OASIS: Submissions on the Counter-Terrorism Legislation Bill

Friday 25 June is the last day to make submissions on the Counter-Terrorism Legislation Bill.

The Bill is the government’s response to Recommendation 18 of the Royal Commission Terrorist Attack on Christchurch Mosques to “…Review all legislation related to the counter-terrorism effort…to ensure it is current and enables Public sector agencies to operate effectively, prioritising consideration of the creation of precursor terrorism offences in the Terrorism Suppression Act…”

To do this, the Bill amends three current Acts: the Terrorism Suppression Act 2002 (TSA), the Search and Surveillance Act 2012, and the Terrorism Suppression (Control Orders) Act 2019, and it:

A. widens the definition of terrorism

B. introduces three new offences -

• planning or preparing to carry out a terrorist act,

• providing or receiving combat and weapons training for terrorist purposes,

• international travel to or from or via NZ with intention for terrorist acts.

C. widens the offence of financing terrorism to include providing material support

D. extends Control Orders.

All three Acts the Bill is amending are controversial. The TSA 2002 was criticised by many as a rushed through knee-jerk reaction to 9/11, eroding fundamental rights and freedoms. The Search and Surveillance Act removed the right to silence and the privilege against self-incrimination whilst also dramatically expanding search and surveillance powers. The Control Orders Act allowed secret courts and punishment and state intrusion into people’s lives. The Privacy Commissioner said Control Orders were “an affront to the principles of due process and the principles on which our criminal justice system are based.”

When these Acts were first proposed, people fought back against them and said that once they became law, they would be expanded – this Bill is a classic case of that happening. But by expanding controversial laws, giving police and state agencies more powers and widening the definition of terrorism, we will not be making this country safer.

Kris Faafoi was asked when introducing the Bill, "…could any of these changes have prevented the attack?" His answer was: "In terms of legislation, I don't think they would have been able to prevent the attack...what they do give authorities now is more tools so that they are able to monitor and see preparations or attempts... they have more tools available for them to take action...".

Giving the authorities more tools won’t help. They wouldn’t have been able to prevent the attack in Christchurch because of the inherent racist bias that exists within the police, intelligence agencies and the state – and this Bill does not address that underlying issue. As Anjum Rahman saysin a Spinoff article: “… Unfortunately, the way legislation is applied is in a context of discrimination and marginalisation.” She goes onto point out that the UN’s list of terrorist entities which forms part of the TSA and is amended in Clause 5 of the Bill, “..does not include a single white supremacist, white nationalist, alt-right or neo-Nazi organisation.”

Clause 5 of the Bill expands on the UN list by designating 20 more entities as ‘terrorists’ on the TSA list. Of these 20, there is one which is white-supremacist – the Christchurch terrorist, but it’s only one individual rather than any groups. The exclusion of the networks of white nationalist groups supporting and promoting people like the Christchurch killer can actually support the fairy tale of the ‘lone wolf’ terrorist. It allows what they do to be seen as one off attacks by just crazy isolated individuals. It allows the bias to continue in our so-called intelligence and state agencies.

By individualising terror acts, it also makes it easier for the state to play on the fear factor and expand surveillance power.

The Bill is also proposing a broadening of the definition of terrorism. Instead of saying that the intention must be to either induce ‘terror in a civilian population’ or ‘to unduly compel’ a government or organisation to carry out (or abstain from) an action, now the intention must be to either induce ‘fear in a population’ or ‘to coerce’ the government.

Fear is less of a threshold than terror, as is the difference between ‘unduly compel’ and ‘coerce’.

The Bill also introduces three new offences:

· planning or preparing to carry out a terrorist act,

· providing or receiving combat and weapons training for terrorist purposes, and

· international travel to or from or via NZ with intention for terrorist acts

However, laws already exist to make it illegal to plan or prepare to carry out a terrorist act. As to ‘training for terrorist purposes’ the TSA 2002 already states that it is an offence “to enhance the ability of any entity…to carry out, or to participate in the carrying out of, 1 or more terrorist acts” (Section 13, 2. TSA Act 2002). Further, one of the proposed changes in this Bill widens the offence of financing terrorism to include providing material support, and the definition of ‘material support’ explicitly includes ‘training’, that is material support is: “…advice, or other services, derived from acquired skills or knowledge (for example, agency, brokerage, translation, driving or pilotage, or training to impart skills)” (See Clause 10 of the Bill and material support in Section 4 Interpretation).

‘Training’ could also too easily expand surveillance of certain communities. It will be all too easy for the NZ Intelligence agencies and police with their institutional bias to perceive some training as illegal under this proposed Act when it is in fact just communities organising to empower and protect themselves.

As to weapons, it is already an offence to have certain weapons in this country, and licensed gun holders can only legally have a gun if the gun is being used for “lawful, proper and sufficient purpose”.

The other new offence is against international travel to or from or via NZ with the intention to carry out a terrorist offence. There is a long history of people travelling the world to support others in their fights – it is dependent on ones perspective if those fights involve either terrorist entities and acts. For example, under this new offence it would have been illegal to go to South Africa and assist in the fight against apartheid. More modern equivalents would be travelling to Turkey to support the PKK and could also include travelling to Indonesia to support the West Papua people (Indonesia has designated members of the Free West Papua Movements as terrorists).

The Bill also widens the offence of financing terrorism to include providing material support. Again, this section of the Bill is extremely problematic as it is based on the assumption that there is no bias in the labelling of terrorist acts and entities. It is so true that one person’s terrorist is another’s freedom fighter.

Further, it’s not necessary for the prosecution to prove that any support was used for any terrorist act and the support given may only be ‘reckless’ rather than intentional support.

Finally, the Bill expands Control Orders. People convicted and imprisoned under any of the three proposed new offences (and also of an offence under certain sections of the Films, Videos, and Publications Classification Act 1993 that ‘involves a publication that is objectionable…and promotes or encourages acts of terrorism’) can be subjected to a Control Order. Control Orders consist of secret evidence in which a judge rules on the basis of information supplied by the state. Neither the defendant nor their lawyer have a right to be at the court. However, after the Control Order is made a court-appointed ‘special advocate’, who must have security clearance to view the evidence, can appeal the Order on behalf of the defendant – but again, the defendant cannot see the evidence. Nor are they allowed to speak about the Control Order, if they do speak out then it becomes a criminal case.

There is a lot wrong with this Bill.

It is another expansion and legalisation of powers to criminalise and control certain people and parts of society. Nothing will change and the people that will feel the brunt of this Bill will still be those from over-policed, over-surveilled, over-criminalised communities.