B v Attorney-General - [2026] NZHC 2179

Application for declaration that Gangs Act 2024, s 7 (provision), which prohibits display of gang insignia in public places, is inconsistent with right to freedom of expression under s 14 of New Zealand Bill of Rights Act 1990.

Held, provision limits right to freedom of expression, noting that expressive activity, including contentious or provocative activity, may be protected as speech (Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA); Brooker v Police [2007] NZSC 30).

No rights-consistent meaning advanced by defendant.

Held, limitation on right to freedom of expression imposed by provision had not been justified under s 5 of Bill of Rights. Gangs Act’s stated objective (to reduce ability of gangs to operate and cause fear, intimidation and disruption to public) a sufficiently important objective to justify some limitation on freedoms of gang members. Limitation rationally connected with its objective. However, objective could have been achieved by more limited ban; limit not proportionate to aim sought to be achieved.

Having found s 7 to be an unjustified limitation, Court addressed whether to exercise discretion to make declaration of inconsistency. Supreme Court decisions in AG v Taylor [2018] NZSC 104, Make It 16 Inc v AG [2022] NZSC 134 and AG v Chisnall [2024] NZSC 178 considered.

Held, declaration would serve public remedial purpose and have utility for plaintiff without undermining his conviction.

Held, comity/deference did not require Court to decline to make declaration. Deference inherent in fact that Court’s power is declaratory only; not appropriate for courts to act strategically by anticipating political reaction to a declaration. Court relied on Supreme Court judgments in Taylor and Chisnall in which Court said that in making a declaration the court was fulfilling its obligation to grant remedies for breaches of the Bill of Rights Act and was exercising its judicial function.

Attorney-General’s report to Parliament under s 7 of Bill of Rights did not militate against declaration; s 7 report and declarations serve different purposes.

Declaration made that s 7 of Gangs Act inconsistent with right in s 14 of Bill of Rights and that this has not been justified under s 5 of Bill of Rights.

Associated application for declaration that provision also inconsistent with International Covenant on Civil and Political Rights declined for lack of jurisdiction.