Crown's case for judicial restraint over a recent statute fails to persuade
The High Court of New Zealand ruled that the Gangs Act's public ban on displaying gang symbols breached the right to free expression.
In B v Attorney-General [2026] NZHC 2179, the court issued a declaration of inconsistency – a formal statement that a law breaches protected rights, without striking the law down – concerning s. 7 of the Gangs Act 2024 (the Act). That section made it an offence to knowingly display gang insignia in a public place without a reasonable excuse, carrying a maximum penalty of six months' imprisonment or a $5,000 fine.
The applicant, a gang member, was convicted and discharged after he was filmed on CCTV on 7 December 2024 wearing a cap that displayed banned insignia. After his appeal against the conviction failed, he sought the declaration. The court said that its ruling did not affect the conviction.
The court held that wearing gang insignia was a form of expression protected by s. 14 of the New Zealand Bill of Rights Act 1990 because it signalled a person's membership of, and support for, a gang.
The attorney-general accepted that the ban limited free expression and could not be justified, but argued that the court should decline to make a declaration. The court disagreed. It found that the ban reached further than needed, applying to every public place at all times, whether or not anyone else was present or would recognise the symbols. That breadth, the court said, was "not rationally connected to protecting the public from fear and intimidation."
The government also argued that a declaration would serve little purpose, because the law was recent and Parliament had already been warned of the rights problem before passing it. The court rejected that, holding that it was not for judges to weigh the likely political response to a ruling.
The court declined a separate request to declare the ban inconsistent with an international human rights treaty, noting that such treaties applied in New Zealand only once they were written into domestic law.
The court emphasised that a declaration did not invalidate a law. It said that the statute "remains in full force and effect," and that it was for Parliament and the executive to decide any response.
Costs were reserved.
