O'Connor Greg; Webb Duncan; Xu-Nan Lawrence; Costello CaseyPart 2 Prohibition on display of gang insignia in public placesCHAIRPERSON (Greg O'Connor): Members we come now to Part 2. This is the debate on clauses 7 and 8 Prohibition on display of gang insignia in public places". The question is that Part 2 stand part.Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I mean what the heck because although the Chair said it's clauses 7 and 8 it's actually 7 8 and 8A because there's an Amendment Paper on the Table. And I say "What the heck" because what kind of Minister of Justice introduces an Amendment Paper that creates a new offence. It's outrageous and it's offensive.Now if the Minister wanted to create an offence of someone being in possession of gang insignia after having been subject to two or more of these prohibition orders well and good; let's give it a good working over at select committee. I can tell you that we'd have real difficulties with it but we'd address the rights issues that are involved and the procedural issues that are involved. But it beggars belief that the Minister has had months and months to dwell on his gang patch ban and then at the last moment when there is no real ability to scrutinise this proposed offence he slips it in in the dark of night.And here we are today now arguing about an offence which is a serious offence which is an imprisonable offence—an imprisonable offence under new clause 8A—to have a Hells Angel ring in your top draw at home. This isn't anything about display. I'm dumbfounded that this is even within scope and perhaps it's not. Perhaps the Clerks or the Chair will be telling us something about that a bit later on. But the idea that someone who has been in trouble for having gang patches all of a sudden because they've got their dad's jacket hanging in the spare wardrobe can go to jail for a year that is utterly disproportionate inconsistent with the purposes of this bill and the procedure is utterly woeful.Not one citizen gets a chance to have a say about this because it was slipped in after the select committee process. I would like to know why Minister was this not in the bill prior? If it only occurred to the Minister a couple of months ago why was it not put before the select committee as an Amendment Paper so that the committee could pause scrutinise it look for submissions? Because regardless of my opinion of it it still deserves good legislative quality. This is a Government that talks about good regulatory conduct about good lawmaking and here we have it introducing at the last moment—not some regulatory labelling of milk powder no—a criminal imprisonable offence. That is absolutely abhorrent to due process whether or not it even warrants it.I mean let's just recognise what this new clause 8A does. It creates an offence punishable by a year in jail. There's not even provision for an alternative sentence. There's not even the usual provision or a fine; it's jail. For what? For owning a symbol. It's not owning a symbol in public—that's an entirely separate offence. We've got the gang patch ban. It's for having it at home. Honestly I am flabbergasted. This Government has done some pretty horrific things but in terms of due process in criminal justice it's just made up a new offence and slipped it in.So here's my questions to you: why now why so late and what is the harm? What is the great evil of grandad's jacket sitting in the spare wardrobe that you have to imprison someone for that heinous offence of having a hidden piece of gang insignia? Please answer.Dr LAWRENCE XU-NAN (Green): Thank you Mr Chair. So not being a member of the Justice Committee there are some questions I have for this particular clause partly because I haven't been through the select committee process. The first one in terms of the report on one of the amendments that we do see from the select committee is around the prohibition of display of gang insignia in public place. And one of the things is addressed on page 5 of the bill talks about adding an additional requirement of mens rea. I want to pick up from what the Hon Duncan Webb has mentioned before and I think the idea of including mens rea in addition to actus reus the mental component and the physical component of a criminal act is really important here and I'm glad to see that that particular amendment has been taken on board in clause 7(1).However in the context of criminal law when we're looking at a person committing an offence knowingly and without reasonable excuse now one of the key elements of actus reus and mens rea is the concurrence of actus reus and mens rea happening simultaneously. So I guess my question for the Minister—the first part of this is the concurrence which wasn't I noticed—I may have missed it—explicitly stated in page 5 of the amendment is still going to be taken into consideration that the knowing and displaying has to happen at the same time. So it goes back again to the example that the Hon Duncan Webb mentioned before in terms of what happens if you knowingly know that the jacket that had your grandad's insignia on it is there but in a hurry when you left the house had forgotten in that moment in time that it existed even though you know that it existed in other situations. Considering that it did not happen concurrently how would one assess that? So again when we come to looking at mens rea and also actus reus and looking at this in the context of criminal law I would also like to ask the Minister whether there's been any modelling or any consideration given other than what is already in the regulatory impact statement but particularly around the burden of proof being placed on the Crown prosecutor in the context of when something like this happened. So has the Minister considered the broader implication to Crown prosecution in terms of identifying this particular element of clause 7(1). So the two questions are whether the actus reus and mens rea under clause 7(1) need to happen concurrently. And the second part is has there been any consideration being given to the burden of proof that will be placed on the Crown prosecutor in the event that something like this would then need to go to trial? Thank you.Hon CASEY COSTELLO (Associate Minister of Police): In response to the member's earlier commentary around new clause 8A this clause was added to address police concerns about the ability to enforce the gang insignia prohibition. A lot has been said in this space around the police ability to enforce this legislation and the need for protection of police in a process that could result in some conflict areas. So this is an area where police had concerns about the ability to enforce the insignia. And I'll highlight this is relating to a court prohibition order so this isn't a power set upon the police; it's the court applying a prohibition order.In relation to the member's last commentary around knowingly and the mens rea and actus reus around the commission of an offence this bill doesn't seek to undo the justice process; therefore the commentary around not knowing and acting I'm a little bit confused but I can assure the member that the clause 7(1) states: "A person commits an offence if the person knowingly and without reasonable excuse displays gang insignia" and I think that's relatively straightforward."