The High Court has found Wanganui District Council acted unlawfully in two areas of its ban on the display of gang insignia.
In August 2009 the council passed a bylaw under the Wanganui Act banning the display of gang insignia in all public places throughout the wider Wanganui urban area, and in other nearby locations.
Phillip Schubert, a member of the Hell's Angels motorcycle gang, challenged the legality of the bylaw. Schubert said the council did not act lawfully because the bylaw covers such a wide area.
The High Court has found the council was in error in banning the display of gang insignia in all public places throughout the district. It said this is contrary to parliament's intentions in the Wanganui Act, which permits the council to ban the display of gang insignia in specified, but not all, public places.
The court said in deciding what areas the ban should cover - a power expressly given to the council by parliament - the council was required to consider the right of freedom of expression. In making its decision on the area covered by the bylaw, the court said the council was wrong in determining it did not need to further consider the right of freedom of expression.
The High Court said the council did not do as it was required and to that extent had acted unlawfully.
However Justice Clifford observed that a bylaw which more closely defined specified public places could be within the terms of the Act.
He said it is an opportunity for the council to reconsider the question of an appropriate bylaw.
Laws wants council to appeal
Former Wanganui Mayor Michael Laws said while he has not read the full judgement he believes the High Court judge is wrong and he will be urging the council and police to appeal to the Court of Appeal.
He said the ban affects 10% of the territory within Wanganui District Council boundaries and therefore not all public places and he said the council did expressly consider freedom of expression issues in its debate. Laws said the council resolved that the wider interests of the community had sway.
Laws said the court has upheld the right of the council to create a bylaw to ban gang patches and he said that is the most important finding.
"The gang patch ban is here to stay."