Xu-Nan Lawrence; Webb Duncan; White Helen; Goldsmith PaulDr LAWRENCE XU-NAN (Green): Thank you Mr Chair. I first want to pick up a couple of things that the Minister mentioned before. And I think the first part is sort of picking up on the idea of the New Zealand Bill of Rights Act. The Minister said We understand that some of these infringe on the rights of the people." I wondered in this particular case whether we are able to rely on page two of this particular bill and the reports from the Attorney-General on the New Zealand Bill of Rights Act or whether under the principle of legality that that infringement of rights and particularly "Freedom of expression" in section 14 needs to be explicitly stated in Part 2 of this bill in order for it to take effect. I'm just thinking in terms of other precedents in terms of case law around the principles of legality and particularly around the Schubert case where the ambiguity that is created by the by-law at that stage meant that the infringement on the right of expression doesn't really stand. So I want to get some clarification based on what the Minister said regarding the principles of legality and the ambiguity it creates over here in Part 2.Now the second thing I want to pick up on in terms of what the Minister has also mentioned if the Minister wouldn't mind clarifying is the idea that the Minister said that the bill is introduced to make communities safer. But I want to draw people's attention also to the regulatory impact statement on page 30 where Option Three that was suggested which is what we are doing right now specifically says "Reducing"—and it's got a plus plus next to it—"displays of gang insignia may make communities feel safer."—"feel" being the keyword not necessarily safer. So I wanted to check with the Minister if that is the intention that the Minister was mentioning before that the banning of the insignia will give the feeling to communities that they're safer not necessarily safe.The other thing I want to pick up on with what the Minister mentioned is regarding the Hon Willie Jackson's comment before around consultation. The Minister said that "The Ministers believe that the Ministry of Justice has consulted quite widely around this particular bill." But I also want to draw the attention—if the Minister wouldn't mind clarifying that if the Ministry of Justice has done all of this consultation and the Minister is taking advice from the ministry why did the Minister not take up the advice from the ministry? This is paragraph 138 on page 31 of the regulatory impact statement it says "The Ministry of Justice's preferred option is option one" which is the "status quo". So if the Minister wouldn't mind clarifying that as well on why if the Ministry of Justice has gone through all this trouble of consulting the Minister this bill doesn't reflect the advice from the ministry itself.Now coming back to the question that I was going to ask because those are just clarifications based on what the Minister has already mentioned just now my question's around clause 7(2) which is around "a term of imprisonment not exceeding 6 months or a fine not exceeding $5000." I couldn't see it in the regulatory impact statement but I want to know from the Minister: what was the balancing and proportionality test that was undertaken to determine that imprisonment length and also that fine amount and what other examples were used as part of that? I also wanted to check this in the context of other things they introduced on whether this "imprisonment not exceeding 6 months" I'm assuming is on the context that there is a criminal charge that is involved here that this particular criminal charge for example pertaining to this Part 2 of this bill isn't going to be part of their three strikes. Is this going to be one of their three strikes? If not it will be good to get that clarification. And in that case if in subclause (3) "If a person pleads guilty"—and then there is also a criminal charge involved with that—whether there is the opportunity if a guilty plea was initiated that there isn't going to be a criminal charge or it isn't going to be counted towards one of the three strikes which is something else the Minister is introducing. And I think it will be exceedingly unfair to stack the deck in a way that can potentially have the unexpected consequence of further punishing gang members by increasing opportunities for them to fulfil the requirement of the three strikes. Thank you.Hon Dr DUNCAN WEBB (Labour—Christchurch Central): I'd just like to talk about what we're going to do about this [Holds up Patched: The History of Gangs in New Zealand by Jarrod Gilbert]. So here we go: a great book a good academic study. I don't read it for education. Having said that—but that's got a photo on the front of it. And if that's sitting in Scorpio bookshop in Christchurch it's a display of a gang patch. The irony is of course that it's the Outcasts on there. They're a prohibited gang under Schedule 2 there. The irony is that if it's an online book it's allowed. Look to be fair this is a scholarly study so there's at least an argument that it falls within education even if it's not within a university and even if you just buy it for your own interest. Maybe. I don't think it falls squarely within that exception but there's plenty of other magazines. What if you pick up Motorcycle Monthly and in there or on the cover you've got a gang patch. It just happens to be they've taken a photo of a ride and someone's got their gang patch on it. What if you've got your Woman's Weekly on the stand at the supermarket and it's got someone with a gang patch there. And you could think of any number of situations where you've got a publication of some sort and it's not being used for educational purposes. It's not media and it's not art. It's just a book. It's just a magazine and it doesn't fall within the exceptions. But once again because you've taken an it's-all-banned-unless-it's-accepted approach we're in trouble. So there's a really good argument that my—once this has passed reading this book on the bus would be displaying gang insignia. And it's not for a genuine artistic or educational purpose. It's displaying the gang insignia. So I'm subject then to the force of the law here. It's clearly wrong. And you can look at it and go "Well"—and I'll sit down soon because I think it's really worth an answer. I've got an Amendment Paper. You'll know this. You're probably drafting a way to try to usurp my Amendment Paper as we speak. But there's an Amendment Paper that talks about excluding "a book magazine or other publication". It gets around the inconsistency of publications online being allowed. But this now is Fahrenheit 451 stuff. This becomes a prohibited publication. Let's burn the books. So Minister I'm not going to take all the time but this book is more educative than some. There's plenty of others out there which are going to fall foul of this rule. Are you banning the books?HELEN WHITE (Labour—Mt Albert): Thank you Mr Chair. I would like to focus on the regulatory impact statement and get your answers to some of the problems I have there reconciling it with the view that the Minister has taken. So in the regulatory impact statement as my friends have said on this side of the House it does prefer the option of a status quo. But I want to dig down into why and I want to understand from the Minister why he is setting aside the advice which is always his prerogative but it's very necessary that the New Zealand public understands why that is being exercised.So what I want to know is if the Minister has a regulatory impact statement with him—and he can look at paragraph 110 on page 26. So this is where the Ministry says this is their preferred option. It talks about the particular issue of the displaying of gang patches and it says that there is already existing legislation which does this. If you go to paragraph 115 it's very clear as to what that's about and it says in that that in fact the current legislation which is the Insignia Act is already there if you are "actively displaying or wearing the insignia." And so it says the extension here is that it will now cover "passive displays of insignia in private places viewable by the public"—so the window of a house or on social media. So it's talking about something much more cursory. Now I appreciate that the public are really very freaked out about gangs and I understand because I've been in those situations and I do understand what it's like. But will this help them Minister? If it is somebody walking past a window that's not actually what's frightening the New Zealand public. What is frightening the New Zealand public is quite different and it's already covered by an Act. And what the Ministry of Justice goes on to say after paragraph 110 is that this law is already kicking in. And what the Minister is doing by bringing in what is in fact a red herring and a whole lot more things is getting in the way of what the Police are moving towards achieving through enforcing the Insignia Act.So it goes on. It says in those later paragraphs that the "ban may require more effort from Police to gather intelligence … support their operations as various patches and insignia can indicate a person's role in seniority within [the] gangs." etc. So they're basically saying it seems that this law is just not going to work. And in fact it goes on in paragraph 116 to say the "option risks criminalising minor behaviour." So we've dealt with the big fish; we've dealt with the ones that I understand have been freaking out the public. The Police have this tool. And what the Minister seems to be doing is actually just fiddling around the edges and making it a crime for somebody in their own private house to walk past a window. That's what this seems to be saying. So I'd like a really good answer as to why there is this going on if he does not agree with the suggestion that this is in fact just sort of a signifier it is just an attempt to placate a public by pulling the wool over their eyes. What is really going on here?And I'll just go on and I want to talk about one other thing in this report while I'm here. But if you would like to then talk about that and then I can ask my next question. Thank you.Hon PAUL GOLDSMITH (Minister of Justice): Yes I'll be very happy to. The member asked for a really good answer and it's my intention to give a really good answer. She was referring to the regulatory impact statement and the fear that it might lead to criminalising minor acts such as people being able to see a patch from somebody wearing it in their home in a window of a house. And of course this regulatory impact statement was made and delivered prior to a number of Cabinet decisions. And one of the Cabinet decisions we made was not to include the ban on private property visible from the outside which is what this part of the regulatory impact statement is referring to. So we didn't go with that. And so what she's referring to was about something that was considered and not followed up on. So I'd encourage her to keep up to date as to what's actually happened since the regulatory impact statement was drawn up.In relation to the previous speaker and his waving of the book by Jarrod Gilbert I'm afraid I don't agree greatly with Jarrod Gilbert on many topics but I am sure that he would be strongly of the view that his books are educational in their purpose and would be well and truly captured by the exemption that the display of insignia for educational purposes are excluded.The final point I wanted to make was in relation to this deep concern that we might not have agreed with the recommendation from the Ministry of Justice. And the only point I'd make on that is the parties of this Government campaigned on a set of policies and won the election and included in their first 100-day plan the intention to deliver what they promised during the campaign. And yes you might raise the question: "Well it's a very interesting approach for the Ministry of Justice to say that notwithstanding that you'd campaign on this and you'd won the election our advice is not to do it." but that was their advice and that's up to them to make that advice. But we weren't going to follow it because we had made commitments to the people of New Zealand and we are keen to carry on. But there was a number of issues that were raised that we did consider such as not including situations where people would breach the Act if they were wearing their gang patch on their private property and happened to be seen by somebody walking past."