Smith Lockwood: Terrorism Suppression Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
Smith Lockwood: Terrorism Suppression Amendment Bill (No 2) — Second Reading Instruction to Committee In Committee 
[Volume:626;Page:21610] 
Dr the Hon LOCKWOOD SMITH (National—Rodney) 
: 
 This is quite a small bill in some ways yet it is a very important one. The reason as the Minister has just said is that it amends the Terrorism Suppression Act of 2002 passed by this Parliament in order that New Zealand might implement United Nations Security Council Resolution 1373 to combat global terrorism. 
While the Foreign Affairs Defence and Trade Committee was examining this bill some very interesting issues arose and I think the debate in this House tonight will be interesting because the practice of what is usual in this House in terms of support or opposition differed on this bill in the select committee from being down the middle to I guess across the parties. The record will show that on this occasion both Labour and National supported this bill at the select committee while New Zealand First and the Greens opposed it. It is unusual for New Zealand First to align itself with the Greens but that is what happened. 
Let me try to explain more clearly than the Minister did exactly what this bill does. The principal Act makes it illegal to give money to finance terrorism. Section 8(1) of the principal Act states: “A person commits an offence who directly or indirectly wilfully and without lawful justification or reasonable excuse provides or collects funds intending that they be used or knowing that they be used in full or in part in order to carry out 1 or more acts of a kind that if they were carried out would be 1 or more terrorist acts.” The problem with that section is that although it outlaws giving money that is to be used specifically for a terrorist act it does not outlaw giving money to an organisation that is directly involved in terrorism—and knowing that the organisation was involved in terrorism. I think it is a clear omission that we missed when this Parliament passed the Act in 2002. Quite clearly one could have a situation where the prosecution for someone who was caught financing a terrorist organisation could claim that the person was directly financing a terrorist act. It would seem that a defence could be mounted whereby under the principal Act the person could claim: “Oh no I wasn’t. I was simply giving finance to an organisation that you claim is involved in terrorist activities but I certainly wasn’t directly financing a terrorist act.” 
It is important that such defence—any defence of that nature—is not possible. That is why clause 4 in Part 1 of this amendment bill broadens the provisions in section 8 of the principal Act to make it very clear that it will be a criminal offence not only to directly finance a terrorist act but also to knowingly finance an organisation involved in terrorism. I think that most members of this House would agree that that is a very important amendment because it is fairly clear that we left a loophole in the principal Act when we passed it in 2002. 
When considering this provision a very interesting issue arose in relation to extending the criminality to knowingly financing a terrorist organisation—an extension beyond financing a terrorist act directly. Section 8(2) of the principal Act provides what could be called an out clause. It was inserted by the select committee considering the principal legislation back in 2002 because there was concern about someone collecting funds where it might be understood that those funds would be used for democratic purposes or the protection the promotion of human rights. The committee was concerned that if someone was involved in financing that kind of activity then it wanted to make it very clear that that was very different from directly financing a terrorist act. So an out clause was inserted that is now section 8(2) in the principal Act. 
What became very interesting in the consideration of the select committee this time round was that a number of submissions argued that the new section 8(2A) that clause 4 is bringing into the principal Act should also have the same out clause that section 8(1) of the principal Act has. Section 8(1) of the principal Act outlaws directly financing a terrorist act. New section 8(2A) would outlaw financing a terrorist organisation. Section 8(2) has the out clause that states: “To avoid doubt nothing in subsection (1) makes it an offence to provide or collect funds intending they be used or knowing that they are to be used for the purpose of advocating democratic government or the protection of human rights.” A number of submissions argued that that out clause should also be applied to new section 8(2A) in clause 4 of this amendment bill. The select committee decided on advice from officials not to have that out clause—section 8(2) in the principal Act—apply to new section 8(2A) in this amendment bill. That is a very significant decision by the select committee. It means that as the select committee goes on to review the principal Act which it has to do under section 70 of the principal Act and is in fact doing right now it will have to give a lot more thought to that out clause—that is section 8(2) currently in the principal Act. 
But the important thing in respect of this amendment bill we are debating tonight is that the out clause does not apply to new section 8(2A). I guess that is why New Zealand First when it contributes to this debate will argue against clause 4 inserting section 8(2A) into the principal Act. It will probably express the concern that the out clause should apply to it. The advice from officials to the select committee was very clear—namely that there was a genuine concern that the effect of the out clause as we call it was not clear in law. It had not been tested and there was a concern that someone involved in terrorist financing could get off the hook given the out clause we put in the principal Act back in 2002. For that reason it was decided not to apply it to new section 8(2A) in clause 4 of the amendment bill we are debating tonight. That is something that will be much debated this evening. It is an important issue. What we balance up are the issues around protecting New Zealanders and playing our part in protecting the world from terrorism versus concerns about individual human rights. That is the balance that this out clause sought to address in 2002. For very good reasons both Labour and National members of the select committee and the United Future chair believed that the out clause should not be applied to new section 8(2A). 
I shall cover the other major issue in this amendment bill and it is an important issue. Part 2 extends the designation of terrorist entities. That is where I would be critical of the Government. My contribution to the equivalent debate of the principal legislation in 2002 pointed out the stupidity of having that 3-year limitation on the designations. Here tonight we are having to extend it. We put into the principal Act that the High Court had to review all those designations. That is a ridiculously bureaucratic procedure as I pointed out back in 2002 and as I said this is where I would be critical of the Labour Government. It was a foolish inclusion in the principal Act. Now we are having to extend those designations and we still do not have a sensible way of reviewing them. All that we have done is to extend the time before the High Court has to do it. That is where I would be critical of the Government. It is a foolish measure that needs to be changed because it is clearly unworkable. Those are the two major issues that we will be debating this evening.