Terrorism Suppression Amendment Bill (No 2)

I think it was somewhat unfortunate that the Minister for Social Development and Employment made very light of serious legislation, because the big issue in Part 1 that really troubled a lot of people making submissions on this bill is the need to balance the genuine concern of a nation to make sure it plays its part in combating terrorism with the concerns, which are also genuine, of a lot of people to make sure our legislation does not become too intrusive in respect of individuals’ human rights. There are issues of judgment here, and I think the Minister displayed a lack of understanding of the bill in that last contribution.

The Committee should look very carefully at clause 4 in Part 1, which introduces a new criminal offence into the principal Act. The reason why we should look at it carefully is that a sensible member of the House from New Zealand First, Dail Jones, has argued that it is not necessary. He in fact proposes a Supplementary Order Paper that would delete clause 4. As I understand New Zealand First’s argument—and I invite the member to correct me if I am wrong—section 8(1) of the principal Act already covers that concern of New Zealand First. I would argue that that is not the case. If we look carefully at section 8(1) of the principal Act, we see that the funding there refers specifically to funding acts. A person commits an offence who “… collects funds intending that they be used, or knowing that they are to be used … in order to carry out 1 or more terrorist acts.” The key word in section 8(1) is “used”.

The gap that section 8(1) leaves is that money could be provided to a terrorist organisation without knowing that it will necessarily be used for any specific purpose, when that organisation could be involved in all manner of terrorist activities. The concern about section 8 on its own—it is a perfectly OK section as far as it goes—is that it is incomplete. It requires a person to know that the funds he or she provides will be used for a terrorist act. All that new section 8(2A), inserted by clause 4, requires a person to know is that he or she is funding a terrorist entity. A person still has to know that, and must not have a reasonable excuse for doing it, so new section 8(2A) sets the bar quite high.

But I think it is worth the House giving careful thought to the challenge that New Zealand First has put in front of us as to whether this new subsection is required. I would argue that it is required because section 8(1) in the principal Act requires that one needs to intend to use the funds, or know that the funds are to be used, in order to carry out one or more acts of a kind that, if they were carried out, would be terrorist acts.

I think National would argue that if we do not insert section 8(2A), as included in clause 4 of the bill, into the principal Act, we leave a grave gap in our law. I know the member has concerns about certain organisations that may be involved in activities that are not all terrorist activities. But putting that aside for the moment, if we delete clause 4 altogether, I think we leave a grave gap in our law, because a defence could then so easily be that someone financing a terrorist organisation, who knows that he or she is financing a terrorist organisation, could argue that the money was not intended to be used for any particular terrorist act and, therefore, maybe find a reasonable defence against the existing section 8(1).

I think that it is worth hearing from New Zealand First to make sure that the Committee of the whole House understands Dail Jones’ and New Zealand First’s arguments, but I have tried to put them reasonably. If we do delete clause 4, I think we will leave a serious gap in our law, which is why National would argue that clause 4 must be carried by this Parliament, in order to insert new section 8(2A).

The chairman of the Foreign Affairs, Defence and Trade Committee made a very good point amongst others in his speech. I direct this question to the Minister, and I did not hear him raise the matter in his speech. [Interruption] I did not hear it; I missed it. Could the Minister confirm what the select committee has stated in its report, at the bottom of the first page: “However we are now satisfied that neither the intent nor wording of the provision catches the funding of legitimate human rights, humanitarian or democratic rights groups acting solely in this way. We seek the Government’s confirmation that this is indeed its intent.” So I would ask the Minister to confirm whether that is the case.

💬 Hon Rick Barker: Yes.

The Minister says “Yes”, so that is the Government’s intention.

💬 Hon Rick Barker: It’s in my second reading speech.

Well, we know what second reading speeches are like sometimes—Phar Lap would not be able to keep up with some Ministers! I am pleased to hear that. The second question I would ask is, when was United Nations Security Council Resolution 1373 actually passed?

💬 Hon Rick Barker: On 28 September 2001.

So we have waited almost 4 years to give effect to that part of the resolution in this legislation.

💬 Hon Dr Michael Cullen: And we are taking urgency now.

—and they are taking urgency now. Well, maybe that is a good ground, but we have been told how urgent all of this is, yet we have waited 4 years to do it. That is the point I was trying to make earlier on, as well. So we are finally getting around to doing that one.

Members have expressed interest in what happened in September 2001. They may be interested to know that I have a half-brother living in New York, who worked very close to the World Trade Center. I was very concerned about his safety and I even rang the New Zealand telephone line that was made available for that purpose. So when people talk about terrorist activities and how they affect people, they affect me perhaps as much as anyone else here, if not more. So New Zealand First and I are very concerned to make sure there are no loopholes.

The Minister has confirmed that that is the bill’s intent. That will go on the record, because it is already in the record and I have said it already. I will withdraw my amendment, because I have received that confirmation from the Minister. But I want to ask the Minister what happens to a Sri Lankan living in New Zealand who has a mother, father, three brothers, and four sisters, which is not unusual, living in Sri Lanka in the tsunami area controlled by the Tamil Tigers—[Interruption] No, I did not live in Sri Lanka; everyone who lives in Sri Lanka should be very proud of that country, even though the National Party wants to make a racist joke about it—whose mud hut has been wrecked and who are starving. How does that Sri Lankan get money to them? Is there any way of getting money to them other than through the Tamil Tigers?

💬 Dr Wayne Mapp: I raise a point of order, Mr Chairperson. I realise I should have raised this point of order a bit earlier, but referring to what Mr Dail Jones said about jokes, I am sure he would consider on reflection that he probably should not have said that. I take offence at what he said about racist jokes.

Speaking to the point of order, I thought I heard some National Party member saying, when I was referring to the suffering of the people of Sri Lanka, that I already come from there, and trying to suggest that in some way. So I responded to that. If members want to interject, they must take what they get in reply. That is in the rules of the House.

The CHAIRPERSON (Hon Clem Simich): Mr Mapp has raised that issue. I was listening and I thought it was a perfectly reasonable response from Mr Jones.

So you have ruled on it, then—thank you very much, Mr Chairperson. I am just asking what one does if one is a Sri Lankan or an Indonesian in that situation. One’s family overseas is starving, they do not have a roof over their heads, and the only way to get money through to them is by making a contribution to a group like the Tamil Tigers. Will that be a criminal offence? As I have said, New Zealand First has totally supported any action taken against terrorism; we always have and we always will. Sometimes one wants to have a little discussion on a point that is raised in a select committee. I made it clear in my second reading speech that we would be supporting the legislation. Dr Mapp did not quite grasp that, I suspect; otherwise he would not have made some of the comments he made earlier.

So how would we resolve that situation for a New Zealand family with those links in Sri Lanka in that situation, who want to get some aid to their family? Does that family not give it to the only group that could possibly get it to them? I am sure that if we were in that situation in New Zealand, we would deliberately do everything possible, knowingly, wilfully, etc., to try to get aid to our family in Sri Lanka or wherever.

I have lived in Pakistan, and I know how poor people can be. When we talk about poverty levels in New Zealand, we just do not even know what poverty is. We are talking now about people in Sri Lanka who are below even that level after the tsunami. What do people do to keep their families alive when they know they are in a Tamil Tigers - controlled area? I would be interested to hear the Minister comment. But, I repeat, I will withdraw my amendment. It has caused a good discussion, which is what I intended it to do, and I think all the submitters would have liked that to happen.

I will respond to two points raised by Dail Jones. I want to repeat, if people will bear with me, the comments I made in my second reading speech, which I think cover the point precisely for the member. I said: “Having given serious consideration to these concerns, the committee was satisfied, as I am, that neither the intent nor wording of the offence will catch persons who provide or collect funds for groups with no connection to terrorist activity. Nor will it risk criminalising the unwitting donation of funds to terrorist entities, for example, via a terrorist group’s apparently legitimate front organisation. To be captured by the new offence, a person must intend that the money provided or raised will directly or indirectly benefit an entity which they know carries out terrorist acts: this is a significant burden for the prosecution to satisfy in any particular case.” So a person must intend and know.

The second point I want to come back to—and I am pleased to hear that the member is withdrawing his amendment, but I think I can just confirm for him the wisdom of doing so—is that if we look at schedule 4 of the Terrorism Suppression Act 2002, we see the reproduction of United Nations Security Council Resolution 1373. In clause 1(d), there is a very clear obligation on signatories to take actions that: “Prohibit their nationals or any persons and entities within their territories from making any funds, financial assets or economic resources or financial or other related services available, directly or indirectly, for the benefit of persons who commit or attempt to commit or facilitate or participate in the commission of terrorist acts, of entities owned or controlled, directly or indirectly, by such persons and of persons and entities acting on behalf of or at the direction of such persons;”. So it is very clear that entities have to be dealt with, as well as individuals and acts.

To pick up on the point made by Dr the Hon Lockwood Smith, I tell members that if we were going to be concerned about the financing of terrorist acts only, we would miss a whole range of terrorist activity such as the financing of organisations for the training and upskilling, and so on, of terrorists. So in fact we would be saying it was OK to finance the resourcing of terrorist organisations, but not the actual acts or commission of those organisations.

New Zealand law, therefore, as it currently stands, falls short of compliance with the UN Council resolutions, and that is what we are seeking to address here tonight. If we had adopted Mr Jones’ resolution, we would have fallen short of our obligations under the UN, and that would not be the right thing for New Zealand to do. We usually do the right thing and support UN resolutions.

I think that the Minister’s contribution and Mr Jones’ earlier contribution were particularly useful, and I just simply want to acknowledge Mr Jones’ withdrawal of his amendment, and the Minister’s restatement of the assurance that he gave in his second reading speech.

The Foreign Affairs, Defence and Trade Committee was concerned about making it absolutely clear—and this is almost one of those cases where one has to make it absolutely, absolutely clear—that the sentiment we all thought was being captured by this provision was, in fact, the reality that the innocent, unwitting, genuinely motivated person who feels a sense of compassion for those who are suffering, and who decides to give support to campaigns designed to alleviate that suffering, does not then find himself or herself entrapped by the subsequent revelation that the organisation to whom he or she is giving support might have links to terrorist organisations. The select committee has no sympathy for the terrorist, but a lot of sympathy for the genuine donor.

As members of the select committee will recall, we certainly agonised for some time about how effective the provision in the bill would be in giving that protection. We became satisfied that the test was sufficiently high in a number of cases to give that assurance. We then thought it would be critically important for the Government to restate the obvious, in fact, so that anyone looking at the bill as it is eventually passed, the select committee’s report, and the content of the debate in this House—and the judiciary have been known to do that on many occasions—would be left in no doubt as to what the true intent of the bill was.

I think Mr Jones has done us a useful service by moving an amendment that actually focused our attention on the particular provision. That made us not only consider it but also debate it here this evening, and place on record the absolute assurance and clarity that we feel about what this provision means in reality. I do not think it can be restated often enough that those who are genuine, well motivated, and innocent in terms of their intent have nothing to fear from the provision contained in this bill that we are about to pass. And I think that is where I should end this contribution because it really is the nub of the issue.

The bill’s intent is a genuine one. It does protect the innocent, but it also makes clear our abhorrence of the activity that people are concerned about.

I call Dr Wayne Mapp.

I raise a point of order, Mr Chairperson. In this debate the Green Party is the only party opposing the bill. There have been a whole series of speakers supporting the bill, and it seems that the Green Party is being bypassed. It does not seem—

Yes, I make the choice of speakers. I note that you do not agree with it, but it will remain Dr Mapp, and we will come to you in due course.

I want to make a comment on the comment that Mr Locke has just made. He said that the Greens are now the only party opposing the bill, and that is true. It is also worth reflecting upon the fact that the Greens represent 5 percent of New Zealand. Strictly speaking, one might expect them to get only one call in 20, but, of course, it does not quite work that way. So I believe that the Green Party can hardly say that in this Parliament their views are not well represented. I appreciate that Mr Locke puts a lot of work into representing his viewpoint.

I want to pick up briefly on the points that others have made about the important distinction between act and entity. Section 8(1) of the Terrorism Suppression Act—and I am pleased that New Zealand First has now recognised the reality of this—applies only to funding the terrorist act itself. It has taken this bill, the Terrorism Suppression Amendment Bill (No 2), to rectify what should have been done before, under the United Nations convention—that is, to include the funding of entities themselves. That is the sort of thing that needs to be fixed up. It does speak of a general problem. There is no doubt that the legislation in 2002 was passed in urgency, and I do not mean “urgency” in a parliamentary sense, but under the tempo of urgent times. There was an immediate need, internationally, to strengthen domestic law and international law to deal with the scourge of terrorism, and most countries have acted. It is also true to say that most countries have had to fix up their legislation, as well, because, in the nature of things, legislation passed quickly is unlikely to be entirely perfected.

I conclude by saying that National supports, very strongly indeed, the measures to strengthen the laws against terrorism. Both myself and Mr Carter are deeply offended by the statements of two Government speakers: the junior Labour whip and Mr Maharey. They alleged—not just alleged; actually stated—that we were insincere and were trivialising the issue. That is entirely false. I think it is quite reprehensible for the Government—[Interruption] Well, Mr Hughes’ colleague Mr Maharey included myself, I would have to say, and I think it is quite reprehensible for the Government to make that allegation. At no point did any of the National speakers seek to score some political point against the Government on this issue. We recognise that the Government has been reasonably forthright—

💬 Darren Hughes: Mr Carter did.

No, he did not. He had been forthright in dealing with terrorism. We recognise that a substantial contribution by the New Zealand armed forces has been committed over a substantial period of time, and indeed it is continuing to deal literally with the lair of terrorism in Afghanistan. I think it is unfortunate that the debate in that particular area took an unfortunate turn, because it says that the Government, maybe due to nervousness about an upcoming poll, is losing perspective and its members are making personal attacks whenever they can.

On an issue like this, I think it is reasonable that we raise our sights and deal with the issue seriously. I have to acknowledge that Mr Locke does deal with the issues seriously. He does not try to personalise them. He always puts his point of view forward reasonably. I do not agree with it—it is fundamentally wrong. He does not seem to recognise the dangers of terrorism. But to have personality politics intrude into a debate of this nature, I think, was hugely unfortunate, and lamentable in particular from a senior front-bencher of the Government. I conclude by saying I would like to think that the Government would take on board those comments. We on this side of the House expect serious issues relating to national security to be debated without personality politics being played out in this Chamber.

I think there is a bit of a misunderstanding here. The original section 8(1) in the principal Act prohibited funds intended to be used for terrorist acts—funds directed towards actually doing terrorist acts. The new provision concerns the giving of funds knowing they will benefit an entity that carries out terrorist acts.

One of the points, I think that was made by Lockwood Smith, was that we have to have that provision, because there might be front organisations and we do not really know whether the front organisation will do the terrorist act, but the funds for the terrorist act may go via the front organisation—such as an al-Qaeda front organisation.

But if members just leave it on that level, I think they are misunderstanding it. That clause is aimed at stopping support for and, in effect, destroying such organisations, one of whose activities is terrorist acts. I think we can put terrorism within an al-Qaeda frame too much, in that al-Qaeda—[Interruption] No, let me explain that. The al-Qaeda is a very covert organisation, it does not control any territory, and it has conducted a series of horrific terrorist acts. It is different from organisations that are nationalist, ethnic groups, and liberation groups like the African National Congress in South Africa, which have genuine mass support and often have controlled territory.

In the case of some of the Palestinian groups, perhaps we could put that definition on them—and on the Tamil Tigers. But it is questionable whether we can, in fact, define the Tamil Tigers as a terrorist organisation now. A lot of people would say that we cannot, given the peace that has occurred in Sri Lanka for the last few years. But the Tamil Tigers are relevant to the debate, because they are designated as terrorists by Britain, Australia, and the United States, and are treated by some of our State agencies in a de facto manner, even if not by the Government itself officially at a political level.

That is a good test case. For instance, if we want to advance peace in Sri Lanka and the welfare of the Sri Lankan people, perhaps we can get off the topic of tsunami relief, although that is also relevant. If we go back to the wording the Minister used, we note that one has to have an intent to give aid while knowing that the organisation engages in terrorist acts. If we did define the Tamil Tigers as terrorists, then a lot of people giving aid to tsunami relief would do it knowingly—that is, knowing that the aid would go via a Tamil Tiger channel—so they would not, in the Minister’s words, “do it unwittingly”.

But the problem is whether, in our approach to helping the situation in Sri Lanka—both on the tsunami-aid level, or on the political level of advancing the peace process—our aim is to destroy the Tamil Tigers. Destroying such organisations is the essence of this amending legislation, as is the piece the Minister read from resolution 1373. Is our aim to destroy a nationalist organisation—be it the African National Congress in the past, or the Tamil Tigers more recently—that has in the past engaged in some sort of sabotage or activity that has killed civilians and can be defined as terrorism, or do we want to deal with New Zealanders’ support for real terrorist acts?

If we look at the northern and eastern areas of Sri Lanka today, we see that the Tamil Tigers are supported not just in terms of tsunami relief. I have been through the Tamil Tiger areas of Sri Lanka. I did that a couple of years ago. All sorts of aid organisations are there, from Oxfam to Unicef, and all the UN organisations are engaged in all sorts of projects, including projects for building a civil structure and leading to an advance in the peace process.

Mr Locke has correctly told the Committee that the Green Party is the only party that is now opposing this bill, so I listened and tried to find out whether he has a coherent position. I have to say to him that I do not think his position is coherent. I even went back to look at his earlier arguments when he voted against the original bill. [Interruption] Oh yes, and when he voted against the original bill he stated that his reasons were that he did not like the designation of terrorist groups around the world by countries like the United States.

I have to say to him that I think his motivation for this bill is that he is fixated about the United States. I think he thinks that anything the United States does is somehow evil and wrong, and he is one of those people who thinks that the United States brought it on itself that the World Trade Center bombings occurred. I actually think that that is his position, and has been right the way through his whole life. I find it interesting that the Green Party, which has managed to sell itself to the country as being an environmental organisation, is actually carrying within it a person like Mr Locke who I have never heard make a speech about the environment. All I hear from him are rabid speeches against the United States, against capitalism, against things that most New Zealanders—

💬 Hon Member: Watermelon party.

The member likes to say how sincere he is on these matters, but I do not think he is sincere. If he were sincere he would be prepared to tell us that the reason he is not supporting this bill is that he does support the objectives of various terrorist organisations; he most certainly does. He can say that he does not remember, or that he was misconstrued when he wrote stories about Pol Pot. Right throughout his whole life he has done that. He may not like it—

💬 Keith Locke: I raise a point of order, Mr Chairperson. On previous occasions members have been forced to withdraw and apologise for trying to say that I supported Pol Pot. The reference here has that definite implication, and I would ask the member to withdraw and apologise.

Again, we have been through this before. I have tabled the papers before. I am happy to see whether I can find them. I will have to borrow Winston Peters’ papers, I think. I am certain I can find them again. I most certainly am not prepared to withdraw the accusation I am making against him.

💬 Keith Locke: I raise a point of order, Mr Chairperson. It has been established, and I can get the dates, that members have withdrawn and apologised, for this very reason—on the assurance from me that I have never supported Pol Pot and his crimes.

I thank the member for raising that. I do not think that is quite what the member was saying. It seems a sort of paranoia—

💬 Hon RICHARD PREBBLE: Let me put it to the honourable member this way. The reason he got himself into problems with Pol Pot, and the reason he now finds himself in this extraordinary position on this bill, is that he is so anti the United States he actually thinks that we in this Chamber should support anyone who is also opposed to the United States. A line has to be drawn somewhere. It may be difficult to determine exact definitions of terrorist organisations, but that does not mean to say there is no such thing as terrorism. There most certainly is.

This bill says that we should not give money to entities that we know are engaged in terrorism. Only the Green Party is saying the contrary—that it ought to be lawful in this country to raise money and send it to an organisation that we know is murdering people in terrorism. Mr Locke says that is what we ought to do. That is what the Green Party ought to campaign on during this election campaign. Green Party members should not go through the election campaign saying: “We’re a bunch of conservationists, but when we get into Parliament we will hold the whole House up and we will be alone in saying it should be lawful in this country to support terrorism.” When Mr Locke looks back at his record he will find that he has voted against every single measure that has been raised in this House, even though the United Nations has supported it, and even though it is supported by every democratic party of the world. I ask him how he can possibly claim to be a Green member of Parliament. No, he is not. He is an extremist. He is the reddest MP who has ever been in this Parliament and that is what he ought to tell the Committee before he votes on this measure again.

I move, That the question be now put.

It is interesting to listen to Keith Locke talk about this bill, because he makes comments about “real terrorism” as if somehow there is terrorism that is not genuine. It seems that Keith Locke believes that terrorism is very much in the eyes of the beholder. He says that one person’s terrorist is another person’s freedom fighter. I cannot think of any person in this country who would see Osama bin Laden as a freedom fighter. So I endorse the comments made by Richard Prebble.

I am concerned about clause 4, and I draw the attention of the Committee to something I think could be a loophole in that clause. Clause 4 states that it is an offence if we give money to someone knowing that they will benefit, and the entity has to be one that carries out, or participates in the carrying out of, one or more terrorist acts. My question to the Minister in the chair, the Hon Rick Barker, is why does he specify the number of terrorist acts—because, for example, we could have a situation whereby a company—[Interruption] If the Minister would stop laughing and listen to my point he might find that it is a valid one.

An organisation or a trust may be set up for the express purpose of carrying out terrorism acts but may not have actually done anything yet. Clause 4 states that the entity is already carrying out or participating in terrorist acts. What happens if the organisation is set up for the express purpose of undertaking terrorist acts but has not done anything yet? So people could be giving their money to an organisation that has the intention of carrying out acts of terrorism, but has not actually carried out any such acts. I wonder whether the clause could be improved by adding a reference that states something like “the organisation intends to carry out one or more terrorist acts”.

💬 Hon Dr Michael Cullen: You would have to prove it. It’s very hard.

I am not making a point about putting a number on it, because I think that is fine. We want to know that they are participating in something. But what happens if the organisation has not done anything yet? That leads me on to my next point, which is that the benchmark is set extremely high. How are we ever going to prove that someone intended to give funding to a terrorist organisation? How can we get inside the mind of that person? What sort of evidence will have to be demonstrated in order to prove that?

At the moment, our police have serious rape cases sitting in in trays. Is the Minister really saying that the police will turn their attention to finding out who Granny Rich gave her donation to in the main street of Wellington? The benchmark seems to be very high and I am concerned that the chances of catching anybody are just about zip. It has to be demonstrated that the person knew. How do we do that? It has to be demonstrated that the person intended the money to go to a terrorist organisation, which is very difficult to do. As we know, al-Qaeda is just one example. It works in little, separate cells whereby even the people involved in those cells do not know whom they are linked to or what they are doing.

The key point is that there is a loophole in that clause that one could drive a bus through. Frankly, if anybody is serious about carrying out acts of terrorism, all that person has to do is set up a new organisation that has not actually done anything yet—that has not bombed anything yet or killed anybody yet—and that organisation, technically, has not been involved in, or carried out, any terrorist acts at all. Listing that an organisation must have been involved in one or more terrorist acts does not capture organisations that willingly bring themselves together in order to continue acts of terrorism.

I move, That the question be now put.