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Human Rights Commission submission
Human Rights Commission Submission on the Terrorism (Bombing and Financing) Bill to the Foreign Affairs, Defence and Trade Select Committee
1.1 The Human Rights Commission ("the Commission") welcomes the introduction of comprehensive measures to counter terrorism to comply with international obligations New Zealand will assume once it becomes a party to the International Convention for the Suppression of Terrorist Bombings ("Bombings Convention") and Convention for the Suppression of the Financing of Terrorism ("Financing Convention"). In addition, the Commission welcomes amendments to give effect to United Nations Security Council Resolutions 1368 and 1373. Therefore, the Commission supports the broad intention of the Terrorism (Bombings and Financing) Bill ("the Bill") and proposed amendments.
1.2 The Commission recognises the importance of New Zealand's international legal obligations which require compliance with Security Council powers under Chapter VII of the United Nations Charter.
1.3 However, the Commission highlights the following issues:
(a) While recognising the importance of swift action to counter terrorism, there has been limited opportunity for public discussion and preparation of submissions.
(b) As a general principle, any measures adopted should go no further than the requirements of the Bombings Convention, Financing Convention and Resolution 1373, given the significance of the limitations on fundamental freedoms described in the Bill.
(c) Legitimate concerns about national security need to be balanced with the enjoyment of fundamental freedoms preserved in human rights instruments such as the International Covenant on Civil and Political Rights. The Commission observes that particularly onerous counter terrorism measures have been adopted overseas and acknowledges the strenuous efforts to avoid similar practices in New Zealand. The United Nations' High Commissioner for Human Rights', Mary Robinson has cautioned that:
"…efforts must be made to avoid innocent people becoming the victims of counter terrorism measures. This requires that government action in this area be guided by human rights principles. Human rights law wisely strikes a balance between the enjoyment of freedoms and the legitimate concerns for national security. It requires that, in the exceptional circumstances where it is permitted to limit some rights for legitimate and defined circumstances, the principles of necessity and proportionality must be applied. The measures must be appropriate and the least intrusive to achieve the objective. The discretion granted to certain authorities to act must not be unfettered. The principle of non-discrimination must always be respected and special effort made to safeguard the rights of vulnerable groups."
1.4 The Commission recommends amendment to the Bill to:
(a) Raise the threshold test used by the Prime Minister in making interim designations.
(b) Provide "designated entities" access to a review procedure that balances the need to protect national security, while recognising a person's fundamental right to know the nature of the evidence against him or her.
(c) Protect the interests of persons convicted of offences by reason of participation in a "designated entity" where the designation lapses or is revoked if the designation is flawed.
(d) Provide a mechanism to review the application of the legislation in three years.
2.1 Under proposed s.17A(1), the Prime Minister may make an interim designation that an entity is a terrorist entity if the Prime Minister has good cause to suspect the entity of having carried out, or participated in terrorist acts. This threshold is lower than that contained in proposed s.17C applying to final designations, which is based on a belief on "reasonable grounds".
2.2 Although an interim designation automatically expires within 30 days, it has serious consequences for parties associated with designated entities. A range of offences apply to people associated with entities that are for the time being "designated entities".
2.3 Due to the serious consequences that can follow from an interim designation, it should not be invoked lightly. It is submitted that the test applying to interim designations under s.17A(1) should be the same as that for final designations. Therefore it is recommended that s.17A(1) be amended to provide that the Prime Minister's decision is an objective test based on "reasonable grounds for a belief" equivalent to that in proposed s.17C relating to final designations.
Convictions relating to persons associated with designated entities
2.4 The Bill establishes a range of offences applying to parties who are involved with designated entities. For example, proposed sections 10A(1)(a)(i)(A) and 10A(1)(b)(i) describe offences relating to dealing in property owned or controlled by an entity that is for the time being a designated terrorist entity or associated entity. Proposed section 10D describes offences relating to recruiting people to organisations that are for the time being designated entities. Proposed s.10E describes offences relating to "participating" in an organisation that is for the time being a designated entity.
2.5 These offences carry a range of serious penalties, such as imprisonment for up to 14 years where a person participates in a group or organisation, knowing that the organisation is an entity that is for the time being designed under the Act as a terrorist entity.
2.6 A person could be convicted of participating in an organisation that is a designated entity on the strength of the Prime Minister having good cause to suspect the entity of having carried out, or participated in terrorist acts. In some circumstances where the Prime Minister or Inspector General revokes a designation, or allows it to expire because the designation is flawed, serious questions arise about the sustainability of a conviction held by a person based on such a designation. If the designation becomes obsolete in this way, a third person could be burdened with completing a prison sentence based upon it.
2.7 In these circumstances a person should not have to rely on appeal procedures in the ordinary courts to prove their innocence. It is suggested that a new subsection be added to provide that where a designation is revoked or expires due to flaws in the designation, convictions applying to a third party based on that designation are automatically overturned.
Review of designations
2.8 The Commission does not support provisions that deny a designated entity the right to challenge evidence based on secure classified information. This is of particular concern given that an interim designation can be based on a mere "suspicion" and final designation is based on a "belief on reasonable grounds".
2.9 Instances where people have been wrongly connected with terrorist activities based on incorrect classified information are well documented. For example in Knauff v Shaughnessy, 338 U.S 537 (1950), secret evidence had been used to deny the entry of the foreign wife of a US citizen to the country. When the US Supreme Court reviewed the secret evidence, it was revealed that the information was worthless because the "confidential source" of the evidence was a jilted lover. Amnesty International has alleged that during the Gulf War about 90 nationals of Arabic countries were detained in the United Kingdom on national security grounds. Amnesty alleges that many of them were possible prisoners of conscience.
2.10 Section 27(1) of the New Zealand Bill of Rights Act 1990 ("BORA") guarantees the right to the observance of the principles of natural justice by any tribunal or public authority which has the power to make a determination in respect to that person's rights, obligations or interests protected or recognised by law. Section 27(2) provides that where such rights are affected, a person has the right to apply, in accordance with the law, for judicial review of that determination. Subject to s.4 of the BORA, the rights accorded are subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
2.11 This is consistent with Article 14 of International Covenant on Civil and Political Rights. The United Nations Human Rights Committee has recognised that while the Covenant does not prohibit courts which do not comply with the normal standards of justice, the trying of individuals in such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in Article 14.
Therefore, it may be appropriate to place some limits on the reviewability of designations where such designations are based on classified information and the release of the information would prejudice the security of New Zealand. Nevertheless, where it is possible to inform a person of the nature of the evidence against them without compromising national security, such protection should be afforded in the legislation.
2.12 Currently a designated person or group is likely to encounter considerable difficulty in understanding the nature of the evidence forming the basis of a designation where the information is classified. In this respect, it is noted that:
(a) Under s.17O(2)(a), if the Prime Minister relies on, or takes into account classified information in considering revocation, the Prime Minister may not be compelled to provide reasons for the decision based on that information.
(b) Section 17O(2)(b) and s.17T(3) suggest that although a subsequent decision by the Inspector General must be accompanied by reasons, he or she need not do so where this would prejudice the interests the Act seeks to protect in relation to classified information. Further, no review proceedings may be invoked questioning whether particular information is in fact classified information.
(c) Access to information about the nature of evidence forming the basis of a designation where secure classified information is involved only occurs if the Attorney General applies to the High Court to extend a designation beyond five years under s.17X. The procedures in s.17X contain a balancing exercise which include the ability for the High Court to:
(i) review classified information in private; and
(ii) provide an opportunity for the designated entity to receive a summary of the information available in support to the extent that it is possible without disclosing information that is classified security information, so as to enable the entity to be reasonably informed; and
(iii) provide a reasonable opportunity to be heard on the matter.
2.13 There is no compelling reason why the procedures for reviewing classified information in s.17X should only be available five years after an initial designation. A modified form of this process could be used as the basis of a review procedure far earlier in the designation process.
2.14 The Commission believes that an early review procedure based on the balancing exercise in s.17X could strike an appropriate balance that is consistent with the intent of article 14 of the International Covenant on Civil and Political Rights and the BORA. Other amendments relating to classified security information.
2.15 Under proposed s.17P(4)(b), in making a decision relating to revoking a designation, it is noted the Inspector General "may" take into account any relevant information whether classified security information or not. The Commission recommends that s.17P(4)(b) be amended to provide that any decision by the Inspector General must take into account all relevant information whether classified or not. Review of the Act.
2.16 Finally, given the significance of the Bill, the Commission is of the view that there should be a Parliamentary review of the Act in three years.
Contact person: Anne Boyd, Legal Officer, tel 09 375 8634