This is a shameful bill that shows the inconsistency in the Government’s talk about human rights.
The Foreign Affairs, Defence and Trade Committee is in the middle of a review of the Terrorism Suppression Act. Submitters to that review are repeating what is being said all around the world – that the legislation brought in soon after the September 11 atrocity was often rushed and often did not take full account of human rights.
Traditional civil liberty safeguards have been challenged by anti-terrorism legislation on a number of fronts. The determination of criminality, when it is put in the terrorist basket, has been taken out of the hands of the judiciary in many cases, and put into the hands of politicians and their officials. In our Terrorism Suppression Act, it is the Prime Minister who does the designating.
There are some appeal processes but several places around the world, such as Guantanamo Bay, show that there is no guaranteed due process. The same lack of due process applies in countries like Pakistan, the President of which, Purvez Musharraf, is arriving in New Zealand tonight.
In our Terrorism Suppression Act there is a right of appeal to the court, but this is highly constrained. Information against those labelled as terrorists is commonly classified, and under the original Act can be withheld from them when they take their appeals to the High Court.
The standards whereby the State has to prove criminality are lowered when crime, usually potential crime, is defined as terrorism. New Zealanders can be imprisoned under our Terrorism Suppression Act for giving some form of support to an organisation initially only suspected of being terrorist. This suspicion can be based not on the fact that they have committed a terrorist act, but that they might do so.
Another critical problem is the loose definition of what is or is not a terrorist organisation. Since September II the United Nations has come to no agreement on any definition, basically because one country’s terrorist is another country’s freedom fighter. The definitions of terrorism are often so loose that even normal protest groups get caught. We have seen this in Denmark this month, with Greenpeace being put on trial under anti-terrorist legislation for entering an agricultural ministry building in a protest against GE.
Similar prosecutions could take place under our anti-terrorist legislation if a more right-wing Government, wanting to clamp down on protest groups, came to power. Under the existing definition of terrorism, protest groups involved in civil disobedience or serious disruption of an infrastructure facility – to use the terms in the present Act – do not need to intend to harm anyone. They need only to do something deemed by the authorities as likely to endanger human life to be caught under this Act.
It is disgraceful that rather than waiting for the present review of the Terrorism Suppression Act to be completed, the Government is making the original bill even more draconian. To put it bluntly, the amendment bill is in this House today not for any good reason but to please the Bush administration and its allies in their so-called ‘war against terrorism’.
This bill makes the Terrorism Suppression Act worse, in three respects.
Firstly, it extends criminality from financial support for carrying out a terrorist act, to financing an allegedly terrorist group as such for any purpose, even if that purpose has nothing to do with terrorism. In the explanatory note of the bill, even “the payment of general routine expenses such as rent” is criminalised.
It was this provision that received the most attention from submitters to the select committee. Several pointed out that thousands of New Zealanders could have been convicted under this provision if it had been in place at the time they were digging deep to give tsunami relief to Sri Lanka.
As was pointed out by submitters, much of the aid that New Zealanders gave went to the Tamil-controlled area in the north and east of Sri Lanka. Some of those who donated would have known that their aid would be going via organisations controlled by the Tamil Tigers who are designated as terrorists by the Governments of America, Britain, and Australia and are treated as terrorists by some agencies in New Zealand, particularly the Security Intelligence Service, which I have direct evidence interrogates members of the Sri Lankan Tamil community in regard to their connections in Sri Lanka.
Let me be clear. Under the Terrorism Suppression Act, an organisation does not have to be officially designated as terrorist for donors to it to be criminalised by this new provision.
The Government told the select committee that the submitters were right – the law did apply to ordinary New Zealand aid donors if the Tamil Tigers were considered terrorist. The only reassurance to us was that if we were intending the money to be used only for charitable purposes, that would be a good court defence, and such New Zealanders would be unlikely to be convicted. But why should we have a law that requires New Zealanders to mount such a defence in such cases? The outcome would be a lottery, according to the political mood at the time.
A New Zealand donor to one of the purely charitable Hamas agencies in Palestine, of which there are several, might not be so lucky in court in a political climate following a particularly despicable Hamas suicide bombing.
New Zealanders’ chances of winning any such court battles will become worse if another part of the amendment bill passes. In the original Act there is a qualifying section 8(2), after the section that makes it illegal to give money for carrying out a terrorist act. The qualifying section 8(2) states: “To avoid doubt, nothing in subsection (1) makes it an offence to provide or collect funds intending that they be used, or knowing that they are be used, for the purpose of advocating democratic government or the protection of human rights.”
Common sense would dictate that the newly inserted provision for the lesser offence of funding a terrorist organisation, rather than funding a terrorist act, would carry the same qualification, particularly in the climate of 2005 when people are more conscious of not having terrorist legislation restrict civil liberties than they were when the original Act was passed.
But no, the Government has made it clear that it wants to knock this “avoidance of doubt” provision, where it is a defence to aid democratic Government or the protection of human rights, right out of the original Act. Its first step towards this is not to have it apply to the new provision for the financing of a terrorist organisation.
This is a betrayal of the original political contract, which led to the Terrorism Suppression Act passing through this House in 2002, as expressed in the speeches from people like the Labour chair of the Foreign Affairs, Defence and Trade Committee, Graham Kelly. They repeatedly reassured those submitters who were critical of the bill, and there were about 130 of them, with the “avoidance of doubt” clause and another comfort clause about engaging in protest, by itself, not being sufficient basis for implying that a person was carrying out a terrorist act.
The Green Party will be moving an amendment in the Committee stage to at least have the avoidance of doubt qualifying provision apply to donations to an allegedly terrorist organisation.
The third way in which this amendment bill makes the original Act worse is to extend New Zealand’s terrorist designations, which expire this year, for 2 further years until late 2007, 2 years after the Foreign Affairs, Defence and Trade Committee presents its review on the Terrorism Suppression Act.
That is particularly bad given that we know that the designations are not always accurate. The present ones all come from the United Nations, and there are many admissions now that its processes are not up to standard and that it does not build into its processes the right to due process for all those designated as terrorists now or in the past.
Extending designations when we know that in all likelihood some of them are wrong is unconscionable.
The last amendment to the Act we passed – which is why this bill is the No 2 bill – was, in fact, to enable the Government to remove organisations where errors had been made. So that legislation accepted the fact that errors could be made. It is argued that it would be hard or time consuming for the High Court to check designations as the Act presently prescribes. But if we are to apply justice to those who are so designated, and to anyone who supports them, there must be a checking process, and officials responsible to the court can do that checking just as easily as officials responsible to politicians.
As the Human Rights Commission pointed out, the Government has not gone to the trouble of applying to the court with any of these expiring designations to give it time to initiate that process. Basically, this amendment shows disrespect for the judiciary, and puts politicians above them in determining the future of designations.
The concept of putting politicians above the judiciary is a basic problem of anti-terrorist legislation around the world.