NURM submission

November 2001

Submission of the Northland Urban Rural Mission on the Terrorism Suppression Bill to the Foreign Affairs, Defence and Trade Select Committee.

1.     Introduction

Northland Urban Rural Mission (NURM) is a Community Development and Social Justice-oriented Community and Inter-Church collective working in the Community Sector. NURM has nearly two decades of experience in Te Tai Tokerau. One of NURM's major concerns in both our Maori and Pakeha caucuses - is to see Te Tiriti o Waitangi implemented in a realistic way here in the North and throughout the country.

NURM acknowledges that the Government and the Select Committee have responded to public concern by opening the altered Bill for public submissions. That said, we are still concerned by the brief submission period allowed. We also note that the majority of submissions to the SIS Amendment Bill in 1986 opposed extending the powers of the state security agencies but those submissions were largely ignored; we are hopeful that the Select Committee and Government are being truly consultative in this instance.

One specific concern: the very limited provisions for any information at all to be provided to a designated 'terrorist', for example, is inconsistently allowed in one judicial context but not in others (section 17 X). Are we right in perceiving deliberate weaknesses left in the Bill in order to give the impression of 'movement' later when corrected?

By way of summary:

• NURM sees it as essential to assess this Bill in the context of current world geopolitics and economics, and the language used to frame those events.
• NURM sees the Bill as an avenue for the drastic curtailment of civil rights, particularly the right to dissent and habeas corpus, essential to any hope of democracy.
• Such limitations of rights are seen as not proven to be necessary
• as based on underlying reasoning and information that are not themselves transparent · as being so broadly defined as to give too much discretionary power to the Prime Minister
• as lacking effective checks or protections.
• The Bill is characterised by a lack of trust in our existing systems of freedom and justice, like the Crimes Act (ironically, given the supposed purpose of defending freedom and justice). Though given as a reason for this Bill, UN Security Council Resolution 1373 [cf Clause 2(e)] does not automatically justify new legislation of the type envisaged here. Is there a hint here of other underlying agendas not clearly identified in the rationale for this Bill?
• There is a history of consistent Maori resistance to the usurpation of Te Tiriti o Waitangi, and to the constant assumption of extra powers by the colonial ('mainstream') Government over and against guaranteed Tangata Whenua rights. Such resistance by Maori and others is likely to be the target of this Bill's provisions in this day.
• For these and other reasons, NURM seeks the Select Committee's recommendation that this Bill cited as a precursor of other legislation - be withdrawn in its entirety.

2.     The Context within which the Bill is being introduced

We have to consider the context for this legislation for a number of reasons, including that it is proposed by the NZ Government to be necessary under the UN Security Council Resolution that responded to the attacks on America.

The Minister of Foreign Affairs and Trade asserts that with this legislation New Zealand is 'falling into line' with USA, Britain, Canada and Australia (although it seems that the oppressive legislation the UK Labour Government tried to pass this year has faltered). More broadly, it appears to us that with this legislation New Zealand is 'falling into line' with USA-driven policies and geopolitical and economic interests, in the flush of post-September 11 support for that country and its 'two worlds' rhetoric of "you are either for us or against us."

New Zealand has been at our best when we have not had our policies dictated by foreign governments, as was the case when Government passed the anti-nuclear legislation of the 1980s. Now, in the rush to support USA, we may have forgotten that that country is the only one to be condemned by the World Court for international terrorism (1986), has subsequently vetoed a UN Security Council resolution calling on governments to observe international law, and has been the major block to the establishment of an International Criminal Court as the appropriate body under international law to deal with terrorism. Indeed, the definition of terrorist acts in this proposed legislation, which seems to describe the events of September 11 rather than other types of terrorism, could still be seen as defining USA behaviour in Afghanistan and elsewhere as 'terrorist'. All this should make us cautious of automatically 'falling into line' with USA.

Similarly, we should be cautious of adopting post-September 11th language uncritically. The language of 'terrorism' has taken on a life of its own since that date. We have to ask what 'terrorism' means in practice, when our political leaders who will have almost unchecked powers to designate 'terrorists' under this legislation appear to accept a US analysis of terrorism and its idiosyncratic naming (and omitting to name) of 'terrorists'. President Bush's 'War Against Terrorism' that according to Mr Cheney "may not end in our lifetimes" and "may target 40 or 50 countries" can be argued to be in fact a war against the enemies of American geopolitical and economic interests. [That USA has had its eye on oil in that region for years; has exchanged or offered money, even to the Taleban in June this year, for it; has foreseen an attack on Afghanistan months before September 11 all is no secret.]

We would have to ask why the term 'terrorism' in this Bill describes broader activities than those encompassed by our normal understanding of that word. Does it refer to activities of those who have resources that our allies would require? What is the unstated rationale behind this Bill? Whose needs are being served here? [Already New Zealand is engaged in intelligence activities like Echelon that serve the needs of other countries, specifically USA, over and against our own needs (even pro-USA ex-spy Mike Frost, who would support the proposed NZ legislation, admitted this)]

Our purpose here is not to engage in a full debate about world economics and politics, but to raise a flag of caution. Blurred rhetoric is already a significant dimension of the context for this legislation. But simplistic analysis and blurred rhetoric ("we're chasing terrorists") are simply inadequate to justify this legislation.

3.     Defining Terrorist Acts and Their Facilitation

One person's terrorist is another's freedom fighter. What is the difference, we may well ask? Basically it is ideology, and who has the power to see their ideology is adhered to.

New Zealand has a history of ideological or political partisanship underpinning accusations of 'treason' and 'rebellion', where such words are almost interchangeable with the way 'terrorism' is being defined in the current Bill. One Maori activist in the mid-90s, upon describing the level of Maori frustration at Government policy at the time, was accused by senior politicians of treason. During the 1981 Springbok Tour protests, Rob Muldoon had his 'List of Twelve' who he was accusing of treason. 100 years ago Rua Kenana, the Tuhoe prophet called the Mihaia, was arrested (with two of his followers killed) and convicted by the Government, ostensibly for setting up a bank, but as the judge pointed out in convicting him it was really for challenging thereby the sovereignty of the colonial government and the British Empire that is, for 'treason'. Hapu and Iwi were attacked by military and land-greedy settlers in the third quarter of the 19th century and had their lands confiscated for defending their lands, and were labeled as 'rebels' for doing so. The 1799 Suppression of Rebellion Act, used by the Empire against the Irish, was re-enacted here in 1863, and removed the right of trial. The Maori Prisoners' Trials Act (1879), the Maori Prisoners Act (1880), the West Coast Preservation Act (1881), all removed the right of habeas corpus and were used viciously against those who disagreed with the Government of the time.

That ugly history of defining those who often rightly disagreed with the Government's ideology as 'rebels' or 'treasonous' and then suspending their rights is alive now in the loose definition of 'terrorism' being included in this Bill.

On the grounds that the UN Security Council Resolution 1373 did not define 'terrorist acts', this Bill undertakes to do so itself. Its vague definition includes acts that are a serious risk to health, cause damage to property or environment, or cause serious disruption to infrastructure or to the economy of any country.

The economic references in the 1996 SIS Amendment Act, and such criteria even before that Act was passed, have already been used to support surveillance of anti-globalisation activists in this country and overseas. The use of the broad definition in this Bill could well be used against 'dissenters' opposing the dominant free-market ideology of Government in this country, or non-striking picketers or GE activists who could be said to disrupt the economy. This goes well against how the term 'terrorist' is commonly understood, and reflects the current rhetoric and context referred to above.

On the other hand, one cannot imagine the definitions in this current Bill being used to designate as 'terrorists' particular politicians of the '80s and '90s who sold off the country's infrastructure for eventual downgrading. As for those New Zealanders or foreigners who support the US in Afghanistan bombing civilian areas or laying cluster bombs and food rations in identical packages; or those who support the Israeli Government's occupation of Palestine, their well-documented destruction of the Palestinian infrastructure, and the systematic oppression of the population (with their illegal 'political assassinations' and apparently setting booby traps that kill children), despite the UN condemnations of this occupation and its effects none of us can imagine such people being charged with facilitating terrorism under this Bill. Let us be clear: those supporters will not be charged - not because those acts do not fit the definition of terrorist acts in this Bill (they could well fit the definitions!) - but because of the ideology of those who the Bill authorises to make such decisions.

The broad definition of 'terrorist acts', coupled with the largely unchecked powers the Bill grants to the Prime Minister who has only to have 'good cause to suspect' and no guidelines beyond the vague definition to follow, means to NURM that the Bill's application will be subject to the political ideology espoused by the Prime Minister of the time. And that, by definition, is bad law.

As indicated above, there are specific issues around being associated with 'entities' committing terrorist acts that are even more problematic. Supporting a group that may some time in the future be designated as terrorist, on grounds that you are not likely now or ever to be privy to, is an offence able to draw penalties of up to fourteen years in prison.

One specific issue to which we would like to draw to the Select Committee's attention is the threat to solidarity movements in this country who stand alongside freedom movements elsewhere, whether those movements use violence or not. Had this Bill been enacted earlier, New Zealanders supporting an East Timorese resistance movement over the 25 years of that country's occupation by the brutal Government of Indonesia could have been accused of facilitating 'terrorism' (when arguably successive NZ Governments should themselves have been so designated for their support for Indonesia, were this Bill enacted then). Supporters of West Papuan and Acehnese resistance to the brutality of the Indonesian military could face the same charge in the future, especially as the Aceh Independence Movement GAM is one of the groups listed as terrorist by the Bush administration, presumably because it is an Islamic group involved in anti-State action it would seem that the USA list that includes the GAM has already been taken on board by the NZ Government. Other liberation movements, on the other hand for example one trying to overthrow the Taleban would presumably be acceptable to the NZ Government, again a question of ideology. "One person's terrorist is another's freedom fighter" indeed.

4.     Classified Security Information and Appeals

The reliance on secret information, often from foreign agencies, is a major concern for NURM. The process of handing over dimensions of NZ sovereignty to foreign Governments' intelligence agencies already in place is intensified in this Bill, where subtle political analyses are being made overseas under other Governments' classifications and political interests, and further disclosure of this information is to be left to those Governments to decide. It is safe to say secure information incriminating Israeli terrorism or that of dictators under USA protection would not be provided, and that information against Saddam Hussein (now) would. The Section 17 K obligation to accept UN-provided (that is to say, USA- or UK-sourced) evidence as true unless it can be proved to the contrary is a major concern. Who could undertake to prove it untrue?

The concept of 'classified security information' is also a block to due process, in that designated 'terrorists' have no right of access to that information in order to disprove it or argue against the consequent designation, or in order to act on any realistic right of appeal. It is in effect another NZ suspension of habeas corpus there is to be no judicial review of secure information (Section 17 O). The minimal protections included in the Bill do not give us any confidence that the imbalances will be redressed in practice. The phrase 'classified security information' gives far too much discretion for intelligence agencies and political leaders.

That there is no right to defend oneself against a designation as 'terrorist', nor any right of access to the information upon which the designation or later confirmation is based, makes self-defence or later appeals meaningless. As well, the declared right of appeal to one person does not augur well, given the record of the Inspector-General in a recent case. That person's decision can be appealed in the Appeal Court, but only on a point of law, not of fact. And those facts are not accessible to the appellant.

This increase of powers to the state agencies on which the Prime Minister would rely for information - given their traditional disrespect for legitimate political dissent, the 'public good' and 'peaceful protest' and the lack of effective redress, does not provide any effective balance to the increased power of discretion given to the Prime Minister. The combination is a dangerous recipe.

5.     Legislation not needed

The acts identified as 'terrorist' in this country are sufficiently dealt well with elsewhere. It seems to NURM that the UN Security Council requirement in Resolution 1373 2 (e), that "such terrorist acts [undefined by the Security Council] are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts," has already been covered in this country; it does not automatically require legislation like this Bill. The acts of real terrorists are already illegal in NZ, under the Crimes Act; that this Bill does not need to prescribe any additional penalties for terrorism implies this. In addition, we would have to deduce that no effect on global or domestic terrorism will come from this legislation, whether seen as a deterrent or a punishment. We would have to assume then that that is not the real intention of this Bill, and question its real purpose. Is it more to do with restricting cooperation between the victims and opponents of global capital, and with restricting their freedom? Whether it is or not, NURM seeks the withdrawal of this legislation.

We would like to sound one additional quite specific note of warning, in relation to Section 17 J(2), which we understand to be a not-too-transparent invitation to allow lawyers to hand on privileged information without fear of penalty. The rights of designated and other persons are already seriously compromised in this Bill. The Bill is already overly influenced by USA political dynamics; this cynical attempt, echoing once again extremist suppressive moves in USA, appears to pander unnecessarily and in a rather sinister manner to foreign interests. There is no way that such a provision would be allowed through a New Zealand Parliament. But is it in this Bill to allow the Government to be able to say to both a domestic audience and a foreign one, "Well, we tried, and did only what was possible"?

To repeat our main request: NURM seeks the withdrawal of the Bill as a whole. And we ask to be able to address the Select Committee, preferably in Auckland.

Tim Howard for the Northland Urban Rural Mission PO Box 5098, Regent, Whangarei Tel 09 437 6474

Link to Submissions on Terrorism Bill index page

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