Burton Mark: Terrorism Suppression Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Burton Mark: Terrorism Suppression Amendment Bill — Second Reading 
[Sitting date: 24 October 2007. Volume:643;Page:12667. Text is incorporated into the Bound Volume.] 
Hon MARK BURTON (Minister of Justice) 
 on behalf of the  
Minister of Foreign Affairs 
: I move  
That the Terrorism Suppression Amendment Bill be now read a second time 
. I wish to begin by thanking the Foreign Affairs Defence and Trade Committee for its work on the bill. With the exception of one member—the Green Party member; and I acknowledge that—the committee was united in its support for the bill to proceed. 
Before discussing the bill’s key provisions I would like to note up front that this bill is not connected to the events of the last few days. The bill was introduced to Parliament in March 2007. It followed a review of the Terrorism Suppression Act undertaken by the Foreign Affairs Defence and Trade Committee in 2005. The committee identified a number of issues around the working of the Act and its compliance with our international obligations. New Zealand had also signed two new international treaties that required us to create new offences relating to terrorist attacks using nuclear material. The Terrorism Suppression Amendment Bill contains the amendments required to address these issues. 
I will address firstly the issue of United Nations terrorist designations. New provisions are required to ensure that terrorists listed under United Nations Resolution 1267 which deals with al-Qaeda and Taliban activities are automatically designated as terrorist entities under New Zealand law and that those designations remain in force until removed from the UN terrorist list. This change is required to reflect the mandatory nature of New Zealand’s obligations under the Security Council’s al-Qaeda and Taliban sanctions regime. The mandatory nature of those obligations is not well reflected in the Act as it stands at present. It is not an option for New Zealand to maintain a procedure that allows the Prime Minister or courts to second-guess the Security Council and refuse to implement a designation made under a Chapter 7 resolution. Nor is it necessary to maintain a process by which New Zealand is required to consider individually every inclusion on the UN list. 
Changes are also required for reasons of practicality. Under the current procedure all designations lapse automatically after 3 years unless extended by the High Court. With 420 designations due to expire at the end of November it is clearly not feasible for the High Court to review this number of designations particularly when the court does not have access to the evidence on which the Security Council based its initial designations. For policy administrative and evidential reasons the current process is clearly inappropriate for UN list terrorists and requires amendment. The changes proposed in the bill will bring New Zealand into line with virtually all other Western countries. 
I turn now to the non-UN terrorist entities. Under the Act as it stands at the moment the Prime Minister is responsible for making designations of terrorist entities that are not related to al-Qaeda or the Taliban. The bill will not change that position. The changes it will make relate only to the extension of initial designations. The bill will replace the role of the High Court in extending the designation of non-UN terrorist entities when these expire after a 3-year period. Instead the Prime Minister will renew a designation if satisfied on reasonable grounds that the entity continues to be engaged in terrorist activity. As the committee itself has noted these decisions like initial decisions to designate involve judgments about national security and are appropriately made by the executive. That is consistent with the approach taken in Australia and Canada where decisions at the renewal stage are made by the same office holder who made the original designation and the same test is applied. Although the role of the court in extending designations will be removed 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 remain subject to judicial review. The select committee has also added a further provision recommending that as a final step the Prime Minister report the renewal of terrorist designations to the Intelligence and Security Committee. 
This bill will also repeal the “avoidance of doubt” provisions related to offences of financing terrorism. These provisions were included in the Act with the intention of providing clarity on the scope of offences in the Act. They have however had the opposite effect. The provisions create uncertainty by confusing the mental elements of the offences. Because of the way section 8(2) is drafted it has the potential also to undermine one of the key purposes of the legislation—that is to criminalise the intentional financing of terrorist acts—and would be inconsistent with both the Security Council resolutions and indeed our own position that acts of terrorism simply cannot be justified. The removal of these provisions will not compromise the right of New Zealanders to engage in or financially support peaceful protest activity but the provisions as they stand cannot achieve the purpose for which they were enacted. They do not remove doubt; in fact they create it. They were never intended to provide a defence for a person who intentionally collects funds to be used to commit a terrorist act or who intentionally makes property available to a terrorist organisation. There is no comparable provision in like-minded jurisdictions or indeed in our own criminal law. 
I also point out that the definition of “terrorist act” states expressly that legitimate protest advocacy or dissent is not by itself a sufficient basis for implying an intent to commit a terrorist act. Therefore to the extent that a safeguard is needed to ensure that the Act is not used to repress legitimate protest activity this is provided for in that definition. The bill will also strengthen the Act by creating a new offence of committing a terrorist act. Although the Act currently criminalises terrorist bombings and a range of other specific terrorism-related offences it does not criminalise the commission of a terrorist act per se. The creation of a generic offence is intended to reflect the gravity of terrorist offending and to ensure that appropriate penalties can be imposed in appropriate cases if the actions fall within the definition of a terrorist act—that is for example if the actions were intended to cause death or serious injury or major economic loss for the purpose of inducing terror in the civilian population or to compel the Government to do or not to do something. These are not trivial matters and this change is not made lightly. 
The bill also addresses shortfalls in the Act by adding the mental element of recklessness to the offence of participating in a terrorist group. The addition of recklessness will maintain consistency with other offences in the Act. Adding this element will also expand the scope of the offence to include for instance persons with knowledge of a UN terrorist designation but no specific knowledge of a designation under the Terrorism Suppression Act. The test for recklessness sets a high threshold for a prosecutor to cross. For people to be deemed reckless they must know there was a risk that a group was a designated terrorist entity or carried out terrorist acts but they participated in the group anyway. It would also be necessary to prove that taking this risk was unreasonable when having regard to the nature and the degree of the risk. 
In addition to addressing shortfalls in the current Act the bill incorporates amendments necessary to bring New Zealand up to date with its international obligations. The bill creates new offences involving nuclear and radioactive material that are required to enable ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism and comply with the recent amendments to the Convention on the Physical Protection of Nuclear Material. In response to submissions amendments have been made to better implement the international conventions. The new offence provisions were also narrowed to address concerns that the provisions could apply to legitimate protest activity. 
The handling of classified security information was also raised by submitters. The committee did not recommend any change to the process in the bill which involves the provision of a summary of classified security information. The recently introduced Immigration Bill proposes a special advocate procedure. Consideration should be given to the application of procedures for dealing with classified security information following the adoption of that Act. Discussion of this legislation will raise issues regarding the appropriate balance between giving effect to our international obligations and maintaining respect for human rights and civil liberties here in New Zealand. 
Despite some of the statements that have been made over the last few days this bill is not intended to substantially change the way in which the Terrorism Suppression Act operates; rather the primary purpose of the bill is to make the Act more workable and to update its provisions to reflect New Zealand’s international obligations. The changes proposed will bring New Zealand into line with other countries with similar legal systems and will do so in a way that is both appropriate and necessary. I commend this bill to the House.