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High Court Bypassed Under New Anti-Terror Bill

Security & Foreign Affairs: High Court Bypassed Under New Anti-Terror Legislation

By Joseph Barratt

The New Zealand High Court review process on who or what can be considered a terrorist or a terrorist group will be by-passed under a new law proposed by the Labour-led Government.

The Terrorism Suppression Amendment Bill, if passed by Parliament, will see New Zealand follow the United States of America and Australia in empowering a nation's political leader (the Prime Minister in New Zealand's case) to decide who is a terrorist. It also automatically adds to New Zealand's official terrorist organisations list those the United Nations' Security Council recommends.

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The amendments will take jurisdiction out of the hands of the high court and into the Prime Minister’s and the United Nations Security Council.

The bill's amendments have been proposed to closer align New Zealand with its international obligations, said the spokesperson for foreign affairs minister, Winston Peters - the minister who introduced the bill.

Currently, the Prime Minister has the power to designate terrorist groups but they are reviewed after three years by the high court as a judicial safeguard.

Under the proposed amendments there will be no High Court review. This leaves the decision solely in the hands of the Prime Minister.

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This move has drawn criticism from many including those concerned that civil liberties will be eroded.

Global Peace and Justice Auckland's John Minto, said the new laws will “leave New Zealand open to political pressure from overseas.”

Mr Minto said the United States is driving the process and described a situation where potentially the Prime Minister would give into pressure from the US and there would be no effective court to protect people living within New Zealand listed as terrorists.

“The United States is pressuring countries into this because it wants to be able to act unilaterally,” Mr Minto said.

Green Party foreign affairs spokesperson, Keith Locke, similarly highlighted the risks that could potentially arise. With the state of international and political alignments it leaves New Zealand open to influence: “We need to design legislation for the worst kind of government, not the best.” Mr Locke said.

In the bill's first reading Mr Locke drew parallels between the United States' lack of judicial constraint regarding terrorist issues and the existence of, and human rights abuses that have taken place at, Guantanamo Bay.

The National Party supports the bill. However, its foreign affairs spokesperson, Murray McCully, criticised Prime Minister, Helen Clark, for failing to use anti-terror measures that are already part of New Zealand law: “The current legislation is, in several important aspects, not practical,” Mr McCully said.

He said the Prime Minister already has the ability to designate terrorists but hasn’t used it: “I have strongly criticised the fact that no designations have been made… Australia has made over 80.”

The new legislation allows the Prime Minister to consider whether there are “reasonable grounds” to list a person as a terrorist, or an entity as a terrorist organization. In effect, this change renders the New Zealand judiciary's reviewing role obsolete. Winston Peters' spokesperson told Scoop this change is important due to the courts not having access to all relevant classified information.

The new amendments would mean that “the Prime Minister can properly take into account a wide range of information, some of which may not be admissible, or available in a form that would make it admissible, in New Zealand courts.” said the spokesperson.

The High Court “cannot take into account evidence that is inadmissible in court… even if the evidence may be the best information available in relation to events that occurred outside New Zealand.”

Another change removes the New Zealand High Court's role to review United Nations Security Council decisions prior to designating terrorist organisation in New Zealand.

Currently the High Court confirms whatever the Security Council identifies and designates a terror organisation - unless there is contrary or mitigating evidence to suggest the Security Council is incorrect. The new legislation by-passes the New Zealand High Court and automatically adds such organisations to the United Nations list of terrorists. Any assets held or possessed by such groups would be frozen.

National's Mr McCully said: “The proposals would not leave room for New Zealand to revisit Security Council decisions,” but adds “the Security Council does not take decisions lightly.”

However Keith Locke is concerned about what would happen if someone was incorrectly designated a terrorist by the Security Council. If a person or organisation is incorrectly classified as a terrorist by the Security Council “it is a difficult to get it off”, said Mr Locke.

Referencing a case in Sweden, Mr Locke explained how the Swedish government had to fight a long complicated process to have the Security Council agree to remove two men from the list who had been incorrectly added: "The United States brings forward most of the names for consideration to be designated as terrorists, Mr Locke said.

The amendment will also remove any defence for supporters of a listed group even if the support is aimed at furthering a democratic or human rights agenda.

The earlier legislation, Mr Locke said, at “least showed some ability to correct potential errors in the designation of terrorists”.

“It has grave consequences.” said Mr Locke, “Anybody who supports an innocent man [designated as a terrorist] is liable to be charged.”

It could also potentially mean that actions such as supporting the African National Congress during the Springbok tour in 1981 could be made illegal when the goal was to end apartheid in South Africa.

Back in the early 1980s, New Zealand's prime minister, Sir Robert Muldoon(and later the leader of the National Party Jim Bolger) referred to the ANC (and Nelson Mandela) as a terrorist organisation. Keith Locke said if this new legislation was law back then ANC supporters, and protesters, would likely have been charged.

When the original bill came up in 2002, Mr Locke said, “We put in clauses to help people doing good things… Now that’s gone.”

However Mr Peters spokesperson said: “If the government has evidence that a group that has been included on the UN terrorist list is not a terrorist organisation, it can bring that information to the attention of Security Council… so to can the entity concerned.”

Yet this would presumably be difficult for the entity concerned as under the amendment their assets would be frozen and anyone who supports them would be committing an offence.

Mr Peters' spokesperson said that the “change will better reflect the mandatory nature of New Zealand’s legal obligations under the Security Council’s Al Qaeda and Taliban sanctions regime.”

It “remove[s] the risk of inconsistency between New Zealand’s international obligations and domestic legal regime,” said Mr Peters spokesperson.

The international obligations include two resolutions adopted by the United Nations Security Council, UNSCR 1267 and UNSCR 1373.

Resolution 1267 effectively establishes the “UN terror list” but it is limited to Taliban and Al Qaeda affiliated groups. It makes it compulsory for all member states to impose certain sanctions on them.

Resolution 1373 requires all states to prevent and suppress the financing of terrorism; it leaves states the discretion on how to implement the resolution, resulting in other states such as Australia and the United Kingdom establishing their own national terrorist lists.

Also under fire in the amendment is the new definition of terrorist - the Green Party has condemned the new definition. It extends to include "serious disruption to an infrastructure facility if likely to endanger human life."

Again under the bill the Springbok protests would be not be allowed Mr Locke said. He added, the new law would potentially rule out other actions such as nurse strikes or other industrial action.

Mr Locke said: “This amendment isn’t driven by public debate… I have never been walking down the road and had someone come up to me and say we need stronger terrorist laws.”

According to Mr Locke, The new amendment takes us further down the road towards nations such as the United States.

“We are not quite as far down the road.” Mr Locke said, “[but] that’s where the pressure comes from.”

The amendment will also see committing a “terrorist act” becoming a specific offence, where currently criminal charges are relied upon. It will also expand the original act to cover the use of radioactive material or devices.

The Terrorist Amendment bill recently passed its first reading in parliament with the only dissension from the Maori Party, Act, and the Greens. It is now being considered by the Foreign Affairs, Defence and Trade Committee.


  • Terrorism Suppression Amendment Bill (pdf)
  • Terrorism Suppression Amendment Bill (Parliament page)
  • ENDS

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