Public Address: Not quite what you may think | Oct 22, 2007 13:57
GUEST: Graeme Edgeler on what the Terrorism Suppression Act actually says
Passed in the wake of September 11, primarily to fulfil New Zealand's obligations under international law to seek to
prevent terrorism, the Terrorism Suppression Act 2002 does a hell of a lot less than a lot of people seem to think.
Unlike similarly-themed laws passed in other countries it doesn't create search or arrest powers. It doesn't allow phone
tapping. It doesn't allow extended periods of interrogation or lengthy periods of confinement without charge. It doesn't
permit the use of secret evidence in terrorism prosecutions, or prohibit the media from discussing what's going on. Nor
are there special powers to set up road blocks, or storm school buses.
In New Zealand, terrorism offences are treated the same as other offences. The same presumption of innocence, the same
criminal procedure, the same suppression rules and bail laws. Applications for search or interception warrants follow
the same procedure whether the offence is against the Terrorism Suppression Act, the Arms Act or the Crimes Act.
So what does it do? Mostly, it's about terrorist financing: creating consequences for people who fund terrorism, and
allowing the freezing and seizing of terrorists' assets. For this purpose, it sets up a regime to designate groups and
people as terrorists – so that we know whom we can't finance.
It also incorporates other obligations we have under various international conventions. To enact into NZ law obligations
under the Bombings Convention (which pre-dates 9/11) it creates offences relating to terrorist bombing. Fulfilling our obligations under the Nuclear Material Convention, and the Plastic Explosives Convention, sees the creation of offences relating to the handling of unmarked plastic explosives, and the misuse or nuclear
material.
And incorporating our obligations under UN Security Council Resolution 1373 (2001) it creates offences around recruiting and participating in terrorist entities (those designated as such, or which
designate themselves as such by carrying out terrorist acts).
None of this is all that controversial, although recently proposed amendments are more alarming from a civil liberties
standpoint. Most of the concern with the current law is that in prohibiting the financing of terrorist organisations,
and the participation in them, we might severely criminalise support within New Zealand for legitimate protest groups in
other countries, or that the powers to designate terrorist organisations might be used to suppress criticism (defining
Greenpeace as a terrorist organisation, for example). There are safeguards against these and other issues, but some may
be removed by the amendment bill currently awaiting its second reading.
That said, none of these concerns arise in the present case. Any problems with the use of the Terrorism Suppression Act
in the present instance arise not from the law itself, but from its application. Just as charging someone with burglary
who hasn't actually burgled anyone doesn't show faults with burglary laws, the consideration of charges against
individuals under anti-terrorism laws doesn't evidence problems with the law. If, once the details and evidence are
public, we can conclude that police reaction was over-the-top, it will be the police who are to blame – and not the law.
Naturally, it will be some time before we know one way or the other.
So if those arrested and searched were wanted on Arms Act charges why mention the Terrorism Suppression Act in the
search warrant?
Simple – it would be super-dodgy not to mention it.
As a basic rule, everyone in New Zealand has the right to be free from unreasonable search and seizure. With a number of
exceptions irrelevant to this case, this means the police can't search you, or take your stuff, without a warrant. And
it means they can't get a warrant without reasonable grounds to believe that they're going to find evidence related to
the commission of an offence punishable by imprisonment.
We also don't want our cops going on "fishing" expeditions. So when they apply for a search warrant, we make them
specify what offences they think they're going to find evidence of, and the evidence upon which they believe they'll
find something useful.
If they're looking for evidence of burglary they have to say so, and they have to convince a judicial officer that
they've a reasonable belief they'll find such evidence. They can't base it on a hunch, and they can't use some other
charge to get a search warrant to follow up that hunch. If they think you've done some burglaries – but haven't the
evidence for a search warrant – they can't use the fact they do have evidence of drug possession to get a warrant to
nose around. If they want a warrant for drug possession they can get one, but it will only let them search for, and
seize, the drug-related stuff they've listed in the warrant. And if they do use a warrant issued on an unrelated charge
to nose around and find evidence of burglaries, there's a fair chance they won't be permitted to use that evidence
against you, and you'll get off on one of those technicalities.
So the police listed both the Arms Act and the Terrorism Suppression Act on their search warrant because they were
looking for evidence under both, and convinced a judge that they had good reason to suspect they'd find it. They've
looked at whatever evidence they've found over the past year, and have formed a reasonable suspicion that offences
against the Arms Act and the Terrorism Suppression Act may have been committed. It is possible they'll look at the
evidence and conclude that whilst there's some evidence of offending against the Terrorism Suppression Act – at least
enough to get a warrant – there isn't enough for them to be confident of success at trial. It's also possible that
they've evidence of other crimes obtained over the past year which couldn't (or needn't) be supplemented by physical
evidence from a raid, and are preparing to lay these soon.
It's too early to tell, but police will have a tough time establishing breaches of our anti-terror laws. However, that
is a topic for another time (or an extended reply in the comments if people really want answers now).
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QUESTION FROM SCOOP: If not the TSA then what enactment would you think has been used to get the interception warrants?
Damn, maybe I over-simplified this bit.
Search Warrants are granted under the Summary Proceedings Act. They can be granted by JPs, Court Registrars or Judges.
The process, and legal standard for obtaining a search warrant is the same whether the offence with respect to which the
search warrant is sought is an offence against the Crimes Act, the TSA or anything else (the offence needs to be
punishable by imprisonment, and you need good cause to suspect you'll find evidence of offending etc.)
Interception warrants are granted under the Crimes Act. They are a lot harder to get, and can only be granted by a High
Court judge. The process for obtaining an interception warrant is essentially the same no matter the charge, but the
range of charges is much smaller. The Terrorism Suppression Act did add various terrorism offences to the range of
offences for which interception warrants may be granted.
Interception warrants can be granted to the police under the Crimes Act (noting that there are no such powers in the
TSA) in the following cases:
1. To intercept communications of an organised criminal enterprise (i.e. gang) believed to be engaged in serious
offending (10 yrs+ imprisonment, conspiracy to defeat justice, corrupting witnesses or juries, major theft, money
laundering, receiving) as part of an ongoing criminal conduct.
2. To intercept communications about a serious violent offence (which is defined - minimum 7 years, risk to life or
serious injury etc.).
3. To intercept communications relating to an offence against sections 7, 8, 9, 10, 12, 13 or 13A of the Terrorism
Suppression Act.
[You'll note that most of the terrorism offences could come under 1 or 2 (arguably not the financing ones 'though), but
for what I assume to be simplicity are listed separately.]
The wording of what needs to be proved is slightly different (e.g. in case 1, the cops also have to establish the
existence an organised criminal enterprise), but it is basically the same for all offences.
The judge must be satisfied that:
1. granting the order is in the best interests of justice, which includes considering the privacy of the those involved
against the offending;
2. if no offence has yet been committed, that the granting of the interception warrant is "likely" to prevent its
commission;
3. there are reasonable grounds for believing that evidence relevant to the offence(s) listed will be obtained
4. that other investigative procedures have been tried but failed, or are unlikely to succeed, or are likely to be
dangerous, or the matter is so urgent that they should not be used.
5. The communications intercepted aren't going to be protected by lawyer/client privilege.
Interception warrants can be granted for a maximum of 30 days. They may be renewed, but the exercise basically needs to
be gone through again ("is it still likely to..." etc.) with the additional information that the Judge needs to be told
what information was obtained during the period of the previous warrant.
There are also distinct interception powers under:
*the New Zealand Security Intelligence Service Act 1969
*the Government Communications Security Bureau Act 2003
*the Misuse of Drugs Amendment Act 1978 and
*the International Terrorism (Emergency Powers) Act 1987.
ENDS