Counter Terrorism Bill second reading

Mr Speaker, I move that the Counter Terrorism Bill be now read a second time.

I want to thank the Foreign Affairs, Defence and Trade Committee for its consideration of this Bill, and the amendments recommended to it.

The commemoration of last year’s Bali bombing over the weekend is a tragic reminder of the ongoing threat to the safety and security of New Zealanders posed by international terrorism. New Zealand is committed on every front to combat terrorism. This legislation is a further step by this Government to ensure that we have in place a full range of measures to prevent or respond to any effort by terrorists to operate here.

This Bill supplements the Terrorism Suppression Act 2002. It is the result of a whole-of-government review of relevant offence and penalty provisions and investigative powers, to identify gaps that might be exploited by terrorists. It amends relevant legislation to ensure that New Zealand has the ability to comprehensively deal with terrorist offending.

The Bill firstly implements in domestic law the requirements of two international Conventions relating to the physical protection of nuclear material and the marking of plastic explosives. These are the final two of the 12 terrorism-related international instruments that New Zealand is yet to ratify and with the passage of this Bill we will be fully compliant with UN requirements.

The Bill secondly contains new offences designed to deal with terrorist-type activity. The following become offences: harbouring or concealing a person who has carried out, or intends to carry out, terrorist activity; causing sickness or disease in animals, intending to endanger the health or safety of an animal population and cause major economic damage; contaminating products (such as food, water, or crops) intended for human consumption, intending to harm one or more persons, or to cause major economic damage; threatening to do, or falsely communicating information about, an act that is likely to cause risk to the health or safety of one or more persons, or major property damage, or major economic damage, intending to significantly disrupt the civilian population, or infrastructure, or the administration of government, or commercial interests.

Thirdly, the Bill makes terrorism an aggravating factor for sentencing purposes, when a terrorist is convicted of a criminal act. It provides that when murder occurs in the course of terrorist activity as defined in the Terrorism Suppression Act, 17 years will be the starting point in the judge's determination of an appropriate minimum non-parole period.

Fourth, the Bill gives Customs the power to detain property intercepted crossing the New Zealand border, where there is good cause to suspect that the property is owned or controlled by a designated terrorist entity, or an entity that is eligible for designation.

Finally, the Bill creates investigative powers needed by authorities to deal with terrorism and other serious crimes. These are not terrorism-specific, but are necessary to ensure that the police are not hampered in their ability to investigate such offences. The Bill provides for the use of tracking devices by police and Customs officers, subject to safeguards such as a warrant requirement, and reporting obligations.

It establishes a requirement to assist computer access in the course of a warranted police search, by providing reasonable and necessary access information such as the computer password.

The Bill provides that the existence of separate interception warrants for serious drug offences and other serious offences will not result in the exclusion of evidence that is fortuitously but lawfully obtained under an interception warrant, as long as the evidence relates to a serious criminal offence for which an interception warrant may be obtained.

The Bill was also amended at select committee to provide for terrorist designations to be updated so that the details of an already-designated entity can be corrected if necessary in accordance with new information issued by the UN.

While this Bill is titled “Counter Terrorism”, it contains provisions that are not terrorism-specific. The provisions relating to investigative powers, which provide for the use of tracking devices, computer access requirements, and the admissibility of evidence obtained under an interception warrant, will apply to a whole range of criminal investigations.

Wherever possible, terrorism should be dealt with by applying, and where necessary amending, the general criminal law. This is because terrorist acts are usually criminal offences such as intimidation, property damage and murder, committed with an ideological, political, or religious motive.

In the criminal law generally, motive is only relevant to sentence. It may not be possible to distinguish between crime that has as its main motivation terrorism, and other crime, until an investigation is complete. It would be utterly impractical to create a distinct regime governing certain investigations simply because the motive may be ideological, political or religious.

There are exceptions for certain terrorism-specific provisions (primarily contained in the Terrorism Suppression Act) that New Zealand has been required to implement to comply with its international obligations.

Some submitters were concerned that persons who exercise their democratic right to protest, or to otherwise dissent from the majority view, might be designated as terrorists. This concern was debated at some length during consideration of the Terrorism Suppression Bill. Considerable efforts have been made to draft the relevant provisions in that Act so that unwarranted designation does not occur. The legislation also provides safeguards such as being able to apply for a review.

Some concerns were expressed about section 307A, which in broad terms is an offence of threatening to cause serious kinds of harm, with a view to significantly disrupting the population or commercial or government interests. In response to submissions, this section was substantially redrafted to specify particular kinds of threat, and targets of disruption. The threats of harm must be very serious and intended to result in large-scale disruption before the section will apply. Some suggest that this kind of disruption is excusable because of the cause for which it is committed. The Government, and I believe New Zealanders generally, do not believe that serious criminal acts can be justified on this basis.

Submitters were also concerned to ensure that the appropriate balance is struck between preventing terrorism and minimising unreasonable interference with the activities and freedoms of law-abiding citizens. The Government is very conscious of the need to maintain this balance, which I believe the Bill does.

Crown Law provided advice on the compliance of this Bill with the provisions of the New Zealand Bill of Rights Act 1990, and the Attorney-General took the unprecedented step of appearing in person before the select committee to answer questions. The only Bill of Rights issue identified by the Attorney-General in the Bill related to the tracking device provisions. She was satisfied that the proposed regime included substantial safeguards such as warrant and reporting requirements that struck a reasonable balance between law enforcement and privacy expectations.

International guidelines on human rights issued by the United Nations and the Council of Europe have been taken into account in the Bill’s development. The Bill is consistent with those guidelines, which recognise that terrorism itself is such a fundamental incursion on human rights that it may justify more rigorous measures in response. I believe that this Bill strikes the appropriate balance between protecting civil liberties by putting in place effective measures to deal with terrorism, while at the same time minimising undue interference with lawful rights and freedoms.

I commend the Bill to the House.

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