by Cameron Walker
The Terrorism Suppression Act 2002, brought in by Helen Clark’s Labour government, contains a number of wide provisions potentially criminalising support for legitimate national liberation movements and activism.
The Act was discredited in the eyes of many of its initial supporters in 2007 when the Solicitor General described it as ‘unnecessarily complex and incoherent’, following his refusal to allow the Police to proceed with charges under the Act against the defendants in Operation 8 (the so-called ‘Urewera raids’).
Yet the Act was never repealed. The legal ability of the state to apply the sections of the Act to those supporting international solidarity causes has increased over the past five years. John Key has used his power under s 22 of the Act to designate groups as ‘terrorist entities’ 19 times since 2010!
From 2002 to 2008 Labour designated groups on the UN Lists of Al-Qaeda and Taliban-related Entities. National entered the territory of designating groups fighting for socialism (Communist Party of the Philippines and New People’s Army; the FARC and ELN of Colombia); and national liberation in the Middle East (such as the Palestinian Al-Aqsa Martyrs Brigade and the armed wing of Hamas) and the Kurdistan Workers Party (PKK).
New Zealand’s terrorist designations list now resembles that of the US and European Union.
Under s 22 the Prime Minister may designate a group as a ‘terrorist entity’ if he or she on reasonable grounds believes the group committed at least one ‘terrorist act’. The definition of terrorist act is outlined in s 5 of the Act and is broad enough to include a wide range of activity far removed from the intentional targeting of civilians to spread fear.
When the Act was passing through Parliament in 2002 many select committee submitters feared if section 5 had existed in the 1980s the actions of South Africa’s African National Congress; the armed wing of East Timor’s independence movement, Falintil, or El Salvador’s FMLN could have fallen within its definition.
When adding groups to New Zealand’s designated terrorist list the Department of Prime Minister and Cabinet’s Terrorism Designations Working group interpreted section 5 to cover a wide range of acts, including those associated with guerrilla warfare. In the 2010 DPMC paper making the legal case for the designation of the CPP/NPA, the shooting of armed security guards during a NPA sabotage mission on the equipment of a mining firm notorious for using paramilitary thugs to intimidate local small scale miners and environmentalists was considered a terrorist attack under section 5.
Designation triggers a number of offences, including dealing with the designated organisations’ property, making property or financial services available to the group and recruiting members. Participating in the designated group in a way aimed to enhance its ability to carry out terrorist acts is also an offence.
Whether donating money to a designated group is an offence is murky because the Act states it is an offence to “provide or collect funds” for a group the person knows is an entity which participates in the carrying out of at least one “terrorist act”. Presumably this could cover both designated entities and groups who are not designated.
The designations should not just be the concern of those who sympathise with armed resistance movements. In many of the home countries of the designated groups, governments accuse a broad range of opposition movements of being supporters or members of armed groups. There is a risk the New Zealand authorities may accept such claims at face value.
Documents produced by the Department of Prime Minister and Cabinet making the legal case for each terrorist designation blur the lines between armed struggle and political dissent.
The 2010 paper making the case to designate the FARC, under the heading Regional Presence/links with New Zealand Citizens, states:
“There are some tenuous indications of person-to-person links regarding the FARC and/or the social conditions which help underpin the FARC, but nothing concrete is known to exist. It has been recently reported that a Colombian woman who visited Australia in 2005 and 2007 as a representative of a farm workers’ peak union body, has been charged in Bogota with ‘covert offshore fundraising’ for the FARC.”
The Colombian woman referred to is Liliany Obando, a trade unionist and sociologist who conducted a world speaking tour about violence against unions in Colombia by the state and right-wing paramilitary groups. She is widely considered to be the victim of a political stitch up. Human rights groups, including Amnesty International, campaigned for her release.
Countering Terrorist Fighters Bill and the Terrorism Suppression Act
The Countering Terrorist Fighters Legislation Bill passed under urgency in December. At its final reading the Bill was divided into three Acts: the Passports Amendment Act 2014, Customs and Excise Amendment Act 2014 and the New Zealand Security Intelligence Amendment Act 2014.
This legislation gives the state increased powers of surveillance and border control until March 31st 2017. The government’s justification for this law was the need to stem the flow of foreign fighters volunteering for ISIS in Iraq and Syria and to prevent the return of indoctrinated fighters, who may wish to commit terrorist attacks on NZ soil.
The Amendments to the Passports Act rely heavily on the wide definition of terrorism in section 5 of the Terrorism Suppression Act. Under the Amendments the Minister of Internal Affairs may refuse to issue a passport or a cancel a passport of someone who the Minister believes on “reasonable grounds” is a risk to the security of New Zealand or another country because the person intends to engage in or facilitate “a terrorist act” as defined by section 5 of the Terrorism Suppression Act 2002’ for up to three years.
The Passports Act previously only allowed passports to be cancelled on national security grounds for one year in the case of those deemed by the Minister to be a threat to the national security of just New Zealand, not other countries.
The wide definition of terrorism in section 5 and the ability of the Minister to cancel passports for those deemed to be a threat to the security of countries other than NZ raises the possibility a New Zealand volunteer going to join a fight against a repressive government or neo-colonial occupation could be refused a passport or have their passport cancelled while overseas.
Attorney General Chris Finlayson’s comments on TV One’s Q&A programme contributed to concerns New Zealanders traveling to join Kurdish forces fighting against ISIS could be penalised under the legislation. He said:
“We do not want any New Zealanders getting caught up in this mess in the Middle East. It is very dangerous whether they want to fight for the Kurds or want to fight for ISIL, it is best for them, and for this country, that they stay well clear of it.”
Later in Parliament he clarified his remarks, stating it would be only used against those wanting to commit ‘terrorist acts’, no matter which side they were fighting on. The wide definition of ‘terrorist acts’ under section 5 and the designation of one faction of the Kurdish forces, the PKK, still gives cause for concern that those fighting against ISIS could be criminalised under this legislation.
The Terrorism Suppression Act is less draconian than anti-terrorist law in Australia, the US or UK.* Yet it still includes broad and ambiguous provisions open to misuse. The October 15 raids of 2007 provided a taste of how anti-terrorism law could be used in this country.
In the years since 2007, the Terrorism Suppression Act slipped from newspaper headlines and public debate. However, it continues to be used to designate resistance movements against repressive governments and neo-colonial occupations. Other draconian legislation, such as the recent Countering Terrorist Fighters legislation, also use its wide definition of terrorism.
- For example In Australia mere association with someone who is a member of a designated terrorist organisation can be punished by up to three years in prison. Criminal Code Act 1995 (Cth), s 102.8. In the UK wearing an item indicating support for a proscribed terrorist group can be punished by up to six months prison. In the 2010 case of Holder v Humanitarian Law Project the US Supreme Court held providing advice to a designated terrorist group in non-violent conflict resolution strategies constituted providing ‘material support to terrorists’.
The New Zealand government’s list of designated terrorist organisations
Al Shabaab (Somalia)
Euskadi Ta Askatasuna (ETA)
Fuerzas Armadas Revolucionarias Colombia
Ejercito de Liberacion Nacional (ELN)
Kurdistan Workers Party (PKK) (Turkey)
Palestinian Islamic Jihad
The military wing of Hamas or Izz al-Din al-Qassam Brigades (Occupied Palestinian Territory)
Real Irish Republican Army (RIRA)
Continuity Irish Republican Army (CIRA)
Harakat al-Jihad al Islami-Bangladesh (HUJI-B)
Al Aqsa Martyrs Brigade (AABM) (Occupied Palestinian Territory)
New People’s Army/Communist Party of the Philippines
Hizbollah’s Military Wing or Al-Muqawama Al-Islamiyya (The Islamic Resistance) (Lebanon and the Occupied Palestinian Territory)
The Revolutionary People’s Army/Party (DHKP/C) (Turkey)
The Shining Path (Peru)
Boko Haram (Nigeria)
New Zealand and the terrorist designation scam
National expands surveillance powers, just as Labour did
We’re all data in the end: the rise of the surveillance state
States of surveillance