The High Court held that the court’s power under the Gangs Act 2024 to order seized gang insignia to be “destroyed or otherwise disposed of” could not be used to return a seized Mongrel Mob patch to its owner. The decision is significant in re-asserting a more orthodox approach to statutory interpretation that places greater emphasis on the statutory text.
Section 7 of the Gangs Act 2024 prohibits the display of gang insignia in public places, pursuant to the Act’s purposes of reducing the ability of gangs to operate and to cause fear, intimidation, and disruption to the public.
Section 7(3)(a) provides that forfeiture of the relevant gang insignia to the Crown is an automatic consequence of conviction under s 7.
Section 7(3)(b) then provides that, following forfeiture, the insignia “may be destroyed or otherwise disposed of as the court […] directs”.
In 2024, a Mongrel Mob member was arrested for wearing a gang patch in public and pleaded guilty. During sentencing, he sought return of his patch because of its special significance to him and based on an (unenforceable) undertaking to no longer wear the patch in public.
The District Court held the words “otherwise disposed of” in s 7(3)(b) were sufficiently broad to allow a forfeited patch to be returned to its owner and granted the order sought. The judge based his interpretation in significant part on the principle of legality, which required that ‘fundamental common law rights’ like property rights could only be extinguished by express words or necessary implication.
The Solicitor-General appealed arguing that the District Court’s interpretation was wrong.
In its judgment, the court emphasised the orthodox text for statutory interpretation - that the meaning of legislation “must be ascertained from its text and in the light of its purpose and its context”. Contrary to the District Court, the court held that the plain meaning of s 7(3)(b) was clear and unambiguous and did not allow the court to order a return of forfeited insignia.
While “otherwise disposed of” was not defined, its meaning was clear when read in its immediate context. Upon conviction, s 7, s 7(3)(a) stipulated automatic forfeiture of relevant gang insignia to the Crown. Forfeiture meant an absolute loss of property and a transfer of the right to exclusive possession to the Crown.
The District Court erred by interpreting “otherwise disposed of” in isolation from its immediate context. Court orders under s 7(3)(b) were necessarily made after property in the item had irreversibly transferred to the Crown. The words “destroyed or” ins 7(3)(b) also coloured the meaning of “otherwise disposed of”. Destruction implied causing such damage to the relevant insignia that it ceased to exist. In that context, “otherwise disposed of” implied an action that “got rid of” the insignia in a manner short of destruction of property.
The court gave the example of a car with gang insignia painted onto it in which a third party had a security interest. The broad definition of “gang insignia” in the Gangs Act meant that an order for destruction would require destruction of the entire car. An order to “otherwise dispose of” the insignia could allow the flexibility to allow the car to be repainted to cover the sign and then sold.
But the term was not sufficiently flexible to allow the court to return the offending item to the defendant.
The textual interpretation was consistent with the purposes of the Gangs Act as it would result in patches being removed from circulation, thereby contributing to the disruption of gangs and protection of the public from intimidation and fear. The District Court’s interpretation would have the opposite outcome and be inconsistent with those purposes.
Context
Relevant context also supported the textual interpretation. The court considered the Parliamentary materials to the Wanganui District Council (Prohibition of Gang Insignia) Act 2009 (“Wanganui Act”) to be the most relevant contextual aid. Section 7 of the Gangs Act was worded almost identically to a provision from the Wanganui Act.
As introduced, the Bill that became the Wanganui Act only provided for forfeiture of insignia upon conviction for display in public. The equivalent of s 7(3)(b) was added following Select Committee recommendation. The Committee considered that property seizures were appropriate for court oversight but also intended to create an express statutory process that would remove any ambiguity that would allow gang members to apply for return of their patches.
While Parliamentary materials for the Gangs Act were less explicit than for the Wanganui Act, they were characterised by an implicit understanding among MPs that forfeiture was irreversible. There was no discussion of the possibility of patches being returned or any process to make this happen.
Application of the principle of legality had been central to the District Court’s interpretation of s 7(3)(b). This principle requires that fundamental common law rights (including property rights) cannot be overridden unless Parliament makes it clear it intends to do so through express words or necessary implication. Modern New Zealand courts have increasingly used this principle to reach interpretations that are difficult to square with relatively clear statutory language. Recent examples include Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127 and Fitzgerald v R [2021] NZSC 131.
In this case, the court agreed that s 7(3) overrode common law property rights. But it concluded that Parliament had intended to do so. This was the necessary implication from the clear words of s 7(3). The principle of legality could not be used to subvert Parliament’s clear intent.
The District Court had relied on inconsistency with rights guaranteed under the New Zealand Bill of Rights Act 1990 (“NZBORA”) to support its interpretation of “otherwise disposed of”.
On appeal, the court emphasised that the first step in applying NZBORA to interpreting legislation is to assess whether the plain meaning of the provision limits the right. Only then is the court permitted to consider whether limitations on the right are reasonable and whether a rights-consistent interpretation is available. The court also emphasised s 4 of NZBORA, which meant that if Parliament’s intention to limit the right was sufficiently clear, the relevant legislation overrode NZBORA rights.
In this case, the court held that s 7(3) did not infringe any NZBORA rights. The consequences were not sufficiently disproportionate to cause shock and revulsion to the community, the legal standard under NZBORA s 9. Freedom of expression was not limited by forfeiture requirements - if the patch was returned to its owner, they would still be prohibited from wearing it in public by s 7(1). The right to natural justice and against unreasonable search and seizure rights were not engaged on the facts.
The court allowed the appeal, holding that gang insignia forfeited under s 7(3) could not be ordered to be returned to its owner. The court remitted the application to the District Court for re-hearing. The decision effectively decided another case, Solicitor General v Gray-Gill, that has also been remitted to the District Court.
The court’s interpretation of s 7 means that while, property in the gang insignia automatically reverts to the Crown (via Police) following conviction, the property cannot be destroyed or disposed of without court orders. It is usually appropriate for such order(s) to be sought on sentencing. Other parties (including the defendant) can apply for orders, but the court cannot order the insignia to be returned to the forfeiting party.
The greater significance of the decision is in its approach to statutory interpretation. The reasoning is in stark contrast to the modern judicial trend of ‘reading down’ controversial legislation via purposive interpretation, the principle of legality, and NZBORA.
Because the respondent declined to participate in the hearing, the case is unlikely to be appealed. Only time will tell whether this case is an outlier or represents the beginning of a new trend that gives primacy to the legislative text.
For further information on this or similar issues please contact Director, Brigitte Morten
