Submission to the Foreign Affairs and
Trade Select Committee
by Dr David Small
Board member of ARENA
Senior Lecturer in Education, Coordinator of Development Studies and
Chair of Board of Interdisciplinary Programmes and Course, University of
Canterbury.
This submission relates to
the Terrorism Suppression Bill. I wish
to be heard on this submission and request that hearings be held in
Christchurch to facilitate the widest possible public consultation.
1 Background
i. This legislation is being introduced in
reaction to the September 11 attacks in the United States. By targeting innocent civilians, these acts
have been rightly condemned by the international community as thoroughly
wicked. They now take their place
alongside some of the most notorious attacks in the post-WW2 era like the US
massacre at My Lai in the 1960s, the UK killings on Bloody Sunday in the 1970s,
the Chinese killings in Tiananmen Square in the 1980s, and the Santa Cruz
massacre by Indonesia in the 1990s.
ii. What makes these recent attacks
particularly difficult to respond to is that the people who perpetrated them
are all dead. Moreover, the evidence
linking anybody other than the perpetrators themselves to the acts is so thin
and circumstantial that, despite the detention of hundreds of people in the
United States and the full-scale war being waged in Afghanistan, nobody has
been charged with any offence linked to the September 11 attacks.
iii. The US was quick to describe the attacks
as an act of war. In response, they
declared their own “war on terrorism”, one in which they declared that every
country was either for them or against them.
iv. While understanding that US citizens are
angry and that revenge (as shown by their persistent and enthusiastic
application of the death penalty) is a part of their national make-up, and
while recognising the importance of combating terrorism and other evils, it is
not in the interests of New Zealand or the wider international community for us
to uncritically enlist in the “war on terrorism”, as it is currently being
framed and fought.
v. It is a disturbing but unavoidable fact
that, especially where a suicide strategy is adopted, terrorist attacks are
impossible to prevent. The best one can
aim for is to lessen their likelihood, and the most effective way to do this is
to address the kind of gross injustices that drive people to commit such
grotesque and desperate acts.
vi. At a global level, two clear patterns,
both legacies of the history of colonial relations continue to generate deep
and abiding grievances of the kind that could lead to terrorist outrages: the
global imposition of the neoliberal market model of economics and the growth in
economic inequality and political disenfranchisement that this is producing;
and the gross double standards that govern the way the US and its allies treat
rogue states like Israel and Iraq.
These are legacies of the
vii. As long as multilateral institutions such
as the United Nations Security Council and the World Trade Organization and
individual governments continue to ignore the protests of the victims of their
policies, the world will continue to create terrorists who will adopt
increasingly extreme measures.
viii. At a national level, this Bill is being
introduced in a context in which
* New
Zealand is not in real danger of terrorist attacks;
* New
Zealand’s existing criminal law is sufficient to deal with acts of terrorism;
* New
Zealand surveillance agencies have recently had their powers enhanced;
* New
Zealand surveillance agencies have recently demonstrated that they routinely
operate outside the law and act against people for political and not criminal
reasons;
* New
Zealanders do not wish to have their civil liberties compromised any further
than they are at present.
viii. In the 1980s, New Zealand had the courage
to resist the sort of ultimatum we are currently facing and refuse to accept
nuclear ships. We now have another
opportunity to advance world peace and security by being a voice for moderation
and resolution of conflict.
ix. We should review our laws to ensure that
New Zealand is not a safe haven for international criminals of any kind. However, we should also recognize that the
“war on terrorism” is an ideological slogan, a brand name for a global
infomercial. It is not a war, and should not be used as a cover to introduce
wartime measures. We can best minimize
the threat of terrorism both in New Zealand and overseas by promoting policies
that reverse the current trend towards exploiting and disenfranchising the
majority of the world’s people.
x. This Bill, if passed, would have New
Zealanders pay a high price for very little return. With no sunset clause and with no conceivable end to the
so-called war on terrorism, this Bill permanently undermines the civil
liberties of New Zealanders. And it
offers us no measurable benefit.
xi. If one considers the September 11 incident
that provoked this legislation and the single clearest example of terrorism
that New Zealand has ever experienced, the Rainbow Warrior bombing, neither of
these acts would have been prevented if this Bill had been law at the time they
occurred.
xii. As Benjamin Franklin is quoted as saying:
“Those who would give up a little freedom for a little security will end up
with neither.”
2. Defining a Terrorist Act in Section 5.
i. The overall effect of Section 5 is that
a terrorist act is defined far too broadly.
Such a definition would incorporate a range of activities that go well
beyond what the public of New Zealand normally understands terrorism to
entail. This has far-reaching
implications as the rest of the legislation refers repeatedly to "one or
more terrorist acts". Subsections 1,
2,3 and 4 are all problematic.
ii. Subsection 1c refers to a special definition
of terrorism for situations of armed conflict.
What constitutes "armed conflict is undefined and should be. The problem with this special provision is
that, while the rest of the Bill defines terrorism too broadly, this one
defines it too narrowly. In particular,
point c only includes as terrorist an act which "is intended to cause
death or serious bodily injury to a civilian or other person not taking an
active part in the hostilities in that situation". In line with other parts of this Bill (for
example subsections 91b, 10A1b and 10B1b), the words "is intended to cause"
should be replaced by the words "is reckless as to whether it causes".
iii. Subsection 2bii is objectionable for two
reasons. First, the expression
"for the purpose of advancing an ideological, political or religious
cause" serves only to distinguish acts from those that might be designed
for personal gain, perverse pleasure or other common criminal motivations. There is no justification for treating such
motivations any more leniently than an ideological, political or religious one. Second, the phrase "in any
country" poses difficulties for New Zealanders who have come from contexts
of heightened political tension or civil unrest. For this part of the legislation to function fairly, it would
require New Zealand officials to have an accurate understanding of what are
quite often highly complex politico-military contexts in countries all around
the world. The natural tendency is for
governments to source their information from other governments, and this could
place expatriate nationals from many countries in very difficult situations.
iv. Subsections 3c,d and e should be omitted
on three grounds. First, they include
acts that are not normally considered terrorist. For example, they may involve no loss of life or serious injury
or threat of these. Second, damage to
or disruption of property or infrastructure (which should not be left
undefined) can be dealt with under existing law. Third, to include references to damage or disruption to "the
national economy of any country", especially in light of the global
conflict over the merits of the prevailing economic doctrines, is a recipe for
political abuse. The dangers inherent
in this have already been realized in the recent actions and subsequent court
cases involving the Police and NZSIS.
v. Subsection 4a is commendable, but does
not go far enough. While it is heartening
to see a series of exemptions included in the Bill, it is too vague to include
unlawful protest, advocacy and dissent only where it is "peaceful"
without defining "peaceful".
3. Financing, Property Dealings, Providing
Services, Being a Member of or Recruiting Members for "Terrorist or
Associated Entities" in sections Nine and ten.
i. What makes this part of the Bill
objectionable is the fact that its references to terrorist acts refer to acts
that should not be defined as terrorist.
As it stands, literally thousands of New Zealanders could have been
charged under these provisions if this law had been in place before.
ii. Most of the international solidarity groups
that have been active in New Zealand in recent years would be outlawed – Philippines
Solidarity, Nicaragua Must Survive, Kanak Solidarity, the anti-apartheid
movement, East Timor Independence Centre as well as fundraising events for
Bougainville, West Papua, Native Americans, Chile, Eritrea, El Salvador and
many others.
iii. Clearly, this part of the Bill would
seriously impede international solidarity work. It would make it very difficult to fund many groups or to bring
people from those groups to New Zealand.
Overseas visitors to many conferences and speaking tours are routinely
spied on, harassed and used as a justification to do the same to activists with
whom they are associated in New Zealand.
This Bill would make it much easier for the state to engage in such
activities.
4. Designation of Terrorist and Associated
Entities in part 2A
i. The provisions in this part of the Bill
are too subjective. As it stands, the
Prime Minister needs only to have "good cause to suspect" (for an
interim designation) or "believes on reasonable grounds" (for a final
designation) that the entity has had involvement in one or more terrorist acts.
In order for an entity to be designated
(either in the interim or as a final measure) as a terrorist, evidence should
be required.
ii. It is not clear what criteria would be
used to determine that any entity was an "associated" terrorist
entity and not a terrorist entity in its own right.
iii. Sections 17K and L outline what kind of
material may be used as the basis for designating something as a terrorist or
associated entity. Section 17K rules
that the PM "must treat" information from the UN Security Council or
a committee of it "as sufficient evidence of the matters to which it relates,
unless the contrary is proved".
This removes from the Prime Minister the powers of discretion and
discernment and vests them in a body that represents interests which may or may
not coincide with those of New Zealand or New Zealanders.
iv. The legislation is silent on how much
credence should be put on information received from outside sources as opposed
to that which is generated from New Zealand agencies. There is much made of the need to protect external sources and
the information flow they provide. There
should be some requirement that those who receive information from outside
distinguish between that which has been verified and that which is, for
whatever reasons, unsubstantiated or under-documented.
v. The reason for demanding this is that
this kind of legislation requires New Zealanders to suspend our own individual powers
to examine and assess the evidence.
Instead, we are being required to vest these, as an act of trust, in the
Prime Minister. The public is far
enough removed by trusting the PM to examine the evidence, without being
expected to trust the PM to decide whose word should be trusted without directly
assessing the evidence.
5. DEFINING
"CLASSIFIED SECURITY INFORMATION"
i. Section 17L defines "classified
security information". It includes
information held by the Police or an intelligence and security organization
(defined as specified agencies) that is about threats to "security, public
order, or public interest posed by terrorist acts that an identifiable entity will
or may carry out, or participate in the carrying out of or facilitate the
carrying out of". Three factors
make this definition very broad:
ii. Section 17L defines "classified
security information" and gives it a special status. It is far too broad, with three factors
being of particular concern. First, it
makes use of imprecise and subjective terms such as "public order or
public interest". Second, the use
of "may" allows authorities to invoke little more than hunches. Third, it refers to terrorist acts which, as
previously outlined, are far too broadly defined.
iii. From this large pool of information, heads
of specified agencies can withhold anything as "classified security
information" if it meets any one of seven criteria which are far too broad.
iv. Three particularly objectionable aspects
of this are worthy of note. First, subsection
17L2a could be used to cover almost any aspect of police surveillance.
v. Second, subsection 17L3a includes an
expression "the international relations of the Government of New
Zealand". This, especially when it
is specifically distinguished from security or defence, could be used to cover
almost any aspect of New Zealand's foreign policy. Third, the use of the undefined term "international
organisation" in subsections 17L2c and 3b opens far too many possibilities
for abuse.
vi. Had these provisions been law, justice
would not have prevailed in the incidents around the 1996 APEC Trade Ministers'
meeting in Christchurch in which the NZSIS and the Police acted outside the
law. Under the cloak of
"classified security information", a great deal of important details
would have been immune from the scrutiny of cross examination in court.
6. REVIEWS
OF AND APPEALS AGAINST TERRORIST DESIGNATIONS
i. Sections 17P through to 17U purport to
give entities the right to have their designation as a terrorist reviewed
through the office of the Inspector-General of Intelligence and Security and,
in the event of dissatisfaction with that review to appeal the decision to the
Court of Appeal. There are weaknesses
in the review process that make this an inadequate safeguard for people's civil
liberties.
ii. First, and fundamentally, just as with
the original designation process, no entity that seeks a review of their
designation is able to know any information about them that is labeled
"classified security information" [see Section 17R1b].
iii. Given the kinds of issues, events,
interests and entities that are most likely to be involved in these sorts of
proceedings, it is likely that most, if not all, of the "evidence"
against an entity would be information of this kind. It is difficult to conceive of any circumstance in which entities
would be able to mount a successful appeal against a designation if it was
operating from a position of having to second-guess such basic things as, for
example, what "evidence" linked them with a specific "terrorist
act" or even what "terrorist act" they were supposed to be
linked with.
iv. Second, Section 17T3 holds that the review
of the Inspector-General is to be accompanied by reasons "except to the
extent that the giving of reasons would itself be likely to prejudice the
interests that this Act seeks to protect in relation to the classified security
information". This exemption makes
it almost certain that no substantive reason will be given for such reviews.
v. Here, the experience of the
Inspector-General's first review is highly instructive. When Aziz Choudry and David Small complained
about the break-in to Aziz's house and subsequent search of David's house, the
Inspector-General ruled that there was no substance to any aspect of the
complaints. His reason: that "no
law had been broken". Subsequent
court cases proved him quite wrong by finding that the law had been broken in
relation to both complainants. The
point here, though, is that he did not explain his reasoning, but just reported
his conclusion. He would not even
confirm or deny whether the SIS had entered Aziz's house, let alone whether
they had a warrant, let alone whether that warrant was valid.
vi. In the likely event of not getting a fair
hearing with the Inspector-General, Section 17U purports to provide an
additional safeguard of an appeal to the Court of Appeal. There are two fundamental weaknesses in this
safeguard.
vii. First, an appeal can only be on a point of
law. However, if the
Inspector-General's reasons are limited by the constraints of dealing with
classified security information and, therefore, as opaque and circular as they
have been to date, an affected entity may not even know upon what points of law
the case turns.
viii. Second, although Section 17U4 appears to
give very wide powers to the Court of Appeal, they are taken back in the following
subsection [referring to Section 17X].
In this section, the Court of Appeal may examine "classified
security information", but only in private or in the presence of the
Attorney-General but not the designated entity. So, again, even at the Court of Appeal, one is unable to hear the
evidence upon which one's accusers are relying.
ix. In very limited circumstances, the Court
of Appeal is obliged to provide the designated entity with "a statement summarizing
the information available to the Court in support of the application, to the
extent that is possible without disclosing information that is classified
security information, so as to enable the entity to be reasonably informed; and
a reasonable chance to be heard on the matter".
x. However this provision only applies to
appeals against Section 17V (where the Attorney-General has applied to the High
Court for a designation to be confirmed) or Section 17V (where the High Court has
ordered the forfeiture of property). It
does not apply, for example, to a case where the PM has designated someone as a
terrorist and that person has unsuccessfully appealed to the Inspector-General
and then appealed to the Court of Appeal.
xi. This is the sort of provision that should be applied at most stages of the appeal process and could be included without making the legislation any less protective of "classified security information".