Friday, March 04, 2011

Gang patch ban overturned

Two years ago, Parliament passed the Wanganui District Council (Prohibition of Gang Insignia) Act 2009, which empowered the Whanganui District Council to make bylaws "to prohibit the display of gang insignia in specified places". Today, the High Court has ruled that the first bylaw made under the Act is ultra vires, and hence unlawful.

The full decision is here [PDF]. The short version: the bylaw [PDF] banned patches in almost every public place in the district. That contradicted an explicit provision in the Act, s5 (6), saying that the Council could not make such bylaws. In addition, the bylaw violates the right to freedom of expression affirmed in the Bill of Rights Act. While that was the point of the thing, the court has effectively ruled that Parliament passing a law despite an adverse report from the Attorney-General [PDF] is not a blank cheque, that the usual rules of statutory interpretation still apply, and that the council still had a duty to consider its obligations under the Bill of Rights Act when making the bylaw - a duty it utterly failed to carry out.

(That's a fairly significant ruling, and for that reason alone it may be appealed. But that doesn't save the Council from the first problem - that the ban was just too wide).

As for what the council does now, the Judge dropped some big hints that a more narrow bylaw, "limiting the prohibition to a number of more specific areas including perhaps the CBD, parks and beaches and certain residential streets", would likely be upheld (assuming it was passed by an appropriate process). The question is whether they want to. The ban's driving force - Michael laws - is no longer mayor, and there is a new majority on council. They may prefer to do things a different way, rather than banging the populist anti-crime drum.