Max Pakinga-Barber is a Senior Solicitor with Franks Ogilvie. He joined the firm in early 2023 as a Law Clerk and was admitted as a barrister and solicitor in March 2023. Max joined the firm from BNZ, where he worked in client relations and personal banking while completing his Bachelor of Laws at Victoria University.
Since joining Franks Ogilvie, Max has been involved in all aspects the firm’s work, including litigation matters ranging from a Commerce Act appeal through to appearing at a coronial inquest, a major commercial negotiation in the biosecurity sector, and law reform projects relating to water infrastructure, local government, and primary sector governance.
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
The Environment Committee reported back on RMA replacement bills, recommending some significant changes and retentions. However, this is not the end of the story. The government has signalled further significant changes for the Bills since the Committee’s report was published.
The Planning and Natural Environment Bills that will replace the RMA reported back from the Environment Committee in late July.
The Bills, as reported back, retained or strengthened some existing provisions, including ministerial direction powers and compensation for some plan rules. They also introduced significant changes, including enhanced Ministerial powers, excluding greenhouse gas emission effects from the new regime, and allowing natural-hazard rules to override existing land use rights.
Before they become law, the Bills will pass through the Committee of the Whole House. At that stage, the Government can introduce further changes by Amendment Paper. It has already signalled two significant developments.
Mana Whakahono ā Rohe arrangements are agreements between iwi authorities and local councils under the RMA that provide for iwi/Māori participation in RMA processes like plan-making and resource consent hearings. Some of these arrangements have pursued other objectives, including granting decision-making involvement and powers to iwi appointees. Once arrangements are entered, they can be changed only with both parties' consent.
The Bills originally preserved arrangements that had been entered or initiated before enactment of the Bills but did not provide for them in the new planning framework.
The Government has now said that existing and initiated arrangements will also be abolished and replaced by narrower agreements that will record how iwi authorities will participate in statutory planning processes needed to give effect to Treaty settlement redress. The detail is not yet available. However, the Minister has said the new agreements will contain "clear guard rails to prevent scope creep". An Amendment Paper is to be published soon.
Waikato Regional Plan Change 1 (PC1 )has been under development and court appeals since 2016. It is intended to give effect to Te Ture Whaimana, the vision and strategy for improving the health of the Waikato River. The Environment Court delivered its final judgment on the PC1 appeals in early July, meaning PC1 is expected to become operative soon.
The Government has raised concerns about the workability of PC1's discharge rules for farmers and vegetable growers. It has signalled that PC1 may be paused while the new planning regime is introduced, although it has not made a firm commitment.
The Bills had their second reading on 4 August. They will now proceed to the Committee of the Whole House, with the detail of the changes to be released in an Amendment Paper ahead of the Committee stage.
For further information on these changes or similar issues, please contact Managing Director Brigitte Morten.
The Local Government (Management of Local Authorities) Amendment Bill (“Bill”) is a Members Bill under the name of Stuart Smith MP, introduced to Parliament on 21 May 2026. The Bill seeks to clarify the allocation of decision-making power within local authorities under the Local Government Act 2002 (“LGA”).
Governance of local authorities
The everyday functions of local government (things associated with the “local council” like water, roads, and rubbish) are formally carried out by local authorities established under the LGA. Local authorities include both territorial authorities (city and district councils) and regional councils. They are corporate entities that can own property, enter contracts, and employ staff. They continue even as individual councillors and staff change.
Decisions of the local authority are made by its governing body, also commonly (and confusingly) referred to as "the council" or "the full council". The governing body occupies a similar position as the board of a company. Its decisions, made by majority vote, are legally the decisions of the local authority.
Given the range of functions local authorities carry out, the governing body frequently delegates its powers to committees, subcommittees, and officials. Most powers can be delegated, with some notable exceptions including making bylaws and setting long-term and annual plans. In practice, implementation of those higher-level decisions are carried out by officials.
The LGA also provides for the appointment of a chief executive who is responsible to the local authority for a range of operational functions. The chief executive typically employs subordinate staff without direct input from the governing body. Similar to a company board, the governing body usually exercises high-level oversight and policy-making, while day-to-day decision-making sits with officials appointed by the chief executive.
Policy issue
The purpose of the Bill is to align the governance and management of local authorities with those of the corporate and not-for-profit sectors. It is intended to provide elected members with a greater mandate to effectively govern and control the activities of local authorities and thereby minimize increasing tensions between councillors and management of local authorities.
Franks Ogilvie have seen this tension increasingly playout in practice. The Bill appears to be directed at the increasing tendency of local authority officials to assert that some decisions are “operational” and thereby within the exclusive remit of the chief executive (and not subject to governing body direction). This assertion is problematic for obvious reasons. If any decision is legally off-limits for the governing body, it is immune from democratic oversight and contrary to the purpose of the LGA. Any exceptions to the principle that the governing body has full decision-making oversight should be express.
While local authority members are democratically elected by the public, there are otherwise clear similarities between the corporate structure of private companies and that of local authorities. Both are corporate entities in which formal decision-making power rests with a governance board, but where most day-to-day functions are delegated to employees and agents.
However, the LGA governance provisions are far less clear than those in the Companies Act. The latter requires the activities of the company to take place under the supervision of the board and confers on the board all the powers necessary for that purpose. While the board can delegate, it remains ultimately responsible for the exercise of powers by company agents and employees.
The LGA does not expressly affirm this principle. It says that the governing body remains “responsible and democratically accountable” for the local authority’s decisions, and it confirms as a matter of procedure that local authority decisions are made by majority vote in governing body meetings. But it confers no express powers on the governing body, nor does it directly define the relationship of the governing body and the chief executive. These matters are left to implication.
The ambiguity provides an environment where officials can tenably claim that operational decisions are off-limits, with what is operational having little clear definition. Most often, this plays out in practice as officials obstructing the access of governing body members to information (or forcing them to seek it under the Local Government Official Information and Meetings Act 1987). In others, it is used as a means of refusal to follow policy directives from the governing body. For example, the recent refusal of Wellington City Council officials to bring cleaning services in-house as directed by the governing body on the basis that it was a commercial procurement decision and therefore fell within the operational sphere.
To be clear, the LGA does not recognize a legal distinction between governance and operational distinctions. At most, it recognizes that governing body members should not involve themselves in employment decisions (other than appointment of the chief executive), and even that is left to implication.
Because of resource imbalances, it is far from guaranteed that this matter will ever reach court for determination. Legislative clarity is therefore essential to setout who can do what within local authorities and minimize the potential for future disputes and obstruction.
What the Bill does
The Bill takes steps to address this ambiguity by aligning local authority governance more closely with the corporate and not-for-profit sectors. It is intended to provide elected members with a clearer mandate to govern and oversee the activities of local authorities.
The principal amendment is new s 41B, which is broadly modelled on s 128 of the Companies Act. Section 41B confirms that while the activities of a local authority must be "managed" by the chief executive, that management is subject to the direction and supervision of the governing body. Subject to any statutory limits, the governing body has all the powers necessary to carry out that supervisory role.
A separate amendment to s 42 confirms that the chief executive retains exclusive responsibility for employment decisions. Another amendment clarifies that nothing in the LGA prevents a local authority from seeking advice from a person other than the chief executive, providing some statutory support for independent advice to elected members.
The Bill is similar to a recommendation made by Franks Ogilvie in its submission on the Local Government (Systems Improvements)Amendment Bill (link), currently before the Committee of the Whole House. While the latter Bill does not directly address governance, it addresses other matters that are conceptually related such as the right of elected councillors to information. Under Parliamentary Standing Orders, it would be possible for the Bill to be added to the System Improvements Bill as an amendment paper, although whether that occurs is a political question.
Whether the Bill will fully resolve tensions between elected members and officials remains to be seen. Some of the problems undoubtedly arise from the management culture prevailing among public service professionals and cannot be directly fixed by legislation. But the new provisions should provide a clear counterargument to the claim that any element of local authority activity (other than employing staff) is beyond the governing body's oversight.
Next steps
The Bill is yet to have its First Reading. If it passes, it will proceed to Select Committee, where the public is likely to be able to make submissions.
For further information on this or similar issues please contact Director Brigitte Morten
