Saturday, April 13

The Gang Patch Ban: Why Free Speech Has A Target On Its Back

The coalition government has just succeeded in getting its Gangs Legislation Amendment Bill through a first reading in Parliament. While the bill’s title suggests a mere tweaking of existing law, don’t be deceived – it is radical in the scope of its implications for the fundamental civil liberties of all New Zealanders. Designed to ‘crack down on gangs’ the bill which would include a ban on gang patches and related insignia being worn in public comes with serious penalties. Breaching the patch ban for instance would include a fine of up to $5000 and up to six months imprisonment. 

Gang membership is believed to be growing at an alarming pace although numbers are difficult to verify and evidence for the promised efficacy of a ban is almost entirely lacking. However, even more remarkable is the absence of any principled consideration of the NZ Bill of Rights Act 1990 (NZBORA) in respect to freedom of speech (along with other cancelled civil liberties in the bill such as the denial of the right to peaceful assembly) as the government pursues its agenda.

As Ben Thomas writes in The Post the Minister for Justice Paul Goldsmith and Minister for Police Mark Mitchell appear to have no problem openly admitting “they are not too concerned about a bill of gang members’ rights.” Apparently NZBORA is not a protection applicable to all citizens of this country. Equally concerning is the government’s stated intention to unapologetically push the legislation through parliament even though the attorney-general’s review has just concluded the bill contravenes NZBORA, a finding which disturbingly the bill’s sponsors were expecting. 

When critics pointed out that even gang members have civil rights, the prime minister was quick to retort that “rights come with responsibilities.” Which might seem at first glance a perfectly reasonable thing to say to a teen when they get their driver’s license. And, yes, true when talking generally in law about how rights are typically accompanied by corresponding duties. But, as with most matters in jurisprudence it isn’t anywhere as homogenous as all that and the P.M. chose not to expand on his populist aphorism because he was well aware that he would then have to explain the particulars and why he thinks NZBORA is made up of retractable ‘privileges’ rather than rights long guaranteed in law and custom.

The protected freedoms of speech and expression, like other rights, do of course come with corresponding duties. For instance, the right of a person to speak in public is accompanied by a particular duty not to incite listeners to riot. Similarly, a person’s right to create and display a piece of artwork in public might be limited by the accompanying duty to not exhibit pornographic/obscene content especially if the audience is below a certain age. There is no question that free speech and expression can have considerable psychological impact on an audience both in the positive and negative senses of the term. If this weren’t true then people wouldn’t bother giving speeches to supporters at political rallies or sledging opponents in a cricket match. 

But jurisprudence in the matter of free speech and expression has a long and complicated history in this regard. ‘Psychological impact’ is a notoriously slippery thing to not only qualify but also quantify and poses questions such as: In what ways might speech or expression harm others? And, if so, to what degree is harm caused? 

The issue here for lawmakers is whether gang patches and related gang insignia are really a significant cause of actual harm to others. 

A reasonable answer is that patches are commonly associated with criminal activity but cannot in any real sense be said to be material to a specific criminal act (excuse the pun). This reasoning is crucial in establishing the purpose of a ban. In fact, some of the most notorious criminal gangs and associations in the world operate deliberately without patches or obvious insignia, and are considered no less intimidating – groups ranging from the Cosa Nostra in Italy and the Mafia in the United States through to Triad clans in places such as Hong Kong, Taiwan and Malaysia. Operating incognito obviously poses its own difficulties from the point of the police and public being less able to monitor and report on gang activity. NZ gangs such as the Mongrel Mob and the Head Hunters advertise their presence through patches and insignia as a matter of pride. Yet they’re just as likely to use more permanent means of affiliation such as tattoos (much the way heavily tattooed members of Yakuza syndicates in Japan are identified).

Don’t assume for a second that I’m unsympathetic to those who are intimidated by gangs. Quite the opposite. In the five years I spent working with at-risk youth in Ōpōtiki (a Bay of Plenty town which has recently featured prominently in the news due to its gang problem) I was threatened and physically assaulted by gang members on more than one occasion, had my home and vehicle targeted when I attempted to prevent recruitment of teens and witnessed violent attacks on other gang members as well as members of the public. But gang patches and insignia featured in only one of these encounters that I can recall. Over time I was able to break bread with some of these people, gain their trust and have the opportunity of walking with their families through moments of heart-breaking loss and on occasion even celebration. 

People who live in close proximity to gangs can attest to the fact that members are not all the same and can vary from ultra-volatile ultra-violent offenders (who spend much of their adult life in prison anyway) to loving fathers and husband’s who have stayed relatively free of trouble for twenty years.

Patches, if we’re assessing character, are not a one-size-fits-all deal, even if it is undeniable that gangs more generally as criminal organizations cause misery. What many people still don’t seem to understand is that membership is also the refuge of abused and neglected youth – 80 to 90% of gang members spent time in state care. Though it is hard to believe, gangs offer a type of raw acceptance to these youth, a bear hug which has otherwise eluded them their whole  a dysfunctional family for dysfunctional individuals. But it is also important to understand that joining a gang for these young men is often a deliberate act of defiance toward a state which is in their minds the source of the alienation, abuse and neglect they’ve suffered. Identity is deep at the core of this phenomenon and the bear hug of gang affiliation is one which, even if they wanted to, they can’t easily shake off. I’ve know a number of fathers who having sobered up to the real costs of gang membership after some years have faced the dilemma of leaving, or else staying in the gang for the sake of trying to rescue their sons, daughters and grandkids from self-destruction.

If the law is going to pin-point psychological triggers for the purposes of preventing intimidation then tattoos, physique, and body language arguably play just as much if not more of a role. The bigger point of course is that significant ‘psychological harm’ isn’t caused by the sight of a patched leather jacket or any other of these distinguishing features, but due to the specific harmful actions of a gang member.  To assume a patch is doing any significant harm is missing the point entirely. If the prevention of psychological harm is afforded too much weight in the matter of a patch ban then consider how it might work if applied to other rights tests in society such as protestors waving placards or flags.  Is a Union Jack, if declared by opponents to  be psychologically harmful or provocative, any different to gang patches in light of the injustices suffered by millions under the former British colonial empire? A patch ban sets a chilling precedent whereby anything of a symbolic nature contains the subjective potential for cancellation or exclusion. Expressions of virtually any religious, national, or cultural affiliation would become fair game should anyone claim to be emotionally disaffected. 

To deny an individual their rights without demonstrating just cause flies in the face of centuries of natural justice. That’s because in the case of a patch ban an individual won’t just be forfeiting a jacket; they will potentially be going to prison for six months, an outcome commensurate with the penalty for aggravated assault. The ban is emotive politics trading on the tempting assumption of ‘guilt by association’. It is a disastrous approach to formulating a law potentially affecting thousands of NZ citizens. A patch, though commonly associated with criminal enterprise, tells you nothing about specific criminal behaviour. By the same logic you don’t assume the first cyclist you see passing by just won the Tour de France.  Therefore to act without any evidence of a specific criminal act is to forego the principle of ‘innocent until proven guilty.’ Some may find this frustrating to hear, but short of being a mind reader, it is the only just approach to criminal law that we have as a society.

Some hard-nosed supporters of a ban will still say that we might be forgiven for ignoring a principle like freedom of speech if the proposed law can achieve a reduction in crime – the ‘Dirty Harry’ approach if you like – as in whatever it takes to get the job done. Surely wouldn’t a ban allow law enforcement to assert dominance over gangs where such state authority has been eroded? The trouble is that what little evidence researchers have been able to gather from the example of Western Australia (where similar legislation was passed in recent years) concludes rather unsurprisingly that the W.A. public like the fact they don’t see patches around so much. But that is the sum total of their findings. It shouldn’t take a degree in criminology to work out that fewer patches do not mean fewer gang members.

Here in NZ if you talk to anyone who has worked on the frontline with gangs about a ban on patches – police, youth workers, social workers, churches and marae – you will likely receive a bemused response at best. They will tell you that gangs love a challenge – that a nationwide ban will be a red rag to a bull – a reason for members to deliberately flaunt their patches publicly in large numbers knowing full well that woefully understaffed police stations in many rural communities like Ōpōtiki will be too overwhelmed to do anything about it. Major gatherings such as tangi as happened in the case of Ōpōtiki last June will become far more tense and provocative. As Jarrod Gilbert, this country’s leading researcher on gangs points out, the government may well achieve through the ban the very thing the ban was intended to prevent. 

Banning gang patches is a populist red herring, a wishful distraction from the real task at hand because the hard truth is that the gang problem this country faces is a complex crisis generations in the making. Yes, we need more police and better support for them in dealing with what is an incredibly challenging problem – high rates of attrition and job dissatisfaction through the ranks only compound things. And beyond that, yes, blame whatever social, historic and economic causes you like. But the solution for gangs is ultimately going to come from the community rolling its sleeves up, engaging no matter how uncomfortable it may be with those who wear a patch, and working particularly with those youth who are at risk of heading down the same path. Despite the risks that do come with engagement, yet contrary to the tendency society has for catastrophising, many gang members do respond to basic decency. If we destroy even that most basic bridge between gangs and the wider community, this problem will only get much worse. There are experienced voices from across the political spectrum and society who are warning of this. Those who have worked at the coalface know there are no easy solutions here, but the government’s current proposal is not a solution at all. It will serve instead as an ‘own goal.’

A ban on patches is not just a recipe for disaster in dealing with gangs. Openly ignoring the NZ Bill of Rights would be deeply unethical, dishonouring democratic principles while setting a precedent for how this government and any others in the future may choose to deal with groups deemed problematic to society. Such a badge of dishonour would be much harder for this country to wear.