[Back in February I wrote for the New Zealand Herald this opinion piece (below) on the illegality of the NZ government taking away the passports of New Zealanders for intending to fight overseas. I argued that the “national security” grounds in the Passports Act for cancelling NZ passports don’t apply because the Terrorism Suppression Act, to which the Passports Act refers, specifically excludes people fighting in a war. Prime Minister Key also has little regard for international law in this area, with his recent comments that because New Zealand has designated as a terrorist organisation one of the combatants in Syria and Iraq – the Sunni extremist ISIS group – it’s ok for the United States to drone-assassinate its members.]
The Government may well have acted beyond the law in cancelling the passports of New Zealanders intending to join rebel groups fighting the Assad regime.
Under Section 18 of the New Zealand Bill of Rights Act, “Everyone has the right to leave New Zealand” and the Passports Act 1992 guarantees that each New Zealander will be provided with a passport to leave the country when they want to.
Section 3 of the Passports Act states that “every citizen is entitled as of right to a New Zealand passport”.
Until recently the only restraint on that provision was that wanted criminals and those on bail or parole could have their passports taken away to stop them leaving New Zealand.
In 2005 the Passports Amendment Bill added “national security” grounds. As a Green MP I attended the select committee hearings on this bill and was worried that the Government could misuse its new powers.
My particular concern was that the bill defined “national security” mainly in terms of the Terrorism Suppression Act 2002, which I believed has an overly broad definition of terrorism.
How one interprets the Terrorism Suppression Act is critical to the debate over whether the Government has acted legally in depriving citizens of their passports when they want to leave New Zealand to fight in Syria. The other two national security grounds the Passports Act provides for cancelling a New Zealand passport – facilitating “the proliferation of weapons of mass destruction” or causing “serious economic damage to New Zealand” – do not apply to people going to fight in Syria.
The problem the Government has with the application of the Terrorism Suppression Act to fighters going to Syria is that Section 5 of the act says they are not committing “terrorist acts” if anything they do “occurs in a situation of armed conflict”. Fighting with arms against the Syrian Government is not in itself grounds for having one’s passport withdrawn.
A passport could be cancelled if the person joins a terrorist group in Syria, but it seems that the people who had their passports cancelled hadn’t got that far. The fact that someone “might” participate in a terrorist group, or even that they “intend” to participate, would not be enough to be caught by the Terrorism Suppression Act.
In any case, New Zealand volunteers would be more likely to fight for the major rebel coalition, the Free Syrian Army, than the smaller groups linked with al-Qaeda.
I agree with the Prime Minister that we should discourage New Zealanders going off to fight for the Free Syrian Army. If the war in Syria has taught us anything, it is that there is no military solution, only a political solution. But taking New Zealand passports off prospective fighters is not the best way to discourage such fighters, nor is it a legal way.
New Zealanders are prohibited by law from becoming mercenaries, but not from becoming regular soldiers in a foreign army. Kiwis serve in the armed forces of many nations. Sometimes they are fighting in wars New Zealand opposes, as was the case with Kiwis serving with American or British forces in Iraq. We might disagree with an army or war they choose to fight in, but they are free agents.
History shows that New Zealand governments don’t always get it right. The Muldoon government attacked Nelson Mandela’s African National Congress as a terrorist organisation, but this didn’t stop some New Zealanders, such as Father Michael Lapsley, from joining the ANC. Father Lapsley, who lost both hands and an eye when a letter-bomb sent by the apartheid regime blew up in his face, is regarded as a hero in post-apartheid South Africa. If the “national security” provisions in the Passports Act had existed in Prime Minister Muldoon’s time, he may well have tried to cancel Father Lapsley’s passport and seriously hamper his covert work for the ANC.
I can understand John Key’s eagerness to show that his intelligence services are on the job and looking out for dangerous people. But isn’t it also dangerous for him to go beyond the law and stop New Zealanders who are facing no criminal charges from leaving our country.
• Keith Locke is a former Green MP