New document reveals what the government really wanted in the Terrorism Suppression Bill

15 May 2002

Auckland University law professor Jane Kelsey has secured the release of the original amendments to the Terrorism Bill (dated 25 October 2001) which the Government attempted to push through without public scrutiny late last year.

These differ significantly from the amendments that were released for public submissions after Green MP Keith Locke went public on the issue.

In recent years successive governments have extended the powers of New Zealand s security agencies in the name of national security and the national interest , supposedly to protect our democracy. These proposed amendments are probably the most anti-democratic attempt to do so, both in their substance and process. Presumably if Keith Locke had not blown the whistle, and risked contempt of Parliament in doing so, the Government would have proceeded and these amendments may well have become law , said Professor Kelsey.

The procedures proposed here were simply outrageous. A person or group within and outside New Zealand could have been designated as a terrorist or associated person solely on the say of the Director of the SIS. [1]

While the Minister of Foreign Affairs would formally make the designation, the Minister could have been blocked from knowing any of the reasons, or even taking notes on what he was told. The Minister was then prohibited from passing on that information, even to the Prime Minister.

These amendments would have given the unelected head of a security service that has an appalling record of errors and failure to operate within the law the power to strip people of both their property and liberty .

It was essentially a matter of trust me . There were no rights to judicial review. There was only a requirement for a secret review by the Inspector General of Security, an office whose own track record on such matters provides no reassurance whatsoever , Professor Kelsey observed.

The substantive offences which the document proposed were similar to those in the version which the Select Committee released. This includes the controversial definitions of terrorism that were only partially addressed by the Select Committee.

One major difference was the definition of a terrorist act . The 25 October version would have captured an even wider range of routine protest and union activities, giving the Director of the SIS power to define such people as terrorists.

Anyone who participated in, recruited members for or funded, directly or indirectly, groups that engaged in those activities could have been imprisoned for up to 14 years. Paradoxically, some of that wording has crept back into the Bill as reported back by the Select Committee.

To make matters worse, the Government wanted to smuggle these amendments through the select committee and by-pass proper public scrutiny by piggy backing on the existing Terrorism (Bombings and Financing) Bill.

Their only concession to consultation was to seek confidential submissions from a handful of handpicked groups. The Minister even initially refused to name who these groups would be. No one outside the Select Committee would have known what criticisms had been made or how much notice the committee had taken, Professor Kelsey said.

Four months after the Minister for Foreign Affairs Phil Goff was asked for the document under the Official Information Act, he is still prevaricating.

Securing this document has been a saga of obfuscation and obstruction by Phil Goff s office.[2] At one stage they even denied that another set of amendments existed. Clearly the Government didn t want it released, at least until the second and third readings of the Bill were over , said Professor Kelsey.

This blockage was circumvented by a ruling from the Clerk of the House that the document is no longer subject to parliamentary privilege. The Clerk then released the document to Professor Kelsey.

Some serious questions need to be answered: Why was the Minister so reluctant to have this document released? Why the urgency back in October 2001, given that the revised amendments have still not had their second and third readings by May 2002? Why were these amendments redrafted once the government knew they would become the subject of public submissions? Who was promoting them and what does that say about ministerial influence over the select committee process? Would National have supported them in the secret select committee deliberations? Or Act, New Zealand First or the Alliance?

Footnotes:

[1] The Director of the SIS could provide a security risk certificate to the Minister if the Director held classified security information that the Director believed was credible, given its source; relevant to the designation test; and would mean that the person or group satisfied the test. The decision of the Director equated with the decision of the Minister for the purposes of interim or full designations. The Minister could ask for an oral briefing on the contents of the certificate. The Director would determine the content of the briefing. The Minister was not allowed to take any record or divulge the contents of the briefing to anyone else, and could not be called to give evidence in court in relation to that briefing. The existence of a security risk certificate was conclusive evidence under the Act. The Director could at any time withdraw a security risk certificate and the Minister had to revoke an assessment that was based on it. The Inspector General was required to review the issuing of the certificate upon being notified. A person who became aware of their designation could ask the Minister to revoke the designation, and if the Minister refused the Inspector General of Security could also review it. But there was no general right of judicial review. The Minister could also revoke a designation at any time, even if a security risk certificate still existed; however, the Minister would still not know what information the Director of the SIS held. For the full text of the document see http://www.arena.org.nz

[2] The OIA request was initially lodged on 12 February. First, the Minister refused the documents, citing protection of the security of New Zealand international relations and constitutional conventions protecting confidentiality of advice tendered by officials or ministers. After the Bill was reported back, clarification of the reasons was sought. The Minister s office refused to revisit the request with any urgency. The Ombudsman was asked on 26 March to conduct an urgent review of the refusal.

The Ombudsman s office informed Professor Kelsey that the Minister said no such document existed and there was only ever one set of amendments. After being faxed an NZPA report quoting the Minister using legal language quite different from the published amendments, the Minister s office claimed to be confused about the document requested. The precise nature of the document was again spelt out, and confirmed in writing by the Ombudsman to the Minister. Another week passed. The Minister s official failed to return calls from the Ombudsman s office. Professor Kelsey called through the switchboard and was immediately connected with the elusive official. The Minister s office then conceded there might be another document. The select committee office had been asked to confirm this. Promises to secure an answer from the select committee before Professor Kelsey went overseas two days later again went unmet.

The Minister s office then informed the Ombudsman that such a document did exist. The Minister refused to release it, this time to maintain legal professional privilege advice and because its release would constitute a contempt of Parliament. The Ombudsman sought advice from the Clerk of the House who advised that the document was no longer privileged as the Bill had been reported back and that versions of drafted amendments for a select committee would be released as a matter of course , although it was unusual to have an intermediate draft of this kind.

The Minister was invited to reconsider his refusal to release the document. By now the Minister was overseas. A request that the acting minister (Jim Sutton) consider with matter with urgency fell on deaf ears. Professor Kelsey then telephoned the Clerk s office. He confirmed that that he would release the document if a request was made provided it was still held by the select committee office, or a Alt select committee member could provide the document. Keith Locke, who had first raised public concerns about the matter, was happy to oblige. As of 16 May 2002 the Minister has still to reply.

Jane Kelsey
Media Release © Jane Kelsey

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