Background
Mr B, a patched member of a gang specified in the Gangs Act 2024, was convicted and discharged after being seen on a public footpath wearing a cap bearing wording and colours associated with the gang. His appeal against that conviction was dismissed.
Mr B then sought declarations that s 7 of the Gangs Act—which criminalises knowingly displaying gang insignia in a public place without reasonable excuse—was inconsistent with freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990 and art 19(2) of the International Covenant on Civil and Political Rights. The Attorney-General accepted that s 7 imposed an unjustified limit on expression but argued that the Court should decline to issue a declaration.
The Court’s Holding
Gwyn J declared that s 7 of the Gangs Act is inconsistent with the right to freedom of expression under s 14 of the Bill of Rights and that the inconsistency is not justified under s 5. Displaying gang insignia communicates membership of or support for a gang and therefore constitutes protected expression. Although reducing gang-related fear, intimidation, and disruption is an important objective, the ban applies to all covered insignia, in every public place, at all times, regardless of whether anyone else is present or would recognise the imagery. The Court concluded that this breadth was disproportionate and that more targeted measures were available.
The Court exercised its discretion to issue the declaration despite Parliament having received an earlier adverse report from the Attorney-General under s 7 of the Bill of Rights. The report and a judicial declaration serve different purposes, and courts should not withhold a declaration by speculating about Parliament’s likely political response. The Court declined the separate ICCPR declaration because treaty obligations are not directly enforceable unless incorporated into domestic law and s 14 already gives domestic effect to the relevant right.
The declaration did not invalidate s 7, which remains in force, and did not disturb Mr B’s conviction. Costs were reserved, and the Court prohibited publication of Mr B’s name and identifying details to protect his fair-trial rights in a separate proceeding.
Key Takeaways
- A total ban on displaying gang insignia in public unjustifiably limits the expressive freedom protected by s 14 of the Bill of Rights.
- An Attorney-General’s prior report alerting Parliament to an inconsistency does not remove the distinct rights-vindicating function of a judicial declaration.
- A declaration of inconsistency neither invalidates the legislation nor overturns convictions entered under it; Parliament and the executive decide how to respond.
Why It Matters
The judgment confirms that even expression regarded as intimidating or of low value falls within the protection of freedom of expression, and restrictions must still be demonstrably proportionate. Broad criminal prohibitions may fail that test when narrower measures could achieve the legislative purpose.
It also clarifies the constitutional role of declarations of inconsistency in New Zealand. Courts perform a legal function by identifying and formally declaring unjustified rights limitations, while leaving any amendment or other policy response to the political branches.