Legal Beagle by Graeme Edgeler

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Not too late to make the Counter Terrorism Legislation Bill clearer

The Counter-Terrorism Legislation Bill was back from Select Committee last week, and got its second reading today.

My submission on the original bill is here. As I often am, I was more reticitent in pushing back that other submitters, largely focussed on asking the Justice Committee to assure itself the new law is needed. The specific questions I raised have been answered by officials, which is nice:

319. Graeme Edgeler (submission 71) asked four specific questions about the terrorist act definition amendments.

a. Question 1: Have there been occasions where the Government has looked at prosecuting something as terrorism, but decided against because of the current definition? The reason for the amendments is forward-looking to ensure that the definition can be relied on in future cases where it is appropriate to prosecute acts as terrorism (see the reasons given above for the proposed changes). There are no specific cases that have dictated the need for the suggested amendments.

b. Question 2: Has the Government not acted to declare a particular organisation a terrorist entity when it would have preferred to have done so, but formed a view that it fell beyond the current law? The answer to that question is no. However, for completeness, we note that the Terrorist Designations Working Group has considered whether some entities are eligible for designation and has determined that they are not under the current framework.

c. Question 3: Has the Government’s proposed change arisen not because some action was not taken in New Zealand, but because of problems identified in other jurisdictions with similar definitions to New Zealand’s current definition? Again, the answer to that question is no. The proposed definition changes are sought by law enforcement authorities in New Zealand to ensure that the definition cannot be circumvented solely by language that may lead to a prosecution failing due to outdated wording or as to uncertainty of the scope of the wording.

d. Question 4: Are the definition changes intended to bring within the current and new terrorism offences actions like those alleged to have occurred in Te Uruwera? As noted above, there are no prior cases that the definition changes are intended to address to allow particular cases to be prosecuted in the future that could not have been prosecuted in the past. In relation to this aspect of Mr Edgeler’s submission, given the facts of the case he refers to, it is difficult to see how any of the definition changes could have made any difference to the outcome of that case.

I still have concerns with the bill, and whether all of the changes it makes are necessary, but the Government has made a clear policy decision and will enact it.

There remains one matter of drafting that still concerns me, which was addressed by officials, but ultimately not changed. Officials appear to be of the opinion that my concern is unwarranted, but the reasons they give are not entirely convincing, so I will expand on my concerns here, in the hope that someone will read this, and reconsider. When making a written submission one always wonders exactly how much to explain, and because its possible I didn’t fully explain my concerns, I will take the opportunity to do so now, before the bill starts the committee of the whole stage.

It concerns the amendments to the law that the Government considers necessary to fill a “gap” in the law exposed by their failed prosecution of Ahamed Samsudeen for preparing to commit a terrorist act, something which is not currently criminal in New Zealand.

The definition of terrorist act in the Terrorism Suppression Act has multiple applications in the current law, most obviously, it forms the basis of the terrorist act offence, which, for example, the Christchurch terrorist was convicted of. It also affects the rules around financing of terrorist organisations, and the designation of terrorist organisations.

Section 25 of the Terrorism Suppression Act formed the basis of the failed attempt to prosecute S for terrorism. Section 25(1) provides:

Carrying out and facilitating terrorist acts

(1) For the purposes of this Act, a terrorist act is carried out if any 1 or more of the following occurs:

(a) planning or other preparations to carry out the act, whether it is actually carried out or not:

(b) a credible threat to carry out the act, whether it is actually carried out or not:

(c) an attempt to carry out the act:

(d) the carrying out of the act.

This seems expansive, but importantly for the prosecution of S, it appears under the heading:

Further provisions relating to interim and final designations

The Court held, as an exercise in statutory interpretation, that the section only dealt with things like designations (which have always been covered by the Terrorism Suppression Act), and not the criminal offence of committing a terrorist act, which was added later. The argument is compelling, I think, and the court judgment is available here for those interested.

The bill essentially replicates the section as a part of the criminal offence. Ministerial advisers don’t really see this as a change. They consider that the wider concept of carrying out a terrorist act has been in the Terrorism Suppression Act since its inception, and this this is not changing. This is true in part, but elides an important point. Previously, this expanded definition of “carrying out” did not form part of the terrorist act criminal offence, and only related to the designation of terrorist entities. The bill changes this.

It is easy to see why you might want to be able to designate a terrorist entity as such, before it had committed a terrorist act. There is a process around designation, and ways to challenge decisions by review and appeal. It does not automatically result in criminal liability, and any downstream liability is clear (eg don’t be a member of a designated terrorist entity, and don’t fund one), so even people who disagree with a designation are clear on their legal obligations.

My concern is the adoption of this language in a criminal offence around committing a terrorist act, in particular around the concept of “credible threat”. It seems entirely reasonable that the Government would want to be able to designate an entity as a terrorist entity if its actions have meant a credible threat to carry out a terrorist act has occurred.

I am a legal expert, not a terrorism expert, but from my understanding, things can be described as “credible threats” even when a threat has not actively been made. In advance of public holidays in the US in the years after the September 11 attacks, authorities would sometimes announce that there was a credible threat, and would eg increase airport security measures. They did not necessarily mean that a terrorist group had actually made a threat, instead the credible threat could arise from intercepted communications, or a tipoff, or even something like a group of sailors going missing off a cargo ship in port, or some combination of the above and more.

When an organisation gets to the level where they are considered a credible threat of terrorism, I can see that you might want to designate them as such, but this type of credible threat isn’t necessarily something they have done, but something that has arisen. This concept of credible threat does not easily transfer to the criminal offence of committing a terrorist act.

The other ways you can commit a terrorist act are all active, and are defined by verbs in the legislation:

  • Planning the terrorist act
  • Preparing to carry out the terrorist act
  • Attempting to carry out the terrorist act
  • Carrying out the terrorist act

    Given the penalties for committing a terrorist act, the law would be much clearer if the credible threat language was similarly active:

    • Making a credible threat to carry out a terrorist act

    A situation in which a credible threat exists should not, by itself, be criminalised. The making of a credible threat should, and other more general credible threats could still be illegal if the credible threat of terrorism had arisen because authorities learned of preparations to carry out the terrorist act.

    The Departmental advice on my submission records:

    326. The Law Society (submission 54) and Graeme Edgeler (submission 71) may have misunderstood that section 5A is existing law and does not create any new concept of carrying out a terrorist act. As outlined in the clause by clause analysis in the Bill “New section 5A relocates section 25 (which is about carrying out and facilitating terrorist acts and is repealed by clause 21). New section 5A(1) is identical in substance to section 25(1).”

    327. It is also not correct that section 5A(1)(b) expands the definition of terrorism to cover credible threats. The definition of “terrorist act” (which gives a wide meaning to “carried out”) has been in the TSA since 2002, when the legislation was first enacted.

    328. Officials agree that the drafting of clause 8 (amending section 6A) is slightly more complex than in the current Act. However, that is to make explicit that planning or other preparations is now a stand-alone offence and criminal liability for that conduct can only arise under section 6B and not section 6A. This means that the maximum penalty for planning or other preparations is 7 years’ imprisonment, and not the maximum of life imprisonment under section 6A for carrying out a terrorist act.

    329. Graeme Edgeler (submission 71) also suggested that the wording of, new section 5A(1)(b) should be amended to cover the ‘making of’ a credible threat. Officials do not consider this amendment necessary as the current wording is clear. The provision, as drafted, requires that a credible threat occurs. As a threat cannot occur without first being made, the wording change is unnecessary.

    The language used in the bill is identical in substance to that currently used in section 25(1), but it is not identical in effect, because it now operates directly on the criminal offence. There are reasons why the passive language in section 25(1)(b) of the current law might be appropriate for a section around designating terrorist groups. It is not appropriate when applied to the terrorist act offence. The Departmental advice that a threat is something that must be made is welcome, but there is no reason not to be clear in the legislation itself. Hopefully this can be fixed before the law is passed.

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