Terrorism Suppression Amendment Bill

I want to reflect on the history of this legislation, because I think it is relevant when we consider the tone and tenor of the debate today. Of course, this legislation has its origins in September 11. That is why the Terrorism Suppression Act came into being. I note that one particular party in this Parliament—a party that does not exist any more, the Alliance—broke apart on that legislation. I guess that the remnants, the wreckage, of that party are still here. I was listening to the radio this morning, as I do from time to time, and I heard that there are trade unions that are proud that they are staunch against the Terrorism Suppression Act 2002. They claimed that the Law Society was against it in 2002, which is not actually true, in fact. Hearing that reminded me of the irredentist left, who see this as a reflexive approach. With things as drastic as September 11, when thousands and thousands of people were killed, even then, the irredentist left could not bring itself to act internationally to deal with it. One particular political party fell apart on that very issue.

The Green Party, I guess we would have to say, has been consistent. Right from the get-go it has opposed any and every legal measure to deal with terrorism that arose out of September 11 and al-Qaeda. Those on the left have all sorts of pettifogging legal justifications for that. But we have to look more deeply, do we not, and we have to ask ourselves why they would always oppose anything to do with dealing with terrorism and September 11. Ironically, today is the very first time that I have not heard the Green Party vote against something around this legislation, and that was the schedules. Does that mean that the Green members, for a change, support the schedules? Realistically, probably not, because their pattern is against this. So we have in this Parliament two parties, one of which—the Green Party—is always opposed, no matter what, because that is basic to its anti-Americanism. Let us be honest about this. The Greens are fundamentally opposed to the United States, and whenever they get the opportunity, they vote against anything that has anything at all to do with the United States, even though thousands and thousands of innocent people were killed in September 11.

We have to give Jim Anderton some credit on this—actually, a good deal of credit. He knew on that day what he had to do. He was prepared to take the risk in the full knowledge that the irredentist left of his party would depart—and it did—and he remained strong, right through that process. The Green Party, interestingly, has taken completely the opposite view. Today we see the Māori Party members—for somewhat different reasons, I admit—also opposing the legislation. I wonder whether Mr Hone Harawira’s colleagues would take quite the same view had the events of the last few weeks not happened—Mr Hone Harawira would, I guess, but I wonder about his colleagues.

I mention that history because it is actually why this bill is here today. That is why we are debating this bill today. It is not about events that have occurred in the last 3 weeks. It is about New Zealand’s international responsibilities in supporting the mandatory parts of the United Nations, and that is an important legal point that I bring to the Committee. Some parts of the United Nations’ activities are essentially discretionary. Other parts are mandatory—the parts that deal with the Security Council. The Security Council has membership from literally across the globe, and we know that the member countries do not always see eye to eye, but on this particular issue—the need to deal with terrorism, particularly by al-Qaeda—there is a unified international viewpoint. That is what we are dealing with today, fundamentally.

National has been totally consistent on this. We take seriously our responsibilities as part of the international community. We know that much of the way to deal with international terrorism is through the proper framework of law and justice. If political parties cannot support those fundamentals, we have to ask ourselves whether they even support the rule of law. I was amazed to hear one particular member today in the House—Mr Hone Harawira—saying he does not support the rule of law. Well, we have to ask ourselves why he is here. Is he not better outside protesting, where he obviously feels somewhat more comfortable? I just make that point. Supporting the rule of law, irrespective—

💬 Hone Harawira: Thousands of your wife’s relations put me here.

That is true, I would have to concede. I know the origins of the Māori Party, but surely of all parties, because of its belief on the foreshore and seabed, it actually does want the rule of law. That was the motivating event—they saw the Government perhaps not supporting the rule of law. I would have to say that, irrespective of particular views, the rule of law matters, and on this issue, that is what we are actually debating today. Do we support the rule of law or not? I think the answer is pretty clear. National does support the rule of law. We take our responsibilities as international citizens seriously, and that, ultimately, is the only way we are going to deal with the scourge of international terrorism.

I thank the member opposite, Wayne Mapp, for his contribution. I point out that we have been discussing respect for the rule of law and members’ commitment to the rule of law, and I do honour what members have said in this debate. The select committee was concerned that we achieve in the Terrorism Suppression Amendment Bill a balance between protecting New Zealand citizens, protecting the rights of New Zealand citizens, and freedom of speech, freedom of association, and that we have democratic transparency within this bill. The committee did listen to submissions, and very, very seriously took into account what members said and what submitters said.

I am also aware that in this debate members have sometimes oversimplified the arguments, and have made assumptions about other people and other parties that are not always correct. As I have said, we tend to oversimplify. We have mixed up some genuine concerns with a desire to whip up concerns about things that are not in the bill. Things have been said about matters that are not contained within this legislation.

I thank the select committee for the balanced approach that it took, and for the changes that were made to the bill. I am satisfied that the committee members put their best minds to it and did the best job available. Once again I thank the members of the committee.

It is good that people are talking in this debate about the rule of law, because I think that is at the heart of it. Wayne Mapp also talked about it in a historical perspective, going back to 11 September 2001. The key thing is that most people around the world—90-something percent of the citizens of the world—recognise that an undermining of the rule of law has accompanied George Bush’s so-called war on terror. They see that in Guantánamo Bay, where people are not subject to the rule of law; they are subject to interminable executive detention without any access to judicial process, or with highly flawed access when, in the odd case, it does occur.

We have seen huge injustices being brought in under the auspices of the terrorism laws. We saw that just across the Tasman a few months ago in the Haneef case, whereby an innocent Indian doctor was persecuted by politicians at the highest level, who were determined to get him and cancel his visa and do all kinds of things. Even though it was clear that he was totally innocent, the politicians were determined to make a scapegoat of him. That is the problem. The Haneef case is a good example of why one should not, as has happened since September 11, substitute judicial power for executive power. That is exactly what has happened, and this bill is a part of that—substituting the Prime Minister’s approval for that of the High Court in relation to extending the terrorist designations. The Prime Minister—and we have a pretty good Prime Minister in most respects—can be a little prejudiced, or the system can go a little wrong.

Just to indicate how the executive branch can undermine the rule of law, I say we saw that in the case where Helen Clark was subject to a private briefing on what was happening in the recent alleged terrorism events—and I will not get into the detail of them. We do not know any of the detail of the charges, other than that they are in the general category of arms charges. We do not know any of the evidence. Yet Helen Clark got up and said, on the basis of her private briefing, that those arrested in the terrorism raids had “at the very least … illicitly used firearms, constructed Molotov cocktails and trained themselves in how to use napalm”. That illustrates why it is wrong to give a Prime Minister power in such cases. We saw that across the Tasman, with the Minister of Immigration getting right in there—boots and all—to try to get that chap, Dr Haneef.

The Greens are very much in favour of the rule of law. The submissions both on the original bill and on the amendment bill came from a range of organisations, probably including all the civil liberties organisations in the country, and came from the most highly trained lawyers—the ones most conscious of the rule of law and civil rights issues—and the Human Rights Commission, which wanted a whole review done because it could see that this amendment bill and the original Act breached the rule of law in many respects and made it unfair for our society. The New Zealand Law Society in its submission said we do not need a body of law and something called a terrorist act to override what is already covered. All the crimes are covered in the Crimes Act already—every single last one. Whether they be conspiracy crimes or participation in a criminal group—whatever crimes members care to name—then they are covered. The Law Society said that if there is a little twist and one says the particular crime was committed with the aim of terrorising a population—and that can be a twist, as to whether it involves a criminal gang or a political group—then the judge can take that into account in sentencing. The judge has the power to take into account whether there has been terrorism—be it in a local suburb for some criminal reason, or in a group or community for a political reason. The judge can take that into account in sentencing.

We do not need to have a whole realm of laws on top of the existing law. The Law Society said that would lead to great confusion as to which charge to lay: the terrorism charge or the criminal charge. If we lay both charges, then we will get a plea bargaining system whereby someone will look at it and say that for participation in a criminal group the maximum sentence is 3 years’ imprisonment but that for participation in a terrorist group the maximum is 14 years. Therefore, people may plead guilty to the lower charge even though they are innocent, in order to get off the charge that carries the higher sentence on conviction. That is the problem.

Tēnā koe, Mr Chair. Speaking on the rule of law, what are we talking about here? This is a country where everyone goes around saying “One law for all.” So what was the story with the foreshore and seabed legislation? Where the hell did that come from? The National Party had a chance to stand up for justice by supporting the Māori Party on the repeal of that legislation. It missed a golden opportunity, because it was frightened of losing its support out there—instead of being true to National’s own conviction, which was to repeal the legislation. But I should get back to the rule of law—good thinking!

I do not see that National supports the rule of law. Let me take the Treaty of Waitangi. When we came into this place we went to a few seminars on what law was and things like that, and on what the constitution was. We were told the bits and pieces that make up New Zealand’s constitution, and one of them is the Treaty. Both the National Party—whose members are now talking over the top of me—and the Labour Government have said that the Treaty of Waitangi is our nation’s foundation document. So why is it not in the rule of law? Why is it not ratified in some form, as the umbrella, if you like—the matua Act or the senior Act—if it is the foundation of our constitution? At the end of the day, that is what we are talking about: our nationhood. If the Treaty is truly the foundation document of our nationhood, why is it not ensconced in place and legislated for as the guardian document, and let everything come out of it? It is so cheap to talk about the rule of law, yet we have all these anomalies. People say they cannot have the Māoris owning the foreshore and seabed, so they will keep it—but they will sell a bit for mining and stuff like that.

Seriously, it is more than just the rule of law; what about exercising the rule of law? I am waiting. People say we should wait and see. I will wait and see whether that policeman who took that woman’s panties out of the drawer in front of her and walked out with them was exercising the rule of law, and whether that was correct procedure. It is one thing to have the rule of law, but the other feature is exercising the rule of law, and having restrictions to stop it from being abused.

To go with the rule of law and exercising it is interpreting it. We have just done away with the fraud squad and we will look at organised crime. If one goes to the New Zealand Police website and looks up organised crime, one sees reference to Māori gangs. They are the most disorganised people I know. They do not even agree amongst themselves. Although most of them are trying to do good now, pockets of them are still offending under the Acts. So how can they be called organised, for a start? And why does organised crime consist of those Māori gangs? I went to a seminar in which Australian and New Zealand police chiefs said that a certain gang—it is not a Māori gang; it is a well-known gang throughout the world—is now the new Mafia. If that gang is the new Mafia, it is organised. If it is organised, why is it not on the police website as organised crime? [Interruption] That is my point. Wayne Mapp said that if the events of the last few weeks had not happened—

💬 Ron Mark: Dr.

Dr Wayne Mapp.

💬 John Hayes: No, it wasn’t him; it was me.

It was Dr Mapp too. It was both members—two of them. They wondered whether we would be speaking like this if the events of the last few weeks had not happened. But that is the whole point. The events of the last few weeks highlight the danger of this particular Act: that it can be used, and, at the end of the day, there is a clean-up procedure. A whole lot of stuff out there will not be able to be accounted for, but the damage will have been done because the message has gone out, and so on.

Finally, talking about the rule of law, why are people in this Committee giving so much lip-service to the United Nations when they will not accept the word of the special rapporteur on race relations and they will not ratify the Declaration on the Rights of Indigenous Peoples? Thank you, Mr Chair.

Just before I call the Hon Murray McCully I wish to advise members that a Standing Orders review was done in 2003. A result of the review was that the point was made that when debating the preliminary clauses at the end of considering a bill in Committee, members should have some latitude to summarise and make concluding remarks about the issues they have raised during the Committee’s consideration of the bill. So although it is a wide-ranging debate, it has to be related to the issues that have been raised during the course of the debate in the Committee stage.

I will agree with the speakers from the Māori Party and the Green Party on one matter. The Terrorism Suppression Amendment Bill that we are debating today will substitute the judgment of the executive branch, and particularly the most senior member of the executive branch, of the Government for the judgment of the judiciary in determining who will have the toolkit of the Terrorism Suppression Act applied to them. I agree with those members that that is essentially what is at issue here. They advance various reasons why they are unhappy about that development taking place. I do not want to say to them that I have no difficulty at all in supporting this bill, for a very simple reason. You see, there are some very, very bad people out there in the world today. Those people will do some very, very bad things to some other people unless the authorities have a toolkit that enables them to deal with those people.

They are people who fly planes into buildings. They are people who put car bombs into cars and drive them into nightclubs. They are people who kill in cold blood. They are people who do not care about the misery they cause or about the harm they do. They do not play by any rulebook. They play by foul means, inevitably, so our authorities must have a toolkit that enables them to deal with a threat that is as serious and as complex as that. That is what the Terrorism Suppression Act was passed to deal with in 2002, and that threat is every bit as serious today, not just in the wider world we live in but also in this country.

I have no problem at all in substituting the judgment of the executive for that of the courts in dealing with this matter, because we have two UN resolutions that this bill gives some force to. First of all, we have UN Resolution 1267, which states that we should pick up the list of terrorist entities the United Nations Security Council designates, and designate those entities in this country. I do not think we should have any difficulty with doing that, and the New Zealand Government has so far followed faithfully its obligations to do that. What this bill will do, as my colleague Dr Mapp pointed out previously, is to ensure that as those designations cease to have effect, we will not have the courts but the Prime Minister decide on the information available to him or her as to whether those designations should be rolled over. I have no difficulty with doing that, because to rely on the courts is to ask the courts to determine matters on which they simply cannot have the information before them to be able to determine them, and I think that this is why we should pass this component of the bill.

But I remind the Committee that we also have UN Resolution 1373, which calls upon Governments to designate other terrorist entities that are a threat in their region. I take this opportunity to again remind the Committee that in that respect the New Zealand Government has been negligent, in my view. Australia has designated under UN Resolution 1373 some 88 organisations that are a threat to the people of Australia, in the view of their Government, and not one—not one—of those entities has been designated in this country under UN Resolution 1373.

Although we might pass this legislation and give this toolkit to the Prime Minister to use, we have no guarantee that the Prime Minister will use it. In Australia organisations like the al-Aqsa Martyrs’ Brigade, the Basque separatist movement, certain wings of Hezbollah and Hamas, and the Tamil Tigers, are all designated as terrorist entities under Australian legislation, yet in this country we have no such designations for those organisations. We have an open border with Australia and relative freedom of movement, yet we are singing from a completely different song sheet when it comes to the designation of those terrorist entities.

I simply say to the Government and to the Prime Minister that we are happy to pass this amendment to the Act. It makes sense. We are happy for the Prime Minister to have this toolkit to deal with a threat that we on this side of the Chamber regard as serious—very serious indeed. I say to the Prime Minister that if she does not use this toolkit and we do not see New Zealand move on to the same page as Australia with the designation of terrorist entities under UN Resolution 1373, then she and her Government run the risk that they will be found out, and I hope that is not something we see in this country.

I would just like to respond to some of Murray McCully’s comments. He rightly points out that there is disagreement over whether we should give the Prime Minister extra powers in this respect and he uses a security argument, but I think that argument tends to fall down, because we have seen—particularly over the last few years in the Ahmed Zaoui case—that when we give the executive branch too much power to determine a person’s fate in secret, using so-called classified information that is very broadly defined, the political agendas of the Government of the day tend to predominate and people suffer. This is the case, be it Ahmed Zaoui, be it Dr Haneef in Australia, or be it any of the many examples in Canada and in other Western countries.

Just about every other advanced Western country with a good system of democracy and a good judicial system has suffered through giving to the executive those powers to determine someone’s future through using secret information, and it need not be so. We can defend ourselves by keeping the judicial process as it is and by keeping the situation where a person can be sent down, be imprisoned, only if they know the accusations against them and if they can properly defend themselves. We can see the problem. Murray McCully said that we should have all these other designations, and he ranged across a whole lot of nationalist groups. It is a characteristic of some of those nationalistic groups that at the edges they do engage in terrorist activity, which we all condemn.

There are wild elements, and wrong tracks may be taken that we are all against, as a democratic community. But if we want to get from A to B in order to improve the situation—as we found in the Northern Ireland peace process—we have to engage in those situations with those people who want to move towards a democratic resolution. We have to engage with the Gerry Adamses, to use the example of Northern Ireland. When we go about just designating entities willy-nilly, we cannot do that. The person I referred to before, Mr S P Tamilselvan, who was assassinated last Friday, was a person whom I met and discussed the peace process in Sri Lanka with in 2003. It is very much a fact that the Western countries that designated the Tamil Tigers as a terrorist organisation cut themselves out of the peace process, which was going very well in 2002, 2003, and 2004, and the ceasefire was holding. But because Australia, Britain, America, and later the European Union designated the Tamil Tigers as a terrorist organisation, they cut themselves out of that peace process, and it opened it up to a resumption of the warfare rather than to a peaceful resolution. They left countries like Norway stranded in trying to hold the peace process together.

We must take a different course. It is so damaging to just categorise people as “terrorist”, as was discussed before by speakers from the Māori Party. The image of someone being related to terrorism and being raided over potential terrorism charges and terrorism matters is just so damaging to the proper consideration of the issues involved—the community issues, the political issues—in bringing people together, bringing justice to the situation, trying to get at people’s gripes, and trying to understand why they go off the rails a bit or do things that we all condemn.

We have to get at the basis of it to be able to lead to a resolution. The terrorism suppression legislation, whether it applies to the designation of international organisations—which Murray McCully talked about—or to people in New Zealand, is very dangerous. It is much better to stick to the criminal law, rather than to label people and punish people more just because they have political views and are involved in a political movement.

Tēnā koe, Mr Chairperson, and thank you for your lead in respect of the direction about the—

The CHAIRPERSON (H V Ross Robertson): I am sorry to interrupt the honourable member, but the time has come for me to leave the Chair for the dinner break.

Sitting suspended from 6 p.m. to 7.30 p.m.

In reflecting on your comment earlier, Mr Chairperson, about the wrap-up time of the discussion, I want to comment a little bit about Mr Mark’s kōrero in making us aware that maybe we need to consider that issues of terrorism might be just around the corner. He referred to the Rainbow Warrior scenario, and we acknowledge that—it is a fair call. He talked also about what our tūpuna Māori fought for, and possibly implied that they may well be turning in their graves in respect of our stand now against terrorism, or at least the perceived stand by the Māori Party. He talked about the Māori Battalion and those who went overseas. He did not talk about Haane Mānahi and Willy Apiata, but they follow a long line of people who have been committed to this country in trying to create a better nation for us. Always in Māori communities we tend to ask what their sacrifice was for. On Anzac Day our people generally reflect on that discussion—what was the death of so much Māori leadership all about. I think it was about creating a better New Zealand and creating a positive environment for both Māori and Pākehā to come together.

That is all very well, until it comes time to deal with the Māori issue. As Dr Sharples reflected, the notion of one law for all is all very fine and good, until it comes to the crunch when we get to issues like the seabed and foreshore where people have the ability to change laws at the drop of a hat, whereas they may not necessarily support the dreams and aspirations of one of our peoples of this land. Recently in the courts of this land Federation of Māori Authorities has been challenging some of the developments by the Crown, in respect of Crown forest rentals trust lands. The notion about one law for all is all very well and good, but if one has the ability to change those laws to the detriment of another, and without the discussion, then we question that.

At this point in time a number of speakers have talked about the notion of waiting—let us wait and hear, for example, about some of the scenarios that we face as a country right now in terms of particular actions in the Bay of Plenty. Even with this particular bill and the possibility of having to wait on the outcomes of actions taken under any sort of terrorism suppression legislation, one of the questions that is still hanging is “how long?”. How long will people have to wait to receive, to know, and to understand the charges they have to face? Will it be 3 weeks, a month, a year? Is there an end time? Will people, if they come under this legislation tracking through, be incarcerated for up to 2 years, without necessarily knowing the length and breadth of the charges? At the moment, in a scenario that we face as a country, right now a lot of the information under the notion of terrorism suppression is not well known. It is locked down because of the actions of the court.

That is all very well and good, but what about the consequences for those families and children who have to wait for their mothers and fathers? What about the hapū that have to wait for their uncles and aunties, and so on, while somebody makes a determination about whether a charge will be laid under the Terrorism Suppression Act?

In trying to draw some of the discussion together, the Māori Party is concerned that under this legislation New Zealand would automatically adopt the UN list of terrorists and terrorist organisations, in the sense that it is the US that dominates the compilation of these lists. The effect is that New Zealanders working to support, for example, liberation struggles, and democracy, and human rights overseas would now be faced with the prospect of being charged with supporting terrorist organisations. Under the new proposal it would have been illegal to provide support, as Mr Keith Locke talked about, to the African National Congress in the fight against apartheid, or for campaigns to have Nelson Mandela released from jail. The previous legislation allowed support and assistance to organisations, provided it was “for the purposes of advocating democratic Government or the protection of human rights.” This wording is to be removed. New Zealand will give up its right to make its own independent assessments of terrorists and terrorist designations, and without the ability to make our own independent assessments, we will become rather captive to prejudiced, politically motivated overseas assessments such as those that relate to Ahmed Zaoui.

Previously, New Zealand adopted the UN designations, in the absence of evidence to the contrary. The Māori Party says that this safeguard would be removed. The process for review of designations would become less independent and more vulnerable to political interference, also allowing greater influence from other nations. The new offence of “terrorist act” could be applied to non-terrorist persons and actions, for example, protests—bringing back the concerns raised over the Terrorism Suppression Bill.

Mr Keith Locke talked about current criminal offences covering all terrorist acts. So the introduction of the new offence of terrorist act seems almost unnecessary. I note that the New Zealand Law Society submission argued that the new crime “engaging in a terrorist act” should not be added to our statute book. As Mr Locke said, such terrorist behaviour is already covered by a range of offences such as murder and kidnapping, each with heavy maximum penalties. We say that the new terrorism offence could cause confusion amongst prosecutors as to which charge to lay—engaging in a terrorist act or the underlying offence—which could result in inconsistent sentencing and the possibility of that notion of double jeopardy. The fact is the terrorist act carries a penalty of life imprisonment, so it is critical that all of the issues are worked through properly, or else we could end up with a situation that possibly every political and environmental protester in the country is locked away for undertaking activities like fund-raising, as clause 7 talks about, or posturing, as clauses 11 and 12 talk about—in other words, recruiting members and participating in terrorist groups. We have a real concern about that.

The courts are removed from considering designations of terrorists or terrorist organisations. At the moment, if the Prime Minister designates a terrorist organisation, then this is reviewable by the High Court after 3 years, as we understand it. Independent scrutiny of cases will no longer be available. The Prime Minister will be the judge and jury. The US wants this—we say that the US has some vested interest in this—and it could be that we are subject to international pressure in respect of who is and who is not a terrorist. At least with the courts there is some semblance of independent scrutiny, although I did hear what Mr McCully talked about earlier.

The assumption of power by politicians over court processes is demonstrated pretty clearly by the US with its treatment of Guantánamo Bay detainees, and the CIA rendition programmes whereby suspected terrorists have been transferred around the world for, possibly, torture. In both cases the court has been sidelined. We say that in terms of New Zealand that would be a disgraceful episode. That is just drawing together some of the comments made in the Chamber a little bit earlier in trying to focus us in on some of the arguments that the Māori Party has attempted to put before the Committee, and also hearing the arguments of the other parties. Kia ora tātou.

I have an idea that it was Bertrand Russell who said something about people getting pleasure in two ways—either by getting pleasure, or by trying to impose their authority and gain power. I keep thinking, when I look at the way the votes have gone in this Chamber this afternoon—whereby we have 10 votes against the bill and everybody else voting for it—that there is something fundamentally wrong with those who are opposing this Terrorism Suppression Amendment Bill.

My colleague Wayne Mapp woke up this morning—or yesterday morning, or the morning before—and he was listening to the radio. He heard the representatives of the Council of Trade Unions and all other manner of organisations opposing this bill. As it happened I thought to myself that I could have woken up this morning and felt that the Prime Minister was being a touch “Stalinesque” when she said: “I’m going to ban Guy Fawkes.”, and last night was our Guy Fawkes Night. Whether she does that remains to be seen, but there is a “Stalinesque” quality to that. There is a “Stalinesque” quality to the whole work-for-income scheme, to supported families, and to putting everybody on the State’s payroll. There is a “Stalinesque” element in the Green Party’s argument that we should be opposing this legislation.

I am proud to support this legislation because my concern is for the community and the collective protection of the community. Whether or not we like it, there are people who wish to commit terrorist acts. Despite the comments made by my colleague Keith Locke earlier today, the reality is that there was an incident involving the Rainbow Warrior, when terrorists from another country infiltrated our border and got back through it again without being caught because we did not have the right rules in place to stop them.

💬 Hone Harawira: No; we let them go, mate.

We did not have the right rules to stop them, and I am going to come to the member shortly. We have to balance the rights of the bulk of the community against the rights of the individual. Although in an ideal world I would warmly support this legislation being implemented by our justice system, the fact is—with a background in foreign affairs inevitably one has had some rubbing up against the intelligence infrastructure in this country, and one knows—that the conjecture and the nature of that means that we cannot really expose that information to the court process, because if we did we would end up not getting the information in the first place.

So we have to rely on somebody, and in our country the reality is that in our democracy we rely on the Prime Minister, whoever he or she is, and whichever party he or she comes from. The Prime Minister is ultimately the decider, the arbitrator, of the security apparatus in this country. Therefore, we are comfortable with the fact that the Prime Minister should be adjudicating on these issues.

When we come to the arguments advanced by the Māori Party members, and setting into one parcel the race-based arguments they have advanced in this Chamber today, I would like to talk to them a little bit about the United Nations. Whether or not we like it, we are part of the collective nations of this world. We are a member of the United Nations, along with a lot of other countries. And, as my colleague Wayne Mapp says, we are a member in good standing.

One of the obligations and the benefits of belonging to the United Nations is the one bit of that entity that works: the Security Council. We can forget about most of the rest of the United Nations, but the Security Council actually still works. It is the only part of the United Nations apparatus that still operates effectively, with the possible exception of the World Bank and the World Food Programme. When the United Nations meets in the Security Council, which contains a mix of core members who do not get voted in and out and other countries that do get voted in and out, there is a balance in the process. Countries can talk to Security Council members. It is in that process that the resolutions defining those entities that are considered terrorists are made. When we look at the infrastructure of the United Nations, it is the Security Council that listens to representations from a lot of communities around the world, and the council has decided collectively on the list of people who go on the terrorist list. When that is done, there is an obligation on this country, in the form of a United Nations resolution, that requires us to sign up to that. If we consider the case of South Africa, the only reason we imposed sanctions on South Africa was because of the collective action of the Commonwealth, to which we were similarly obliged to implement such resolutions. We had to do this, as we have to in the case of the United Nations’ resolutions; we have no option but to sign up to this process.

We are not like our colleagues and cousins in Australia—and there are almost a million New Zealanders there—because the Australian Government signed up to this more than 2 years ago. Our Government has been dragging its heels. It was only through our select committee process that we managed to discover this and expose the Government’s fragility for not acting on this issue. Furthermore, the Government of Canada signed up to this some years ago and it has 50 people on its list. There are 88 on the list in Australia. What did we do? We did nothing. We sat on our hands. Is it because we have a small foreign ministry? I doubt it. Is it because money was in short supply? I doubt it. The problem was simply that the political will did not exist on that side of the Chamber to move it. The Labour Government has now moved and we commend it for that. We are absolutely in support of what it has done.

Finally, I would like to address some comments to my colleagues in the Māori Party. I feel deeply upset that they are tying this legislation to the activities that happened in the Tūhoe area. I do not know one way or another what is right and what is wrong, and I venture to suggest that the Māori Party members do not know either. What is important is that every politician in this House, whether from National, Labour, United Future, New Zealand First, Māori Party, or ACT, supports the legal process that applies in this country. It does not matter who we are, or whatever. If there is an issue and one goes before the court and is found guilty, one suffers the penalty. There has been a very good example of that in the Pacific in the last few days when a former Prime Minister of the Solomon Islands found himself behind bars for instituting a terrorist act in the Solomon Islands in the coup that overthrew Ulufa’alu and the events in the wake of that.

It seems to me that all of us need to use a measure of common sense and judgment. I saw things in recent events that I did not particularly like, but it is not for me to comment. My job—and, I venture to suggest, the job of the Māori Party members—is to hang in tough and to support due process in this country, and then, when that process is completed, ride hard on whatever the decision is. If we do not do that, our country has no future. I do not condone a separatist State here and I am disappointed by the separatist arguments, and the race-based arguments, I have heard in this Chamber this afternoon.

Thank you, Mr Chairperson. National is fully supportive of this bill and we look forward to its early passing.

I move, That the question be now put.

I think that John Hayes and myself have a common agreement on not banning fireworks, which is a step forward. John Hayes talked about “Stalinesque”, and Kafkaesque comes to mind, too. I saw a film, I think it was called The Lives of Others, on Stalinism in East Germany recently and it has similarities with the operation of the rule of law under terrorism laws, in that John Hayes said we must trust the Prime Minister. It is no accident that National and Labour are voting together on this when National is saying “We trust the Prime Minister to do things right.” That is what happened in The Lives of Others in East Germany. I think it was a chap called Honecker. Everyone trusted him to do things right. He had his security service.

That is one of the things worrying people at this present time, if members talk to them—the level of surveillance involved in what has been going on, in texts, in emails; you name it. Somehow people have realised that and said: “Hold on.” One of the provisions in the legislation we passed back in 2001 allows the police to access a person’s computer without that person knowing and changing his or her files in order to hide his or her entry and exit. That was one of the laws that was passed in 2001. Those sorts of laws are now being applied in the context of this terrorism legislation, and people are getting worried.

In The Lives of Others the person affected, the writer, did not quite know who his friends were, who his accusers were, and what was the information against him. That is the Zaoui scenario, the scenario of the people at Guantánamo Bay detention centre. It is that Stalinist type of approach, with a person not knowing what he or she is up against. It is Kafkaesque in that sense. That is where we are headed, unfortunately.

We were talking about one law for all, before. One reason why the law is more prejudiced against certain sections of the community in terrorism cases is the very fact that the thing that distinguishes terrorism laws from criminal law is that terrorist acts are deemed to be political crimes, whether the motivation is political, ideological, or religious. Once laws are defined in that sense, it depends where a person sits in terms of those political motivations as to how the Government treats those people doing the crimes and how heavily it wants them punished. So political prejudices automatically affect how terrorism crimes are dealt with. The application by the police of searches and raids are then also politically coloured by Māori radicals or whoever might be in their minds.

It was not because the police were naturally bad, although I will not give them a clean bill of health at this stage, but the political context in which they were operating and bringing in terrorism warrants, and what not, actually coloured how they saw the situation. It meant that they could do things in Tūhoe country, like stopping and photographing people, which they would never apply where I come from in Auckland—in Mount Eden or Remuera Road. [Interruption] Yes, if they had tried it in Remuera Road, how long would it have lasted? I ask members to ask themselves that question.

There is the whole serious political accusation stuff—these are bad people; they have bad political motives. It was mentioned before that the proceedings can then tend to drag out longer. At Guantánamo Bay they last for years and years and years. It is the same in other cases. Sometimes at the end of it, as in Ahmed Zaoui’s case, it was almost 5 years before it was found there was nothing really against him and he wasted those years of his life without his family. That is how it goes.

Because the Green Party does not support this legislation, of course we do not support any Attorney-General applying the legislation in whatever situation. I will not comment on the particular cases that we are not supposed to comment on, but in any cases we would not support the Attorney-General proceeding with terrorism charges because we see them as politically discriminatory and everything can be covered under the criminal law anyhow.

Reference was made to the Rainbow Warrior and that is the point that the Greens and the Māori Party have been making all through this debate, not only under this legislation but under other legislation, that with State terrorism, the State becomes more of the problem in many situations. The Rainbow Warrior is a case in point—the French State, for its own political interest, bombed the Rainbow Warrior. The rendition programmes of the Bush administration are a form of terrorism by the State, in terms of its application to some of those involved without any trials. In terms of the different prejudices of the New Zealand State in relation to different forms of terrorism—State and non-State—there was the case of an admitted war criminal Moshe Ya’alon who visited New Zealand in January. The District Court ordered him to be arrested, and was he treated the way the Tūhoe people were treated? The police—and this needs to be remembered and dealt with at some point—refused to obey the judge. They refused to obey the arrest order. That they did that was, to me, a State crime. What the Solicitor-General and the Attorney-General did was equally bad. A huge box of papers arrived from the plaintiff in Auckland.

The CHAIRPERSON (H V Ross Robertson): Order!

I am talking about the issue of State and non-State terrorism, and how State terrorism is caught in practice by such legislation, including this bill. The papers arrived at 5 past 1 on the Tuesday afternoon at the Solicitor-General’s office. By 5 o’clock he had processed this huge thing, done all the legal determination of it, and sent the papers over to the Attorney-General who had signed them off by 5 o’clock. That was a gross miscarriage of justice and it was part of that inherent bias on terrorism issues. A self-confessed State terrorist who had killed 15 people in Gaza with a bombing a year or two back, was ordered to be arrested by a judge, and the case was disposed of because essentially the Government did not want to politically embarrass Israel, because it was closer to Israel in that political context.

So that is the problem we get into once we start dealing with terrorism laws, State terrorism, and non-State terrorism—the political content of terrorism. State priorities and State prejudices come into play. That is why the Greens are so opposed to this amendment bill. Thank you.

Tēnā koe, Mr Chairman. Tēnā tātou katoa e te Whare. When I was listening to Dr Mapp talk about being in bed and listening to the radio, it reminded me of a book that I was reading when I was doing bed and breakfast at Mount Eden Prison. The book was called Watch for Me on the Mountain and it was about the rebellion of Geronimo and his people against the rampaging racist terrorists of the United States 7th Cavalry operating under a clear mandate from their masters in Washington to crush everything that stood in the way of the land-hungry, gold-maddened settlers, and to round up, hunt down, and kill, where necessary, any natives who stood in their way.

Everyone in this Chamber knows the saying “The only good Indian is a dead Indian.”—such were the sentiments of the United States just a couple of hundred years ago. So when I think about this Terrorism Suppression Amendment Bill, that too is where my understanding of terrorism comes from. I reckon we could update that “dead Indian” threat to read “The only good sand-nigger is a dead sand-nigger.” to explain the United States’ current misbegotten crusade in Iraq. It is misbegotten because it is a military campaign born out of the union of the lies about the weapons of mass destruction that were never found and the link between al-Qaeda and Saddam Hussein that was never proved. And yes, I call it a crusade, because it was a venture of Christian paranoia against Islam—a task that “Richard the Lion Breath” and his foolish followers could not achieve hundreds of years ago, and a failure that George Bush, with all his technological superiority, is doomed to repeat. So when I think of this Terrorism Suppression Amendment Bill, that too is where my understanding of terrorism comes from.

Now we hear that the United States has finally charged some poor dumb Aussie, David Hicks, as its first Guantánamo “war on terror” detainee. An Australian, for heaven’s sake! Six years after 9/11, is this the result of billions of dollars of US intelligence spent on securing a conviction to justify its war in Afghanistan? An Australian? Heaven forbid that we should be connected in any way with the mind-numbing stupidity and pointlessness of a process that has failed so spectacularly that after 6 years all that it could come up with was the so-called confession from an Australian charged with providing material support. Seriously, hands up all those in this Chamber who believe that that confession was entered into freely and willingly. So when I think of this Terrorism Suppression Amendment Bill, that too is where my understanding of terrorism comes from.

And I recall too a very personal connection to South Africa. One brother member of the African National Congress, Andrew Moletsane, who fled the terror in his own homeland, came to our home in Ōtara in South Auckland to give testimony about the terror being imposed by the apartheid regime of South Africa. A few years later he was hunted down and murdered in Botswana by one of Botha’s goon squads. So when I think of this Terrorism Suppression Amendment Bill, that too is where my understanding of terrorism comes from.

Bringing it back to our local situation, I point out that the arrest and detention without bail of 17 individuals on the grounds that they were planning terrorist attacks against political targets in this country represents a step towards the Guantánamo-isation of national security policy in this country, at least as it applies to political dissent. Like the Cuban soil occupied by the United States military base, it seems that the normal rules of legal rights and due process apparently do not apply to political extremists. Those detained have been remanded without bail for weeks on firearms charges and with all information about their cases suppressed, which assumes that the clear and present danger to national security and public safety posed by these individuals is so great that they are denied the basic right to swift justice and the presumption of innocence reserved to all others—and I will stay right away from mentioning any particular case before the court.

Do the Urewera 17 constitute a viable terrorist threat, and were they engaged in a terrorist conspiracy?

💬 Dr Wayne Mapp: I raise a point of order, Mr Chairperson. I would have to say at this point that Mr Harawira has definitely strayed into cases that are currently before the court and is making specific statements about them. I think you know the rule on that, about the separation of powers. This is not like other cases that his colleagues were referring to, which did not result in charges. These cases did.

Speaking to the point of order, Mr Chairperson, I would willingly stand down from speaking about any particular case if Mr Mapp could say which case it was.

The CHAIRPERSON (H V Ross Robertson): You see, the member, by referring to them collectively, is still referring to any particular case, so he cannot actually go down that road. He cannot refer to them collectively.

Speaking to the point of order, Mr Chairperson, I understand the issue about matters being sub judice, but in this situation I am not speaking about a particular case, at all. I have not mentioned the name of one person who has been arrested; nor have I mentioned the details of any one of the cases currently being prosecuted by the police. What I am talking about is the general arrest of people in New Zealand—no names.

The CHAIRPERSON (H V Ross Robertson): I am really cautioning the member because we have to be very careful about this, with the issue being sub judice. It might be in the member’s interests to come back to the general purpose of the bill and to try to relate his comments around that, without involving people collectively.

From what has surfaced in the public record, the case for terrorism in respect of those arrested to date is debatable. Unlike guerrilla organisations, or terrorist organisations operated by ideologically committed militants pursuing common political causes, those who have been detained are from all over this country and are not practising common operational security. I am talking here in terms of terrorist organisations, rather than of a particular case that is before the court.

The CHAIRPERSON (H V Ross Robertson): The member is treading on very dangerous ground. He should just get on with his speech.

Some of those people emailed, texted, and phone-called with apparent abandon, including so-called recruitment efforts of unaffiliated individuals. They did not have safe houses and did not move constantly to avoid apprehension. They did not hide their bush camps, which were a matter of local knowledge. They did not kill or recruit the unaffiliated people who—

The CHAIRPERSON (H V Ross Robertson): The member is starting to bring individuals into it now, and he cannot actually do that under law, sub judice.

💬 Dr Wayne Mapp: I raise a point of order, Mr Chairperson. You anticipated my point of order. At this point the speaker is definitely speaking about allegations, facts, and circumstances relating to these various charges, which have not been heard by a court, as yet. I think it is a breach of the Standing Orders to do so, and I ask that you bring the member back to the bill and to issues that are not before the courts.

Speaking to the point of order, Mr Chairperson, I want to comment on what the previous speaker just said. All the information in respect of the charges themselves has actually been suppressed by the court. All the information to which I am referring has been garnered from media reports and not from the cases themselves. If they are already a matter of media speculation, then they are surely available to us to speak to in this Chamber.

The CHAIRPERSON (H V Ross Robertson): I advise the member that he cannot actually refer to anything that has been suppressed. I want him to look at Standing Order 111, “Matters awaiting judicial decision”, which states: “Subject always to the discretion of the Speaker and to the right of the House to legislate on any matter, matters awaiting or under adjudication in any court of record may not be referred to—”, and it gives a number of cases. In this case “in any debate” applies. So the member really needs to refer directly to the bill and steer clear of the course he is going down now. Otherwise, we will have to move on.

💬 Te Ururoa Flavell: I raise a point of order, Mr Chairperson. I seek some clarification. My colleague Mr Harawira has referred to issues that have been published by the media. Can I take it that those issues that have been put out in the media already are also under that ruling?

The CHAIRPERSON (H V Ross Robertson): If they relate to any specific charges, yes.

💬 Eric Roy: I raise a point of order, Mr Chairperson. It may be of some help to the Committee to know that there is quite a suite of Speakers’ rulings in regard to this matter. I think it might be helpful if members looked at Speaker’s ruling 28/6, which refers quite clearly to issues where there could be “real or substantial danger of prejudice to the case”, and if you, Mr Chairman, have listened to the debate that has been promoted by Mr Harawira, you will know that he has made quite clear what his intentions are. So can I suggest that, broadly speaking, it is out of order.

The CHAIRPERSON (H V Ross Robertson): On that point, too, if I could advise the honourable member, Speaker’s ruling 27/2 states: “The sub judice rule is not intended to inhibit members discussing the law in general, but a particular case before the court may not be referred to. The House is not in the same position as the media when reporting cases.”

💬 Te Ururoa Flavell: I raise a point of order, Mr Chairperson. Again, I just seek some clarification. The Standing Orders do apply in respect of, I understand, the rules and regulations as bound by the House. Mr Locke referred earlier to comments made by the Prime Minister that, according to him at least, might prejudice the outcome of the particular cases we talked about. Can I ask whether there is any correlation in respect of the Prime Minister’s comments about those people versus the discussion in the Committee at this point in time.

The CHAIRPERSON (H V Ross Robertson): Again I advise the member that members cannot refer to any cases specifically before the court. That is the situation we now find ourselves in. There is no reason why Mr Harawira should not continue his speech, but he cannot go down the same track as he is now, because he is referring to a case specifically before the courts and we cannot do that. We are not a newspaper.

Given the hypothetical case of a number of people being arrested and charged under the Terrorism Suppression Amendment Bill, it seems as if that bill is being invoked even though it was originally oriented towards countering the support for, or financing of, foreign terrorist groups by New Zealanders, and not towards arresting domestic militants in pursuing anti – status quo political agendas. In that regard, the prediction of Māori activists at the time the Terrorism Suppression Act was passed in 2002, that they would eventually be targeted, has come to pass sooner rather than later.

Although, hypothetically, some sectors of the community might argue that it is better to be safe than sorry, and that perhaps it is appropriate that the police act in a preventive capacity, that still begs the question of why people are being held without bail on—hypothetically, of course—minor firearms offences while additional charges are being decided against them. In reality, gangsters, rapists, and child-murderers can be bailed, so why cannot those who might, hypothetically, be held only on firearms charges?

It is incumbent upon the Government, the judiciary, and the police to immediately outline the legal grounds on which such a group might hypothetically be held. Otherwise, the impression could be left that this country is on the slippery slope towards a Guantánamo approach to political dissent—in spite of its very different strategic and geopolitical position—with people being detained on minor charges and on suspicion of something worse while the authorities decide what to do with them.

In dictatorships, the denial of legal rights to those suspected of terrorism is of little concern; in liberal democracies like the one we say we practise as having, and particularly in small open democracies with a history of political tolerance and non-violent protest, it is a troubling development. In dictatorships, security overrides human rights; in democracies, civil liberties are expected to be the priority, with domestic security operations constrained by notions of due process and full disclosure, regardless of the ideological persuasion of those who might—hypothetically—be defendants. The threat of terrorism does not alter that basic premise. The reaction to any hypothetical arrests suggests that the public is right to be sceptical of police motivation, and old wounds are likely to be reopened as a consequence of those actions. If for no other reason than these the police need to make a compelling case, make it soon, or let them all go. Thank you very much.

Clause 1 agreed to.

Clause 2 agreed to.