The Green Party will be voting against this bill. Although the bill has some good provisions, it also contains several sections that undermine our civil liberties. I was on the Foreign Affairs, Defence and Trade Committee that considered the bill and I presented a minority report, which I shall be explaining and elaborating on.
For a start, the Greens believe that to call this bill the “Counter-Terrorism Bill” is wrong, because it includes several amendments to the Crimes Act, the Summary Proceedings Act, and the Misuse of Drugs Act that have no specific reference to terrorism. This meant that members of the public who may have wished to have commented on some of those amendments may not have known that amendments of that character were in the bill, because of the misleading title.
Also in the atmosphere of today, where people do not like to be seen as soft on terrorism, people can be reluctant to criticise the contents of a bill that is called the “Counter-Terrorism Bill”. The Greens did attempt, unsuccessfully, to get the bill split into two bills, the first one concerning amendments to the Terrorism Suppression Act, and could have been called the “Counter-Terrorism Bill”, and the second amending the other Acts, which could have been called the “Crimes Amendment Bill”.
Perhaps the most dangerous change is proposed new section 307A in clause 7 to be inserted in the Crimes Act that could lead to heavy penalties for people who threaten to engage in forms of protest action that cause “major economic loss to one or more persons”. Let us consider the current debate over the foreshore and seabed, particularly over consents for marine farming. Various Maori spokespeople have talked about the possibility of taking direct action. If under that provision Marlborough Maori even so much as threaten to conduct some protest on the water that might affect the establishment and functioning of a marine farm, they could get up to 7 years jail under the bill. The same applies to groups who threaten to pullout GE food crops if they are planted after the moratorium is lifted. Trade Union strikers could also be hit by this law. Unions often threaten industrial actions if negotiations break down. There is a so-called comfort section, new section 307A(2) inserted by clause 7, which provides that threatening a strike “by itself” is not criminal. But that does not stop threatening a strike being against the law if it will cause major economic loss. We all know that the aim of strikes is to cause the maximum economic disruption of a workplace to get the employer to negotiate more reasonably. This section 307A(2) provision is clearly a threat to the right of protest and free speech.
The bill also has provisions enabling further intrusions on our privacy. One section gives police the broad power under warrant to put tracking devices on people or their cars in relation to any suspected offence. The police need only to suspect that an offence “will be committed” at some time in the future for a tracking device to be installed, and it may be installed even prior to any warrant application. Given the technological sophistication of tracking devices and their small size, and the ease with which police could install and operate them, this could lead to substantial intrusion on our privacy, not only for the actual target people, but also for any people they happen to visit. The Privacy Commissioner was aware of how intrusive tracking devices can be and suggested that at least it be made illegal for the general public to use them, unless the person being tracked gives consent. He even provided the text of an amendment to the bill to this effect, but the select committee did not accept it. The Greens will be moving the Privacy Commissioner’s amendment during the Committee stage of this bill. We do accept that tracking devices can be useful in society – for example, for taxi-drivers to monitor their fleet – but this tracking is done, and morally should always be done, with the knowledge and consent of the drivers concerned.
Privacy is being threatened also by the proposed new section 198B of the Summary Proceedings Act. In this high-tech age, we all have so much of our lives on the hard drives of our computers. All sorts of personal correspondence, our innermost thoughts, and much of what we have been doing over the past few years are recorded on the computer. Yet, under this new section, when the police are searching premises under warrant for any offence, they can demand full access to everything on a person’s computer. Specifically, this means that person has to provide any passwords or encryption keys to the police. As submitters to the select committee pointed out, this goes right against the age-old common law right to avoid self-incrimination. The bill was supposedly improved in the select committee by adding a subclause that a person be allowed to withhold information tending to incriminate, but this qualification was then rendered null by the next part of the clause, subclause (2C), which says that this right of refusal does not apply to information sitting on a suspect’s computer. This provision could lead to fishing expeditions to check any evidence of criminal behaviour on people’s computers.
New section 312N of the Crimes Act and the new section 26 of the Misuse of Drugs Act could also lead to fishing expeditions, because they allow search warrants issued for one purpose to then be used to search for evidence on a wide range of offences. There is a part of the bill that is actually related to counter-terrorism, and the Green Party supports those amendments to the Terrorism Suppression Act that bring New Zealand into compliance with the Nuclear Materials Convention and the Plastic Explosives Convention. However, we are opposed to other amendments to the Terrorism Suppression Act on such matters as harbouring terrorists, because they are based on a flawed process of designating who a “terrorist” is in the original Act.
The designation process is done by a politician – the Prime Minister – not a judge, using an overly broad definition of “terrorism” and even drawing on secret evidence that the person or organisation so designated is not allowed to see in any subsequent appeal process. The dangers of secrecy and labelling people “terrorists” is illustrated in the current Ahmed Zaoui case. Mr Zaoui suffers in gaol, not being allowed information on the charges against him, despite being cleared by the Refugee Status Appeals Authority.
This new bill even subverts this designation process, allowing customs officers the right to seize material from people not yet designated as terrorists, but whom they consider might become so designated. There is simply no demonstrated need to grant the New Zealand Customs Service such a power. The Green Party challenged the definition of “terrorism” in the original Terrorism Suppression Act when it was debated in the House last year. We said it could easily catch New Zealanders engaged in international solidarity work with West Papuans, Acehnese, or Palestinians, whose use of arms may be deemed terrorist by those who rule over them. Nelson Mandela and Xanana Gusmao were once considered terrorists for using arms in their liberation struggles, and the New Zealand Government of the day – the Muldoon Government – tended to go along with that definition. Who is a terrorist and who is a freedom fighter is often a politically vexed question, which should not be left to a future potentially vindictive Prime Minister – as it is in the Terrorism Suppression Act.
The broad definition in section 5 of that Act, which is applied to the amendments in this bill, is also a threat to the right of protest or the right to strike in New Zealand. In this bill, there is no need for protesters or strikers to intend to cause death or injury by their actions for them to be defined as terrorists. The activity needs only to be on such a scale, such as in major protests as occurred during the Springbok tour or a strike in a hospital, for them to cause “serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life”. Members should note the word “likely”; it does not require an intention to endanger life.
The actions also need to be political and unduly compelling a Government to do something. Governments often believe activists are “unduly” compelling them. There is a growing recognition in New Zealand and around the world that the so-called war against terrorism is being used for unjustified restrictions on civil liberties. We can see that in many countries, we can see it at the US base at Guantanamo Bay, and it is very disappointing to see the New Zealand Government going down that track with this bill.
We do not need to undermine civil liberties in the fight against terrorism. To do so is to concede a point to the terrorists, whose aim is to restrict civil liberties, not increase them. I think that we should not, under the guise of counter-terrorism – as in this bill – introduce general changes to our criminal law that restrict and undermine the civil liberties that we have long enjoyed: the right to avoid self-incrimination; the right to privacy in our life, including today in our computer files; the right not to be tracked throughout our travels; and the right to freedom of speech and protest without being subject potentially to designation as a terrorist by a political figure such as a Prime Minister under the Terrorism Suppression Act.