Cullen Michael: Terrorism Suppression Amendment Bill — First Reading 
Cullen Michael: Terrorism Suppression Amendment Bill — First Reading 
[Volume:638;Page:8495] 
Hon Dr MICHAEL CULLEN (Acting Minister of Foreign Affairs) 
: 
 I move  
That the Terrorism Suppression Amendment Bill be now read a first time. 
 At the appropriate time I will move that the bill be referred to the Foreign Affairs Defence and Trade Committee. 
The House will recall the review of the Terrorism Suppression Act by the Foreign Affairs Defence and Trade Committee in 2005. The committee identified a number of issues around the working of the Act and whether it met New Zealand’s international obligations. The committee encouraged the Government to consider whether those issues required a legislative response. The Government has studied the select committee’s report and concluded that most of the issues raised by the committee do need such a response to ensure that the Act responds to New Zealand’s international obligations. The bill contains those responses. It also contains further amendments to bring the Act up to date with international developments. Since the last time the Act was amended New Zealand has signed two new international treaties that require us to create new terrorist offences relating to terrorist attacks using nuclear material. 
I will address firstly the clauses in the bill that respond to the issues raised by the select committee. This bill responds to those concerns by separating out the process for designating terrorists under two separate UN Security Council resolutions. It also amends the procedure for extending designations when they expire and it seeks to repeal the “avoidance of doubt” provisions that were identified as problematic by the select committee. 
It is important to recall that the Terrorism Suppression Act was passed to give effect to New Zealand’s obligations under several different UN instruments. Amongst those are two Security Council resolutions—Resolution 1267 and Resolution 1373. As the select committee noted in its report under Resolution 1267 the Security Council maintains a list of Taliban al-Qaeda and associated entities. Member States are obligated to designate the individuals and entities on that list for the purpose of maintaining asset freezes and travel bans against them. The second resolution Resolution 1373 requires member States to criminalise the financing of terrorism as well as a range of other activities such as participation or recruitment into terrorist organisations. The Security Council does not maintain a list of terrorists under this resolution and instead requires member States to identify for themselves who should be subject to the criminal penalties. 
When the Terrorism Suppression Act 2002 was drafted and enacted the dust had not yet settled from the September 11 terrorist attacks. At that time it was decided that the best option would be to combine the two sets of Security Council obligations into one process—that is to designate as terrorists under New Zealand law both the persons and entities on the UN list and persons designated by New Zealand. Under that process the Prime Minister has the power to designate individuals or entities if satisfied on reasonable grounds that they are engaged in terrorist activities. This process however has not turned out to be workable. The number of entities the Security Council has added and continues to add to its list under Resolution 1267 over time is significantly higher than was estimated at the time the Act was passed. 
The select committee pointed out that New Zealand is different from other countries with democratic frameworks in combining the procedures for designating terrorists under both Resolution 1267 and Resolution 1373. The committee pointed out that other comparable countries use automatic procedures that directly incorporate the Resolution 1267 list while maintaining a second discretionary process for additional terrorists to be designated pursuant to Resolution 1373. The Terrorism Suppression Amendment Bill proposes to remedy this problem so that terrorist entities that appear on the Resolution 1267 list are automatically designated under the Act. The Act’s discretionary designation process will continue to exist but only to those terrorist entities that the Prime Minister may choose to designate pursuant to Resolution 1373. This will ensure that the Act fully meets New Zealand’s international obligations under both Security Council resolutions. 
The select committee also highlighted the role of the High Court in extending terrorist designations as being problematic. Currently all designations expire after 3 years unless extended by the High Court. The select committee review pointed out that should the High Court refuse to extend a designation that had been made pursuant to Resolution 1267 New Zealand would be in breach of its international obligations. There seemed to be little purpose in involving the High Court in a costly procedure that would lead to such an outcome. In order to remedy this problem this bill will amend the Terrorism Suppression Act so that terrorist entities designated by the Security Council under Resolution 1267 will remain designated in New Zealand for as long as they remain on the Security Council’s list without needing to be renewed by the High Court. 
On the other hand the bill also provides that designations made by the Prime Minister pursuant to Resolution 1373 will continue to expire after 3 years unless extended. That safeguard continues to be appropriate given that designations under Resolution 1373 are discretionary and are made on New Zealand’s own initiative. The bill will however replace the role of the High Court in extending those designations. Instead the Prime Minister will renew designations if satisfied on reasonable grounds that the entity continues to be engaged in terrorist activity. This will make the Terrorism Suppression Act consistent with anti-terrorism legislation in other comparable countries. The select committee’s review of the Act noted that anti-terrorism legislation in the UK Canada and Australia did not involve the courts in reviewing or extending terrorist designations pursuant to Resolution 1373. 
Although the role of the High Court in extending designations will be removed by this bill the amended Act will retain judicial oversight over the designation process. Any decision by the Prime Minister to designate an entity or a decision not to revoke a designation will still be subject to judicial review. 
The third major issue raised by the select committee in its review of the Act was the “avoidance of doubt” provisions in sections 8(2) and 10(2). The committee noted that the inclusion of those provisions was not required by Security Council Resolution 1373 and that other comparable countries such as again the UK Canada and Australia do not have such provisions in their legislation. The select committee noted that rather than avoid doubt these clauses have created it by confusing the mental element of the offences by establishing dual intentions. The intention to commit an act prohibited by the legislation can effectively be overridden by a broader motive relating to why someone wanted to commit the offence. The committee noted that sections such as these do not appear in the descriptions of any other criminal offence in New Zealand. The bill proposes therefore to repeal sections 8(2) and 10(2) of the Terrorism Suppression Act. 
The select committee review also raised a number of other issues with the Act such as its lack of a general offence of committing a terrorist act and the level of intent in the criminal offence provisions. The bill addresses these issues by adding a general offence of committing a terrorist act and by adjusting the mental element of the offence of participating in a terrorist group in order to make it consistent with other terrorist offences in the Act. 
Before concluding I would like to address those clauses in the bill that bring the Terrorism Suppression Act up to date with new developments and add new offences. New Zealand has recently signed two new international anti-terrorism treaties: the International Convention for the Suppression of Acts of Nuclear Terrorism and amendments to the Convention on the Physical Protection of Nuclear Material. Both treaties have been through the treaty examination process and the Foreign Affairs Defence and Trade Committee had no matters to raise with the House in relation to them. The two treaties oblige New Zealand to create new offences concerning the use of radioactive material and radioactive devices. The bill adds those offences to the Terrorism Suppression Act. 
I am sure that the select committee will pay careful attention to this bill. It deals with difficult and contentious matters and it deals with fundamental issues of liberties and the rule of law. It is important to get the balance right and in trying to get that balance right in 2002 I think it is clear that we left certain lacunae in the Act which meant that in fact it has not been as effective as it should have been. I commend the bill to the House.