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Update! Terrorism Suppression Bill
22 March 2002
how very appropriate that on the day the US government announces 'rules' for conducting military tribunals for the prisoners from their war against the people of Afghanistan, here the Foreign Affairs, Defence and Trade Select Committee reports back to parliament on the Terrorism Suppression Bill.
While the penalties under the Bill (unlike Bush's military tribunals) do not include the death sentence, nevertheless the Terrorism Suppression Bill marks the single greatest legislative erosion of human rights and the due process of law in this country since those Acts passed in the late 1800s which took away the right to trial - in particular the Mäori Prisoners Trials Act of 1879 and the Mäori Prisoners Act of 1880.
The Select Committee's report back to parliament (which will be available on the parliamentary website on Monday) has recommended some changes to the original Bill, but these changes are mere tinkering with a piece of legislation which is fundamentally flawed.
From what we understand, none of the substantive issues or concerns raised during written and oral submissions have been reflected in the Select Committee's recommendations. The Bill will go for its second reading with its basic provisions essentially unchanged.
The government's purported reason for the Terrorism Suppression Bill is to implement United Nation's Security Council Resolution 1373 - but that resolution has already been put into effect by the United Nations Sanctions (Terrorism Suppression and Afghanistan Measures) Regulations 2001, Order in Council, 26 November 2001; and the United Nations Sanctions (Afghanistan) Amendment Regulations 2001, Order in Council, 26 November 2001 which amends the United Nations Sanctions (Afghanistan) Regulations 2001, Order in Council, 12 March 2001.
And in their haste to pass the Bill to allegedly implement that one Resolution, the government has not taken into account successive resolutions adopted by the UN General Assembly in its discussions about terrorism over a number of years. These have always referred to the need for states to respect human rights, to be guided by the Charter of the United Nations, the Universal Declaration of Human Rights or similar.
For example, UN General Assembly Resolution 55/158 'Measures to eliminate international terrorism' (adopted in January 2001) specifically states in point 3: "Reiterates its call upon all States to adopt further measures in accordance with the Charter of the United Nations, and the relevant provisions of international law, including international standards of human rights, to prevent terrorism ..." It is clearly evident that there is a duty for UN member states to ensure care is taken to preserve and enhance, not erode and destroy, human rights in any measure to assist the elimination of terrorism.
The basic provisions of the Terrorism Suppression Bill which allow for the withholding of evidence against an accused person (if it is "classified security information" provided by an agency, government etc of another country) clearly do not comply with the International Covenant on Civil and Political Rights. The Covenant (which was ratified by the NZ government in December 1978) states in Article 14: 14.1 "everyone shall be entitled to a fair and public hearing" and 14.3.E - "in the determination of any criminal charge against him, everyone is entitled to the following minimum guarantees .... To examine, or have examined, the witnesses against him"
The Bill is similarly in breach of Section 25 of the NZ Bill of Rights Act which states "everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: 25a) the right to a fair and public hearing by an independent and impartial court ... 25f) the right to examine witnesses for the prosecution".
Aside from these underlying breaches of existing international Covenants and domestic legislation, if the Bill passes into law it will have far reaching negative impacts in other ways - as but one example, the reliance the Bill places on so called evidence from an agency, government etc of another country may harm people applying for asylum, or already part of the refugee and migrant communities in this country, because there is no provision in the proposed legislation for the protection of people falsely and maliciously designated 'terrorist' by oppressive governments or their agencies.
There is no absolutely no need for this legislation, as Keith Locke says in his press release below "I question the need for this bill at all: real terrorism is essentially criminal behaviour and should be dealt with through amendments to criminal law, rather than through political legislation, like this bill."
A copy of the press release from Keith Locke (Green Party member on the Committee) is at the end of this update, together with his minority report which he was not permitted to include in the report to parliament.
If you are planning on contacting your MP, and/or the mass media to express your outrage about this Bill, there is more information available on the PMA website at http://www.converge.org.nz/pma/terrosub.htm
The index page there has copies of, or links to, the written submissions sent to the Foreign Affairs, Defence and Trade Select Committee opposing the Bill by: Northland Urban Rural Mission, Women's International League for Peace and Freedom (Aotearoa), Jane Kelsey, GATT Watchdog, Peter Wills, Socialist Party of Aotearoa, Socialist Workers Organisation, Latin America Committee, Indonesia Human Rights Committee, Peace Council, Anti Bases Campaign, Arena, and the Churches Agency on Social Issues; as well as links to background information - 'NZ government assets to be frozen?' (PMA / Arena, 30 October 2001) and the Amnesty International report on their concerns with security and anti-terrorism legislation globally.
As soon as the timetable for the second and third readings of the Bill is available, we will let you know.
Green Party media release
22 March 2002
Green MP Keith Locke has accused the Foreign Affairs, Defence and Trade Select Committee of suppressing his minority report on the Terrorism (Bombings and Financing) Bill.
"The members wanted me to delete my main point of disagreement with the bill," said Mr Locke, "which is that it could penalise support for strike and protest action in New Zealand and for liberation movements overseas.
The definition of terrorism in the bill has been tightened up a little, said Mr Locke, but it would still make it a crime to aid liberation movements like Nelson Mandela's ANC, which used violence, mass strikes and protest to bring down apartheid.
"Robert Mugabe could certainly define a general strike against him as terrorism under this bill.
"For New Zealand unions, the final version of the bill is in some ways worse than the first. Previously, any strike or lockout could not be considered a terrorist act, even if it fitted other definitions in the bill.
"Now, strikers can be designated as terrorists if they 'unduly' pressure a government and seriously disrupt infrastructure. Even a qualification that actions have to be 'likely to endanger human life' could still catch some unionists, such as nurses on strike in a hospital.
"The problem with the bill's broad definition of terrorism is that could be misused by the Prime Minister, who is given the power to 'designate' terrorists, initially on the very low threshold of 'good cause to suspect.'
"The fear, raised in many submissions to the select committee, was that a Prime Minister like Robert Muldoon could easily define people like the 1981 anti-Springbok tour protest organizers as 'terrorists' because their actions were seriously disruptive and may endanger human life," said Mr Locke.
"Further, such 'terrorists' may never be allowed to see the evidence against them, if it is 'classified.' And under the bill, foreign governments are given the right to determine what information provided to a New Zealand court is 'classified.'
"I question the need for this bill at all: real terrorism is essentially criminal behaviour and should be dealt with through amendments to criminal law, rather than through political legislation, like this bill."
Green Member's Minority Report on the Terrorism (Bombings and Financing Bill)
21 March 2002.
The Foreign Affairs, Defence and Trade Select Committee refused to let this minority report be included in the Report from the Committee to the House of Representatives deposited in the House on March 22, 2002.
The Green member, Keith Locke, acknowledges that the committee has worked hard to incorporate amendments so that support for legitimate protest activities or liberation movements would not be treated as terrorist activities. He appreciates that several amendments addressing these concerns have been approved by the committee, but he still believes that bill undermines our civil liberties in several respects.
He opposes the bill because he believes that:
1. Although the committee has narrowed the definition of a terrorist act in a commendable way, in the Green member's opinion the definition remains too broad, and could still include activities of liberation movements. The Green member also welcomes the amendment enabling citizens to provide funds to liberation movements if they are used for the purpose of advocating democratic government. However, liberation movements, like the ANC and Fretelin in the past, engage in activities that go beyond advocacy, and financial support for these activities could still be proscribed and subject to heavy penalties. The onus is on people giving to liberation groups to find out whether those groups engage directly in activities covered by the definition of terrorism, or pass on funding to groups who do.
2. In the Green member's view the definition of a terrorist act remains sufficiently broad as to catch many otherwise legitimate activities of New Zealanders. Large scale protest activity like that against the 1981 Springbok rugby tour could still be considered to be terrorism. Major civil disorder can cause serious disruption to infrastructure, and can potentially endanger human life. Even activities such as strikes by nurses could do that. Laudably, the committee has introduced a clause aimed at excluding strikes and protests from the definition of terrorism. However, the Green member believes the clause does not always achieve this. If the strike or protest is political in nature, is intended to force a government or organisation like the IMF to do something, and seriously interferes with the infrastructure in a way likely to endanger human life, the Green member believes it could still meet the definition of a terrorist act.
3. In the Green members view, the bill still raises questions about the distinction between legitimate liberation movements and terrorists. He is concerned that a legal decision on which is which could be biased by political considerations, particularly when process of designation of a terrorist or terrorist group is to be done by the Prime Minister, in consultation with others. This problem is significant because the interim designation of a terrorist only needs the Prime Minister to have "good cause to suspect" involvement in "terrorism".
4. Notwithstanding significant improvements during the select committee process, the Green member believes the judicial protections contained in the bill remain inadequate. The initial designation is implemented without any hearing. In subsequent court proceedings the accused person or organisation may be denied any effective right to be heard or even to see the evidence against them. Classified evidence can be withheld from the accused at any stage in the legal process. Information may be withheld from the accused solely 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.
5. The bill provides that information to the Prime Minister from the United Nations Security Council stating that a person or organisation is considered a terrorist is "sufficient evidence" that the person or organisation is a terrorist in the absence of evidence to the contrary. That is unacceptable as, in the opinion of the Green member, the United Nations Security Council is above all a political body, not a judicial body, and we have our own sovereignty.
6. The bill is silent on provisions for compensation for persons or groups wrongly designated as terrorists. They can sue for negligence under general law. Ex gratia payments could be provided at the discretion of the Executive. However, issues of compensation need to be determined independently of the Executive, itself responsible for the initial decision to designate. The powers and procedures contained in this bill are potentially devastating on the person or organisation wrongly designated, and the Green member believes that the ordinary rules of negligence are not adequate for the purposes of determining compensation.
7. In my view, this bill should be referred to the Attorney General with a request that she bring to the attention of the House the provisions in the bill which are inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990. In the Green member's opinion, there are breaches of sections 14-19, 21-25 and 27 of that Act. This bill, as amended, is fundamentally different to that which was initially introduced prior to September 11, 2001. What is now required is the application of the normal procedures by which the House's attention is drawn to potential violations of New Zealanders' human rights.
The Green member believes there is not sufficient reason for this bill to proceed. New Zealand is not facing terrorist problems of any real significance. New Zealand should cooperate with other nations in apprehending any terrorists. However, the current law is generally adequate to deal with what are in essence criminal acts. If there are any weaknesses in the present law regarding the freezing of assets of criminals then that should be dealt with through amendments to criminal law, with appropriate checks and balances, rather than through political legislation, like this anti-terrorist bill. The Green member believes that this bill represents a serious step backwards for civil liberties in this country.