Gang patch ban pushing ahead against advice of officials and experts warn it could backfire

The government's gang crackdown could backfire, driving up rates of gang membership, increasing domestic violence and making it harder to exit gangs, according to expert advice from justice officials.

The government is expected to today introduce legislation banning gang patches in public, limiting freedom of association and imposing harsher sentences for crimes, regardless of whether the crime is linked to being in a gang.

In briefings to Justice Minister Paul Goldsmith, officials say the strategy "may improve public confidence in the response to gangs" but comes with big risks.

"A challenge of the suppression strategy is that there is no strong evidence it works to reduce long-term offending behaviours, or eliminate gangs altogether," the papers say.

The advice, given to Goldsmith in late November, also warned the policy could drive up gang membership.

"A strategy that focuses solely on suppressing gangs risks further contributing to the social isolation experienced by gang members and their wider whānau, making it more difficult to change offending behaviours, and risking driving increases in gang affiliation."

The papers say criminalising gangs risks undercutting "efforts to cultivate pro-social activity" within gang communities, "making it more difficult for people to exit gangs" and harder for them to desist from crime.

It could also lead to a rise in domestic violence by "making it harder for whānau experiencing violence, particularly domestic violence" to get help.

"Those experiencing violence already have trouble trusting people, which impacts the likelihood of seeking help."

In an interview with RNZ, Goldsmith admitted justice officials didn't think it was good policy but he was unapologetic - suggesting public opinion was on his side, even if expert advice was not.

"The reality is that, it'd be fair to say, that if you look at all the briefings, that the officials didn't really like the policy, but of course, they weren't elected, we were elected," Goldsmith said. "We campaigned on it, we were elected, and we're going to do it and so you can come up with all manner of potential risks and outcomes. But the overall strategy is clear and that's what we want to do."

Most gang members Māori, ex-state wards

The justice briefings say 75 percent of New Zealand's 8000 gang members are Māori and those gang members have 50,000 whānau.

The papers, obtained by RNZ under the Official Information Act, say 80-90 percent of Mongrel Mob and Black Power members had been a state ward.

"Many gang members have suffered abuse and neglect in state and faith based care as children, young people and vulnerable adults."

Officials said that "measures that specifically target gangs are likely to impact Māori and are likely to conflict with the equity principle" of the Treaty of Waitangi. Claims to the Waitangi Tribunal could be expected.

Māori were charged with crimes at up to three times the rate of non-Māori and criminalising gang membership would "reinforce the disproportionate impact of the criminal justice system on Māori" and their whānau.

"Existing institutional biases and systemic racism mean that new offences or police powers may be more likely to be used against Māori regardless of how they are targeted."

But the minister told RNZ that being in state care was no excuse for gang crime.

"It tells us that we've got long standing challenges that have been around for a very long time and gangs have fed on misery and have contributed to what is multi-generational trauma and difficulties," Goldsmith said. "Just because you're a state ward is no excuse for engaging in violent crime."

Goldsmith was warned that because the moves eroded human rights such as freedom of association and expression, it was unlikely to be acceptable under the New Zealand Bill of Rights Act (NZBORA).

"Our initial assessment is that it would be difficult to achieve NZBORA consistency without more significant compromise to the policy," justice officials told the minister.

"Enacting legislation that is inconsistent with NZBORA challenges our constitutional legitimacy, potentially places New Zealand in violation of its international obligations and creates litigation risk for the Crown."

Goldsmith was unapologetic about the human rights implications.

"Ultimately it will impact upon the freedom of expression of gang members to wear a gang patch and that's the point," Goldsmith said. "We do want to limit the freedom of expression to intimidate and create fear in the community and we're not going to apologise for that."

The legislation also makes gang membership an aggravating factor at sentencing, meaning judges could apply harsher sentences regardless of whether the offending was linked to being in a gang.

The Sentencing Act already allows for aggravating factors but they have to be applicable to the case. Removing this requirement "would be a fundamental change and risks creating unintended consequences," officials warned Goldsmith.

"Requiring the sentencing judge to adjust the sentence based on something that is not relevant to the facts of the case is inconsistent with the purposes and principles of the Sentencing Act."

Goldsmith told RNZ he would push ahead regardless. "We're broadening that further to say, no, actually, if you're a gang member, full stop, that should be considered as an aggravating factor in the sentencing."

Social media patch ban dumped

But Goldsmith told RNZ he had changed the bill to address some of the concerns raised by officials.

A move to ban gang insignia being posted on social media would not proceed and nor would a clause making it an offence to display gang motifs placed on private property but visible from a public place.

Jarrod Gilbert, a leading authority on gangs and the author of Patched: The History of Gangs in New Zealand, said the policy was a triumph of politics over policy.

"Even if there is a lesser degree of visibility of the gangs, that's not going to make a jot of difference to crime," he said. "The irony here is that we are focusing on visibility, of course, but once you reduce that visibility, that is going to potentially make it much harder to police."

Gilbert said gangs might substitute patches with other symbols.

He said this happened in the late 1970s when gang insignia was banned in prisons and substituted with facial tattoos. "When someone's face is marked with a tattoo like that, leaving the gang becomes so much more difficult. So it actually strengthened the bonds of the gang. It was a powerful form of social control."

Labour's justice spokesman Duncan Webb said the government had abandoned evidence-based policy, which showed gang families needed to engage with social services and isolating them decreased trust.

"This government is choosing to make it essentially criminal for these Māori groupings to exist. And these are groupings which have grown out of some intergenerational wrongdoings, including state care, which I think the Inquiry into State Care will say, the state has a lot to answer for."

Webb said the 50,000 gang whānau would miss out on help they needed.

"One arm of the state is fighting against the other. The social and welfare services are trying to do one thing and the police and justice services are trying to do another - it's utterly inconsistent."