The Green Party considers this bill to be the biggest attack on our civil liberties for many years.
The way in which this bill has been processed has also been serious flawed. Just prior to September 11 the Terrorism (Bombings and Financing) Bill had been largely agreed to by the Foreign Affairs, Defence and Trade Select Committee, of which I am a member. It dealt with New Zealand’s adherence to an international convention against international terrorist bombings — that is bombings conducted by people moving from one country into another.
After September 11 the bill was totally transformed, with an overly broad definition of terrorism, which was then used to apply both to activity by New Zealanders in New Zealand, and to New Zealanders support for liberation movements.
The government wanted the drastically amended bill rushed through Parliament before last Christmas, without any public submission process in the select committee. Without me blowing the whistle on what the government was up to, this would have happened.
The early post-September 11 drafts of the bill were really draconian, as pointed out by people such as Professor Jane Kelsey, who released a version of the bill where a person could be designated a terrorist simply on the say so of the Director of the SIS, without even the Minister of Foreign Affairs, who was formally to do the designation, even being entitled to know about the classified material on which the designation was based.
The amended bill has drawn wide public criticism. Virtually all the 150 public submissions opposed the bill. They represented a wide range of church, civil liberties, trade union and other community groups.
At the public hearings government members tried to assure the submitters that their civil liberties would be taken care of. And although there have been some improvements in the bill it is still draconian.
There are two categories of New Zealanders who are affected by the provisions on financing and recruiting alleged terrorists,.
The first are New Zealanders who support liberation movements. We have a proud tradition in this area, with many Kiwis supporting the ANC of South Africa in its fight against apartheid, and the East Timorese resistance to Indonesian rule.
Under this legislation such New Zealanders would be subject to 7 years or 14 years in jail. A little phrase has been added, that it is not an offence to finance activities “for the purpose of advocating democratic government or the protection of human rights”. However, the activities of several liberation movements go well beyond simple advocacy, to armed actions (as in the case of the ANC and Fretilin in East Timor). Liberation movements also commonly engage in major civil disruption. After all one of their aims is generally to get rid of a government. This bill could make it illegal for New Zealanders to support the Zimbabwean opposition if they called an indefinite general strike against the Mugabe regime.
This aspect of the bill is a very live issue for New Zealanders, particularly the many New Zealander of Tamil origin who actively support the Tamil Tigers, an organisation that has been designated terrorist by the American, British and Australian governments.
There has been brutality towards civilians on both sides in the civil war in Sri Lanka, but it is clear that most Tamils support the Tamil Tigers and the Sri Lankan government has recognised this fact, made the Tamil Tigers a legal organisation and entered into peace negotiations with it.
Dialogue and trying to meet people’s genuine aspirations is the correct path, not worsening the situation by branding as terrorists an organisation like the Tamil Tigers and its supporters around the world.
The second category of New Zealanders that could be charged under this legislation are those involved in major industrial or political protest action. We have in our history such events as the 1951 Waterfront dispute and the 1981 Springbok tour demonstrations where mass disruption of the economy and society took place. Whether the waterfront workers or the anti-tour protesters were justified or not depends on your political stance. The governments of the day clearly thought the actions of the workers and protesters were not justified, and that is relevant because it is the Prime Minister who will designate people as terrorists under this legislation. When we look at how this legislation will be applied we have to consider a worst case Prime Minister, like a Muldoon.
As an illustration how the legislation could be applied let us use the example of a nurses union on strike against the closure of a hospital or hospital ward. Under Clause 5 (2) it could meet the definition of a “political” cause, whereby the intention of the strikers is to “unduly compel… a government… to do..any act”, by, as is specified in Clause 5 (3), causing “serious disruption to, an infrastructure facility” [namely a hospital] in a way “likely to endanger human life”.
A so-called “comfort clause” has been added to the definition of terrorism in Clause 5, that striking “by itself” does not mean you are engaging in terrorism — but if the activities of the strikers meet the definition of terrorism, as I have just outlined, then they can be designated terrorists. Then if you gave money to the nurses union strikers you could be up for 14 years jail, under the bill.
There is a still a big problem in the process of designation of terrorists, even though there have been improvements from the original draft. There is still no right for those initially designated as terrorists to be informed that it is happening, and convey their views. Although there is now a court appeal process, the alleged terrorists can still be denied access to the classified information being used against them in court.
Information can be withheld purely on the basis that a foreign government requires that it be kept secret. It is possible for a political refugee to be the subject of secret accusations from the government of the country from which they have fled and be designated a terrorist as a result.
Under the bill evidence from the UN Security Council is to be treated virtually as gospel, to be treated as “sufficient evidence” that a person is a terrorist. Clearly, the Security Council is a political not judicial body, and we have our own sovereignty.
These weaknesses in the process are important from a practical as well as civil liberties view. If a person or company’s assets are a seized under the bill there could be huge suffering, without any right to compensation other than the existing right to sue for negligence under general law. The government can make ex gratia compensation payments, but given that the government, in the form of the Prime Minister, would be making the original terrorist designation, it would be unwise to rely on the Executive for compensation.
Members of the Foreign Affairs, Defence and Trade Select Committee reacted badly when I pointed out these civil liberties problems and refused to allow me to append my minority report to the commentary in the bill as it has been reported back to the House. I find it an outrageous breach of the parliamentary process and the public’s right to know about dissenting opinions for a select committee majority to suppress a minority report just because they disagree with it.
It is also very unfortunate the three remaining stages of this bill are being rushed through together in a few hours. It doesn’t allow time for proper consideration of the contents and possible changes.
There are civil liberties problems that haven’t been properly addressed. I believe that the bill breaches several clauses of the Bill of Rights Act 1990 relating to freedom of expression, peaceful assembly, freedom of association, discrimination, search and seizure, detention, prosecution, criminal procedure, and the right to justice. We have not been provided with any written Attorney-General’s analysis of the legislation in terms of the Bill of Rights.
Finally, there is no demonstrated need for this special legislation on terrorism. In New Zealand we are not facing terrorist problems of any significance. In any case, terrorist acts, and support for them, are in fact criminal acts, covered already under our laws. If there are any weaknesses in the present criminal law regarding the freezing of criminal assets, then the government should amend the present criminal law, not set up a separate category of political offences, with a political designation process, as it is doing in this bill.
Of course, we should cooperate with other jurisdictions to apprehend terrorists, but this does not require new legislation of the type we are debating today.