COUNTER-TERRORISM BILL
“Without Lawful Authority”
- Bob Leonard
You might think that the art of Bill writing is
highly evolved. But the following excerpt from the Counter-Terrorism Bill
(2003) should, on careful reading, give you pause:
“Section 13C Offences involving physical protection of nuclear material
(1) A
person commits an offence who, -
“(a) without lawful authority, receives, possesses, uses, transfers,
alters, disposes of, or disperses nuclear material, knowing it is nuclear
material, and –
“(i) that causes death, injury, or disease to any person or substantial damage to property; or
“(ii) with intent to cause, or being reckless as to whether it causes death, injury, or disease to any person or substantial damage to property….” (emphasis added)
Just what do the words “without lawful authority” mean here? To ABC it means that “with lawful authority” it would not be an offence to use nuclear material (including nuclear weapons) to cause death and destruction, in New Zealand or anywhere else for that matter. Is this a bit of careless writing? Or is the wording quoted above meant to allow the use of nuclear weapons as long as they are legally authorised?
Our submission to the Foreign Affairs, Defence and Trade Select Committee (see below) did not make that point directly. But I did make the point with considerable emphasis in telephone testimony before the committee on 22 May 2003. In response to a question from Labour MP Tim Barnett I asked the Committee to strike the words “without lawful authority” from the Bill. It will be interesting to see if the phrase persists.
ABC had asked to testify before the Committee
on the Bill. Six members were present to hear supporting testimony: United
Future’s Leader, Peter Dunne in the chair, Labour’s Martin Gallagher and Tim
Barnett, the Greens’ Keith Locke, the Progressive Coalition’s Matt Robson and
National’s Lockwood Smith. Keith Locke was concerned about the development of
small tactical nuclear weapons that increase the likelihood of battlefield use
and crossing the nuclear weapons threshold. Of course that led to my response
that such weapons could easily be carried through New Zealand on US Air Force
C141B Starlifters transiting Christchurch under the “neither confirm nor deny
policy” (exactly the same policy that has
seen US Navy ships refusing to visit New Zealand since the 1980s. Ed.).
We think this Bill may actually have positive
elements in it, unlike most provisions in the other terrorism-related bills
that followed the events of September 11, 2001. If it becomes law, which seems
highly likely, it may actually provide some badly needed leverage for
questioning the so-called Channel Flights by US Air Force cargo aircraft at
Christchurch Airport. A little
background on that issue is provided following the text of our submission.
We would like to call to the attention of the Committee an aspect of the Counter-Terrorism Bill that is of particular relevance to our concerns about the American military presence at Christchurch International Airport.
We believe this Bill is relevant to the potential for American military cargo aircraft, particularly in time of international crisis, to carry nuclear materials (including nuclear weapons) through Christchurch Airport in transit to United States military/intelligence bases in Australia and beyond. The aircraft are primarily C-141B Starlifters and C-5B Galaxies which carry the “neither confirm nor deny” (NCND) nuclear weapons policy.
With reference to the Bill, the relevant sections are: Section 11(1), which makes reference to the “Nuclear Material Convention”, Section 13C “Offences involving physical protection of nuclear material, and Schedule 2A, which is the text of the “Convention on the Physical Protection of Nuclear Material”.
Within the text of the Nuclear Material Convention we call your attention to the statement in the Preamble, “Recognizing the importance of effective physical protection of nuclear material used for military purposes…”, Article 1c on “international nuclear transport”, and Article 4(5) which states, inter alia, “The State Party…shall identify and inform in advance States which the nuclear material is expected to transit…whose airports or seaports it is expected to enter”.
Article 4(5) appears to be of particular relevance to the transit of American military cargo aircraft through New Zealand under the NCND nuclear weapons policy. Starlifters and Galaxies are the primary mode of air transport of nuclear weaponry from the United States to its military bases overseas. There are many such bases and nuclear weapons are known to be stored at some of those bases (we are not alleging that such storage exists at Christchurch Airport).
We strongly support New Zealand’s implementing in our law, via the relevant provisions of the Counter-Terrorism Bill, the requirements of the Nuclear Material Convention to which we are a signatory. We consider that an important requirement of that Convention is that New Zealand be informed of any passage of nuclear material, including nuclear weapons, through our territory. We are a nuclear-weapons-free nation, protected by the Nuclear Free Zone Act of 1987. The Prime Minister must be “satisfied that the foreign military aircraft will not be carrying any nuclear explosive device when it lands in New Zealand” (Section 10(2) of the 1987 Act).
We request the Select Committee to incorporate appropriate wording in the Counter-Terrorism Bill to make clear that aircraft transiting New Zealand under the NCND nuclear weapons policy would be in violation of provisions of New Zealand law and would contravene the letter and intent of the Nuclear Materials Convention. We would be happy to suggest relevant insertions to the Bill for these purposes.
We are also prepared to supply documentation in support of statements in this submission, including extensive flight data (provided by the Ministry of Foreign Affairs and Trade) that makes a clear distinction between dedicated Antarctic support missions of American aircraft and the military-intelligence flights that transit Christchurch Airport in support of foreign American bases, including Pine Gap in Australia.
Note: In oral testimony I did not make specific suggestions for wording to be incorporated into the Bill as offered in our submission. At the time it seemed highly unlikely that any specific reference to the Channel Flights by American aircraft would stand a chance of being added to the Bill. Nevertheless, we are still considering the option.
In 1987 Parliament passed the New Zealand
Nuclear Free Zone, Disarmament, and Arms Control Act. This simple act of
sovereign independence so incensed our ANZUS* partner and Big Brother, the
United States of America, that they chose to cease all military ship visits to
our harbours, whether or not they were nuclear-armed, or -capable, or -powered.
In other words, it wasn’t the Act itself that did the “damage”, it was the
sentiment behind it. New Zealanders firmly rejected things nuclear as they
relate to war and power, and they still do.
But there was a deliberate loophole written into the Act that the
Americans were very happy to accept, if in fact they didn’t write it
themselves. *ANZUS – the 1951 military treaty between the US,
Australia and New Zealand that governed New Zealand’s defence and foreign
policy until the “ANZUS Row” of the 1980s, when NZ went nuclear free, and was
summarily kicked out of ANZUS. That remains the status quo today. Ed.
Section 10 of the Nuclear Free Act is titled
“Landing in New Zealand” and applies to foreign military aircraft. Subsection
(2) reads: “The Prime Minister may only grant approval to the landing in New
Zealand by any foreign military aircraft if the Prime Minister is satisfied
that the foreign military aircraft will not be carrying any nuclear explosive
device when it lands in New Zealand”.
And here is the loophole: Subsection (3) reads: “ Any such approval may relate to a category or class of foreign military aircraft, including foreign military aircraft that are being used to provide logistic support for a research programme in Antarctica, and may be given for such period as is specified in the approval”.
Whether or not you consider Subsection (3) to
be necessary at all, in a strictly legal sense, there is no question it was
inserted to placate the Americans who use Christchurch International Airport as
a support base for its Antarctic Research Program, Operation Deep Freeze. It
seems reasonable, even to the hotheads in the Anti-Bases Campaign, that it is
unlikely the US Air Force would be carrying nuclear warheads to and from
Antarctica. Even if the “enemy” does
have its own bases there, it would seem a bit heavy-handed to vapourise a
research facility on the Ice.
So what’s the problem? The problem is the
military/intelligence flights that we keep harping on in Peace Researcher in almost every issue.
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