Last week in the High Court, Justice Denis Clifford ruled the Wanganui District Council (Prohibition of Gang Insignia) bylaw “invalid” and ultra vires (ie not authorised by) the Wanganui (Prohibition of Gang Insignia) Act” . He ruled in favour of the applicant in the Judicial Review of the bylaw, Phillip Ernest Schubert, a member of Auckland Hells Angels. This ruling must have been sweet music to the ears of Mr Schubert (and all Wanganui’s ‘outlawed’ insignia wearing gang members) who was represented by counsel D Webb and S Rollo.
In Justice Clifford’s judgment dated 3 March 2011, he took the view that the 2009 Wanganui Act of Parliament had authorised the Wanganui council, via its bylaw, to control and regulate the wearing and display of gang insignia within defined public places, but had not authorised the creation of a bylaw that banned their display from within the entire Wanganui urban area, which was the effect of the bylaw.
He ruled that the council had exceeded its powers (acted outside its authority) and thereby demonstrated its failure to fully consider the effect such a wide-ranging ban would have on freedom of expression guaranteed to individual persons under s. 5 the Bill of Rights Act 1990 (BORA). Even though the council had taken the view that its prohibitions were justified under s, 4 of the BORA, (ie there were rational grounds for a ban being applied to the all the specified urban public places), Clifford J disagreed. He considered the bylaw invalid, in part because in his view it embodied a disproportionate restriction on the right an individual has to “freedom of expression”.
If the Council appeals the decision to the Court of Appeal, council lawyers Kensington Swann say this will cost the Council $30,000 to $40,000 and could be heard in October if progresssed quickly.
An alternative response to the High Court ruling would be for the Council to work on a new insignia bylaw and its lawyers have indicated that this could be in force by September.