I made a submission today on the Counter Terrorist Fighters Legislation Bill. I am mindful that I have not had a lot of time to give the text a great deal of contemplation, so some of the points raised may in fact be an overreaction and perhaps even misguided. Additionally, I have taken guidance/borrowed from others on many of the key points due to limitations on time. However, this is what happens when submission deadlines are so ridiculously short. This is also the first submission I’ve ever made, so the format is probably not great.
I oppose this Bill in its entirety for the reasons set out below.
1. Undemocratic process
I agree with the NZ Council on Civil Liberties that calls the process for making submissions on this bill ‘a farce’ and ‘a parody of good democratic’ practice.
There is inadequate time for proper public consultation and for submitters to provide well-analysed and informed considerations.
The urgency under which the Bill is being passed is inconsistent with the language used in the Explanatory Note (‘The Note’) supporting the Bill. The Note indicates that the threat of terrorism is still very unlikely and that the threat level is ‘low’ which does not speak to the urgency this government is insisting upon.
This Bill must be withdrawn to allow for proper public consultation on the issues
2. Terrorism, Violent Extremism, and the slippery slope to Activism
The Note also indicates that the Bill is not restricted to ‘foreign terrorist fighters’ but also includes ‘other violent extremists locally, regionally and internationally’. The Note states that ‘Government agencies have a watch list of between 30 and 40 people of concern in the foreign fighter context’ but that it also has another watch list of ‘30 to 40 on a list of people requiring further investigation’. While the first group are alleged to be within the FTF context, that clearly does not mean those people pose an immediate threat or in fact any threat to NZ – as noted above, this government by its own admission says the threat is low despite it having 30-40 people on its FTF watch list. Moreover, the manner in which violent extremism is covered under the UN resolution and the apparent extension of this to ‘people requiring further investigation’ is grossly excessive and beyond the requirements of the obligations set out in the resolution.
There is no definition as to what this government considers ‘violent extremism’ which leaves the matter open to interpretation by the agencies invoking the powers provided and potentially places non-peaceful legitimate protest or activists in the grip of the SIS surveillance regime. The implications for freedom of expression have not been appropriately explored and the Bill must be withdrawn to prevent NZ from devolving into a Police State to quash any dissent.
This Bill appears to be built on the SIS experience of Operation 8, in which known activists and the communities within which they lived were subjected to excessive State force that has had a resounding impact on their lives.
This Bill simply legalises the activities carried out by the SIS during that operation, to avoid the Courts finding illegality in similar future cases. This is particularly obvious when in the Note, this government bemoans the fact that the SIS are currently not allowed to trespass nor install a visual surveillance device for the purpose of monitoring ‘people training with weapons’ – a direct reference to the language used by the SIS regarding Operation 8.
Since the Police and the SIS were unable to prosecute these activists under the Terrorism Suppression Act, the inclusion of the words ‘locally’ and ‘other violent extremists’ appears to have the purpose of extending surveillance powers to the activist community which is characteristic of an authoritarian regime.
3. Unwarranted Surveillance
The unwarranted surveillance for a 48-hour period is ambiguous. On the one hand, the Note says the SIS must meet the threshold for applying for a warrant before an authorisation is granted, but on the other hand implies that there need not be an intention to apply for a warrant provided there is an explanation provided after the fact. This suggests the ‘emergency’ of the authorisation is more about gathering intelligence that might provide grounds for a warrant application and effectively provides a free pass to the SIS to flout privacy laws for 48 hours.
4. Warranted Surveillance
The Bill proposes to infringe on property rights by legalising trespass for the SIS who may also install a visual surveillance device on private property and may keep any information they consider of interest once the warrant expires. That is incredibly broad and grossly intrusive.
5. Sunset Clause
The sunset clause implies this government don’t really believe the changes are appropriate but are creating loopholes for the SIS to gather intelligence on people without restriction, and unencumbered by the illegalities highlighted in the R v Hamed case concerning Operation 8 for the next few years.
6. Cancellation of Passport
Cancelling the passport s of New Zealnder’s who are overseas, leaves them stateless and those implications need to be properly investigated. As others have also pointed out, this provision appears to impose a ‘de facto sentence of exile by Ministerial fiat’.
Additionally, that this government can potentially render ‘suspected Māori’ stateless for a period of up to 3 years and consequently deny them the right to return to their turangawaewae, is surely in breach of Te Tiriti o Waitangi and this has not been properly addressed or explored.
7. Suspension of Passport
The temporary suspension of passport’s infringes on the right to freedom of movement by allowing a Minister to determine if and when a person may travel internationally.
8. Secret Evidence
Extending the submission of classified evidence to Judicial Review proceedings is a breach of the principles of natural justice. That an accused person and their legal representative cannot challenge the evidence against them, is deeply unjust and undermines the credibility of the court system.
This government has also failed to take into account the consequences this legislation may have on social and cultural, religious minorities.
In particular, the Muslim community are likely to be unfairly targeted by the SIS given the Bill is anchored in the context of ISIL, ANF and Al Qaida. This builds on the stigma felt by Muslim communities and feeds the already existing Islamophobia in NZ. Moreover, the Bill could potentially alienate Muslim communities out of fear of being spied on ‘by association’.
The Government also have not considered that the Bill could incite a backlash if marginalised, minority and Indigenous groups are unfairly targeted by the SIS and the NZ Police under the extensive powers they are granted under this Bill.
Had there been more time available, I like other submitters may have also been able to better detail my concerns and give deeper consideration to the text of the Bill.
For all the reasons set out above, I oppose this Bill and request that it be withdrawn from urgency.
NZCCL “Submission: Countering Terrorist Fighters Legislation Bill” (27 November 2014) http://nzccl.org.nz/sites/default/files/NZCCL%20Submission%20on%20Countering%20Terrorist%20Fighters%20Legislation%20Bill_0.pdf
 Countering Terrorist Fighters Legislation Bill, Explanatory Note, at 1.
 At 1.
 UNSC Res 2178 at para 18.
Note: I gained a lot of assistance from No Right Turn’s blog which provided an incredibly succinct and helpful summary of the key contentions here: http://norightturn.blogspot.co.nz/2014/11/submission-guide-countering-terrorist.html