Legal Beagle by Graeme Edgeler

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Submission on the counter-terrorism legislation bill (updated)

I have amended my submission (thank you to linger for the typo spotting). It still isn't as full as I'd like (I don't really address the new terrorist training offences), but hopefully my submission on the Counter-Terrorism Lgislation Bill will still be useful. Hopefully others (perhaps the Free Speech Union?) will have had the time to address the general principles around control orders in particular.

I am particularly concerned that some of the changes haven't been publicly justified by the government, leaving me to wonder that the law change might be aimed at using terrorism laws against people in the future like those arrested during operation 8. Maybe that would be justified - the government hasn't been that open about what it actually thinks occured there, but if that is the aim, I really think they ought to say so.

My submission, now updated, follows for anyone interested

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The Justice Committee

Counter-Terrorism Legislation Bill

Submission of Graeme Edgeler

Introduction

1. My name is Graeme Edgeler. I am a Wellington barrister with an interest in constitutional law.

2. I thank the committee for the opportunity to make a written submission on the Counter-Terrorism Legislation Bill and look forward to appearing in person to supplement it.

3. I regret that other commitments have limited the amount of time I have had to devote to assessing this bill, but I hope my short comments will nonetheless be useful to the Committee.

Summary of Submissions

4. My principal submission is that the Committee should be careful before recommending that some aspects of the bill proceed. That is, of course, a given, but I do not think that a public case has been made for some of the changes the bill would make to New Zealand’s terrorism laws.

5. The explanations that have been provided by the Government for changes to the terrorism offence in particular, are unconvincing. I invite the committee to seek a briefing, in private if necessary, of the problems that have been encountered that make the changes necessary and desirable, because the explanations given do not stack up with publicly available evidence.

Clause 6: Amended Definition of Terrorist Act

6. Clause 6 would amend section 5 of the Terrorism Suppression Act. The bill’s explanatory note states this amendment is to “update the definition of terrorist act to improve clarity.”

7. The bill does not do this. The current definition of terrorist act is entirely clear. It is certainly drafted narrowly, but that was the intention of the original legislation and has been carried through subsequent amendments.

8. The definition of terrorist act would change in several ways, including:

  • The requirement that terrorism be intended to induce terror in a civilian population is reduced to a requirement that fear is induced in a population.
  • The alternative that the act intend to “unduly compel” a government to take action has been replaced with the requirement that an act of terror seek to “coerce” government action.
  • Providing that actions that cause major damage to the national economy are covered, even if they fall short of devastating it.

9. These may be desirable changes, but section 5 as amended would be no clearer than the current law, which does not need clarification. Whether it needs widening is the question the Committee actually has before it. The proposed definition is relatively complex, but the amendment is equally as complex. The question then is: which is better?

10. The bill proposes not clarifying the definition of terrorism, but changing it, by widening it to include actions that fall short of the most serious actions that are covered by the current definition. This definition flows into all aspects of the legislation, making it easier to designate an organisation as a terrorist organisation, making it possible to prosecute people under counter-terrorism laws for actions that may previously have been illegal, but were not previously terrorism, and by widening what would otherwise be the scope of new offences.

11. There may be a case for this. If so, it is one that the Government has not made publicly.

12. I invite the Committee to seek a briefing on the reasons this change has been proposed. It is not, for example, a change that is required by new Security Council resolutions:

  • Have there been occasions where the Government has looked at prosecuting something as terrorism, but decided against because of the current definition?
  • 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?
  • 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?

13. I simply do not know. I submit that you should find out.

14. In the aftermath of the then Solicitor-General’s decision to decline permission to prosecute the those arrested during Operation 8 under terrorism laws, he described the application of the Terrorism Suppression Act to New Zealand as “incoherent and unworkable”. That also describes the current draft of the bill.

15. The issue in that case was different (around what counted as membership, not what counted as terrorism), but if this law change is designed with that offending in mind, and is intended to bring within the current and new terrorism offences actions like those alleged to have occurred in Te Uruwera, then the Government should say so. If not, and it is not intended to cover such conduct, explanations of why that is would also be welcome.

16. I lack sufficient information to know whether this amendment is necessary, or what it hopes to achieve that is not covered by our current definition of terrorism. I invite the Committee to enquire.

Clause 7: New definition of carrying out and facilitating terrorist acts, expansion of terrorist act offence

17. The major change this bill would make to terrorism laws is expanding the terrorist act offence. If amended it would cover committing terrorist acts as now, but also expand more explicitly to attempts (which are currently illegal through general principles of criminal law), and even to encompass preparatory fall short of the offence of attempting to commit a terrorist act.

18. There are two important matters to consider here: (1) whether it is appropriate to criminalise preparation for terrorism where that preparation falls short of an attempt; and (2) the appropriate legislative language to use to achieve any desired change.

Attempted Terrorism and Preparatory Acts

19. Attempted terrorism is already illegal. It covers situations where a person does some (or omits to do something) for the purpose of committing a terrorist act. It covers all manner of things, including for example, obtaining weapons. Of course, even in circumstances where preparatory actions fall short of constituting an attempt to commit a particular act, those preparations may still be criminal under other laws, including conspiracy laws, or depending on what is done, weapons charges, etc.

20. In general, merely preparatory acts are too remote to constitute an attempt under criminal laws, so a person walking around a city to consider possible targets would probably not be covered, while a stake out of a specific target to gain intelligence may be illegal as an attempt.

21. I can appreciate the rationale behind expanding the scope of counter-terrorism laws to more remote preparation, but caution the committee that it should be careful before supporting the expansion of the criminal law into this new area. Even with very serious offences such as murder we do not criminalise merely preparatory actions that are not of themselves illegal.

22. Whether it is appropriate to do so in this context is a question the committee will need to ask itself, but I am again left wondering whether the intention of this law is to make more seriously criminal the actions of people like those arrested in Te Uruwera.

Drafting of the new offence provisions

23. With respect, the amendments make a mess of a relatively simple aspect of the current law.

24. New section 5A creates a new definition of carrying out a terrorist act, that defines itself as existing, by including situations where it expressly says it doesn’t. This should be avoided.

25. I can appreciate the intention behind the changes but suggest a complete redraft. In addition to the current offence of engaging in a terrorist act, which the bill proposes changing to carrying out, there are also new offences around planning or preparing to engage in a terrorist act, and credible threats.

26. The complicated language and drafting appears to arise from a desire to include all terrorist act related offending within a concept of carrying out a terrorist act, even where there was in fact no carrying out. This makes the definitions incoherent, and the offences difficult to follow. Section 6 should retain a definition of terrorist act, but the criminal offences should be created as separate offence, each having its own section:

  • Section 6A should cover actually carrying out a terrorist act.
  • Section 6B should cover attempting to carry out a terrorist act.
  • Section 6C should cover making a credible threat.
  • Section 6D should cover planning and preparing for a terrorist act, where those actions fall short of an attempt.

27. Appropriate penalties, reflecting the relative seriousness of each, should be applied.

28. A distinct concern arises with respect to proposed new section 5A(1)(b), which expands the definition of terrorism to cover credible threats. In the terrorism context, the concept of credible threats encompasses more than the making of threats and can include circumstances where Police etc. are concerned that terrorism may occur.

29. Given the drafting of 5A(1)(b), it appears it might cover situations where a credible threat is said to exist, rather than one where a credible threat is made.

30. Paragraphs (a), (c), and (d) all contain verbs. They criminalise, respectively: the planning, attempting, and carrying out of terrorist acts. Paragraph (b) does not contain a verb, and it could criminalise a state where a credible threat occurs, rather than where a credible threat has been made.

31. Criminal offences should revolve around actions people have taken, or omitted, not situations that exist. Whatever else happens with these sections, at the very least what is currently new s 5A(1)(b) should include be amended so it covers the making of a credible threat.

32. The offence provision (section 6A) also appears confused by what is intended to be covered, as its hierarchy of sentences is at odds with that which applies under ordinary New Zealand law. For general offences under New Zealand criminal law, the New Zealand approach is generally:

  • Least serious is preparing to do something, which is not generally criminal.
  • More serious is threatening to do something or conspiring to do something.
  • More serious still is attempting to do something.
  • Most serious is actually doing something.

33. The proposed amendment to section 8(2) provides for a life sentence for carrying out a terrorist act by a credible threat, while providing a maximum sentence of 10 years for attempted terrorism. I have no strong opinion on what maximum penalties should be provided, but a threat should not carry a greater penalty than an attempt.

Confusing language also present in new section 6B

34. New section 6B contains the same confusing definition, defining something as being carried out whether or not it is carried out and should be reworded as well.

Amendments to Control Orders Regime

35. I remain concerned about the control orders regime in general, but recognise that this bill will not be used to drastically curtail them. I encourage careful consideration of restrictions they impose, particularly on an interim basis, but have one matter of policy I consider is within the scope of the changes this bill would make.

36. New section 16A provides for an interim control order regime in respect of New Zealand prisoners. Subsection (2) of this section provides that the Commissioner of Police may make an application to the Court, without notice, if the Commissioner believes on reasonable grounds that a without notice application is appropriate in the circumstances.

37. This much is justified. The Commissioner should be able to apply without notice.

38. However the Court should not be bound by the Commissioner’s view, which the Bill would require. As drafted, the bill would preclude the Court from forming its own view on whether the application should be determined on notice or without notice.

39. This is inappropriate. Requiring that a Court adopt a particular process because an applicant has formed a particular view is contrary to judicial independence. After hearing from the Commissioner, and their reasons for seeking a without notice order, the Court should be able to form its own view over whether it should continue to hear the application without notice to the offender. New section 16A(2) should be amended accordingly.

40. It would be appropriate to amend section 15 (2) in a similar manner. This should be removed from both the bill, and the current legislation.

Conclusion

41. I thank the committee for the opportunity of presenting a submission on the Counter-Terrorism Legislation Bill. I urge the committee to consider the bill carefully, in particular the amendments to the definition of terrorist act.

42. If the intention of the bill is to more explicitly criminalise actions like those that were investigated as part of Operation 8, you and the government should say so. If that is not the intention of this legislation care should be taken to redraft it that that intention is clear.

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