Patched Up? The Gangs Act and Freedom of Expression
Patched Up? The Gangs Act and Freedom of Expression
Wednesday 2 September, 2026
Whenever a Bill is introduced to Parliament, the Attorney-General must report if any provision appears inconsistent with the Bill of Rights Act 1990 (NZBORA). In conducting that assessment, it is recognised that the rights protected by the NZBORA are not absolute. They may be subject to reasonable limits that can be demonstrably justified in a free and democratic society. The question is whether a proposed limit meets that threshold. If it does not, the Attorney-General must bring to the attention of Parliament any provision that appears to be inconsistent with the rights protected by NZBORA. However, that report does not stop the Bill becoming law. Parliament can, and often does, pass legislation despite such a report having been made.
But what happens after enactment when someone is convicted under a provision Parliament was warned about? Is any form of relief available to that person?
The recent High Court decision of B v Attorney-General addresses this question, confirming how the Court’s power to declare such a provision inconsistent with the NZBORA works in practice.
Background
Under section 7 of the Gangs Act 2024 (the Act), displaying gang insignia in a public place at any time, without reasonable excuse, is prohibited. Prior to the Act being passed the Attorney-General reported to Parliament that the extent of the insignia ban was disproportionate and was not therefore a demonstrably justifiable limit on the right to freedom of expression. While the Attorney-General’s report was discussed in the House during debates on the Bill, the Act was subsequently passed on 21 November 2024.
In December 2024, Mr B was convicted and discharged in the District Court of an offence under section 7 of the Act. While his appeal against conviction was unsuccessful, the appellate Court noted it remained open to him to separately seek a declaration that the insignia ban was inconsistent with the NZBORA. Mr B subsequently lodged proceedings to this effect.
The issue for the High Court was whether it agreed the limitation on the right to freedom of expression under the NZBORA was unjustified and, if so, whether it should exercise its discretion to formally declare that inconsistency.
The Decision
On the first issue, the High Court agreed that section 7 of the Act restricts freedom of expression, as displaying gang insignia is a form of expression protected by section 14 of the NZBORA. While the Act's objective of reducing fear, intimidation and gang-related harm was accepted as important, the High Court found the ban was drawn too broadly. The Court considered a more targeted approach could have achieved the same objective with less impact on the right to freedom of expression, meaning the limitation was not a reasonable, demonstrably justified limit.
In terms of whether the Court should exercise its discretion to make a declaration, the Attorney-General argued doing so would serve no purpose, given Parliament had already been alerted to the issue via the Attorney-General's report before enacting the law. The High Court rejected this, holding that a section 7 report and a court declaration serve different constitutional functions. A report informs Parliament before it legislates, while a declaration vindicates the rights of those affected after the fact.
Declaration of Inconsistency – What This Means
What does the declaration actually achieve? The effect is more of a personal vindication than a practical change to the law. As the High Court made it clear in its judgment, a declaration of inconsistency does not affect convictions under the Act, nor does it strike down or suspend the insignia ban in section 7. The Act remains fully in force, and enforcement can continue as currently written unless, and until, Parliament amends it.
What the declaration does do however is trigger a formal parliamentary process under sections 7A and 7B of the NZBORA, which requires the Attorney-General to bring it to the House's attention, a select committee to report on it, and the responsible Minister to respond. Whether Parliament makes any changes to the Act following this remains to be seen.
If you have any questions on the matters raised in this article, please contact one of our team below.
