Webb Duncan; Lyndon HūhanaHon 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.So 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 at least 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. So 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.So how can we trust 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 its pants and then next minute it's a gang member? So 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 $2000 and a maximum of one year imprisonment. But in this legislation it's five years and it's $15000. 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 number 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.So I'm just wondering—Taupiri MC. Well you know 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 $15000 fine. Well kia ora tātou.Hon Dr DUNCAN WEBB (Labour—Christchurch Central): Thank you Madam Chair. You know 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 clause in the Evidence Act which talks about judges being able to assume evidence which is uncontrovertible. 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 kind of—basically the rule is everybody knows it; you don't have to go out and get proof of it. But 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. I'll now call Hana-Rawhiti Maipi-Clarke."