A Critique of the Terrorism Suppression Bill.

Prepared by David Small,

Senior Lecturer in Education, University of Canterbury

and Board member of ARENA.

14 November 2001

Summary

• This Bill represents a serious assault on civil liberties the right to dissent.

• It bestows greater powers and less accountability on state agencies that have systematically abused the powers they already have, especially in relation to the surveillance and suppression of legitimate political activities.

• The dangers in the Bill lie in two key definitions which are far too broad – a "terrorist act" and "classified security information".

• The safeguards proposed by the Bill are totally inadequate.

DEFINING "A TERRORIST ACT"

This definition of a terrorist act is crucial because almost every other clause refers to "one or more terrorist acts". The definition is contained in Section 5 which is in four subsections.

Subsection one defines three possibilities for an act being "terrorist": that it contravenes a specified terrorism convention; that it is a particular type of act as part of an armed conflict; or that it falls within subsection two of this legislation.

Subsection two notes that a terrorist act threatens or acts to intimidate a population, government or international organization for an ideological, political or religious cause. It must also be "intended, in full or in part" to cause one or more of the outcomes specified in subsection three.

As well as the obvious terrorist outcomes, there are three other possibilities listed that make the category of terrorism very broad. The full five outcomes that comprise subsection three are:

a. the death of, or other serious harm to (for example, serious injury to or kidnapping of) one or more persons (other than a person carrying out the act) in any country;

b. a serious risk to the health or safety of a population in any country (other than to the health or safety of a person carrying out the act);

c. destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, in any country, but only if that damage or loss is likely to result in one or more of the outcomes specified in paragraphs a, b and d;

d. serious interference with, or serious disruption to, an infrastructure facility in any country;

e. serious damage or serious disruption to the national economy of any country.

Subsection four is designed to contain some safeguards or exceptions. It excludes from the definition of terrorism the following:

a. any protest, advocacy, or dissent that is lawful or that is unlawful but peaceful;

b. any strike or lockout;

c. any other act that is authorized or required by law;

d. any act that occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict.

The bill also defines a terrorist act in an armed conflict as one:

a. that occurs in a situation of armed conflict; and

b. the purpose of which, by its nature or context, is to intimidate a population, or compel a government or an international organisation to do or abstain from doing any act; and

c. that 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; and

d. that is not excluded from the application of the Financing Convention by article three of that Convention.

It should also be noted that Section 17F subsection one states that a terrorist act is deemed to have been carried out not only if it is actually carried out, but also if it is planned or attempted or threatened "whether it is actually carried out or not".

COMMENTARY ON "A TERRORIST ACT"

Section 5, subsection 3, paragraphs d and e should be omitted. To define serious interference with or damage or disruption to an "infrastructure facility" or the "national economy" of "any country" is to move well beyond what the public generally understands terrorism to be. An infrastructure facility is far too broad. It could, for example, include a computer network, a railway line or a cell phone tower. It is already illegal to disrupt such things. It goes beyond the normal meaning of terrorism to include such acts in this legislation.

What damage or disruption to a national economy would entail is highly subjective. For example, most New Zealanders considered that the dismantling of the welfare state, slashing benefits and handing public assets to private companies for bargain basement prices constituted a major assault on this country's national economy. Others would say the same thing about organized opposition to free trade agreements.

This tendency to include economic disruption in the same category as bombings and subversion first appeared in our laws in the SIS Amendment Act 1996. It has been used to justify surveillance and other activities against individuals and groups opposed to the dominant market orthodoxy. This trend is being reinforced by including subsection 53e in the Terrorism Suppression Bill. The government needs to get a very clear message on this point. Even if there could be agreement on what constitutes economic disruption (which is highly unlikely), such actions do not fall within what the public generally understands to be "terrorism" unless they involve other elements (such as threatening the lives or health of innocent people) which are already covered in the Bill.

Section 17 should be of significant concern. It would allow authorities to use an ill-considered spur-of-the-moment bomb hoax – an act normally dealt with in the category of wasting police time – as grounds for invoking the wide-ranging powers of anti-terrorist legislation. This is all the more worrying in light of the high probability, as with the "APEC Bomb" incident in Christchurch, that state agencies are staging their own bomb scares.

Subsection 4 has some praiseworthy elements. The government should, for example, be praised for including an exemption for any strike or lockout. It is also good that there is exemption for lawful protest, advocacy or dissent. So too, it is good to include a provision for protest that is unlawful but peaceful.

However, the inclusion of this subsection should not be sufficient for the public to be relaxed about this Bill. There is a good deal of unlawful protest that should not be considered terrorism. To exempt only that which is "peaceful" without defining this term is highly problematic. Given the emphasis in other parts of this Bill to outlaw acts against property, it could be argued that any such damage moved actions out of the category of "peaceful". The other problem with subsections such as this is that, in other laws that make use of such provisions, such as the SIS Amendment Act 1996, the agencies responsible for enforcing such laws have been shown to show scant regard for these assurances.

Another significant aspect of the definition of a terrorist act is that it covers acts "in any country". The problem here is that, if people come to New Zealand from a context of heightened political tensions or civil unrest, or they find themselves in new Zealand when such a situation erupts in their country of origin, they could be regarded as terrorists in New Zealand. 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.

In contrast to the wide ranging definitions for terrorism in the rest of the legislation, the section on terrorism in armed conflict contains a much narrower definition. It is not enough to damage infrastructure or disrupt a national economy. Moreover, the terrorist label can only be applied to actions that are "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". This contrasts with sections nine and ten, both of which include not only acts that are intended to have specified consequences, but also acts where people are "reckless as to whether" certain outcomes occur. The wording in paragraph c of what constitutes a terrorist act in armed conflict should be broadened to include acts that "are reckless as to whether they cause death or serious bodily injury to a civilian ...that situation".

Financing, Property Dealings, Providing Services, Being a Member of or Recruiting Members for "Terrorist or Associated Entities"

Sections 9 and 10 set out what kinds of practices are outlawed under the above headings. They are very broad categories of services rendered. As noted above, they include provisions for people being "reckless" as to the end to which their product or service is to be put. It is worth noting here that it is illegal to offer support to not only the entity that has carried out one or more terrorist attack, but also any entity that has facilitated such an act. Overall, there would be nothing too objectionable about this part of the Bill if the definition of a terrorist act were not so broad.

As it stands, however, literally thousands of New Zealanders could have been charged under these provisions if this law had been in place before. 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.

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. We know that 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.

Designation of Terrorist and Associated Entities

The Prime Minister has the power to designate an entity as a terrorist as an interim measure. The PM requires no evidence, but only needs to have "good cause to suspect" the entity of involvement in one or more terrorist acts. After approximately one month, the interim designation (assuming it hasn't been repealed by the PM or revoked on appeal to the Inspector-General of Intelligence and Security) can be reissued as a final designation. This can only occur where the PM "believes on reasonable grounds" that the entity has had involvement in one or more terrorist acts. This designation remains for five years unless revoked. To make either an interim or final designation, the PM must also consult with the Minster of Foreign Affairs and Trade.

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.

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.

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 mad 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.

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 and 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.

DEFINING "CLASSIFIED SECURITY INFORMATION"

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: the use of imprecise and subjective terms such as "public order or public interest"; the use of "may" which allows authorities to invoke little more than hunches; and the broad definition of "terrorist act, as discussed above.

From this large pool of information, heads of specified agencies can withhold anything as "classified security information" if it meets any one of seven very broad criteria. These criteria [contained in subsections 17L2 and 3] are worth quoting in full. Subsection 17L2 covers information that

a. might lead to the identification of or provide details of, the source of the information, the nature , content, or scope of the information, or the nature or type of the assistance or operational methods available to the specified agency; or

b. is about particular operations that have been undertaken, or are being undertaken, in pursuance of any of the functions of the specified agency; or

c. has been provided to the specified agency by the government of another country or by an agency of a government of another country or by an international organization, and is information than cannot be disclosed by the specified agency because the government or agency or organization by which the information has been provided will not consent to the disclosure.

Subsection 17L3 covers information the disclosure of which would be likely

a. to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

b. to prejudice the entrusting of information to the Government of New Zealand on a basis of confidence by the government of another country or any agency of such a government, or by any international organization; or

c. to prejudice the maintenance of the law, including the prevention, investigation and detection of offences, and the right to a fair trial; or

d. to endanger the safety of any person.

There are many points to raise in connection with these broad criteria. Some of them are:

Subsection 17L2a could be used to cover almost any aspect of police surveillance.

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.

The use of the undefined term "international organization" in Subsections 17L2c and 3b opens far too many possibilities for abuse.

The "APEC Bomb" incident and subsequent search of David Small's house (which the High Court eventually ruled to be illegal) would fit within the provisions of this legislation and the entire Police case would meet the criteria of "classified security information". As such, it would have been immune from the scrutiny of cross examination in court.

REVIEWS OF AND APPEALS AGAINST TERRORIST DESIGNATIONS

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.

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]. Given the kinds of issues, events, interests and entities that a re 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.

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.

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.

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.

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.

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.

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". 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. It 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". I expect that it will be applied more widely when the Bill goes to the next stage in order to give the appearance of the public's concerns being accommodated. It would be interesting, therefore, to not just recommend that it be more widely applied but also enquire as to why the currently draft applies it in such restricted circumstances.