Counter-Terrorism Bill

I have a few amendments to this part, which amends the Terrorism Suppression Act. We need to go back, because the amendments in Part 2 relate to the definition in the Terrorism Suppression Act. My amendments will improve the definition, and in so doing, improve the bill.

My first amendment is to insert new clause 14B, which changes the definition of a terrorist act. At present the definition has two aspects. First, a terrorist act has to be for “an ideological, political, or religious cause, and with the intention to induce terror in a civilian population.” I wish to keep that part in the definition, but I wish to eliminate the section that states “to unduly compel or force a Government or an international organisation to do or abstain from doing, any act.” As I think was implied earlier in the debate, what does the term “unduly compel” really mean? Any sort of legal protest action or strike could be seen to be unduly compelling. Governments often feel that they are being unduly pushed around by the Post Primary Teachers Association, perhaps the farmers marching on Parliament, or whoever it happens to be. It would be best to knock out those words and just have “with the intention to induce terror in a civilian population”.

My next amendment, which is to insert new clause 14C, deletes section 5(3)(d) of the principal Act. The problem at the moment is that section 5(3)(d) states that an outcome can be “serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:” Under that provision, one does not have to intend to endanger human life; one could just be performing an action that is likely to endanger human life, so it is best taken out. Again, the provision could apply to major strikes or demonstrations, particularly if they affected hospitals or things like that—one could say that they endangered human life. We want to restrict terrorism to what is said in clause 5(2)(a), which is “to induce terror in a civilian population.” If that is done, and then followed up by the outcomes being death, or other serious bodily injury, or serious risk to health, then we are getting into legislation what is generally understood to be people’s concerns about terrorism.

To somewhat repeat the debate we had on the previous part, there is that comfort clause in the Terrorism Suppression Act that says that “to avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring”… etc. etc. Again, I think it would be best to move an amendment to withdraw those two words “by itself”, so that it is quite clear that people engaged in protests and that sort of thing are not covered by that definition of terrorism.

My fourth amendment relates to United Nations Security Council information. At the present time there is a rather strange provision in section 31 of the Act that states that information from the United Nations Security Council “is, in the absence of evidence to the contrary, sufficient evidence of the matters to which it relates.” We are just taking as gospel virtually what comes down from the United Nations Security Council. Of course, we all respect the United Nations, but from what I have been able to find out, the Security Council does not have a full legal process when it works out its list of terrorist organisations. It is more a process of some country—most likely the United States—saying “here is a list of terrorist organisations.” It could also be another country, as that would depend who was the dominant force in the United Nations at the time, or who swung a bit of weight. Those “terrorist” organisations are rubber-stamped by the Security Council, sent out, and countries like New Zealand might adopt them.

I was anticipating in the previous call that Mr Locke would state that he would vote in favour of this part. It is a reasonable request when one considers what the part is about, and it is not really about what he was talking about. This part is about implementing two conventions—one in relation to nuclear material and the other in relation to plastic explosives. I would have thought that even the Green Party would want to put on record that it is opposed to those things. Did we hear that statement from them? Unfortunately, Mr Locke did not say that. He had the opportunity, and maybe he will have a further opportunity, but he needed to say it.

The reason that he needed to say it is that it is a statement of one’s values. Are we willing to be upfront and say that the worst forms of terrorism are surely plastic explosives and nuclear materials? Surely, we would say we were against those things. What Mr Locke actually spoke about were various provisions in new clauses 14B, 14C, 14D, and 14E. Those provisions, which were not properly explained by him, are all about revisiting the terrorism Act, and his general obsessions and concerns are there, too. At best, that is peripheral. It might be important to him to talk about that, even if the rest of us think it somewhat irrelevant, but at least this Committee could have been assured.

I would like to think that the vote on Part 2 will be unanimous—118 votes, unless the Progressive coalition turns up—but at least that the people present actually voted for Part 2 as an affirmative statement that in relation to plastic explosives, nuclear material, and harbouring terrorists, we are as one. I know that is an extraordinary concept within this Parliament, but in this country there must be some minimum line or common ground by which we can all say that those things have to be prohibited.

💬 Hon David Cunliffe: Does it include the Wild Greens?

The question has been asked as to whether that includes the Wild Greens. I would ask whether the Green Party is the Wild Greens, because if Green members do not vote for this part, that is exactly what they are.

Mr Locke has taken one call on issues in this part, but he needs to take another to say that he will vote for the two relevant conventions. After all, one of the reasons the Government introduced this bill to the House was to implement those conventions. They make up an interlocking network of anti-terrorist conventions by the United Nations—an organisation not favoured by everyone in this House—and expresses pretty much universal human consent that certain activities have to be condemned in the most serious ways.

Obviously, National supports those provisions. We are not putting up amendments to this part, but are taking the opportunity to say that, on these issues, we expect all New Zealanders to have a common view and to vote for those provisions.

I rise to put on the record that New Zealand First will be voting in support of Part 2. The two conventions are specifically identified and detailed in the schedule as new schedules 2A and 2B, and they are there for everybody to read. Even the strongest critic of this legislation should see that it is eminently sensible, I would have thought, that we sign up to those United Nations conventions. I take, for example, the Convention on the Marking of Plastic Explosives for the Purpose of Detection. That convention seeks to obligate the signatory countries to ensure that plastic explosives that are manufactured in each country contain identifying agents, so that they can be clearly identified by any of the law enforcement agencies that seek to provide security for aircraft, buildings, or anything that may be a terrorist target. Failure to comply with such international standards is to invite acts of terrorism. People who are caught moving, manufacturing, or in possession of such explosives can quite clearly be considered to be people who have only one intent in mind. There is no other reason to utilise such explosives.

The provisions in Part 2 that deal with sentencing for offences relating to harbouring or concealing terrorists could, if anything, be criticised as being a little light. The penalty for harbouring a known terrorist is a term of imprisonment not exceeding 7 years.

💬 Dr Wayne Mapp: But then they’ll get parole.

But they are eligible for parole at the one-third mark, so they will be on home detention 6 months shy of 2 years, and then out on parole. That is hugely light. The penalty for the use and movement of unmarked plastic explosives is a $500,000 fine and/or imprisonment for a term not exceeding 10 years, which seems eminently sensible to me.

For the life of me, I cannot understand why a party that is so much in favour of a nuclear-free policy would not express its support at the first opportunity for this part of the bill. Failure to express that support immediately brings into question once again that party’s commitment. But we have seen, with regard to the GE issue, that the very same party, when it had the opportunity to flex its muscles and demand that the moratorium be extended, did not do so. It rolled over backwards. And we have New Zealanders being denied access to the Privy Council because the Green Party, it may be said, is not serious about the sorts of policies that its members say they hold so dear. But there is another speech or two to go on this part, and maybe Mr Locke can assure us that he is serious about a nuclear-free policy and support for this part of the bill.

This part is important, for a couple of reasons. The first reason is that it enables us in New Zealand to ratify the last two of 12 international conventions against terrorism. It is important that we do that; it brings us into line with international requirements. We will probably be one of the first countries in the region that has ratified all 12 conventions, and that is something we should be proud of. I think Mr Locke would generally support that. If he did not, I would want to know why. Clearly, we do not want people to be trafficking in unmarked plastic explosives or radioactive materials. One of the major threats to us would be the linking of terrorist groups with precursor materials or actual materials used in weapons of mass destruction. There have to be offences in relation to that. These provisions achieve that end, and I hope that they get widespread support.

The other major change is that the bill gives the Customs Service the power to detain terrorist property. The key thing—and the gap that existed—was the ability of terrorists to literally carry a suitcase full of cash across the border. People who follow terrorist activities or the activities of drug traffickers—and often they are one and the same thing—know that that is the preferred way of shifting assets. We want to get our hands on those assets before the event of a terrorist attack, and not allow them to be used for a terrorist attack. That also fulfils one of the requirements under United Nations Security Council Resolution 1373, in terms of the funding of terrorism.

I am against the amendments that have been moved by Mr Locke. He is relitigating a decision already made by the House with regard to the definition of a terrorist act in the Terrorism Suppression Act. The other point that I find quite incredible is his questioning of the sufficiency of the United Nations’ information in relation to the designation of terrorist entities. I say to Mr Locke that he cannot be a part-time multilateralist. Either he is in favour of, and stands behind, the multilateral organisations, or he does not. He cannot criticise others for being unilateralist when it suits them, and then be unilateralist himself. Those designations are made only after proper work is done by an international body, representing 192 countries, and the decisions are often without controversy. Why the member would want to remove that provision from the bill is quite beyond me, unless he does not believe in designating terrorist activities and being able to take effective action against them. Equally, others of his deletions would stop us being able to seize the assets of a terrorist group that was carrying money across the border. We have to seize the assets if there is reasonable cause to suspect that that is the case, and then we have the safeguards to apply afterwards. We cannot do it the other way round, because that would not work.

The impression the member leaves the Committee with, deliberately or otherwise, is that he deliberately wants to sabotage efforts that would enable us to stop terrorist activities. It is no good to say that we have not had terrorist activities in New Zealand yet, so therefore we do not need these provisions. We need these provisions to ensure that we do not have future terrorist activities here, to ensure that New Zealand is not the weak link in the chain that can be exploited by terrorist activities, and to meet our international obligations. I thoroughly reject the amendments that the member has put forward.

First off, I would like to clear up a point that others have raised about whether the Green Party supports the bits in this part relating to the Convention on the Physical Protection of Nuclear Material and the Convention on the Marking of Plastic Explosives for the Purpose of Detection. We do support them, as I made clear in my first and second reading speeches. If members look at the minority report from the Foreign Affairs, Defence and Trade Committee that I authored, they will see that it states: “The Green member supports those amendments to the Terrorism Suppression Act bringing New Zealand into compliance with the Nuclear Materials Convention and the Plastic Explosives Convention.” The problem I face, of course, with regard to how to vote on this bill—which is a problem a lot of members face—is that while this part contains that very good provision, there are also some very bad provisions. So the Green Party, on balance, will not be voting for this part. But, of course, we welcome the fact that we will be adhering to that convention; this is just a normal problem that confronts members in the Committee stage of a bill.

I want to complete what I was in the middle of explaining about eliminating the provision that enables United Nations Security Council information to be treated as sufficient evidence for the designation of a terrorist entity. The issue is not that we should refuse to accept United Nations Security Council information and say that it is all bad and all wrong, because clearly a lot of it is not like that. But when we, as a country, receive that material as a result of a Security Council decision, we should then put our own legal scrutiny on it, and ask whether it is right. Sometimes it is wrong. In fact, we have had to amend our legislation, and we are in the process of doing so—it is in this bill here—because stuff designating terrorists that has come through from the Security Council has been found to be wrong. If the UN then sent out another thing saying it was sorry, but it had got things wrong with regard to certain organisations, under the Terrorism Suppression Act we had no way of amending our own designations to take account of the fact that the United Nations Security Council had made a mistake.

We have to interrogate that information ourselves and put our own eyes on it, because the process itself is done in New York. In fact, the Minister can correct me and explain the court process whereby terrorist bodies are designated, and whether they have any rights at all to come before the UN. I ask the Minister whether it is a process where there is a serious legal challenge of the evidence at the Security Council level. I do not necessarily think there is such a challenge. We do have to have the right, as supporters of the UN, to be able to interrogate any decision. One of the problems with the United Nations, as the Minister well knows, is that the Security Council can sometimes make wrong decisions, because of its unequal structure and the power, particularly, of the United States, but in general of the five permanent members. One can be a very consistent multilateralist without necessarily accepting the decisions of that organisation any more than we just accept, and do not criticise, the decisions of any political body—for example, of this Parliament. We have to abide by the laws of this Parliament, but we can still criticise its decisions.

I go on to my final amendment in this series. It relates to the question of customs officers, and the Minister has referred to that. My particular concern is that the New Zealand Customs Service, which is not a skilled political agency of the State—that is not its task—is allowed under this provision to detain property, not only from bodies that are designated as terrorist bodies but also from entities that are eligible for designation. A customs officer may say he or she thinks some property is from an organisation that may at some time in the future be designated as a terrorist organisation, so he or she will snaffle it now. The Minister says that the Government is guarding against all possibilities, or words to that effect. But the reality is that if Mr Franks comes into the country the customs officer may say he or she thinks Mr Franks may be designated a terrorist next week, because the officer has heard some rumours about him, and therefore he or she will seize Mr Franks’ bag. Mr Franks may, at that point, be the head of a big company. The minute that word gets out that his suitcase has been seized—by the Customs Service, not by a political body—on the grounds that he may in future be designated a terrorist, his perhaps multimillion-dollar company is banged dead, because he is a suspected terrorist.

I move, That the question be now put.

The Committee stage of this bill produces strange bedfellows, and not only at this end of the Chamber. I was very interested to hear the Minister of Foreign Affairs and Trade, who again, creditably, took a call, to explain the purpose of Part 2 and what the objectives are. I was interested to hear him say, I think correctly, that the primary gain from this measure, and his main pride in it, was that it enabled us to be the first country in the region to sign up to 12 conventions.

💬 Hon Phil Goff: No, I didn’t say that in that context, at all. The member should have listened to what I said.

I am afraid that is the way I read it. The Minister did explain the substantive reasons for it, but he spent more time gloating at the credit he will get from his colleagues at the United Nations for having been an early signer of those conventions. I ask Mr Ron Mark to think about that. That motive is probably why we have the Mercenary Activities (Prohibition) Bill before the House—the desire to look respectable to people whom most of us would not even want to be seen with; Mr Goff’s desire to be seen holding hands with Yasser Arafat. We are looking at nauseating crawling.

I wonder whether any of this is related to the forthcoming visit of the President of China. As I read section 5 of the Terrorism Suppression Act 2002, China could argue that its treatment of Falun Gong falls within it. In New Zealand, “to unduly compel or to force a government … to do or abstain from doing any act” would probably, to most people, involve an illegal act, some kind of threat of violence, something that all of us would already recognise as completely unlawful, and the definition of a “terrorist act” simply brings it in. However, we can well imagine that the Chinese, whose President is about to be hosted by Mr Goff, would consider that they were unduly compelled by a bunch of elderly people doing exercises in a courtyard, because for them it is undue to have disagreement.

💬 Dr Wayne Mapp: Do you reckon they will have another select committee inquiry?

Exactly. For those people, it is undue to disagree with their Government. I say to the Minister that the problem is that, as I read this—and I am anxious to be told if I have misread it—as I look at the elements of a “terrorist act”, the only one that I can see that would possibly protect us from an anti - Falun Gong type of move is the one in section 5(3) that requires that there be a serious risk to health or safety. My problem is that many dictators argue that they can suppress dissent because it would cause riots. In Islamic countries, they argue that they can suppress missionaries because, otherwise, they would incite Islamists against them. As I read this section and go through Part 2, it does appear to me that the President of China, for example, could call on our Prime Minister to hand over, under the extradition treaty, someone who had done something that in New Zealand would never be treated as terrorism, but under the law of a country like that might well be defined as terrorism, in a cynical act of political oppression.

That is why I agree with Mr Keith Locke that this part does raise serious questions about whether it could be misused, despite the very sensible parts of it and the things that we would love to be able unequivocally to support. The fact is the select committee did not look at section 5 of the Terrorism Suppression Act, and did not take the opportunity to modify it to make sure there was a definition, consistent with New Zealand’s respect for human rights, as to what is undue compulsion of a Government. This leaves me with the concern that this provision could be used to seize the cash of organisations or political movements. Governments that we regard with abhorrence, in terms of their attitudes to dissent and their attitudes to minorities, could use it to seize that cash.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 164 in the name of the Hon Phil Goff to Part 2 be agreed to.

Amendments agreed to.

The question was put that the following amendment in the name of Keith Locke to clause 14B be agreed to:

to insert the following new clause:

14B Inducing terror sufficient

Section 5(2)(b) of the principal Act is deleted.