Submission by the New Zealand Council of Trade Unions – Te Kauae Kaimahi on the Terrorism Suppression Amendment Bill 2007

SUBMISSION

by the

New Zealand Council of Trade Unions –

Te Kauae Kaimahi

on the

Terrorism Suppression Amendment

Bill 2007

1. Introduction
   1. The NZCTU is the internationally recognised trade union body in New Zealand. The CTU represents 39 affiliated unions with a membership of over 350,000 workers.
   2. The NZCTU is opposed to the Terrorism Suppression Amendment Bill 2007.
   3. In particular, the CTU has 4 concerns with this Bill:
      • There is no need to make committing a terrorist act a crime in its own right.
      • Removing of the High Court’s role in the extension of designations by the Prime Minister compromises the natural checks and balances in the New Zealand political system.
      • Removing protection for advocating democratic government or human rights in terms of financing and making property available is counter-productive and undermines legitimate political activity.
      • The broadening of the definition of participation to negate the need for intent is unusually punitive.
   4. The NZCTU was opposed to the Terrorism Suppression Bill in 2001, the Terrorism Suppression Amendment Bill in 2003 and the Terrorism Suppression Amendment Bill in 2005.
   5. The NZCTU continues to believe that these laws, in the name of fighting terrorism, have eroded fundamental human rights and civil liberties. The NZCTU also continues to believe that vigorous democratic societies are the best way to counter terrorist threats and that the struggle against terrorism is one part of a larger struggle for global social justice.
   6. Following from this, the NZCTU is opposed to this Bill because it tries to further place issues of terrorism and its definition beyond the scope of New Zealand’s sovereign decision-making and/or outside the normal checks and balances of the New Zealand constitutional system.
   7. This bill extends a crude and increasingly wholesale definition of terrorist entities and their supporters. It ignores the politicised reality of the term “terrorism” and the blurred lines, within organisations and over time, between legitimate activities of protest and resistance and illegitimate acts of violence.
   8. This is not to say that illegitimate acts of violence do not occur, just that this categorisation does not help to counter them. As Labour MP Jill Pettis noted during the first reading of the Bill, “yesterday’s terrorists are sometimes today’s heroes… what constitutes terrorism is different for different people, and events that occur can be viewed as terrorist activity in some people’s minds but not in the minds of others.” (Hansards, Thursday 29 March 2007)
2. Creating the Specific Offence of a Terrorist Act
   1. The NZCTU is not convinced that there is any need to specifically define a terrorist act as an offence above and beyond any offences that already exist under New Zealand law.
   2. As the NZCTU’s submission in 2001 on the original Terrorism Suppression Bill noted, the definition of terrorism is not as clear cut as advocates of greater powers to “combat” terrorism would like.
   3. In that submission, the NZCTU pointed out that there have been numerous legitimate protests, demonstrations, acts of civil disobedience and direct action in New Zealand – as well as internationally-applauded resistance and liberation movements overseas – that could fall within the definition of a terrorist act under New Zealand law.
   4. As examples the NZCTU cited:
      • The New Zealand Waterside Workers Union demonstrations in 2000/2001.
      • The Maritime Union of Australia demonstrations against Patrick’s Stevedoring in Australia in 1998.
      • The 1981 Springbok demonstrations.
      • The mass demonstrations which preceded the collapse of Eastern Europe.
      • The mass “anti-globalisation” demonstrations which accompany World Trade Organisation meetings, G5 and APEC meetings throughout the world.
      • The CTU transport boycott against Fiji in 2000.
      • Attempting to cut down the tree on One Tree Hill.
      • Damaging the America’s Cup.
      • The anti-apartheid movement in South Africa.
      • The independence movement in East Timor.
   5. That the state has the power to suppress such activity already still concerns the NZCTU. Allowing such legitimate activity to be criminalised – and incur a maximum penalty of life imprisonment – raises further questions about the protection of fundamental rights in New Zealand.
   6. While the Law Commission specifically excluded implications in relation to terrorism from its recent consideration of sedition, there are clear parallels that could be drawn with this Bill. In their recently tabled report, the Law Commission noted, “seditious offences… are overly broad and uncertain. They infringe on the principle of freedom of expression, and have the potential for abuse – a potential which has been realised in some periods of our history, when these offences have been used to stifle or punish political speech.” (New Zealand Law Commission, “Reforming the Law of Sedition: Consultation Document”, October 2006; p8) The Commission’s findings – that undue breadth, threat to political freedom, disuse and other more appropriate laws mean sedition should be removed from the statute books – equally apply to this Bill. Is the definition of a “terrorist act” a 21st Century’s version of sedition – destined to become an equally outmoded and abused in the near future?
   7. Already, the Terrorism Suppression Act 2002 gives the executive arm of government sweeping powers, most of which operate outside the scope of parliamentary or judicial review. That those powers could be attached to a sweepingly-broad, politically-defined “crime” is all the more disturbing.
   8. Beyond any activity that is already legally defined as a crime and that may occur concurrently with a legitimate protest or action, advancing an ideological or political cause with the intention of forcing a government or an international organisation to do or abstain from any act, which may cause serious damage to property or interfere with an infrastructure facility (to use the language of the act), is not – and should not be – a crime.
3. Reviewing the Designation of a Terrorist Entity
   1. The CTU believes the current law requiring the High Court to review terrorist designations made by the Prime Minster after 3 years is an appropriate check on a significant power. Equally, changing this to allow self review by the Prime Minister is insufficiently robust.
   2. The NZCTU’s submission on the Terrorism Suppression Bill in 2001 noted that: “To empower the Prime Minister of the day to exercise a discretion as to whether or not to designate as “terrorist” a person or organisation or group (and the potential criminalisation of large numbers of people) is an extraordinary move which requires rigorous justification. To the extent that it is proceeded with, such a power must be as minimalist as possible to achieve legitimate objectives, and must be consistent with the maintenance of a free and democratic society governed by the rule of law. It is not a step to be taken lightly and certainly is not a decision that can be rushed.” (New Zealand Council of Trade Unions, “Submission of the NZCTU on the Terrorism Suppression Bill”, December 2001; p 11)
   3. As advocates of stronger anti-terrorism measures in New Zealand have noted, the Prime Minister has not yet used the power to designate a terrorist entity. Given the power is so little-used, there is no evidence or justification for such a reduction in necessary process.
   4. As Green MP Keith Locke noted during the first reading of this bill, “We see an almost universal revulsion at the treatment by the United States of prisoners at Guantanamo Bay, where due process has been very limited. A common concern of the critics has been that the executive branch of Government has been given excessive power to determine whether people or groups are terrorists, with little judicial constraint or due process.” (Hansards, Thursday 29 March 2007)
   5. Requirement for the High Court to consider such extensions is a sensible step in the process. It is recognition of the constitutional importance of the separation of powers in our system of government and an affirmation of New Zealand’s sovereign rights.
   6. Equally, it is not enough to point to the option of judicial review within the current law. This is not as likely to be as effective, because it is not a formal requirement of the process, there may limits on the information available to a judicial review (in terms of classified information) and, possibly being seen as a potential terrorist, a person seeking the review may have had their assets frozen.
4. Financing and Making Property Available to Terrorist Entities
   1. The CTU also believes it is wrong to remove sections 8 (2) and 10 (2) of the current Act and the protection that an offence is not committed where funds are provided and/or property is made available when intending that they be used, or knowing that they are to be used, for the purpose of advocating democratic government or the protection of human rights.
   2. Rather than resolving an area of ambiguity, as advocates of the bill have clamed, it places the legitimacy of collecting funds for advocating democratic government and the protection of human rights in doubt.
   3. As this submission has already suggested the definition of terrorism and the designation of terrorist entities are already contested and political rather than clear-cut or administrative acts. In this environment it is counter-productive to assume that there will not be instances when funds and/or property have been made available with entirely legitimate intentions. Such action is not – and should not be – a crime.
5. Participating in a Terrorist Group
   1. The NZCTU also opposes broadening the definition of participation in a terrorist entity. The additional of “or being reckless as to whether” in the test of knowing a group or organisation is a terrorist entity, is unnecessarily punitive.
   2. In this test, the definition of recklessness will be an unknown variable. With heightened public fear about terrorism, there will political pressure to make this threshold artificially low.
   3. Equally, given this submission’s earlier discussion about legitimate protest and resistance, it is important that law in this area is specific about intent. The threat that you could be convicted as a terrorist when you were intending to promote democratic government and human rights is an unacceptable threat in a free and open country like New Zealand.
   4. The experience of individuals who have been detained without trial in the name of combating terrorism – most notably in Guantanamo Bay – show how this kind of expanding definition creates greater opportunity for oppression of individual rights with limited reduction in terrorist activity.
6. Conclusion
   1. The NZCTU opposes the Terrorism Suppression Amendment Bill 2007 for a number of reasons. These include the unnecessary definition of terrorist acts as a crime in their own right, the concentration of power in the Prime Minister in terms of designating terrorist entities, the removal of explicit protection from prosecution for supporting democratic government and human rights, and the excessively broad definition of participation in a terrorist entity.