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Jane Kelsey's submission
Submission of Professor Jane Kelsey on the Terrorism Suppression Bill to the Foreign Affairs, Defence and Trade Select Committee.
1.1 This submission opposes the proposed amendments on the grounds that they would
(i) create indictable offences that carry severe penalties of imprisonment for actions which are impossible to define with any certainty;
(ii) criminalise people who participate in or provide financial support for actions which many ordinary New Zealanders have undertaken throughout this country's history;
(iii) designate people as terrorists and impose consequent liability on third parties on the basis of information which will not be disclosed to either the subject of that designation, and hence cannot be contested, or even to the courts, and thus constitute a grave denial of fundamental rights to due process and natural justice;
(iv) require a low standard of proof as the basis for the designation of a person or group as 'terrorist' and impose criminal liability on third parties through a reverse burden of proof which at times may be virtually impossible to discharge.
2.1 The Minister's original plan to introduce changes to the existing Bill in the report back from the select committee raised serious questions of constitutional propriety regarding the independence of the select committee and the bypassing of proper democratic process.
2.2 The Government has now recognised that such an approach is unacceptable. It remains a matter of concern that this might not have occurred if one member of the Foreign Affairs and Defence Select Committee, Green MP Keith Locke, had not raised the matter in the public domain.
2.3 The Government now says it will report to the United Nations that it has introduced regulations to freeze the funds of groups designated as terrorist organisations by the United Nations and that the present amendments are currently being considered. This confirms that it was not necessary to rush through legislation in the secretive and constitutionally inappropriate manner that the Minister originally proposed.
2.4 The Government has still reserved the right to by-pass the current process if a 'new and more difficult situation' arises that requires more urgent legislative attention. While that situation is described as 'highly unlikely', the Minister's previous lack of judgement regarding the need for urgency makes this possibility, however remote, a matter for grave concern.
3. DEFINITIONS OF A TERRORIST ACT
3.1 The Bill defines three kinds of 'terrorist act'. This submission focuses on the third kind, defined in clause 5(2). This sets the basis for liability and potentially long sentences of imprisonment for people who provide funding for, or participate in, activities that fall within that definition. It is also the basis for the designation of people and groups as 'terrorists'. Such consequences require very clear criteria against which people can assess with virtual certainty whether an action falls within its ambit. Instead, this Bill proposes a definition that is subjective, requires speculation and is fraught with uncertainty.
Pursuit of an ideological, political or religious aim
3.2 The action in question must be intended to advance an ideological, political or religious aim.
3.2.1 There is no definition of these terms. This renders them a matter of subjective assessment by those who are empowered to designate an entity as 'terrorist' under the Act.
3.2.2 Liability is also incurred by third parties under the Act whether or not an interim or formal designation has been made. Those third parties are placed in the situation of having to determine for themselves whether an aim is likely to be considered ideological, political or religious. It is difficult to imagine an action that is intended to change the minds of a government or international institution that could not be interpreted as falling within one of these three categories.
Intention to compel a government or organisation
3.3 The action must also be intended to intimidate a population in any country or compel a lawful government or international organisation in any country to do or abstain from any act.
3.3.1 The scope of a population in any country is unclear. 'A' population is not 'the' population. It clearly includes a sub-section of the population. Presumably that sub-section that is defined by geographical territory or other common characteristics, but it is not at all clear what these might be. Again, designation and liability will arise from a term that is uncertain and requires speculation by third parties.
3.3.2 The Act must also aim to compel a lawful government or international organisation in any country to do or abstain from any act. The meaning of 'compel' is open to interpretation - a wide range of actions whose aim is to leave governments or organisations with little choice but to change their policies or practices could come within its ambit.
3.3.3 This would include acts against a government that is internationally recognised but is widely recognised as racist, oppressive, totalitarian or engaged in gross violations of human rights.
3.3.4 It would also include actions intended to stop the acts of international organizations, such as the imposition of an IMF or World Bank structural adjustment programme. Mass protests to achieve this goal have recently occurred in Papua New Guinea, Argentina, South Africa and many other countries.
Intention to achieve a particular outcome
3.4 Under clause 5(3) such acts must also be intended to have, in full or part, at least one of a list of outcomes. The following specified outcomes are of particular concern:
3.4.1 cause serious interference with or serious disruption to any infrastructure facility. Infrastructure is defined in clause 4 as any facility (whether publicly or privately owned) providing or distributing services (for example, supplying water, sewage disposal services, energy, fuel or communications services) for the benefit of the public.) If the bracketed examples are treated as indicative, but not limiting, this definition could extend to any facility that provides public services, including health and education. Even if these examples are interpreted as restricting the ambit of infrastructure to non-social services, the definition still covers the ports, petrol outlets, broadcasting, water pipes. Most of these have been targets of serious interference or serious disruption in New Zealand over the years, and are frequently so in some other countries.
3.4.2 destroy or seriously damage property of great value or importance, or cause major economic loss or major environmental damage, if that is likely to result in death, serious violence or cause serious risk to health and safety of (at least a section of) the public.
22.214.171.124 It is presumed that property of great value refers to financial value, although this is arguable. Even assuming that is so, there is no indication of what quantum would be considered great or how that value is to be determined. This places an unacceptable burden on a third party who is required to assess the potential for an act to fall within this definition. It could, for example, have applied to the damage caused to the fence around the Hamilton rugby ground in 1981 or the uprooting of field experiments of genetically modified crops that potentially have a very high commercial value. The definition of property includes contracts, and could apply to actions that destroy or seriously damage the value of a mining license (as in Bougainville) or a contract for the supply of mercenary forces (the Papua New Guinea government in relation to Bougainville).
126.96.36.199 Defining property of great importance is even more speculative and subjective. Presumably that could cover recent attacks on the pine tree on One Tree Hill, the America's Cup and the flagpole at Waitangi.
188.8.131.52 Assessments of major economic loss are equally contestable - for example, this could include the cancellation of sporting fixtures or an entire tour by a sports team, or the loss of export orders as a result of a green ban or picket at a port.
184.108.40.206 Major environmental damage could be interpreted to include damage to a forest caused by environmentalists spiking trees or the release of an unauthorised diseases to control rabbits that had serious environmental side-effects.
220.127.116.11 The requirement that such actions must also be likely to cause death or serious violence or serious risk to health and safety of the public. The latter again calls for speculation and subjective judgement. It is easy to imagine that many such actions would be likely to cause 'serious' violence or 'serious' risk to safety, depending on how 'serious' is defined. Similar concerns apply to this phrase as a stand alone outcome under clause 5(3)(b).
3.4.3 cause serious damage or serious disruption to the national economy of any country. Again, what amounts to serious damage to the national economy is subjective, and need not involve tangible and quantifiable loss. It could be interpreted to include preventing the conclusion of a free trade and investment agreement or the privatisation of a state asset. Serious disruption is even more subjective, and could include for example the cancellation of export orders.
Exemption for certain kinds of acts
3.5 The Bill exempts acts that involve protest, advocacy or dissent that is lawful, or that is unlawful but peaceful; any strike or lockout; any other act that is authorised or required by law; or any act that occurs in a situation of armed conflict and is in accordance with rules of international law applicable to the conflict.
3.5.1 It is encouraging that the wording has been altered from that which the Minister originally indicated. All strikes and lockouts, however illegal, are now exempted. However other forms of industrial action, such as pickets, are still covered.
3.5.2 Protests, advocacy and dissent are required to be peaceful. That means the definition of a 'terrorist act' would still cover protests that involve breaches of the peace, disorderly behaviour or even minor property damage. It is unclear what is meant by advocacy and dissent that are peaceful and whether the definition may still include words and actions that arguably constitute incitement to non-peaceful actions, such as breaches of the peace, disorderly behaviour or property damage.
3.5.3 The requirement that armed conflict must accord with the rules of international law applicable to that conflict will also be problematic for lay people to determine. There are situations where UN resolutions or other explicit rulings have been made on a conflict and are widely known. However, this excludes many liberation struggles that are widely viewed as legitimate but on which a major power has blocked a UN resolution. It will be extremely difficult for people to evaluate the status of such conflicts under international law with any degree of certainty.
4. NEW OFFENCES
4.1 Five new offences are created: Committing a terrorist bombing; dealing with the property of terrorists; providing property or financial services to terrorists; recruiting members of terrorist groups; and participating in terrorist groups. This submission addresses the last four of these.
Financing of Terrorism
4.2 Clause 9 makes it an offence punishable by a maximum of either 14 or 7 years imprisonment to directly or indirectly, wilfully and without lawful excuse, provide or collect funds intending or knowing that they are to be used partly or wholly to carry out the kinds of acts defined as terrorist acts or reckless as to whether they are to be used for that purpose.
4.2.1 This serious indictable offence is not restricted to funding people or groups who have been formally designated as terrorists. It requires a subjective assessment on the part of any donor or collection agency as to whether the acts of those who may directly or indirectly receive these funds fall within the extremely broad range of actions defined by the Act as 'terrorist'.
4.2.2 The provision places the onus on the donor or collection agency to ensure that the actions of the potential recipient could not fall within the ambit of that definition.
4.2.3 If this legislation had been in effect at the time, the breadth of the definition would have made it a serious indictable offence to give or collect money for causes ranging from Hart, Waitangi Action Committee, Greenpeace, unions, and international solidarity groups such as the Latin American and Philippine Solidarity Groups. Most donors were well aware that these groups engaged in such activities or would have been reckless as to whether that was the case.
4.2.4 The offence of indirect funding extends the ambit of the offence to collection of, and contribution to, funds intended to support the families and communities of those who are involved in such action - in the same way that the 1951 Waterfront regulations criminalised those who made donations to families of workers who were locked out or striking.
4.2.5 Recklessness as to whether such funds might be used directly or indirectly to support terrorist acts would put an impossible onus on people making donations to aid agencies, solidarity groups or even paying union dues to find out what the money might be used for. Those organisations would in turn be required to interrogate the direct and downstream recipients of their funds.
4.2.6 The reference to lawful justification or excuse may provide some limited relief. It is unclear why this provision refers to lawful excuse, whereas reasonable excuse is a recognised as a defence for offences related to dealings with property. In either case it would be impractical to expect a potential donor or collector to seek to ascertain under what conditions a donation to a particular cause, person or group would be defined as justified or excused by law.
Dealing with Property of Terrorists
4.3 Clause 10A creates an offence to deal with any property, without lawful justification or reasonable excuse knowing that it is owned or controlled directly or indirectly by a person who is at the time designated as a terrorist or an associated person or has carried out or facilitated a terrorist act; or to be reckless as to whether it is owned or controlled directly or indirectly by a designated terrorist or associated entity.
4.3.1 Again, this serious indictable offence is not restricted to people or groups that have been formally designated as terrorists or associated entities. The onus rests on any person dealing with property to discover what acts have been carried out or facilitated (including funded) by the direct or indirect owner or controller of the property with which they are dealing, and then to assess whether these acts might fall within the definition of a 'terrorist act'.
4.3.2 Property is widely defined in Clause 4 and dealings include a range of transactions. The provision therefore imposes potential criminal liability on a diverse range of professional and ordinary people who buy or sell a piece of property or act on behalf of another person.
4.3.3 It would be an indictable offence, for example, for a real estate agent to sell the house of a person who has told the real estate agent that they make donations to a person or group who has engaged in an activity that falls within the broad ambit of the definition of a terrorist act.
4.3.4 Although liability for recklessness is limited to entities that have been formally designated, the reference to indirect ownership makes this potentially oppressive.
4.3.5 There is no indication what might be considered reasonable excuse. Again, it is impractical to expect someone dealing with property to seek to ascertain in advance whether a proposed action could be so defined.
Providing Property or Financial Services to Terrorists
4.4 Clause 10B makes it an indictable offence to make or help to make available, directly or indirectly, in any way or by any means, without lawful justification or reasonable excuse, any property or any financial, business or professional services knowing or being reckless as to whether the beneficiary is at the time designated as a terrorist or an associated entity or knowing that the beneficiary has carried out, participated in or facilitated one or more terrorist acts.
4.4.1 The same problems arise as with clause 10A.
4.4.2 It would, for example, be an indictable offence for a banker to establish an automatic payment to a person or group if the person making the payment admits to the bank that the recipient has engaged in activities which come within the broad definition of a terrorist act.
4.4.3 This offence covers services provided directly or indirectly to people where the provider is reckless as to whether the ultimate beneficiary of the service has carried out, participated in or facilitated terrorist acts. The extensive scope of the definition of terrorist act places a totally unreasonable burden on anyone who provides property, financial or other professional services.
4.4.4 The qualification of lawful justification or reasonable excuse is repeated in this provision. Unlike Clause 10A this clause states that An example of lawful justification is where the property made available is food, clothing or medicine that are necessaries of life. It is not clear why similar examples have not been provided for other offences. There is still no indication of what would be considered a reasonable excuse.
Recruiting Members and Participating in Terrorist Groups
4.5 Clauses 10D and 10E create indictable offences to participate in, or recruit another person to, a group or organisation knowing that it is at the time subject to an interim or full designation as a terrorist or an associated entity or has carried out or participated in one or more terrorist acts.
4.5.1 These offences raise the same concerns as clauses 10A and 10B. It would become an indictable offence, carrying a maximum penalty of 14 years imprisonment, to be a member of any kind of organisation that has previously carried out an act that could fall within the definition of a 'terrorist act' or to recruit another person to such an organisation.
5. DESIGNATION AS A TERRORIST OR ASSOCIATE
Interim Designation as a Terrorist or Associated Entity
5.1 Under clause 17A the Prime Minister, after consulting with the Minister of Foreign Affairs and Trade, can designate an entity as a terrorist if s/he has good cause to suspect that they have carried out or participated in the carrying out of a terrorist act. An person, group or company may be designated an 'associated entity if the Prime Minister has good cause to suspect they have facilitated the carrying out of a terrorist act or is wholly owned or effectively controlled directly or indirectly by a terrorist entity.
5.1.1 Entity is defined very broadly to include person, group, trust, partnership, or fund or an unincorporated association or organisation. The reference to a group and an unincorporated association or organisation expands the scope beyond clearly identifiable persons and organisations to include loosely organised collectivities whose membership would be very difficult to define.
5.1.2 Good cause is a very weak standard of proof, especially when it forms the basis for a designation that could have potentially devastating effects on the reputation, employment, activities and financial wellbeing of a person or group.
5.1.3 The definition of associated entities to include those who facilitate, especially fund, a person or group who has carried out a terrorist act reinforces the concerns expressed regarding clause 9.
Process for Interim Designation as a Terrorist or Associated Entity
5.2 Clause 17B specifies a number of formal steps for an interim designation.
5.2.1 The process of interim designation refers to the Prime Minister's approval of a designation. This implies that someone else will be making the initial recommendation, but the identity of that person is not specified. In particular, it is not clear whether that is the senior office holder in one of the state's security agencies or the Minister of Foreign Affairs and Trade, whom the Prime Minister is required to consult.
5.2.2 There is no guarantee that the subject of the interim designation will be told that it has been made. The requirement to inform the entity is limited to New Zealand and situations where that is considered practicable. The obligation to inform is only with all reasonable speed whereas the obligation to inform the Inspector General is immediate.
5.2.3 It is likely that the designation will operate for some time prior to publication in the Gazette or otherwise. The delay between designation and Gazetting imposes potential liability on a person under clause 10 B if someone recklessly fails to check (presumably with the Prime Minister) whether someone is subject to an interim designation, even though no such designation has been gazetted. (This might be a situation where reasonable excuse could be invoked.)
5.2.4 The restriction that this interim power can only be invoked once for any entity offers some protection against abuse. However, it may also prompt a decision to seek a full designation where one might not otherwise be thought necessary or desirable.
Final Designation as a Terrorist or Associated Entity
5.3 As the criteria and process for final designation under clauses 17C and D are essentially the same as for interim designation, the comments in 5.1 and 5.2 (except 5.2.4) apply.
Failure to Provide Opportunity to Comment
5.4 Clause 17H makes it clear that the entity subject to an interim or final designation does not have to be given an opportunity to comment before such a designation is made. This is a gross abrogation of the principles of natural justice and an invitation to abuse of power based on uncontested allegations.
Confirmation by the High Court
5.5 Clause 17V specifies a number of criteria for issuing a permanent designation.
5.5.1 A permanent designation can be made if the entity has been convicted or is currently facing legal proceedings for a 'terrorist act', as broadly defined. This means a person or group can be so designated without being convicted of any related criminal offence.
5.5.2 Worse, such a designation can made where the Court concludes that the person or group has carried out, participated in or facilitated such an act, without any independent criminal proceedings being initiated.
5.5.3 The court only requires a civil burden of proof.
5.5.4 The judge must determine the case on the basis of the information provided to the court. That may include classified security information if the government chooses to present such information. However, it would be heard in closed court and might not be disclosed to the subject of the designation or their representative.
5.5.5 If the entity that is subject to the designation is represented in court they are only entitled to be provided with a summary of the information provided by the government in support of the application, excluding classified security information.
5.5.6 A permanent designation could therefore be made on totally uncontested and wrong information.
6.1 In making or revoking a designation the Prime Minister may take into account any relevant information, including UN Security Council assessments and Classified Security Information.
UN Security Council assessments
6.2 Under Clause 17K the Prime Minister must treat UN Security Council assessments as sufficient evidence of the matters to which it relates, unless the contrary is proved. The Prime Minister must treat such information as conclusive, unless the entity which is subject to that information proves otherwise. This reverses the normal burden of proof; yet the entity would have no guaranteed access to the UN Security Council information that was relied upon or to other information on which the UN assessment was based.
Classified Security Information
6.3 Clause 17L defines Classified Security information as information that is held by a specified intelligence and security agency about the threat to security, public order or public interest posed by an act that will or may be carried out, participated in or facilitated by identifiable person, organisation or group and which the head of that agency believes cannot be divulged to the subject of the information for one of a number of specified reasons.
6.3.1 A threat to security, public order or public interest is extremely broad and totally subjective.
6.3.2 The reasons specified for non-disclosure are also unacceptably broad. These include a belief by the director of the agency that disclosure would lead to the identification of the source, the substance of the information, or the nature of that agency's information collecting methods or relates to operations that agency or another intelligence agency has undertaken. Almost any information collected by a security agency could be considered to fall within such categories.
6.3.3 The effect of such a classification is to deny the subject of the information the ability to challenge their designation as a terrorist or associated entity, with all its attendant consequences.
6.4 Clause 17O states that neither the Prime Minister nor the head of a specified security agency can be compelled to provide reasons for any decision that is based wholly or partly on such information, or divulge any such information in a court or elsewhere. No review proceedings can be brought in any court which challenge a decision which is based in whole or part on such information, or a decision by the head of a specified security agency to deem particular information to be classified security information.
6.4.1 This absolute exemption from disclosure, and the absence of judicial review, creates a serious risk of abuse of power. Security agencies are notorious for interpreting their legislative mandate in the broadest possible manner, and have at times been shown to exceed it. This provision also shields such agencies from the exposure of incompetence or error, despite numerous examples of such deficiency in New Zealand and international security agencies.
6.4.2 Clause 17P provides that the Inspector General may take into account classified security information when reviewing a designation. However it is not mandatory to do so. If such information were considered, it would still not be open to contest by the subject of the designation. There appears to be no provision or requirement for the Inspector General to review the decision to classify the information under 17L.
6.4.3 The select committee has been asked to consider the need for limited provision for judicial review relating to such information. Such review is essential. However it would have a limited overall impact unless the extremely broad definition of terrorist act was also severely circumscribed.
7. REVIEW AND APPEAL
7.1 There are three sources of review and appeal: review by the Prime Minister; review by the Inspector General; and appeal to the Court of Appeal on error of law.
Review by the Prime Minister
7.2 Under clause 17M the Prime Minister can at any time revoke a designation, on his/her own initiative or on the application of a person affected. The application can only be based on the grounds that the entity is not properly covered by the criteria for designation.
7.2.1 The breadth of definition of a terrorist act would make it extremely difficult for most persons or groups to challenge a designation.
7.2.2 This would be virtually impossible in cases where the designation was based in part or whole on a security risk assessment to which they had no right of access and which they could not therefore effectively challenge.
Review by the Inspector General
7.3 Under clause 17P the Inspector General is required to conduct a review of an interim or full designation both on receiving notice of the designation, and if an entity subject to it has unsuccessfully asked the Prime Minister to revoke the designation and asks for a review. The applicant can have access to any information about the entity, other than that which is deemed classified security information.
7.3.1 It is pleasing that the Inspector General is now to be a sitting judge of the High Court. This is the only aspect of the legislation that I would support. The Inspector General is required to act judicially and independently. However, the review would not be a proper judicial review of an exercise of executive power and would not be conducted according to standard legal principles of due process and natural justice.
7.3.2 As with the review by the Prime Minister, Clause 17R says the applicant would not have access to classified security information, making it impossible to challenge all or part of the information on which the designation was based.
7.3.3 Even if the Inspector General decided the designation should not stand the clause does not make it mandatory to revoke the designation. The legislation only says the Inspector General may do so.
7.3.4 While reasons must be given for the decision, this only applies so far as compatible with protecting classified security information.
Appeal to the Court of Appeal
7.4 Under clause 17U appeal to the Court of Appeal by the applicant or the Attorney General is limited to an error of law.
7.4.1 Such an appeal would not review the substance of the Inspector General's decision and the Court would not have access to all the evidence.
8.1 Anyone who in good faith and with reasonable care refuses to deal with property or make property or financial (etc) services available under this Act has immunity from civil, criminal or disciplinary liability. So does anyone who reports a suspicion to the Commissioner of Police, unless they are acting in bad faith or without reasonable care about whether the subject of that report is a designated entity.
8.1.1 There is huge potential for damage to the value of property, businesses and reputations through the mistaken application of these sections. But there is no redress for people who are the victims of a mistake, where that action has been taken in good faith and with reasonable care.
9. REGULATIONS (Section 24C)
v 9.1 The Bill effectively provides the Cabinet with power to make regulations under Clause 24C providing for any other matters contemplated by this Act, necessary for its administration, or necessary for giving it full effect.
9.2 The ghosts of the Public Safety Conservation Act and the draconian 1951 Waterfront Emergency Regulations hover over this section. It is a charter for the suppression of dissent through the use of Executive powers of regulation. The parliamentary procedures for regulatory review are not an adequate safeguard against the potential for this power to be abused.
10.1 This proposed legislation is arguably the most draconian to have ever been placed before the New Zealand Parliament. It goes well beyond what is necessary to meet the requirements of the United Nations resolutions. The fact that the legislatures of other countries have passed similar, or even more oppressive, legislation is no excuse for the New Zealand Parliament to do so.
10.2 In considering the proposed amendments I invite members of the select committee to reflect on the following questions:
How many Members of Parliament and members of their families and friends, and how many New Zealand citizens, have participated in or contributed funds towards acts which could fall within the broad, vague and subjective definition of a terrorist act proposed by these amendments?
How would Members of the committee have regarded similar legislation if it had been proposed by former Prime Minister Robert Muldoon?
Would Members of the committee have supported the passage of the Public Safety Conservation Act 1932 knowing that it would remain on the statute books for over fifty years and be used as the basis for such regulations as the Waterfront Emergency Regulations 1951?
Professor Jane Kelsey, University of Auckland.