Questioning The Terrorism Suppression Bill

On the 16th October 2019, Labour government Justice Minister Andrew Little introduced the Terrorism Suppression (Control Orders) Bill to Parliament. Media suggest this Bill is targeted at one man, New Zealander Mark Taylor, who travelled to Syria to join the Islamic State, and who has been more recently held captive by Kurdish forces. With the withdrawal of the United States military from Syria and the possibility of Turkish incursions into Kurdish-held territories, it appears that Andrew Little perceives the possibility of the release of prisoners such as Mark Taylor, and their return to New Zealand.

The proposed Bill will allow the New Zealand Police to request the New Zealand Court to impose a control order on an individual “to protect the public from terrorism.” The need for a control order will be decided by the Court on “balance of probabilities” – that is, a lower standard of proof than the “beyond reasonable doubt” level required to convict people of a crime. The default is for the identity of the relevant person to be suppressed, but the affected person can overturn that if they wish. When originally proposed, accusations of terrorism by overseas authorities could be considered evidence, and evidence could be withheld from the relevant person and their legal counsel. In Andrew Little’s words on 16/10/2019: “It would limit where people could go; it could require them to for example go to the Police station once or twice or more times a week; it could restrict them from having access to the Internet; it could provide a level of curfew but not a 24 hour curfew. So, restrictions from quite severe to quite relaxed.” As Radio New Zealand host Lisa Owen said during that interview: “And it’s going to be done behind closed doors isn’t it, because it’s going to be prohibited to report on these cases unless expressly given permission by the judge. So you’re going to make what you’ve described as perhaps draconian measures behind closed doors in the absence of the person you’re making the order against and with a lesser level of proof.”

This legislation would sit alongside existing legislation that addresses terrorist activities. The Crimes Act 1961 section 7A allows New Zealanders to be charged for certain crimes committed overseas, including acts of terror. The Terrorist Suppression Act 2002 section 6A allows imprisonment of a person who commits a terrorist act for up to life, while section 13 allows imprisonment of a person who participates in a terrorist group for up to 14 years. Section 5(2) includes the following definition of a terrorist act: “[an act which is] carried out for the purpose of advancing an ideological, political, or religious cause, and with the [… intention …] to unduly compel or to force a government or an international organisation to do or abstain from doing any act.” Section 20 gives the Prime Minister power to designate any entity as a terrorist organisation if they have “good cause”. This very broad definition makes me wonder whether a person peacefully participating in the Autonomous Administration of North and East Syria (Rojava), a person participating in a Peace Flotilla to highlight the humanitarian crisis in Gaza, a person present in Hong Kong or Chile during protest activities, or a person participating in protest activities in New Zealand, might be at risk of having these same laws applied to them in the future.

Andrew Little admits (16/10/2019): “Yeah it is pretty draconian, because in the very very small number of instances where New Zealanders or people holding a New Zealand passport have gone overseas and carried out violent extremist acts whether in pursuit of some political cause, religious cause, ideological cause, and then seek to come back, it is right that the government/the authorities seek to make sure that the rest of New Zealand is safe with them back in New Zealand.”

When first proposed, the Green Party refused to support the Bill. Green Party spokesperson for Justice Golriz Ghahraman said on 16/10/2019: “What’s actually frightening about this is we’re going to rely on evidence collected by foreign agencies who may have employed torture, which we know isn’t going to be reliable, or actually targeted at political dissidents.” Andrew Little approached the National Party, who were reluctant to support the Bill on the grounds that it wasn’t strong enough, before the Greens relented after claiming changes to the Bill. Ghahraman subsequently said on 24/10/2019: “We’ve ensured that foreign convictions and deportations won’t be accepted without proper scrutiny and we’ve ended the use of secret evidence without an advocate.” and “We have also made sure that international best practice on the use of classified information is guaranteed in this legislation. Because of the change inserted by the Green Party, this Bill will never allow for secret evidence to be used in a case without the accused having a form of representation, as happened in the Zaoui case. The use of classified information will only occur with the protection of a judge, and the lawyer appointed to assist the accused person will have access to the information, thus ending the use of secret evidence without an advocate.”

These events have drawn criticism from Human Rights advocates. Former Green MP Catherine Delahunty says: “Overall these kind of bills, which the Greens have had a tradition of opposing, are not going to make the world safer, they’re not the direction we need to go in.” Amnesty International New Zealand has started a petition to slow the progress of the Bill through Parliament in order to allow them more time to analyse and respond in detail.

Much of the detail in this Bill is passed over in coverage. But we should be wary of further increases in the power of the State to restrict the freedoms of individuals.