Counter-Terrorism Acts (Designations and Control Orders) Amendment Bill

Thank you, Madam Speaker. This is a bill that addresses, I think we all agree, a very significant issue, which is the way that our nation responds to the very present threat, and now we have learnt since March 15th, 2019 of the present threat of very real violence on our soil posed by extremism and terrorism globally and domestically.

The Green Party of Aotearoa initially supported this bill to select committee because we were interested in the way that the Justice Committee’s engagement would inform and benefit the drafting. It was important to us to say that, actually, if a Government does realise that counter-terrorism law is not working to both uphold people’s rights but also to respond effectively to new and changing threats of counter-terrorism, we do, in fact, bring changes to the House.

This bill and our approach to counter-terrorism comes to us in the context of the decades-long war on terror—the so-called war on terror—where we saw New Zealand follow our so-called allies and security partners into more and more opaque and far-reaching amorphous counter-terrorism policy and law that wasn’t necessarily effective, and, as we learnt on March 15th, had, in fact, such gaping holes in both operation and policy as to be impotent in the face of very real threat that was, in fact, foreseeable.

So we were interested to see what the select committee would do, and there have been some changes. What has happened is the provision defining “imprisonment” in this bill seeks to change the control orders regime to include application to those in prison to include home detention. So that’s an expansion, but it also excludes youth in Oranga Tamariki residencies, and it amends the security proceedings Act to provide the same right to a designated person to request a summary of the information that’s been used in the designation.

Some of the types of concerns that the Green Party has had throughout time, and in particular around the application of the control orders regime, have been about that ability to challenge effectively and fairly when these quite restrictive orders are being applied to an individual. And we know that throughout that kind of era of the war on terror, we’ve had security agencies withholding information to such a degree as to result in people being held in criminal detention without charge or trial or even access to the information upon which their detention was based.

I note, prominently, the asylum seeker Ahmed Zaoui, who was then freed through court proceedings that had to initiate totally new, novel rights and pierce that veil of the security agencies within the safe context of judges and lawyers who could handle that material that was held against him and find that, in fact, there was no threat. So that’s a real concern for us when we talk about control orders. I note that the expansion of application didn’t come with an alleviation of what we saw as a potential problem.

I just want to focus on some of the civil society and human rights - based submitters and some of the issues that they raised that we share. So, for example, Amnesty International New Zealand had a real problem—as do we—with the retrospective application of the provisions here. We know that as a House and a legislative body, we have an obligation to uphold the principle of legality, which says that the law has to be knowable and transparent if it is to sanction conduct of anyone that it applies to. So to retrospectively sanction breaches that principle.

There was a lack of Crown-Māori consultation, which the Law Society raised, and that is always important as a Te Tiriti issue. But in the forum of counter-terrorism, it becomes galling to say that we’re changing counter-terrorism laws again without that partnership consultation, because we know—and because the royal commission into the Christchurch terror attack told us—very clearly, as communities had been telling us and as courts had been telling us, that, actually, our security agencies, when it comes to counter-terrorism, do focus on and unduly prejudice certain communities who are not, in fact, engaged in terror activities or pose a threat in that way.

In applying restrictive burdens to those communities, in fact, our security agencies become less effective and less able to respond to see the real threat in our systems, and in terms of the royal commission’s report, of course, that was the threat of white nationalism that they had missed. Māori have been—and we know through the history of the application of our surveillance laws, both by police and our national security agencies—the target of that unfair application. So that consultation would have been, in fact, both very timely and would have contributed to the efficacy of what this bill seeks to do.

The other issue that doesn’t seem to be addressed properly here by the Minister or in the context of this bill is that, in fact—and this was something that the Green Party actually negotiated last term in the initial control orders regime—next year, there is to be a proper review of the regime, with recommendations of what legislative and policy changes it may need. So this was really important to us, as I said at the start of my contribution, because we want Governments to be ready to review and respond appropriately to the different and evolving threat of terrorism and be willing to say, “Actually, we didn’t do it quite right. Maybe we breached some very fundamental rights.”, or “Maybe we weren’t looking carefully enough at the pervasive threats of our time.” That was really important for us, but that needs to be done in the context of a proper review so that when changes come to this House, they are comprehensive and they are reflective of what, in fact, needs to be done in the counter-terrorism space.

So to have a piecemeal approach to that review process in legislative terms seems odd, and, of course, given, in this year, our precious legislative time that this House has left, it seems odd to bring this bill, especially not addressing some of the really significant civil society concerns ahead of that proper comprehensive review. Again, things like recommendations around having an independent body that would make those recommendations—as the United Kingdom has—and how to better actually approach counter-terrorism and modern extremism as a threat is kind of undermined by the bringing of this bill in an untimely and rushed way, because it proceeds that proper review that the Government has promised and has built into the control orders regime.

So we have concerns about the designation framework. We have concerns that the provisions around those in prison, and now on home detention, are not subject to a judicial process within the secure confines of a court or, with appointment of a judicial officer, the person can effectively challenge control orders that are, again, very restrictive in nature, in some cases. We are concerned that there wasn’t proper consultation with communities that are most impacted by counter-terrorism, and, in particular, the application of restrictive measures, surveillance, and other measures that Governments say are to do with counter-terrorism but often are prejudice based.

We are concerned that this piece of legislation falls outside of a comprehensive process that would better inform our work as a Parliament passing counter-terrorism legislation. I don’t commend it to the House.

Kia ora e te Māngai o te Whare. I rise today to take a call on the counter-terrorism bill and I do so as a member of the Justice Committee that actually heard the inquiry into this bill.

I first want to acknowledge the legitimate concerns that have been raised by my friend across the House Ms Ghahraman, because this is a weighty bill and it is right that we should think carefully about the things that we are doing. It is therefore really relevant that Ms Ghahraman mentioned the fact that we are coming up on a thorough review of this regime as set out in the legislation. But while we have that care to take—and we must take it because we are dealing with people’s fundamental rights and it is their liberties and those are not things to be trespassed lightly. While it is hugely important that we take that care, while I am sure that all of us look toward the review process that will happen in due course to ensure that we are tightening and getting the regime right for both sides of the spectrum—both the affected people or entities, and also for the safety of the ordinary Kiwi citizen—it is also important sometimes that we move fast to adapt to changing circumstances and to gaps we find in our legislation that emerge as events transpire. One of these has brought us the need for this bill.

We all are aware of the appalling LynnMall attacks and we all are aware that when we looked at that particular person, the regime as it stood was simply not sufficient. So it was necessary to bring something to this House which will ensure that until we have that chance to do the longer review, we are covering those gaps in the system that we know about. That is our basic responsibility to Kiwi citizens: to not leave citizens at risk where we know that there is a risk to them, theoretically, in existence and we know that we have not got the powers to deal with that situation should it arise.

I do, however, want to speak to the 210 submitters who we had write in on this bill, many of whom were concerned that the bill is in some way an arbitrary power of the Prime Minister to designate entities and people as terrorists and then to slap restrictive control orders upon them. There was a lot of concern that somehow this was an authoritarian and arbitrary power given to the Prime Minister personally. That is not so. When you actually understand the bill and you go through the bill here, there is a careful, considered, and quite difficult series of stages that must be gone through before anyone can either be designated or can be the subject of a control order. So I would just caution anyone who is concerned and sees this bill as a major step towards the sort of State that we would never wish to see New Zealand become: it is not. This is quite targeted, it is quite careful, and, hopefully, will rarely be applied because it will rarely be necessary.

But I do now just want to step very briefly through what it will do. So it covers two things: the first bit is that we have tightened up the designation scheme, which is the scheme that allows us to talk to what is a terrorist entity. It’s pointed out that if one of those people is in jail so that they are no longer a present threat, we’re still going to be able to keep their designation there because they will become a risk when they come out. The other one is to make the control order regime more workable and to enable it to cover those who are not in prison but who are sentenced to a broader range of sentences such as home detention or electronic bail monitoring. It also enables judges to have more discretion to tailor control regimes so that they are effective and not too onerous, and it also involves a wider range of objectionable publications in the test for eligibility. It has gone from merely objectionable publications that are terrorist events to also extreme violent events, because, as we will explain, there is a link. On that basis. I commend this bill to the House.

ASSISTANT SPEAKER (Hon Jacqui Dean): Members, the time has come for me to leave to the Chair for the dinner break. The House will resume at 7 p.m.

Sitting suspended from 6 p.m. to 7 p.m.

Thank you very much, Madam Speaker. I rise this evening to speak on the second reading of the Counter-Terrorism Acts (Designations and Control Orders) Amendment Bill. I wasn’t fortunate enough to have been on the Justice Committee that considered this, but I have taken a look at the report and I see there’s some good members on that committee who I’m sure would have considered this carefully, and I thank them for the work they have done on it. I note that they received written submissions from 210 interested groups and individuals, and heard oral evidence from four submitters via video conference, also receiving advice from the Ministry of Justice, and the Office of the Clerk provided advice on the bill’s legislative quality, and the Parliamentary Counsel Office assisted with legal drafting. So thank you to all of them for the work that has gone into trying to ensure this is a good bill that will stand the test of time.

This bill clarifies and strengthens New Zealand’s counter-terrorism legislation to better prevent and respond to terrorism and associated activities. The amendments in the bill implement a single broad policy by amending the Terrorism Suppression Act 2002 and the Terrorism Suppression (Control Orders) Act 2019. National will be supporting this bill continuing through the second reading and onwards—after being consulted by the Government—and does acknowledge that the Government consulted the National Party on this important national security matter. It’s important that there’s cross-party consensus on matters of national security and we do thank the Government for taking on board our feedback.

The bill tightens a gap in the law that does not explicitly outline the circumstances of a designated person imprisoned in New Zealand and makes clear what they are. It also broadens the definition of offence and eligibility to be subject to a control order, and that is a sensible change. It is important that the State uses the tools at its disposal to respond to known terrorist threats with appropriate oversight that protects our civil liberties, and we believe that this bill does strike the right balance. It is important the State is able to proactively mitigate and manage terrorist risks before they occur, which this bill endeavours to help with that objective.

Unfortunately, New Zealand is no longer immune to threats of terrorism, as we may have once considered that we were; unfortunately, the New Lynn attack and the Christchurch attack have made that clear. Therefore, it is important that the framework that we have to respond to terrorism responds proportionately to that level of risk.

I see that the select committee recommended that there is a clarification of the meaning of “imprisonment”, with the replacement section 35G(1), inserted by clause 8, defining the term “imprisoned” for an individual designated as a terrorist entity. That would include young people aged 14 to 17 serving a sentence of imprisonment in an Oranga Tamariki residence or in a prison. And the select committee believe that the definition of “imprisonment” in the bill should apply only to young people in the custody of the Department of Corrections or the police. The select committee noted that the provisions of the bill were intended to apply to individuals whose actions are sufficiently limited by imprisonment, that it would be difficult for the Prime Minister to gauge whether their designation remained necessary to prevent further terrorist acts, and noted that youth in Oranga Tamariki residences have greater access to unmonitored phone calls, letters, and visits, and greater scope to visit whānau outside than those in a prison. So, therefore, the select committee was of the view that the Oranga Tamariki youth justice residences were not so restricted as to pose challenges for the Prime Minister in considering whether an individual’s designation remained necessary to prevent further terrorist acts, and, therefore, made some recommendations on amendments that would make it clear that young people are only covered by the provisions of this bill if they are detained by the Department of Corrections or the police.

There was some clarification, as well, around the electronic monitoring requirements. Schedule 2 of the bill would insert a new Schedule 3 into the Terrorism Suppression (Control Orders) Act and Schedule 3 would establish provisions relating to the electronic monitoring of an individual who has had a requirement for electronic monitoring imposed as a condition of a control order. That is certainly a sensible piece of this bill, as I certainly have seen in my previous career the value of electronic monitoring. It, unfortunately, doesn’t always work, it is subject to the individual complying with those provisions, but it certainly alerts the authorities very quickly when that person doesn’t comply. So, with that, I recommend this bill to the House.

Kia orana, Madam Speaker. Thank you. It’s a pleasure to take a brief call on the Counter-Terrorism Acts (Designations and Control Orders) Amendment Bill this evening. In doing so, I want to acknowledge the work that the Justice Committee has undertaken in getting this bill to this point in the House this evening. I’m not a member of the Justice Committee, but I have had an opportunity from time to time to sub in on that committee and I know they’re very diligent. In their report they note that they received 210 submissions on this. They heard from a handful of oral submitters and have taken on board, it seems, the feedback that they garnered as part of that process.

This bill is the next step in the Government’s journey around ensuring that we have in this country counter-terrorism legislation that is appropriate, is able to suit the context, and is fit for purpose, and the strengthening of those particular laws in the counter-terrorism space is exactly what this bill seeks to deliver. In fact, it seeks to make it more difficult or harder for individuals—who are known as individuals who are threats—to undertake acts of terrorism. The strengthening of this designation scheme that would exist seems to make it more explicit to cover individuals who are incarcerated, who are imprisoned, here in this country.

The monitoring functions that are currently undertaken by Corrections staff in New Zealand is something that I have, prior to Parliament, had an opportunity to be a part of, as a visiting justice in prisons here in New Zealand. So I know that the staff in Corrections and others who would be involved as part of that monitoring process will appreciate, as Mr Mooney has already indicated in his contribution this evening, the additional tools that the State has at its disposal to seek to deliver on what the intention of this legislation is.

When we look at some of the amendments that have been suggested by the select committee, one actually seeks to strengthen the control orders regime within the Terrorism Suppression (Control Orders) Act of 2019 by expanding the eligibility criteria, or the criteria within which eligibility would be considered, by giving courts more discretion. Those who are members of this House who have had some involvement with the justice system here in New Zealand, who’ve had involvement in courts, will appreciate that from time to time it is extremely important that courts do have available to them discretion. And so this is a piece of legislation that will allow for that to exist in courtrooms and for courts here in this country.

I was interested to see that one of the considerations around where that discretion exists is in the imposition of conditions. It would seem to me in my assessment that when a court is looking to impose conditions, the context is extremely important. When we look at the context of the origin of this change around New Lynn, but also the events of Christchurch, courts need to have at their disposal flexibility and discretion when it comes to imposing conditions, but also when it relates to the various settings that exist for name suppression. Again, in the bail court jurisdiction I’ve had experience prior to Parliament of making decisions around where the name suppression should be—well, not just considered but imposed. So there are very clear guidelines around that in courts and this is a piece of legislation that will assist that.

I’ve talked a wee bit around context, and context continues to be important. What this bill does is it provides an ability for the scheme around designating terrorist entities within the Act to be one that is responsive, one that is to be well considered, but also, actually, fundamentally, one that aligns itself with considerations of natural justice. This is something that those who are making those decisions, whether they be in courtrooms or whether they be decisions that are to be taken by the Prime Minister around considering particular aspects—that elements of natural justice and elements of fairness will be considered as part of that.

So, again, I congratulate and thank the hard-working members of the Justice Committee for their diligence around this, and I commend this bill to the House.

Thank you, Madam Speaker. It’s a pleasure to take a call on the Counter-Terrorism Acts (Designations and Control Orders) Amendment Bill. It is very clear from the speeches that we’ve heard through the House—this debate started off last week already—that there has been a very collaborative approach to getting this bill back to the House. So I would like to start where the previous speaker left off by thanking my colleagues on the Justice Committee for their mahi on the control order regime and how it could be strengthened. The select committee received 210 submissions, and a previous speaker, Emily Henderson, already spoke about some of the issues that were raised during that particular process.

So responding to the threats that we are seeing, the Government is strengthening the counter-terrorism laws to make it harder for people who are known threats to actually undertake terrorist acts. It was in a previous speech by the awesome chair of the Justice Committee, Vanushi Walters—it outlined in great detail how those amendments very carefully balance the rights and freedoms of those individuals that they may apply to. And we’ve heard that it is very important that we take care in that balancing because, of course, we are dealing with people’s rights and liberties. Prior to the dinner break, my awesome colleague, Emily Henderson, already spoke about that particular issue. It’s also important to note that we are coming up—as she actually mentioned—to a thorough review of this regime as it is set out in legislation.

So this bill amends the current designation scheme to clarify matters relating to the expiry, renewal, and revocation of designations. That is because the current designation scheme doesn’t specifically address the circumstance of a designated person being imprisoned in New Zealand. And so, as a result, there is ambiguity in how the designation scheme applies to such persons. And ambiguity, of course, in legislation is never a good thing. But particularly in this instance, given the devastating consequences of a terrorist attack, it is crucial that the Prime Minister’s powers to prevent and suppress terrorism in the evolved global terrorism landscape are entirely clear.

Now, the previous speaker, Tangi Utikere, already spoke on the expansion of the eligibility criteria. I was going to run through those, but he very eloquently spoke on those—the greater judicial discretion and the importance for courts to have this discretion—so I will leave it at that. But the bill makes several of those targeted changes to improve the current control orders regime, and it does so by incorporating some of the lessons that we’ve learnt from the granting of New Zealand’s first and only control order.

So several speakers have discussed those targeted changes in detail. The changes will improve the effectiveness of the control orders Act and expand the criteria for high-risk individuals who can be covered by the restrictions. That, as I said previously, will limit their ability to undertake any attack. So our goal, obviously, must always be to ensure we can effectively manage and respond to the specific threats that we are seeing in Aotearoa New Zealand, and, therefore, I commend this bill to the House. Thank you, Madam Speaker.

Thank you, Madam Speaker. Look, I’m happy to take a call here in the second reading of the Counter-Terrorism Acts (Designations and Control Orders) Amendment Bill. Look, I think it’s been reasonably well covered by previous speakers in terms of the content of the bill, but I do want to make a few points, specifically, as we pass this through its next stage—and I’m confident it will; we will be supporting it, as we have so far. I think it’s important, on a piece of legislation such as this, that there is bipartisan support, acknowledging the seriousness of the legislation we’re putting in place to try and prevent or reduce that risk, and, indeed, the fact that that threat environment can evolve quite rapidly and increase or decrease over time and do so on any number of occasions.

Indeed, I think we’ve got to the point now where we’re realising that we need this sort of legislation. It’s not something we’ve had to have through our history, and that’s something we should be proud of. But, unfortunately, the sad reality now is that we need to be more cognisant of these sorts of threats, from a terrorism perspective, in particular, and responding appropriately to that is critical.

I do want to just pick up on the comments made by a couple of members now—Emily Henderson, as the previous speaker alluded to, but also the Green Party member Golriz Ghahraman, who touched on the upcoming review. That is an important step, but, actually, I don’t think it’s appropriate, unlike the Green member, to wait for that review to happen. There is a level of risk right now, and we need to make sure that we’re able to respond effectively to that.

This piece of legislation helps to tighten up some of the criteria around the control orders and designations that can be put in place, and, indeed, more appropriately reflects the fact that someone, whilst they may be imprisoned, may or may not continue to hold a certain set of beliefs. So pausing that designation whilst they are incarcerated is appropriate, and, of course, having the Prime Minister review that on a three-yearly basis as well, I think, is an appropriate counter to leaving it in place or, effectively, pausing the designation, as it were, whilst they’re incarcerated. Indeed, it can be difficult to understand, from that context, whether or not they are still firmly of the belief that may have led to them being there or to the designation being put in place, as the case may be.

So, on that basis, those particular aspects, I think, are an appropriate, practical closing of a loophole there that potentially could have caused some issues. That also is why I think it’s appropriate to have the retrospective element in the legislation, which normally is not good practice in lawmaking, to have retrospective elements, but, in this case, again, it’s appropriate because of the nature of what we’re trying to do here, to fix some loopholes that were in place in the existing legislation. So, therefore, this applies to anyone currently subject to one of those designations who may be in prison and then subject to the pause being put in place on their designation, and, indeed, the subsequent review by the Prime Minister as well. So those are practical changes to be made there.

On the control orders as well, again, it’s important to be able to adapt to the lessons that we have taken through this journey. Having only put one control order in place so far, there have been some lessons learnt from what is or isn’t fit for purpose in that context. So being able to tighten that up through this legislation as well is an appropriate response to ensure that we have that flexibility and, indeed, the ability to, have, I guess, some discretion, as Mr Utikere mentioned as well, to better reflect individual circumstances. Those individual circumstances can be extremely varied and it can be difficult to capture that appropriately, and so having a level of discretion is a good measure to help support the right outcome, ultimately, with this piece of legislation.

So, look, we’re comfortable that this has landed in the right place, acknowledging some of the concerns raised through the Justice Committee by the 210-odd submitters, I believe it was, who took the time to share their views. Again, it just highlights that even though we think we have a great piece of legislation, there’s always opportunity to refine that, which speaks to the benefit of the select committee process, which has far too often been truncated under this Government. But we have got to a good outcome here on this piece of legislation, and so we are happy to continue supporting it at the second reading. Thank you.

This time, Madam Speaker. Thank very much for the opportunity to speak tonight. The Government is strengthening counter-terrorism laws to make it harder for people who are known threats to undertake terrorist acts. This bill is an important part of the wider work programme that the Government has undertaken to make sure our laws are fit for purpose. That is why I was very enthusiastic and tried to jump the speaking order, and I do apologise for that.

I have spoken in this House about the Government’s changes to our counter-terrorism framework many times and have outlined for the House my views on striking the balance correctly between the rights of individuals and the need for community safety. I think that this bill does that and so I’m not going to spend a long time on that tonight. What I do want to focus on is just a clarification. Now, many speakers in this House, in this debate, have spoken about the changes that the select committee made about young offenders, and I want to just clarify what the iterative changes were at the select committee level before we close off this debate at second reading, because it is important that the House is aware of the changes that were proposed and the advice that the Justice Committee took on that.

So if we look to the first departmental report which has been released along with these documents, we find that the Justice Committee considered the ministry’s advice that it had identified that the current definition of “imprisonment” in replacement section 35G(1), inserted by clause 8—which the earlier speaker Joseph Mooney spoke about—covered adults held on remand, awaiting trial or sentence, and young people and adults serving a sentence of imprisonment, no matter where they are held. But it did not cover young people held on remand, pending trial or sentence, or other young people held in an Oranga Tamariki youth justice residence.

The reason I read that part of the departmental report is because it gave the committee an opportunity to discuss amongst ourselves and with our advisers what the nature of a control order was in this context—what sort of behaviour we were trying to control and what sort of behaviour would need to be demonstrated by somebody who was subject to one of these orders—and then whether a young person in the situation, where they were detained at a youth justice residence or a youth justice facility, would be able to demonstrate through their behaviour whether they would meet the criteria for that.

So to give you a little bit of context in this, a youth justice residence might be an Oranga Tamariki facility like Whakatakapokai in the Manurewa electorate, where young people are under Oranga Tamariki care. There may not be another place for them to go. They may be facing charges; they may have been sentenced. There’s a range of reasons why they will be in a facility like that. A youth justice and a corrections facility is like Korowai Manaaki, which is also in the Manurewa electorate, which is, by all intents and purposes, a prison for young offenders. They have quite different standards of how young people are held in those facilities, and young people within those facilities are able to do quite different things. The committee had to consider whether a young person who is held in an Oranga Tamariki residence had the sort of freedoms where a decision maker like the Prime Minister would be able to gauge whether they were a significant risk to the community and whether they needed to have a control order in place to monitor their behaviour.

So, at first, where the ministry was providing advice that there was a discrepancy there, the committee was able to test with officials whether that was a change that we needed to make, given that in Oranga Tamariki facilities, young people are able to do more; they’re able to communicate with their families, they’re able to have different sorts of visits. In the end, the Justice Committee tested that quite strongly, and we were able to come to a position which was then supported by the officials where they were able to come back to us and say, actually, there are freedoms that exist for young people in those kinds of facilities, so the Prime Minister would be able to gauge whether they were someone who needed a control order in place.

It gave the committee a good reason to also test what kinds of conditions would be imposed by these control orders. We have taken good advice on other examples, particularly in the UK where control orders have been challenged and where excessive control orders have not stood up in the courts, and the committee arrived at what is a sensible balance with sensible controls in place to ensure that these meet our expectations of the rights and freedoms that individuals would expect—but where the community can have confidence that they are safe because of this legislation. That’s why I commend this bill to the House.