to those verbally affronted or abused? Suck it up. But clothing that offends? The onus will be on the wearers to disrobe and disperse,or face criminal penalties.

Basically, Seymour and his colleagues are supporting the state’s right to dictate what people can wear in public – or even (presumably) on their own private property, if a gang patch should be visible to a member of the public who happens to be passing by on the street. The fact that the “display” of gang insignia in this Western Australia case occurred on private property – and consisted of tattoos with which the accused had freely chosen to decorate his own body –proved to be no defence:

Three Perth-based outlaw motorcycle gang members have received landmark convictions under strict new gang laws after being caught showing their club tattoos while shirtless at a pool party... Defence lawyers argued as the pool at the Rendezvous Hotel is not public, no laws were broken. Though that was to little avail, with the magistrate rejecting the argument.

This judgement isn’t an aberration. As lawyers in Western Australia have advised their clients:

It does not matter whether the person who is displaying the insignia is in public or private, the law merely requires that the insignia would be able to be viewed by a person in a public place. For example a person who is lying by a pool on a sundeck at a beachfront home and a tattoo containing insignia on their shoulder would be visible to persons driving or walking past along the footpath or roadway, the person would be committing the offence, regardless of the fact that they are on private property.

Thankfully, our government has already changed its tune on the issue of tattoos. After initially claiming that gang members would be required to use cosmetics to cover up their tattoos, Justice Minister Mark Mitchell has recently conceded that since tattoos are of cultural significance to Maori, tattoos will not be banned under the legislation he has in train.

The wider problem remains. How the draft legislation will define, and how the Police will enforce, the boundary line – if any – between the wearing of a gang jacket on private property as opposed to in a public space remains to be seen. Clearly though, the banning of gang patches and the limiting of the right of gang members to associate with one another is going to be more complicated than the initial “tough on gangs” campaign soundbytes might have suggested.

For starters: Judging by the Australian precedents that our government keeps claiming to be their model, the legislation will have to specifically name all of the gangs whose insignia will be deemed taboo to display in public and/or be visible on private property. Some of the taboo insignia may or may not include the jackets commonly worn by middle-aged male (and usually white) motorcyclists who regularly ride around the country together in ‘no-girls-allowed’ groups.

That’s only the beginning. Banning gang insignia is the window dressing for the core of the legislation, which is its “anti-consorting” dimension. To stand up in court, the legislation will have to spell out the conditions under which it will remain legal for gang members to be in social contact with one other in situations where no criminal intent is evident, or present. In the state of Victoria, the laws on ‘consorting’ go into some detail on this subject. Presumably, similar exemptions will have to be stipulated in the draft legislation here as well.

For example: In Victoria, the equivalent state law is the Criminal Organisation Control Act of 2012. It provides exemptions from criminal liability if (a) the consorting individuals are family members, (b) if the alleged consorting does not exceed three or more occasions in a three month period, or six or more occasions in a 12 month period and (c) if the individuals are not associating for “an ulterior purpose” but for purposes set out in this comprehensive list:

1. the lawful employment or the lawful operation of a business;
2. in the course of participating in education or vocational training;
3. while either or both of them are being provided a health service;
4. while either or both of them are being provided legal advice;
5. while in lawful custody or in the course of complying with an order, requirement or direction
6. for genuine political purposes, or in lawful protest or industrial action;
7. in accordance with a lawful association authority granted to the individual;
8. at a gazetted event or gathering.

It would seem that these exemptions can be over-ridden if the Police happen to decide that an “ulterior motive” was in play. But alas, the Victoria legislation doesn’t define what an ulterior motive might be, or what evidence (if any) the Police need to possess in order to declare its existence.

That’s a real problem. Do we really want to give the Police the absolute, evidence-free power to decide for themselves whether a meeting may (theoretically) have a criminal outcome, and that they can therefore pre-emptively disperse it? Granting the Police such extraordinary powers would put ordinary political protest meetings at serious risk.

As yet it is unclear whether Mark Mitchell has taken on board that “cracking down on gangs” creates a conflict between the collective power of the state and the rights of all New Zealanders to peacefully congregate, and travel. All we know for sure at present is that the Luxon government is intent on outlawing gang insignia. It also wants to restrict the right of gang members to be in contact with one another – even, to repeat, before there is any evidence that criminal activity has occurred, or is likely to occur as a result of that contact.

In these cases of “consorting” with fellow gang members, it is likely that the onus of proof will be reversed and will be placed on the accused – to prove (somehow) that their association was innocent. That can be extremely difficult. In this case in Western Australia, a gang member was fined $A1500 for wearing his Mongols jacket while picking up his mother’s dry-cleaning. Under the anti-consorting laws, the same biker was fined $A1200 for eating lunch with a fellow gang member.

As mentioned, Western Australia’s anti-gang laws are the professed model for what our government aims to do here. As one Australian legal firm has said:

The objects of the Act state that the law is predicated on the novel and paranoiac idea that merely glimpsing Outlaw Motorcycle Gang [OMCG]insignia or witnessing two or more OMCG members otherwise lawfully and peacefully congregating in public, is....enough to reduce a public onlooker to a trembling state of fear and apprehension.

Ironically, while the objects of the legislation include disrupting criminal activity, criminal activity is not in fact an element of any of the new offences created. While the law was only enacted relatively recently, it does not appear to have achieved any significant result in terms of disrupting the capacity of OMCG to operate, or in reducing OMCG membership.

Arguably, collective security has to be genuinely at risk in any situation where the state chooses to flex its power pre-emptively. There needs to be an evidential test of criminal intent. Yet this doesn’t appear to be the case with the gang insignia/anti-consorting measures being ushered into existence here. We all stand to lose if the public’s feelings of “fear and intimidation” become the excuse for an extension of Police power with respect to a minority group – and especially when most of the gang members to be targeted (e.g. in the Mongrel Mob and Black Power) are Maori.

As Benjamin Franklin wrote in a letter to the Pennsylvania state legislature 250 years ago:

“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty or safety.”

Way Out West

The anti-gang laws in Western Australia (WA) are draconian. The maximum penalty for displaying a gang insignia or gang tattoo in public or in private is 12 months in jail, or a fine of $A12,000. However, the sentencing judges in WA retain the power to waive conviction if satisfied that the person before the court is of prior good character, is unlikely to re-offend, and in circumstances where conviction would have a disproportionate effect. In New Zealand, the access of the sentencing judge to such information – and thus, their latitude in sentencing - has been significantly reduced by the recent scrapping of section 27 cultural reports.

A “dispersal notice” is the first step in the WA legislation and these can be issued by a Police officer if the person is 18 or over, if the officer has reason to suspect they belong to a named organisation and if the person is “consorting” in a public place with another member of the same organisation. That dispersal notice must contain the name and address of the person, and must name each person with whom they cannot legally consort.

Issuing a “consorting notice” is when things get serious:

The real teeth in the legislation is the power of Police to issue a Consorting Notice. In short, it is a crime for a person who has been served with a Consorting Notice to consort with any other named person(s) on 2 or more separate occasions. A Consorting Notice remains in effect for at least 3 years. Consorting Notices apply to contact and communication, direct or indirect, in public and in private and both within WA, outside WA, and even outside Australia. A Consorting Notice can be served either orally or in writing. If served orally, a written record of the Notice must be served in writing within 72 hours, otherwise the Notice will lapse.

You get the picture. Prior and subsequent linkages between the named and formally advised list of people forbidden to consort have to be established and stated on the Notice, and the subsequent prohibited ‘consorting” has to occur on more than one occasion. It isn’t (quite) enough in WA to simply say – don’t consort for the next three years with anyone who belongs to the same gang to which you belong. To repeat : in WA, the individuals with whom one must not consort have to be formally named on the Consorting Notice. Also, the name, rank and identifying number of the Police officer issuing the Notice also has to be included on the official document given to the targeted individual.

It remains to be seen whether – having trumpeted Western Australia as the working model for the anti-gang measures it is adopting here- the New Zealand government will include some of the more onerous balancing requirements contained in the WA legislation.

Beyond that point... As mentioned, Maori are disproportionately represented in the membership of some of the country’s larger gangs. Membership of the extended whanau is going to complicate any order to non-associate. At base, proceeding with the punitive targeting of gangs before the government has made any serious attempt to address the socio-economic reasons for their existence is indefensible. In the past, a previous National Party Prime Minister – Robert Muldoon – saw fit to open a dialogue with gang leaders. As the Te Ara Encyclopedia of New Zealand captioned a photo of Thea Muldoon sitting down with gang members at her husband’s funeral:

During his political career, Rob Muldoon developed a good relationship with some gangs, especially Black Power, helping them to find accommodation and form work trusts. They treated him with respect, and Black Power performed a haka at his funeral. Thea Muldoon visited the Black Power marae in Wellington after a memorial service for Muldoon at Wellington Cathedral in September 1992.

No sign of similar bridge-building this time around. Stoking public fear, insecurity and resentment is more this government’s style on law and order issues. Maybe it is Christopher Luxon and Mark Mitchell who really need to rediscover their mojo, and find the courage to sit down and talk with gang leaders about the creation of realistic retraining and employment options for gang members.

Covering Cash and Dylan

In the new Netflix film Damsel, Millie Bobby Brown (of Stranger Things fame) plays a young innocent whose churlish Prince Charming tries to feed her to a dragon. She fights back. The soundtrack includes the Swedish singer Lykke Li’s cover version of the old Johnny Cash hit “Ring of Fire” – a song never previously associated with dragonfire. As with any good cover version, her remake creates its own rules:

Talking of cover versions… If you don’t know the 1963 Bob Dylan track “Lay Down Your Weary Tune” you should – it's a great song – and you can find it here.

In 2010, a French guy – no one seems to know his name – did a fascinating remake. At times, it sounds almost as though he’s learned the words phonetically, but no matter. The tremulous singing and the relentless strumming create a suitably dream-like setting for Dylan’s visionary lyrics:

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