Motions — Terrorism Suppression Act—Referral of Provisions to Foreign Affairs, Defence and Trade Committee

I move, That, pursuant to section 70(2) of the Terrorism Suppression Act 2002, this House refer to the Foreign Affairs, Defence and Trade Committee for consideration the matters specified in that provision, with the committee to report to the House in accordance with section 70(3) of that Act. When the Terrorism Suppression Act was passed back in October 2002, it contained a provision, section 70, which provided that the House of Representatives must as soon as practicable after 1 December 2004 refer to a select committee for consideration a review of the operations of certain provisions of that Act. Section 70 of the Act provides that the select committee to which those matters are referred must report its view on them to the House of Representatives before 1 December 2005. For the review to be considered, it requires a reference from the House to the Foreign Affairs, Defence and Trade Committee by Government motion. I thereby move that motion.

This is an important motion, because the legislation we are referring to here, the Terrorism Suppression Act, is very important legislation. That legislation implemented into New Zealand law two United Nations conventions, the International Convention for the Suppression of Terrorist Bombings, and the International Convention for the Suppression of the Financing of Terrorism. In addition to that, the Act incorporated the requirements on New Zealand relating to the United Nations Security Council anti-terrorism resolution of 2001, Resolution 1372. It is that bit of the Act that the Foreign Affairs, Defence and Trade Committee will be required to look at. It will not be required to examine the entire Act, but simply the parts of it that relate to Resolution 1373.

I guess we have to ask ourselves why this is happening. I have been trying to look back over my notes at the time in 2002, when the legislation was put through the House, to find out exactly why this unusual provision was incorporated in section 70.

💬 John Carter: Why was it?

Dr the Hon LOCKWOOD SMITH: That is an interesting question. I think the provision—and I am just trying to hear what my colleague from the ACT party has just said—was really a sop to the Greens, because the Government was struggling to get its supporters on board. We know what the Green Party is like. It is a bit different from United Future. United Future, we know, is soft. Basically, it does everything the Labour Government tells it to do. But the Greens do not. They get a bit stroppy from time to time and the Government needs their support from time to time. The Greens got stroppy on this one—I guess because some of their mates are on the fringes of some of the groups that are at times under suspicion—and I think as a sop to them the Government agreed to include this rather unusual provision in section 70.

So the select committee has to have a look at some specific provisions. It is not being asked to review the entire Act, and I think it is really important the House understands that. It is not reviewing the provisions of the Act relating to the International Convention for the Suppression of Terrorist Bombings, or those relating to the International Convention for the Suppression of the Financing of Terrorism; it is reviewing only the provisions that relate to Resolution 1373.

The select committee has to review the operation of those provisions. It must review whether the provisions should be retained or repealed, and, if retained, whether any amendments should be made to those provisions.

I say at the outset that the National Opposition certainly does not want to see any watering down of these provisions when the legislation goes back to the select committee. I guess we are concerned that the Green Party may try to use the review as a chance to twist the Government’s arm again, to try to water down some of these provisions. It is worth reminding Parliament that even though Resolution 1373 was one that followed the outrage of the 9/11 terrorists attacks—and some might be tempted to say that that was back in 2001 and as the world has moved on, maybe we do not need these provisions—it was only yesterday that terrorists in Madrid injured at least 42 innocent people by blowing them up with a car bomb. Some might say—the Greens might say—that Madrid is on the other side of the world, and anyhow—

💬 Dail Jones: Freedom fighters.

Dr the Hon LOCKWOOD SMITH: The Greens might claim that those people are freedom fighters, although I personally would find that outrageous. But New Zealanders get involved in these parts of the world. It was only in March last year that British Airways, with which a lot of New Zealanders travel, cancelled a number of flights because of fears relating to terrorists. By mid-2004—so we are not talking about going back to 2001—the United States was issuing warnings that it was concerned about its homeland security. It was worried about information it was getting from a number of independent sources that indicated that al-Qaeda was planning further attacks against the mainland United States in July.

I know that the Greens can say we are still talking about the Northern Hemisphere, but in October last year the Australian Government issued a warning that Australians should be wary of travelling to the Philippines and to certain parts of that country because of the threat of terrorist attacks there. That is right down in our part of the world. Part of that warning issued by the Australian Government related to kidnapping, both in Indonesia and Malaysia. So here we are right down in the Asia-Pacific region of the world, which is our region. The Australian Government’s statement of October last year warned that the terrorist groups based in the Philippines “had the capacity to operate across a wide area”.

So just in the last 12 months there has been a range of terrorist threats and actions that make it very clear that even though under section 70 Parliament must refer those provisions relating to Resolution 1373 in the Terrorism Suppression Act of 2002 back to the Foreign Affairs, Defence and Trade Committee, the National Opposition makes it very clear that in so doing we are not supporting that move because we think those provisions should in any way at all be watered down.

There is no evidence we are aware of that would indicate that these provisions are being used in any way that is contrary to the security interests of New Zealand, and I would think that the bulk of the public would not want to see this Labour Government have its arm twisted in any way by the Greens to water down any of the provisions in this legislation.

There is no question—and in fact I think the next item on the Order Paper looks at tightening one or two of the provisions in the Terrorism Suppression Amendment Bill—that, in reviewing what is in that Act, the Foreign Affairs and Trade Committee should be looking to see what should be tightened, if anything, rather than in any way considering a watering down.

Listeners may wonder why the National spokesperson is so concerned about this. I think all my colleagues will remember the speeches made by Keith Locke, the good Green member, when this legislation went through the House initially, and we heard all his arguments as to why some of these provisions should not be included in this legislation, or should be watered down. It worries us that once this measure is back at a select committee, the Government will be vulnerable to the arm-twisting of the Greens, on whom the Government—although the Greens are not a coalition partner—depends for votes on confidence and supply. We know that from past experience, for example, with the Penlink toll road legislation, when the Greens said no and the Government, which had initially supported it, buckled. The Government buckled when the Greens said no.

We are making it clear to this Parliament that this Government must not buckle, regardless of how the Greens may try to twist its arm on this. Our country’s security, the interests and the safety of our people as they travel the world—and our people travel a lot—are essential; wherever they may be, they must be safe, and this legislation is a vital part of New Zealand’s role in making sure our people, as well as the citizens of the free world, are as safe as they can be in their innocent activities. I make those points to make it very clear that we will not tolerate any attempt by the Greens to water down any of the provisions in this very important legislation.

New Zealand First supports this motion. I am a member of the Foreign Affairs, Defence and Trade Committee, and I look forward to—

💬 Simon Power: A hard-working and diligent member.

Thank you, very much. I will spend as much time as is absolutely necessary to give the fullest consideration to this motion at the select committee. New Zealand First is a non-aligned party in this Parliament, and, of course, we never support the Government on a motion of confidence, unlike the National Party, which did support the Government on a motion of confidence just the other day.

💬 Simon Power: Rubbish!

The National Party did support the Government.

💬 Simon Power: Where was the amendment?

We had an amendment. [Interruption] We tabled an amendment, and the National Party supported the Government on a motion of confidence. New Zealand First was the only party to oppose the Government on that motion of confidence. Every other party in the House supported the Government, so we are the only non-aligned party in this Parliament. We never support the Government on a motion of confidence.

💬 Simon Power: What was that member doing in 1980?

A lot more than that member was doing, probably. Anyway, I do not want to waste the time of this House.

This is a fairly simple motion. New Zealand First will have a close look at it at the select committee, and in due course we will report back to the House.

The review of the Terrorism Suppression Act is most welcome. The Greens support it because around the world anti-terrorism legislation has been subject to much criticism. Such legislation was also discussed in a major report commissioned by the Secretary-General of the UN, Kofi Annan, and delivered to him on 2 December. That report was from the High-level Panel on Threats, Challenges and Change. The panel stated it had received widespread feedback that, in its words, “the current war on terrorism has in some instances corroded the very values that terrorists target: human rights and the rule of law”. We have had a reinforcement of that judgment with more and more reports of mistreatment and torture by American personnel at Guantanamo Bay, and by both the American and British forces in Iraq. We have had our own shameful episode with regard to Ahmed Zaoui, who was imprisoned without charge for 2 years but now, thankfully, is out of prison.

A big problem with regard to the anti-terrorism legislation enacted since September 11 is that those who have been most keen to drive it through have been themselves guilty of terrorist acts. We just need to look at how the United States forces have operated in Iraq to see that. The devastation of Fallujah by American bombs and missiles was clearly terrorism. The American forces knew that most of those killed would be civilians, yet they went ahead. They wanted to teach the people of Fallujah a lesson: that supporting the resistance carried a heavy price, and that if people do not let US troops occupy their cities, they risk the destruction of their cities. That was a replay of United States policy in Viet Nam four decades ago. Members may remember a US general proclaiming that he had to destroy a Viet Namese village in order to save it. Unfortunately, because America is a superpower it gets off too lightly when it engages in what could be called State terrorism. So also do some of its allies.

Let us look at what has happened over the past week, following revelations that an Israeli diplomat was expelled from Australia and the press was reporting the expulsion had something to do with the attempt by Israel’s Mossad spy agency to fraudulently obtain New Zealand passports. It is rather odd that our Minister of Foreign Affairs and Trade said that he was not going to investigate that matter on our behalf, even though two Mossad agents had been jailed for the fraud and there was evidence that that particular Mossad operation against New Zealand had been run out of Australia. The relevance of that to this review of the Terrorism Suppression Act is that the Mossad operation is the only potentially terrorism-linked operation in New Zealand since the bombing of the Rainbow Warrior in 1985.

Israel has used false passports to engage in state terrorism in the past. In 1997 one of its operatives used a false Canadian passport in an attempt to assassinate a Palestinian leader, Khalid Meshaal in the Jordanian capital, Amman. Has Mossad been designated a terrorist organisation under our Terrorism Suppression Act? No. That Act does not accommodate such State terrorism. Matters would be even worse if the Israeli newspaper Haaretz is correct in stating that our Security Intelligence Service has a relationship with Mossad and that Mossad was pressuring it to sweep the passport fraud under the table. I do not believe that our SIS would have played ball with Mossad in those circumstances, but it may well be that the SIS and its Australian partner, the Australian Security Intelligence Organisation, were not looking out for Mossad terrorism. One of the jailed Mossad agents, Eli Cara, was able to run a dummy tourism company in Australia, north of Sydney, and to travel between New Zealand and Australia 24 times in 2 to 3 years without detection.

One of the main concerns expressed by submitter after submitter when the terrorism suppression legislation went through the Foreign Affairs, Defence and Trade Committee before it was enacted was that the definition in the legislation of a terrorist or a person who is helping a terrorist is too broad. The definition could potentially cover visitors to New Zealand from liberation movements overseas, or people in New Zealand who support those movements. It could even cover New Zealanders engaged in non-violent domestic protests or strikes, if their actions were deemed to disrupt infrastructure facilities in a manner that endangered human life—because, according to the definition in the Act, there does not have to be an intention to endanger human life. The definition of terrorism provided by the high-level panel reporting to Kofi Annan at least has the virtue of being restricted to acts “intended to cause death or serious bodily harm to civilians or non-combatants”. That gets away from the problematic reference to simply disrupting infrastructure that is in our Act.

Another problem with regard to the designation of terrorist organisations is that it is a political process under the authority of the Prime Minister. We have seen how that type of political designation process can go wrong, in the case of Ahmed Zaoui. The Government put him in jail as a high security risk, but 2 years later it came up empty-handed when the Supreme Court asked it for evidence as to why he should not be given bail. Now he is free. The people currently designated as terrorists under our Act are essentially those whose names have been provided by UN agencies. The high-level panel reporting to the UN has expressed concern that that process is not adequate. One of the panel’s recommendations is: “The Al-Qaeda and Taliban Sanctions Committee should institute a process for reviewing the cases of individuals and institutions claiming to have been wrongly placed or retained on its watch lists.” There is no proper judicial process whereby those labelled as terrorists by the UN committees have the right to contest that designation, either before or after the event. New Zealanders are also being affected by the very large so-called terrorist watch list operated by the United States. Last year a New Zealander, Mohammad Abbas, had his money transfer from New Zealand to his family in India delayed for a month because his name matched that of a person on the huge US watch list.

At least under New Zealand’s Act there is recourse to a court after an individual or group has been designated as a terrorist. But that process is flawed, as is illustrated again by the Zaoui case. Mr Zaoui has been handicapped by the Government’s claim that it has classified information on him—information that he has not been allowed to see in 2 years. The Act allows for a similar withholding of crucial information in court proceedings following a terrorist designation, on the basis that the information is classified.

In the US, Britain, Australia, and New Zealand alleged terrorists have not been allowed to have a proper judicial process to clear their names. The Supreme Court in America, the law lords in Britain, and the courts in New Zealand are, bit by bit, trying to overcome unjust anti-terrorism administrative procedures and to re-establish proper judicial oversight. Last December the British law lords brought down a landmark ruling that the Government was acting illegally by indefinitely detaining foreigners suspected of terrorism without charging or trying to charge them. The process was labelled a violation of European human rights laws. One of the judges, Lord Leonard Hoffman, stated: “The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. That is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a victory.” And it is for this Parliament to do that, too.

That is why this review process is so important. As Lord Rodger stated in the law lords’ judgment: “There is also a danger that, by its very nature, a concern for national security may bring forth measures that are not objectively justified. Sometimes, of course, as with the Reichstag fire, national security can be used as a pretext for repressive measures that are really taken for other reasons.”

This is a very specific motion—namely, that the Foreign Affairs, Defence and Trade Committee review certain matters that are specified in section 70(3) of the principal Terrorism Suppression Act. In that regard, much of what we have just heard is utterly irrelevant to the process that we will be undertaking.

I think the previous speaker’s speech demonstrated a confusion that is present in a number of minds. There will be many people in this House, in this country, and around the world who view events in places such as Iraq, Afghanistan, and some of the other hot spots in the world today, with an increasing degree of unease as to whether the military and political adventures that have been embarked upon can be brought to a successful conclusion. But that does not make those forces from the United States and other places—in some cases, supported by New Zealand—that are doing their best to bring about that conclusion, terrorists. That is the essential confusion in the member’s mind. We have known since September 11 what the major terrorism organisations in the world are. We know what steps we as a civilised community have to take, both to play our part in protecting our citizens from the terrorists’ adventures, and also to contribute to the international effort to suppress terrorism. Notwithstanding the misgivings that people may have about outcomes, I do not think there would be very many people in the world who would say we should not be taking a strong anti-terrorist line. That is what I believe the principal Act is about. The review that the motion requests the committee to undertake relates to the designation of terrorist organisations as part of that principal legislation. I cannot see that there can be any huge objection to that.

I will pick up a comment that Dr Lockwood Smith made and correct him ever so slightly. Although it might suit his political argument to claim that the Government relies on the Greens for confidence and supply, that is happily not the case. The Government relies on United Future for confidence and supply. I am prepared to make this point: if there was any suggestion that the Government would seek to compromise New Zealand’s national security to appease a party that gives its support from time to time—namely, the Greens—then that would be the sort of issue that would call into question the wisdom of our continuing to provide confidence and supply. I have to say I see no evidence that that will happen. The assurance I can give the House is that we will not be complicit, in any arrangement through this review, in compromising New Zealand’s national security or the security of individual New Zealanders. I happily reassure Dr Smith on that.

I also want to make the observation that the select committee will take this role seriously. I have the privilege to chair that committee. I think it is a good, balanced committee. It has members from most parties in the House, who contribute effectively to the work that it does. I am sure that they will carry out this task responsibly and in a measured way, and will certainly meet the deadline that is being sought of us with this resolution.

So I am happy to indicate United Future’s support for this measure. I think we should now proceed to deal with the companion measure, which is the Terrorism Suppression Amendment Bill (No 2), because it deals with some of the longer-term matters that arise from this.

I wanted to hear the speech of the Green member Keith Locke before I spoke, partly because of the dire warnings from Dr the Hon Lockwood Smith when he spoke. He seemed to feel there would be some kind of infection of mass subversion from Mr Locke, and he warned the House against listening to him. I was challenged, considering how closely Mr Locke and I are located, to keep my independence and to be sure I was not infected by whatever it was that Dr Smith was so fearful of.

I think section 70 is a sensible provision, in terms of the Terrorism Suppression Act. It was the least that Parliament could do to reassure itself that it was not creating a law on our statute book—and, quite truthfully, it was being created in a bit of a panic, in a great rush—that would erode the very liberties that we were so keen to ensure we protected. So I do not subscribe to the mocking tone that Lockwood Smith adopted. I am pleased to hear the chairman of the Foreign Affairs, Defence and Trade Committee say that the committee will take the job seriously, as I believe there is a serious job to be done.

I do worry about the poorly defined terms in the Terrorism Suppression Act. We have to remember that one man’s terrorist is another man’s freedom fighter. We have had many occasions when we have applauded people who have been accused by the Governments of their countries—often, oppressive Governments—of all sorts of offences and given all sorts of labels, including that of terrorist. We should remember that the Indonesian Government, for example, would have been delighted to be able to force New Zealand to implement provisions like those in the Terrorism Suppression Act to lock in its rule of East Timor. The offence of harbouring could well have been claimed by the Indonesians in terms of people who supported the man who is now the leader of East Timor.

So I want the Foreign Affairs, Defence and Trade Committee to take its task seriously. I want it to go very carefully through the definitions, to make sure that in that initial rush of fear we did not put in the legislation terms that were unnecessarily wide. I want it to make sure that New Zealand citizens are not subject to extradition at the request of Governments that do not respect human rights in the same way that we do.

I am mindful that this issue was triggered by a designation by an international body that we cannot have confidence in. The international body that triggered this issue is the same body that ran the oil for food programme. There was corruption in that, as had been alleged by people I thought were conspiracy theorists, the oil for food programme was feeding not just fat cats aligned to Iraq but fat cats—

💬 Hon Phil Goff: The resolution was moved by the United States and supported unanimously by the Security Council. What is the member talking about?

The Hon Phil Goff is attacking my reference to the corruption in the oil for food programme. He says it was moved by the United States. That instinctive anti-Americanism comes out in Mr Goff—that knee-jerk feeling that if someone criticises something raised by the United States, it immediately falls into a them-and-us category—people are either for the US or against it. The member knows that the ACT party generally supports the firm line the US takes. He thinks he can destroy an argument in this House by pointing out that I am criticising something originally sponsored by the US.

What we find, of course, is that this legislation did go far too far. In fact, when one reads it one sees that things like the campaign in World War II to raise funds to buy a bomber for Britain would have been illegal in New Zealand, because the bombing campaign was blatantly aimed at destroying the morale of the German people.

💬 Hon Phil Goff: Rubbish!

Well, Mr Goff should read his own legislation. He should read the definition of terrorism. He will find that if it is an act aimed at destroying the morale of a people, then it can come within that definition. I hope the Foreign Affairs, Defence and Trade Committee will come up with recommendations that enable us to target the kinds of terrorists that we want to target, and that will ensure that the legislation does not inadvertently catch people whom we might consider champions against oppressive Governments.

I am concerned to know whether the court protections built into this bill are effective. I want to know who has been checking just how much money has been confiscated or detected. I hope the select committee will ensure that it is satisfied that this law distinguishes properly between New Zealand citizens and foreigners.

I know that this Government is a soft touch. The whole of the terrorist world probably knows that the New Zealand Government opened its arms to refugees without properly checking them. To people whom Australia would not accept, the New Zealand Government said: “Come along, join us.” There is quite a bit of cant and there is quite a bit of pretence in this legislation. It looks tough on paper, when in fact it is not tough in practice. The immigration policy we run is Australia’s flapping back door. That is probably of more comfort to terrorists than any amount of money that would be collected in a country like New Zealand, and sent off to terrorist organisations. I hope the Foreign Affairs, Defence and Trade Committee actually tries to inquire into the relative threat represented by an immigration policy that patently pretends not to notice whether immigrants are drawn from terrorist-sponsoring populations, compared with the threat represented by the raising of money in New Zealand for people designated by the United Nations—by whoever is the ruling group in the United Nations—as terrorists.

I am very mindful of some of the huge ironies in United Nations’ decision-making. Some of the human rights committees, for example, end up with people from countries like the Sudan sitting on them. Those countries are the worst abusers of human rights in the world at the moment, probably, and people from them sit on those committees. So I want to know that New Zealand has not been signed up to a regime that means we have a knee-jerk obligation to jump to the order of countries like the Sudan and its colleagues, simply because they have managed to have an organisation designated as terrorist.

I want to know that China, for example, cannot some day order us to suppress Falun Gong. If those people are peaceful, if they offend no New Zealand law, yet they offend the Chinese Government, we want to make sure that this legislation cannot be used by the Chinese Government to put the New Zealand Government’s arm up its back and make it suppress them. I want to know that the French Government’s bombing of the Rainbow Warrior would fall within the definition. As I look at it, I am not sure what this country would have done about all the citizens of New Zealand who were trading with, and giving aid and comfort to, France, knowing that the French Government had conducted a terrorist act on our property.

I want to know that this measure is in New Zealand’s interests, and not simply in the interests of Phil Goff ensuring his eventual succession to the Labour Party leadership by kowtowing to enough United Nations requirements to ensure that the Prime Minister is booted upstairs to a new job. It might be very difficult for Phil Goff to come up with a way of taking over the leadership unless he can get the Prime Minister enticed offshore. But, certainly, jumping to the order of the United Nations, sticking really fierce provisions on paper, and not actually looking after New Zealand’s interests in practice are things that have marked this Government’s approach to foreign affairs.

This legislation was something we should have done, something we should have put into our law, but I want the select committee to look at it very closely, because it is certainly plain that some of the provisions were hastily drawn up. They are very broad. They probably catch things that they should not. Indeed, the Terrorism Suppression Act admits as much. When an Act has definitions, then states that, for the avoidance of doubt, they do not extend to someone who is advocating democratic Government, we can see that the drafter was worried that he or she might have caught things that no one really wanted to catch. This review in cool hindsight is precisely what was contemplated by Parliament. Parliament was worried when it put section 70 into this Act. We want it to be done in a proper way.

I want to take just a short call—I was not intending to take a call—because it has just occurred to me, as I have listened to most of the previous addresses given by members, that it has been a quite wide-ranging debate, given that we are considering a motion, which is pretty specific. I thought I should just draw the attention of the House to the actual provision. The motion states: “That, pursuant to section 70(2) of the Terrorism Suppression Act 2002, this House refer to the Foreign Affairs, Defence and Trade Committee for consideration the matters specified in that provision,”.

I may have missed it, but I am not sure that—other than my colleague Dr the Hon Lockwood Smith, who made reference to it—any of the other speakers have spoken specifically about what those matters are. There may be some listeners who are wondering what United Nations Security Council Resolution 1373 is actually about. The motion states that the Foreign Affairs, Defence and Trade Committee is to look at the provisions of it and see whether they are still applicable, etc. We have already heard that the National Party does not wish to see any of them watered down, and, indeed, will be resisting that in the Foreign Affairs, Defence and Trade Committee—and I am sure the chairman will not want them to be watered down, anyway. We will certainly be looking to make sure that that does not happen.

I thought I would—given the speech made by Keith Locke, particularly—just refer to a couple of the sections in the resolution, so that people can have an understanding of what we are debating. The first one in that resolution states: “Reaffirming also its unequivocal condemnation of the terrorist attacks which took place in New York, Washington, D.C. and Pennsylvania on 11 September 2001, and expressing its determination to prevent all such acts,”. Well, surely there cannot be any member in this Parliament, including Mr Locke, who would want to oppose that statement. Maybe I am wrong. Maybe the Greens think it is all right that September 11 took place—I do not know. Certainly, it seems to me that this Parliament would want to support that sort of statement.

It goes on to state: “Reaffirming further that such acts, like any act of international terrorism, constitute a threat to international peace and security,”. Well, how can anybody want to oppose that? I would not have thought that anybody would want to oppose it, but, again, maybe there are members in this House who do. That would be unfortunate, to say the least, because I doubt whether it would represent New Zealand’s view. It continues: “Reaffirming the inherent right of individual or collective self defence as recognized by the Charter of the United Nations …”. Again, how can one oppose those sorts of things?

The resolution goes on in that vein. I just thought I would draw to the House’s attention that those are the specific sorts of things that the select committee would be considering, and I for one am very comfortable with them. I think we should support them. But I would be interested to see whether we get any submissions that suggest changes or alterations. If we do, then we would want to make sure that they add to, rather than take away from, the legislation.

Motion agreed to.