Terrorism Suppression Amendment Bill

Dr WAYNE MAPP (National—North Shore) Link to this

The Terrorism Suppression Amendment Bill is an important bill, and I want to put a little bit of context around it. There has been a great deal of misinformation in the public sector, I must admit, aided and abetted by the Green Party, and its member present, who does know the truth of this, based on what occurred in the Foreign Affairs, Defence and Trade Committee. I want to make the point crystal clear that this legislation did not come to this Parliament as a result of any recent events. I notice that members from the Māori Party are noting that. I want to make clear to them that at no stage was that ever conceived, considered, or thought an issue.

There is a particular reason why we have to deal with this bill now, which is that the UN designations of al-Qaeda and the like—and they are referred to in the Supplementary Order Papers—are all about to expire. These designations have to be renewed. New Zealand, surely, can hardly be in a situation of being a defaulter nation and of not enforcing United Nations Security Council resolutions against al-Qaeda and its ilk. That is what has motivated the legislation at this particular time. There has to be a mechanism to renew what are literally hundreds of designations of al-Qaeda and its numerous offshoots, and those persons associated with them, all of which designations have gone through an exhaustive process in the United Nations Security Council. New Zealand has deep and profound obligations to implement those resolutions. I think that after a bit of reflection, most parties—in fact, I would like to think all parties—will recognise the importance of doing that. What is the alternative? Is the alternative that New Zealand will essentially opt out of the United Nations system—that we will somehow become a nation that is careless and that disregards our fundamental obligations to all other nations to deal with the most extreme forms of international terrorism?

So, faced with that situation, Parliament has had to address it. The issue was how best to address the renewal of those designations. If we did nothing, each and every one of them would have to go to a High Court for consideration. The problem with that process is that that is an adjudicative process, and people make submissions, and so forth. That is entirely inappropriate for UN-designated organisations. The international community, including New Zealand, has already made a decision about those groups and, frankly, there is no contest about them. So New Zealand has an obligation to continue those designations as, in a sense, an operation of Government.

The issue that motivated the select committee, in detail, was the issue of how best to continue those designations. The legislation proposed that this should be done by the Prime Minister. I have to say—and members on the select committee know this—that that exercised us to a great degree. We were concerned about vesting all that power into a single individual, and I, amongst others, said that we have to be able to find some method of ensuring there is, at minimum, a reporting to Parliament of that. The method that has been chosen is the use of Parliament’s Intelligence and Security Committee. That committee has the most senior members of this Parliament on it, drawn from across the House. I say that that committee probably should be reviewed. Its membership could be reviewed to make it, perhaps, a little more reflective, but that is an issue for another time. The select committee suggested to the Government that there needed to be a change to provide a better level of accountability than the vesting of that decision-making power entirely into the person of the Prime Minister. The committee, by consensus, agreed that the Intelligence and Security Committee was the right way to do that at this stage, and in the future maybe that could be strengthened further.

But I want to come back to the very clear point that the legislation has nothing to do with the events that have occurred in recent weeks. The public of New Zealand needs to have that assurance. This legislation is entirely related to New Zealand’s obligations under the United Nations charter. I would like to think that every political party understands those obligations. Yes, they may have quibbles about details, and issues of that kind. But surely no members of a political party are going to stand up in this Chamber today and say: “We should ignore the United Nations designations.” I would like to know that about any political party, and in particular the Green Party and the Māori Party, because I know they are interested in this legislation. Surely those members will not get up and say: “We are completely uninterested in what the United Nations does. We are completely uninterested in New Zealand’s responsibilities to the international community.” Frankly, that would be extraordinary. If that is the proposition these members put forward to the public of New Zealand, we would have to ask ourselves the basic question of whether they have earned the right, in that situation, to participate in future Governments of New Zealand.

Surely it is a fundamental responsibility as a good international citizen—and New Zealand does take pride in being that—and surely it is one our fundamental obligations that we uphold United Nations Security Council resolutions. These resolutions have literally the force of law. They are not advisory and they are not just suggestions; they are obligations on members of the United Nations. They are not discretionary. So when the United Nations Security Council, under chapter 7, makes a resolution that states: “These entities are international terrorists and States must deal with those entities.”—and in this instance it was actually about the use of finance and things of that nature by those organisations—New Zealand has a legal responsibility under international law to act.

I want to say this directly to the two parties whose members have spoken most on this bill. The obligation that we implement United Nations Security Council resolutions that have mandatory force impinges on all parliamentarians. The alternative is international anarchy. I cannot believe that those parties would want that.

The select committee took its responsibilities on this bill very, very carefully. We had a wide-ranging discussion, which included all members of the committee, and we took on board suggestions from all members of the committee, including those from the Green member Mr Keith Locke. His comments and views were not just ignored. Some of the points that he raised were taken on board, including the need to have some level of accountability of the Prime Minister. At the present moment we have said that that accountability will come from the Intelligence and Security Committee. Mostly due to the force of time, that was done. We do think that is an issue that needs to be looked at more deeply, and we have made reference to that in the commentary on the bill.

This legislation is serious stuff. It is amongst the most important things that this Parliament does. It is not a time, and should not be a time, to wrap some cheap opportunistic approach around this issue. I know that those parties have issues, and I do understand those issues. Perhaps we will end up at least touching on them later in the debate. But let us not try to wrap this bill and our responsibilities under the United Nations Security Council in issues that have occurred this week.

I want to make it very clear that National does support this legislation. We believe in a world where law prevails and where people have an assurance in their international travels, and so forth, that terrorists are being dealt with in a proper and lawful way. We support this bill because we think it upholds New Zealand’s responsibilities as an international citizen.

KEITH LOCKE (Green) Link to this

The last speaker, Wayne Mapp, said that the events of the past couple of weeks have nothing to do with this bill, or vice versa. In one sense that is true, in that this bill proceeded through Parliament by its own timetable and rationale. But it has a lot to do with the events of the past couple of weeks, in the sense that when the original Terrorism Suppression Act was put through in 2002 there were a huge number of submissions critical of it. Many of them were from non-governmental organisations that were fearful that they and their members could be caught under that Act. Those same organisations are fearful today that maybe the Act will be applied in the current situation. The very questions of the right to dissent and not to be given a penalty for one’s political views were very much in the original debate back in 2002, and they are very much part of the public debate today.

Wayne Mapp said that the time is coming up for the renewal, under the original Act, of the UN designations of terrorist organisations. But it is quite clear—and there have always been submitters on this, both in the original Act discussion and on this bill—that the High Court is perfectly capable of renewing all those definitions if they are still valid. They do not need to go into a lot of high detail. In fact, the original Act says that evidence from the United Nations is to be deemed as sufficient unless there is evidence to the contrary. So unless there is evidence to the contrary on any of those UN designations of al-Qaeda and the Taliban that are currently on our list and up for renewal, the High Court does not really have to spend much time on it at all, in a practical sense. What is so wrong—and the Green Party has this in our minority report—is to cut the court out of it altogether so that the Prime Minister, representing the executive branch of Government, does not only the original designating but also the review of those designations 3 years later and a renewal of them if appropriate. So that is the real situation. The problem with the so-called war on terror as a whole is that it has moved things out of the hands of the judiciary and into the hands of the executive in an excessive way.

Wayne Mapp says that there is no real problem in our accepting the UN designations automatically into our law. Well, there is a problem because it has been shown that the counter-terrorism committee hanging off the UN Security Council has made a lot of mistakes. It is a governmental system of Governments putting the terrorist groups on this list, and they do make mistakes. If the United States, for example, wrongly put Wayne Mapp on the list and the counter-terrorism committee said: “Yep, Wayne Mapp is a terrorist and he has to go on the list.”, then that list comes through to New Zealand. Even though we know Wayne Mapp is not a terrorist, under the proposal in the Terrorism Suppression Amendment Bill Wayne Mapp would have to be put on our list and all of his assets seized immediately. If he were an employer employing 5,000 people, that whole business might go down the tubes because of a lack of rationality and a lack of application of international human rights law giving justice and due process to someone like Wayne Mapp, if he were deemed to be a terrorist.

Wayne Mapp says that we have to obey the UN. There are two things we have to obey in this situation. One is the UN Security Council decisions under chapter 7, which are obligatory on Governments, but parallel with that is international human rights law, which gives due process and justice to anyone. Those are parallel processes. In my Supplementary Order Paper I specifically mention the International Covenant on Civil and Political Rights, which might protect Wayne Mapp in the situation of the UN wrongly designating him to be a terrorist. Supplementary Order Paper 158 in my name would protect him and allow a situation of due process to apply.

I will go through some of the other provisions set out on the Supplementary Order Paper. As I said before, I am returning to the original Act and allowing evidence to the contrary to be brought into consideration of UN-originated designations. I also have an amendment omitting clause 6, which sets out a new offence called a terrorist act. The Law Society—that very reputable body—was quite clear on the problems that that new offence would cause for the judiciary, running a whole parallel set of crimes. In any crime deemed to be a “terrorist” one, there is an underlying Crimes Act offence as well. The Law Society said that the new offence of a terrorist act would appear to have the potential effect of greatly increasing the penalty imposed on persons who are convicted of committing a terrorist act where the underlying crime is relatively minor. So I am attempting, through this Supplementary Order Paper, to remove the term “terrorist act” from the bill because it is unnecessary; there are other underlying crimes—murder, kidnapping, or whatever one likes.

One of the problems with the definition of “terrorist act” in the original bill that was brought up in the hearings before the Foreign Affairs, Defence and Trade Committee was that it was very broad. I have also introduced an amendment proposed by Greenpeace during the select committee process to amend the provision where someone could be deemed to have committed a terrorist act if he or she caused serious disruption of an infrastructure facility in a way likely to endanger human life—that is, if he or she did not have any intention whatsoever of endangering human life; it could have been just some non-violent act of disruptive civil disobedience. The Greenpeace suggestion, which I have incorporated in my Supplementary Order Paper, is that there has to be an intention to endanger human life. So I am trying to tighten up the definition of a “terrorist act” to meet the real situation that most people would accept—anything that is really terrorist has to intentionally endanger human life. I hope members will support that part of my Supplementary Order Paper.

Another part of Supplementary Order Paper 158 is to omit clause 7, because it repeals section 8(2) of the original Act. Section 8(2) provides that if funds that end up somewhere in relation to a terrorist group or its offshoots were intended for the purpose of advocating democratic government or the protection of human rights, then that is a defence. That should remain a defence, particularly as New Zealanders have a long history of supporting anti-apartheid groups overseas. Nelson Mandela was clearly a leader of a terrorist organisation, as defined in this Act; there were terrorist elements in the African National Congress, but New Zealanders gave money to it. Under this bill they would automatically, by giving money to Hamas, or whatever, be deemed to be financing terrorism. Even if the money was meant for Hamas’ social programmes in Gaza, they would be in a situation similar to those—[Interruption] If New Zealanders were giving money to a Hamas group that was trying to establish an independent Palestinian State politically—that is, they did not have any intent of funding violence—they could be caught under the provision in this bill, which is why I think we have to go back to section 8(2) of the original Act, under which there was a defence if people gave the money for the purpose of advocating democratic government or the protection of human rights.

I also have a provision on Supplementary Order Paper 158 that clause 12 be omitted. Under clause 12, participation in a terrorist group offence, which carries a heavy penalty of up to 14 years, means that a person can be deemed to be part of that group even if he or she did not really have knowledge that that group was a terrorist one. The bill introduces a provision of recklessness, which I think loosens it very much. It could lead to many people who are on the fringes of a particular group that might engage in some criminal activity being caught.

The Green Party has several amendments, and the other amendment on Supplementary Order Paper 158 is to allow for a further review of the original Terrorism Suppression Act.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Madam Chair. Kia ora tātou i tēnei ahiahi. I would just clarify, in case it is up for question, the Māori Party’s perspective in respect of the notion of terrorism as a name in this bill, the Terrorism Suppression Amendment Bill. First, the Māori Party is clear that we have to take terrorism as a notion seriously. Second, we believe in the rule of law, and in the desire on the part of the forces of this country to protect us from the notion of terrorism should it arrive in Aotearoa. Should those people rightly charged under that particular label follow a path in law, so be it—just as we would expect that those who carry firearms without a licence, for example, are liable for the consequences that might come from the law moving appropriately to deal with them.

I think one issue that has not been addressed in respect of the discussion around this word “terrorism” as part of this bill is the possible impacts or downstream effects on communities, and, indeed, the whole country in terms of this title “terrorism”. I will put it in this context. Not too long ago the country was awoken by way of reports and so on across our newspapers, televisions, news media, and radio that the terrorism threat was alive and well in Aotearoa, and that, in fact, one community in Aotearoa was the subject of actions to deal with the notion of terrorism in Aotearoa. What the Māori Party has attempted to do in the recent past by way of questions that we have asked is to make the House, and, indeed, Aotearoa, aware of the major impact of any move whatsoever under the banner of anti-terrorism, although still taking it seriously. I can tell the Committee that in my constituency, as I go around the communities that have seen some of the actions taken under the banner of anti-terrorism recently, one iwi in particular feels that it has been labelled not just in the last week or in the last 2 or 3 weeks but, in fact, forever as a tribal nation that has engendered and promoted the notion of terror. I think that we have to be very careful in any actions that we want to take in respect of this particular bill and the primary Act because the consequences down the line may well be very dire, not just for those tribal nations, if it happens to be one, or for the nation but for the next generation in Aotearoa.

When I opened the discussion during the second reading I tried to tell the House that in a sense there are three ways of looking at this bill. One was the political context, and at the time we were discussing the repeal of sedition. The second context was with regard to one tribal nation awaiting the Waitangi Tribunal report—in that case it was the Tūhoe nation. In terms of the social context, I talked about some of the stories that have come to me about the actions taken by the authorities charged with protecting the nation under the banner of anti-terrorism. I gave a number of examples.

The first point that I want to make in terms of the discussion is that we need to be careful in respect of the label of terrorism—in particular, I noted the notion of the Tūhoe nation being possibly branded with the title “Tūhoe: terrorist iwi.”

Second, I want to make a point around the discussion of the word “suppression”, which is in the title of the bill. I did a bit of research, in preparing for my kōrero today, about the notion of suppression. One definition is “to forcibly put an end to or to prevent from being expressed or published.” We have a major concern that there will be suppression of not merely terrorism but much legitimate debate on, and challenge to, decisions and actions of the Government. There has always been a concern from the Māori community that some of its members could be targeted under the labels of “Māori activist” and “radical”. That is some of the feedback we have had.

The 2002 bill initially had provisions prohibiting crowds from gathering for protest purposes. So the question we ask is this. Who else has had their views suppressed? It is useful for us to look at the campaign Operation 8 as an example of the scattergun approach that will be used to suppress terrorism. Some of the people who have come to my office and to our offices in the Māori Party have talked about the organic farmer in Taupō whose son-in-law hails from Rūātoki, or perhaps the pensioner in Tauranga whose house was raided on 16 October.

DIANNE YATES (Labour) Link to this

I wish to speak in the Committee stage of this bill. I wish to thank the previous speaker, Te Ururoa Flavell, for his comments, but point out that those comments are not necessarily based on what is in the bill but on some of the fears that people may have about the bill, which were expressed when people made their submissions. The select committee considered those very carefully, and as the member who has just resumed his seat finally pointed out in his conclusion, we looked very carefully at the balance between protecting the rights of New Zealanders and protecting New Zealanders’ safety and freedoms. It is often a very, very fine line.

There has been discussion about the United Nations, and New Zealand’s adopting of United Nations principles and lists. We remind people once again that New Zealand was very much involved in the formation of the United Nations Universal Declaration of Human Rights.

I point out also that comments were made by Mr Keith Locke about New Zealanders being involved in giving money to organisations like the African National Congress. That was discussed at the select committee, and the member was part of that discussion. We were assured by officials as well that the bill would not hinder that type of donation. So I think that as we listen to people’s fears we have to be careful about what the bill actually contains.

I would make another point in terms of Dr Mapp’s comment about the extension of national designations. The commentary on the bill, on which the select committee voted and agreed, states: “While recommending that those clauses of the bill regarding the extension of designations for non-United Nations-list terrorist entities should be enacted largely as proposed, we recognise the concern raised in a number of submissions about the concentration of responsibility in a single individual”. But the committee also said it realised that: “initial decisions to designate, involve judgements about national security that are more properly made by the Executive than the High Court.” Then the committee said unanimously: “However, to ensure transparency we recommend that clause 21 should include in section 35 of the Act a requirement that, after making an order of a new designation under subsections (2) or (3), the Prime Minister must report to the Intelligence and Security Committee on the proposed renewal.” The select committee as a whole agreed that the executive should properly make that decision. I just want to point out, as we go through the Committee stage of this bill, that it was a unanimous decision of the select committee.

JOHN HAYES (National—Wairarapa) Link to this

I rise in support of the Terrorism Suppression Amendment Bill, but make it very clear that there is no possible way we will be agreeing with any part of Keith Locke’s Supplementary Order Paper and its proposals. He is overlooking the fundamental importance of measuring the balance of rights for the individual against the balance of rights for our community. I think that is a very, very important element that Mr Locke—and our colleague in the Māori Party, also—is overlooking. It is really important that this amendment bill is passed and progressed, because the legislation has been out of sorts with our obligations to the United Nations and to our neighbours for the last 4 years.

Although the National Party supports the bill, we also have strong doubts as to whether the legislation’s enactment will result in a more vigilant stance against the risk of terrorism by the New Zealand authorities. I say that because since the 2005 review of key clauses of this bill, National members have constantly expressed deep concern that although we have upheld New Zealand’s obligations under the United Nations Security Council’s Resolution 1267 to designate as terrorist entities in New Zealand those entities that have previously been identified as al-Qaeda or Taliban - related entities by the United Nations Security Council, the Prime Minister has still yet to designate a single terrorist entity under United Nations Resolution 1373—that is, a non-al-Qaeda or Taliban - related terrorist group designated at the initiative of United Nations member nations. Through this period, our Australian colleagues across the Tasman have designated 88 terrorist entities. On the other side of the Pacific, in Canada, the Canadians have designated a further 50 terrorist entities under similar legislation.

The Terrorism Suppression Act 2002 provides a very useful set of tools for the authorities here in New Zealand to protect our community against the threat of terrorism. That is what we are talking about. We are talking about a threat to our community, and we have to balance that in opposition to the rights of the individual. Inevitably, that judgment will be a subjective one. I think there is the possibility of a threat to civil liberties for a designated person to be overridden by the greater concern of the whole community. That is a constant balance, and that is why most of us are in this Parliament: to help make judgments on that issue.

A number of submitters who came to the Foreign Affairs, Defence and Trade Committee to discuss this issue with us—Rosslyn Noonan and others—were concerned that the information that might be held about people should be made fully available to them. We in the National Party are very happy that the Prime Minister—who would normally be the Minister in charge of the NZ Security Intelligence Service, and who I know is regularly briefed by the officials engaged in that work—makes this decision, provided she—

RON MARK (NZ First) Link to this

I actually was not going to take a call because, quite frankly, for New Zealand First this is a pretty simple bill; we just need to pass it and get on with business. But some of the comments that have been made deserve a response. To those members who would say that this is not Istanbul, and that the types of acts that Mr Hayes so clearly speaks of will not happen, and will never happen, in New Zealand and, therefore, we do not need such legislation as this Terrorism Suppression Amendment Bill, I would say that there was a time when people would have laughed out loud and ridiculed anyone who suggested that it was possible that one day agents from a friendly country—France, which is a country in whose soil thousands of our Defence Force personnel lie buried, having given their lives defending the freedom of that nation; Māori and Pākehā, side by side—would come to New Zealand in a clandestine, covert operation supported and backed up 100 percent by the Government, the defence force, and the intelligence agencies of France and would blow up a ship moored in our harbour. People would have laughed at that suggestion.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

I just want to clarify something that was raised by the previous speaker, Ron Mark. The Māori Party has never ever said that it represents all Māori. In fact, we represent only intelligent Māori. That is the first thing I want to clear up, and that is not a matter of debate.

At another level, when people start talking about the historical nature of terrorism and ask whether the Māori Party actually understands the historical nature of terrorism, I say that absolutely we do. John Hayes talked about introduced diseases. I think of influenza, which was introduced by the whalers and sailors, the wheelers and dealers, and the thieves—who came from England. That disease wiped out thousands of Māori people. When I hear members talk about the murder of innocent citizens, I think of the so-called New Zealand colonial forces who murdered thousands of innocent Māori. When I think of the terror of the overtaking of a people’s land, I think of the land theft that has gone on since the time the New Zealand Government was first established in this country, and that continues to this very day. Do I understand the historical nature of terrorism? Absolutely, I do. I understand it more so than, I assume, many other members of the House.

But do I understand terrorism in the way that other members have expressed it, in terms of this bill? The answer is no. I do not mind saying that I do not understand terrorism as it is understood by those fuelled by the jingoistic, acid-drenched, hate-filled, anti-Islamic, “death to anyone from the Middle East”, vitriolic, poisonous claptrap that the United States is trying to foist upon the rest of the world.

RON MARK (NZ First) Link to this

Given the controversy before, I seek leave to table a statement from Mr Hone Harawira: “If they tried this up north, we’d be out with guns.”

Dr WAYNE MAPP (National—North Shore) Link to this

It is extraordinary to hear Mr Hone Harawira, is it not? He actually took an oath in this Parliament 2 years ago to uphold the laws of New Zealand. What did he say today? He said that he does not believe in the rule of law. What does he believe in—the rule of anarchy? That is, effectively, what he is justifying today. Surely one of the fundamental duties of a member of Parliament is to uphold the rule of law, because the alternative does not bear thinking about.

I want to turn directly to the provisions of the Terrorism Suppression Amendment Bill that relate to committing a terrorist act. The Law Society, for instance, said that that should not be in the legislation. It said that all these events are ordinary crimes, and of course that is right. They are crimes. But what makes an ordinary crime a terrorist act? It is defined in the Terrorism Suppression Act 2002—as my colleague John Hayes referred to—by a threefold test. It is a high test; each one of the tests must be satisfied. There must be an ideological motivation, a religious motivation, or a political motivation. There must be the intention to cause death, injury, or serious risk to the health and safety of the population. Those must be the intentions, and that is stated in the 2002 legislation.The purpose must be to induce terror or unduly compel or force a Government to do or abstain from doing something. Those are high tests, and I acknowledge that. There must be a specific intention—

Hon PAUL SWAIN (Labour—Rimutaka) Link to this

I move, That the question be now put.

KEITH LOCKE (Green) Link to this

I raise a point of order, Madam Chairperson. I think it would be wrong to end this debate now. As you said when points of order were raised previously, people like myself would have the right to reply; I also have not fully had time to motivate my Supplementary Order Paper; and also, the Māori Party has had two speakers.

KEITH LOCKE (Green) Link to this

The final point on my Supplementary Order Paper is that I support, by an amendment, a thorough review of the original Act by the Human Rights Commission, to be completed, according to my Supplementary Order Paper, by 1 December 2009. Wayne Mapp talked about whether there is a difference between criminal offences and terrorism offences when they involve exactly the same activity of a criminal nature. The only real difference between them, if the crime is exactly the same, is that one—the terrorism offence—has a higher penalty, and the only reason for that is the political, religious, or ideological motivation. People are not being punished additionally because of something they have done that is worse; they are being punished additionally because their motivation is political, religious, or ideological.

There are two parallel offences in the Crimes Act and the Terrorism Suppression Act: participation in a criminal organisation is in the Crimes Act, with a penalty of 3 years; participation in a terrorist group is in the Terrorism Suppression Act, with a penalty of 14 years. There is no difference in reality between those two offences apart from the penalty.

I think it is important to see that there are different forms of terrorism. The examples used by Ron Mark, Hone Harawira, etc. were effectively forms of State terrorism: the Rainbow Warrior bombing and the historical State terrorism against Māori earlier in New Zealand history, as has been described. Even over the last 2 weeks other examples have been coming to light, such as a determination that the British State murdered the Brazilian de Menezes, although no one is going to be punished for that, apparently.

Dianne Yates made the point that if people send money overseas to a nationalist organisation like the African National Congress, as has been done in the past, they should not worry—that will not be caught under this terrorist legislation. I think there are two practical problems with that. We are not talking about a Government like the one we have in New Zealand today, which is quite a liberal Government in many respects. We are talking about a Muldoon-type Government or an even worse type of Government that could apply this legislation using the executive power that is being increased in this amendment bill. That is a problem.

Secondly, there is the reality of situations such as someone in the Sri Lankan Tamil communities, for example, giving money to some reconstruction work in the Tamil Tiger areas of Sri Lanka. The Tamil Tigers have, in the past, done some terrorist activity. The reality is that with the conflict in Sri Lanka today, and the blockade put around the Tamil Tiger area, the money might go in through some covert channel to get through to do this reconstruction. That would be the same case as with the African National Congress in the past—the person sending the money cannot be absolutely sure where it will end up. There are no absolute guarantees in this process, but people are acting with goodwill. The clause that previously existed in the Act, which is being chopped out, is about people trying to give money to protect human rights or advocating democratic government. This legislation makes it just that bit more difficult for them and makes it more likely that a Muldoon-type Government with a Muldoon-type Attorney-General—and it is the Attorney-General and not the Solicitor-General who decides whether the charges go forward—could be prejudiced against us.

I talk about Sri Lanka because I have been very aware of a very sad case of State terrorism just these last few days. When I visited Sri Lanka in 2003 to look at the peace negotiations I talked to negotiators on both sides of that conflict. The main person I talked to in the Tamil Tiger area was a chap called Mr S P Thamilselvan, who was assassinated in a Sri Lankan Government air raid last Friday. He was the peace negotiator and he was assassinated, and that was very sad to me. When we talk about terrorism it is not just non-State, small-group terrorism that we are talking about, it is also State terrorism.

Let us get back to the definition of a terrorist act. I do not think Wayne Mapp has presented that properly. A person has to do an act with an ideological, political, or religious cause, and then there are two options. There is an “either/or” option. The first one is “to induce terror in a civilian population”—that is an “either/or” option. A person does not need to fall under that at all if section 5(2)(b) applies—“to unduly compel or force a government or an international organisation to do or abstain from doing any act.” That is what many protest groups around this country and around the world do. They are often deemed by the Government of the day to be unduly compelling the Government to do something, so that in itself is not bad.

Then the legislation defines outcomes, and these outcomes are also “either/or”. One of these is serious interference with, or serious disruption to, an infrastructure facility if likely to endanger human life. There is no need whatsoever to have any intention to harm anyone, or to endanger anyone’s life—it just needs the ancillary result of the action to endanger human life, even if there was no intention of doing so.

That is where the legislation creates such a problem for non-violent protest groups who may intentionally or unintentionally disrupt an infrastructure facility. There is nothing to state that one has to have any nefarious intent towards human life or health. I think it is important to get that, because that is what is so problematic.

There was talk earlier in the debate about the balance of the rights of individuals and the rights of communities. This bill is moving more and more away from individual rights, and away from the right to due process. It is cutting the High Court out of the renewal of the terrorist designations, giving the Prime Minister the right to do that, and continuing the problem in the bill of the State determining what happens, rather than the judiciary. The Green Party sees this as a problem as we put it against the background of current events, without referring to any particular legal proceeding.

There is a huge amount of concern in the community, and I think that has to be addressed. We need only go back and read the debates on the original legislation to see that people tended to pooh-pooh the idea that domestic protestors of various types would ever be caught up in this legislation—that their homes would be raided, or whatever. What is causing concern in the community today is that it seems that the principal Act, which imposes 14-year sentences on people for recruiting for, financing, or participating in a terrorist group, is being amended by this bill to add a life sentence for a terrorist act, when a terrorist act, as I have explained, can cover people who do not even intend to do any harm to other individuals. Thank you.

Dr PITA SHARPLES (Co-Leader—Māori Party) Link to this

Tēnā koe. Tēnā tātou katoa. In speaking to Part 1 of the Terrorism Suppression Amendment Bill, I have worries that as we pass into law pieces of legislation that have a particular requirement and cover a particular area, we do so without looking at the large-scale implications of them on our country as a whole. Although Te Ururoa Flavell quite correctly characterised the Māori Party’s stand, which is that we are totally against terrorism and that we accept the rule of law as paramount, nevertheless at the end of the day we are here building a society in Aotearoa. Although we have a whole lot of history behind us, a lot more is still to come, and, unless we build quality race relations as we pass these laws, then I believe we are heading in the wrong direction. I say this because there has been quite inflammatory kōrero—talk—in this Chamber about this bill and about other pieces of legislation, relating to race relations and to actual people in the Chamber.

To me, we have to look at where the Māori people are at this time to understand why there have been widespread repercussions in respect of recent events that have happened under this particular law. I think it is terribly dangerous for us to look at terrorism suppression without us clearly defining the role and, if you like, the limitations of the behaviour of those who have to execute the Act so that we do not get stuff happening that is quite beyond the cause, such as women’s panties being taken out of households in front of the women themselves, as though they were pieces of evidence of terrorism. To me, we have to take it in terms of where we are going in the future. As a country I think we have underestimated the effects of what has happened over recent weeks. I believe there was even a remit at the Labour Party’s own conference from Māori suggesting a reconsideration of this legislation because of its repercussions on Māori themselves, put forward by the Māori council of the Labour Government.

I went to talk, as I do from time to time, to the participants of the Police College refresher courses. In this case there were 25 kaitakawaenga. These are specially trained senior Māori policemen who have a role in iwi liaison.

Hon MURRAY McCULLY (National—East Coast Bays) Link to this

I take the opportunity in the Committee at this stage to put on record my support for Part 1 of the Terrorism Suppression Amendment Bill. I was a member of the Foreign Affairs, Defence and Trade Committee when it gave consideration to this particular measure, and prior to that I was a member of the select committee when it concluded the review of the Terrorism Suppression Act 2002—in particular, the sections that are being amended by Part 1 of this bill. As a result of that initial select committee process, I became concerned about the workability of the arrangements in the original bill, and the amendments contained in Part 1 of this measure will give effect to some important changes that I will touch on briefly.

At the heart of this measure, at the heart of this part, in fact, is a difference of view—and I acknowledge that it is a genuine difference of view—about how we deal with the threat of terrorism. Some, like myself and, I am pleased to say, some like members of the Government, see the threat of terrorism as something that is sufficiently serious, and sufficiently difficult and complex to deal with, that it cannot be dealt with by way of the normal processes of the court or by having the standard of proof required before any action can be taken by the agencies of State. It is my view that terrorism in its various guises can be dealt with only by vesting in some authority the ability to arrive subjectively at judgments based on material placed before that authority—material that is of itself unlikely to be admissible in court because of the consequences for intelligence agencies both here and abroad.

I take the view that we have to trust some designated officer—and in this case we are talking about the Prime Minister of the country, who is the most senior elected official in the land—who will have to make that subjective judgment as to whether a particular group, on the basis of the material before him or her, should have certain sanctions taken against it. Those sanctions will obviously have the impact of intruding upon the group’s civil liberties. That is not a step that any Parliament should take lightly, but I do not think that I need to offer too many pieces of evidence for members to be convinced that there is a genuine threat of terrorism around the world, and that every country in its own way has to do something to combat that threat. So I think that what is done in Part 1 of this measure—which effectively is to take away from the courts a role in proceedings that were never going to be suitable for our judicial situation and to place that decision-making capability in the hands of the highest elected official in our country—is the appropriate step for Parliament to take.

I say to Dr Sharples, and to others who have concerns about recent matters, that it is not a power we should vest lightly in any authority, and that where there is any evidence that those powers—indeed, extraordinary powers in this legislation—are misused in any shape or form, this Parliament, and I hope its executive branch, will come down like a tonne of bricks on anyone who steps across the line. As a member of this Parliament, I certainly say to Dr Sharples and others that I presume that the authorities will use these powers wisely in all circumstances, but if there is any evidence to the contrary I will certainly be quick out of the blocks to ensure there is some accountability. I know that other members feel the same.

I support Part 1, vesting as it does considerable authority in the hands of the Prime Minister, who of course is briefed by the Security Intelligence Service on a regular basis, and I urge other members to lend their support to it as well.

The CHAIRPERSON (H V Ross Robertson) Link to this

The debate on this part includes schedule 5.

KEITH LOCKE (Green) Link to this

This is a relatively small part of the Terrorism Suppression Amendment Bill, comprising amendments to other Acts. I think it is interesting to discuss this along with schedule 1, because if people read the Green Party’s minority report they will see there is a part of this bill that the Green Party does support, which is the measure that enables us to adhere to two international conventions. Those are the International Convention for the Suppression of Acts of Nuclear Terrorism and the Convention on the Physical Protection of Nuclear Material. I do congratulate the Foreign Affairs, Defence and Trade Committee. Dianne Yates spoke earlier, and I was going to congratulate the committee, as part of that discussion, on making sure that our adherence to those conventions did not wrongly penalise people who may be involved in anti-nuclear protests.

As members may know, there have been protests in the past against nuclear waste ships passing through the Tasman, between France and Japan—both ways, I think—and a flotilla of peace boats went out and protested against one of those boats passing through the Pacific. The protesters did not actually stop its passage, but they flew the flag and got a bit of international publicity. They were rightly very concerned about the safety of the nuclear waste materials on those long sea journeys between France and Japan. They were concerned that maybe something would happen to the boat and it would sink into the sea, potentially creating a danger to our fisheries and our environment, not far off the coast of New Zealand. So that was a very good protest. The Government itself was protesting in its own way about that shipment of nuclear materials.

The bill as it was originally conceived had a good motivation: it sought to stop people from interfering with nuclear material in a way that would be harmful to the populace. But the original provision could have been interpreted as meaning that the act of stopping a boat that was passing through the Pacific—stopping the boat by means of a peace flotilla, as people stopped boats in Auckland harbour during the protests against the visits of United States nuclear warships—might be deemed under the wording to be in contravention of this legislation and to carry a very heavy penalty. So the wording was adjusted in the select committee to avoid that possibility, and that is a good thing.

Another amendment was referred to previously, although I do not know whether it was spelt out by anyone. It was a movement in a good direction: to refer any renewal of a terrorist designation—or any terrorist designation, I think—to the Intelligence and Security Committee, which is a statutory committee of this Parliament. It is made up of the Prime Minister, the leader of the National Party, who is called the Leader of the Opposition in the bill, and in the case of the Prime Minister there are two other people, and in the case of the Leader of the Opposition there is one other person. It is not a proper select committee. In an answer to a parliamentary written question, I found that it has met for only 2 hours and 38 minutes in the couple of years since the election, but at least it provides some little check on terrorist designations. There is some accountability, even though I do not think the committee is able technically to cancel the Prime Minister’s designation, but it is a step in the right direction.

I am saying that because the select committee did discuss things and take on board some of the concerns of the many submitters who were against many of the provisions of this bill. I think that as a leading anti-nuclear nation, under schedule 1 and the international convention it refers to we have to be part of the international campaign leading not only to nuclear disarmament but to stopping anyone in non-State organisations using nuclear bombs or using nuclear material in a way that is really disastrous to populations, short or long term. The release of nuclear radiation into certain environments, be they physical or sea environments, can affect many generations of people into the future, and their environments.

In Part 2 there are some useful provisions, at least in terms of schedule 1, although the other amendments in clause 46 to the Terrorism Suppression Amendment Act 2005 do continue some of the problems that exist in Part 1. The Greens will not be voting for Part 2, because of that problem. But we do want to endorse that part of Part 2 and the schedules, namely schedule 1, that adhere us to the Convention on the Physical Protection of Nuclear Material. Thank you.

DIANNE YATES (Labour) Link to this

I just point out that Part 2, with the schedules attached, is a very technical part of the Terrorism Suppression Amendment Bill—it is just a very small part of it. The changes that the Foreign Affairs, Defence and Trade Committee made were to clause 13 and clause 5 in Part 1, where we made changes relating to the Convention on the Physical Protection of Nuclear Material. The actual changes to the wording of the bill were made in Part 1, which we have already discussed. I thank the select committee members and those who made submissions on this matter. We have cleared up very clearly that the legislation would not affect protest against ships that are transporting nuclear waste through the Tasman Sea, and so on. That matter has been clarified, as has the definition of a nuclear facility. Those definitions are actually in Part 1.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Chair. Tēnā tātou katoa. I just want to take a brief call, acknowledging that Part 2 is a small part at the end of the bill. Unfortunately I have been tied up in other places, but I want to make a couple of points, in particular around the amendment to other Acts and, of course, the consequences in terms of the principal Act.

I ask members to track this scenario through with me. Let us say, for example, the nation was to be woken up to the notion that terrorism was in Aotearoa, and that in order to deal with it the forces of the State were to move to particular areas throughout the country. Along with that scenario, let us say that a force of 50 or 60 police or other personnel were to move in on a community where they suspected that terrorism was possibly there, and that along that line the possibility of charges under this legislation might be put in front of those people. Let us suppose that in going about that action, as one would expect in terms of dealing with terrorism, the forces of the State were to block off particular communities, maybe. After all that action of, firstly, Aotearoa being woken to the notion of terrorism, secondly, the State using its forces to deal with that, quite rightly so, and thirdly, under the banner of terrorism that community maybe being marked as a community of terrorists, let us say that 50 to 70 police were to go about their work in order to subdue the notion of terrorism within that community.

Let us suppose that at the end of the scenario one person was to be taken out of that community after that whole action —and I ask members to please follow me now—and that that one person, after all that activity and the label of “terrorism” having been put on that person as well as the community, was to be charged with another offence, let us say, just for example, under the firearms legislation, then we, as the Māori Party ask this: what happens if we have not necessarily addressed the issue at heart—namely, terrorism? What happens if we have not quite nailed it down? That is the concern in terms of this particular debate. I have already declared from the start—and my colleagues have also declared—that the Māori Party is clear about the notion of dealing with terrorism. If people are caught for a crime, they need to be processed through the right channels of the law. But what happens if one gets it wrong? What happens if one uses a label such as “terrorism” and one gets it wrong because one has changed direction? What happens to the people who may have been affected by that action?

Let us say, for example—as I stressed during question time in this House today—as a possible scenario one goes into a small community, let us say Remuera, does the same thing and maybe, as part of an action to suppress the notion of terrorism, tells people to get out of their cars and have their photos taken. If every person who went left or right, north or south, was instructed to get out of the car to have his or her photo taken, what would New Zealand society think about that? Would our society think that was about addressing the notion of terrorism? In fact, I suppose one would think that if one was going to deal with terrorism, one would go to the source. One would know where it was, and one would go directly to the source. Yet in a possible scenario like this, other people are affected.

Sure, what we are talking about here is an amendment to the principal Act. But the Māori Party is alerting the Committee to the fact that yes, other Acts are part of this scenario, yet this amendment has come out of the primary Act that addresses terrorism. That is why I am trying to draw the whole thing together. We need to be careful in case, in fact, we do not actually nail the source of terrorism. All of us are concerned about nailing the source absolutely. We have to go there. We have to weed those people out, should there be a case. I would have thought that our intelligence would tell us exactly where to go.

But the downside of that is, what flows out of that? For example, in the community I talked about earlier, what would happen if there had already been a historical experience of the State moving in on that community? What would happen if that community had already had an experience, which had been talked about in history, whakapapa, waiata, and kōrero on marae, of the arrival of the State in that community? What would happen is that basically the development of terrorism would move on from one generation to the next. So what we would do, in fact, is to fill people with anger, frustration, and sadness in having to deal with the consequences of this sort of legislation. As I say, I want to make that really clear, because we can almost get into a them-and-us scenario, which was played out in the House today.

But we take these issues really seriously. Why? Because, in a sense, this particular bill and the amendments that are in it have arrived at Aotearoa. We know that because of the current actions—not that we need to talk about them too much, because it has been plastered over all the media that terrorism is in Aotearoa. So the Māori Party tells the Committee to think about those things. After a short space in time we will end this debate and it may all be forgotten. But in a sense, while we talk about terrorism, let us not forget the consequences if we do not quite get it right. Kia ora tātou.

DIANNE YATES (Labour) Link to this

I move, That the question be now put.