Legal Beagle by Graeme Edgeler


A rather incomplete submission on the Countering Terrorist Fighters Legislation Bill

I've been busy lately, and have been unable to prepare the submission on the Countering Terrorist Fighters Legislation Bill that I would have liked. I also have a half-written blog post fact-checking claims made before the bill was released by the Prime Minister and the Defence Minister on what the bill would do (mostly, they fact check each other, making contradictory statements). I'm pretty sure I will never finish it.

I have however, put together a short, rather incomplete submission on the bill, or at least a couple of the minor more technical aspects I assume won't get much airplay elsewhere. I copy my submission below for those interested, but to be honest, I encourage you to read other submissions that address the principle and detail in a way I have not. In the time available for submissions, and indeed, the time available for Parliament to pass this bill there simply is not time to have a proper discussion of it, and whether (or to what extent) it is needed. That on its own is enough to reject the bill.


The Foreign Affairs, Defence and Trade Committee 

Countering Terrorist Fighters Legislation Bill

Submission of Graeme Edgeler


1. My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in law reform.

2. I thank the Committee for the opportunity to present a written submission on the Countering Terrorist Fighters Legislation Bill. I regret that given the shortened time period and other commitments, I will be unable to present in person.

3. Regrettably, this submission is much shorter than I would like it to be. I hope that the Committee will have received submissions raising the other concerns I would like to have raised. I invite the Committee to include in its report concerns about the time in which it has been required to undertake its consideration of this bill.

4. In general, I do not think that the case for the changes proposed by the Bill has been made. For example, passports can already be suspended for three years, it is just that after 12 months, this suspension must be approved by the High Court. Having 12 months in which authorities can prepare an application to the High Court to further suspend a person’s passport seems sufficient. I invite the Committee to seek advice on the number of times an application to the Court has been made under the sections that currently apply. I anticipate that it is few, but either way, it will be instructive.

5. I cannot address all of the concerns I have with this Bill. In the brief amount of time I have, I hope to focus on matters that it is perhaps less likely others as raised. They are probably not the most important issues that can be raised, but I hope the few random issues I raise will be of assistance to the Committee in its consideration.

Customs Searches (Clause 7)

6. Searches by Customs of people entering New Zealand are warrantless searches where the various protections of the Search and Surveillance Act do not apply. Permitting the police and the NZSIS to obtain information through these searches is a measure that will allow the Police and NZSIS to avoid the ordinary requirement to obtain a warrant.

7. Given that Parliament has required the Police and the NZSIS to obtain warrants before they can undertake searches, it should not also create a power whereby they can avoid the other safeguards it has put in place simply by getting Customs to do the work for them.

Serious Economic Damage (Various Clauses)

8. In various news sections proposed, the Bill allows powers to be exercised if there is the possibility of “serious economic damage”. I am unsure what is meant by this, but note that both the Terrorism Suppression Act (s 5(3)(c), s 7(b)(ii)), the Crimes Act (s 298B and s 307A), as well as the International Convention for the Suppression of Terrorist Bombings, and United Nations Security Council Resolutions relating to terrorism invoke the concept of “Major economic loss”.

9. The drafters of this legislation may have good reason for adopting the different formulation. It is not clear to me what the difference would be, but Courts will often approach questions of interpretation from the position that if Parliament uses different words, it means different things. I am not even sure which of “serious economic damage” or “major economic loss” is the more restrictive test (“major” sounds narrower that “serious”, but “loss” sounds broader than “damage”), but the Committee should consider whether it is appropriate to align the language in this bill with the similar language present elsewhere.

Offences relating to failure to destroy improperly obtained evidence (clause 9)

10. Proposed new sections 8IB(11) and 4IE(8) of the New Zealand Security Intelligence Service Act 1969 create offences arising out of circumstances where members of the NZSIS have conducted surveillance where they should not have (for example, by exercising a warrantless power, where it is later determined that it was improper to use a warrantless power).

11. If that happens, the NZSIS is required to delete the evidence it has obtained. Proposed new sections 8IB(11) and 4IE(8) create offences of knowingly failing to comply with that obligation to delete improperly obtained material. The maximum penalty is a fine of $1000.

12. This penalty is far too low. The actions involved in surveilling people in the way that the NZSIS does are actions that are criminal (for example, prohibited by section 216B of the Crimes Act: Prohibition on use of interception devices).

13. Where the NZSIS is acting in accordance with the law, its employees have defences that mean they cannot be convicted. This is entirely appropriate. However, if the surveillance is found to have been improper, then what would ordinarily be criminal activity has occurred, in a situation where the law says it shouldn’t have. It would be unfair to punish those involved for undertaking what they thought was lawful at the time, but if they then knowingly fail to comply with the remedy the law provides to fix the wrong that has been done (ie by failing to delete the material improperly obtained), the harm is identical to that which would have occurred if they were acting outside the law throughout – someone’s privacy has been unjustifiably invaded, and private video or audio has been illegal retained by the person who did it.

14.  If someone knowingly fails to delete improperly obtained material that they know was improperly obtained, and they know the law requires them to delete it, the same maximum penalty (two years imprisonment) that is provided in section 216B of the Crimes Act should apply.


15. I encourage the Committee to enquire into the rationale for the various changes proposed in this Bill. In many respects, the possibility that less severe measures might be sufficient to obtain the desired policy outcomes does not appear to have been considered. For at least some of the changes proposed, it seems likely that alternatives could be crafted that would get the desired outcome but also better protect New Zealander’s rights than the proposals contained in the Bill.


Gerry Brownlee is Innocent; or Free the Brownlee Three (updated)

[Please see the update at the end of this post, which may need a partial retraction]

Today we learned of the result of the Civil Aviation Authority investigation into the 'security breach' at Christchurch Airport involving the Hon. Gerry Brownlee and two un-named staffers.

The CAA issued Brownlee with an infringement notice for being in security area without identity card or document, a breach of rule 19.357 of the Civil Aviation Rules (.pdf). The infringement notice carries an infringement fee of $2000 (which is not a fine). Parking violations and speeding are examples of infringement offences; infringement offences are illegal, but they aren't really crimes, and infringement notices don't result in convictions or criminal records, even if you dispute them in Court. Contrary to opposition comment, the CAA did not impose the maximum fine, but rather, imposed the infringement fee set by law. Just like with speeding tickets or red-light running tickets and other infringement fees, the level is set. If you're issued an infringement notice for speeding where your "speed exceeds the speed limit by ... not more than 10 km an hour", the infringement fee is $30. If you drive without a seatbelt, the infringement fee is $150. And if you are in an airport security area without without an airport identity card, the infringement fee is $2000.

Many rule breaches are both infringement offences and offences. Authorities are given the option of either issuing an infringement notice, or charging the person with an offence. The elements of each are the same, but if authorities choose to charge, a conviction can result and the maximum penalties are usually higher (for speeding itself, this isn't possible, but for seatbelt-less driving, a fine of $1000, instead of fee of $150), for the security area thing, it's a maximum fine of $5000, but oddly an actual fine would probably be less than $2000, with the punishment of a conviction making up the difference.

The Civil Aviation Authority chose not to lay a prosecution, which would have been a harsher response than the one they took, and apparently despite previous assurances, has not released its report into the breach. I would quite like to see it, so have requested it under the Official Information Act. I think that a criminal charge in these circumstances would have been overkill, but am still interested to see the CAA's reasons for not recommending one.

For myself, I see one truly excellent reason not to charge Gerry Brownlee, which is probably obvious from the title of this post: Gerry Brownlee is innocent.

When the 'security breach' was first notified, I was involved in some twitter conversations about what trouble Gerry might be in. I couldn't find anything. People suggested things, but nothing really worked. The New Zealand Herald's John Armstrong called it a "a serious offence which carries a fine of up to $3000 and up to two months in prison." I still have no idea what offence he was thinking of, as there isn't a single civil aviation offence that carries a two month prison term.

I came out with three possibilites, the rule in respect of which the CAA issued their infringement notice, and offences against two sections of the Civil Aviation Act: section 51 (trespass) and section 54 (being in a security area), both offences with a three month maximum, but quickly came to the conclusion that none could apply.

The trespass offence has probably the strongest argument, but it is still weak, because Brownlee asked for, and received, permission to be where he was, which make his actions the antithesis of trespass.

The offence of being in a security area or security enhanced area is only committed if you are in a such an area and you refuse the leave when asked, and it doesn't apply to Brownlee's situation because he didn't refuse to leave and wasn't asked.

The infringement offence is contained in rule 19.357(b). It states

(b) Subject to paragraphs (c) and (g), no person shall enter or remain in any security area or security enhanced area of any designated aerodrome or designated installation, unless that person—
(1) wears an airport identity card on the front of his or her outer garment; or
(2) has in his or her possession another identity document or other identity documents for the time being authorised under paragraph (a).

Now, I'm pretty sure Gerry Brownlee doesn't have an airport identity card, but there are some exceptions, including:

(g) Nothing in paragraph (b) shall apply to—
(3) any passenger who enters or leaves a security area or security enhanced area for the purpose of joining or leaving a flight, if he or she is in possession of a valid boarding pass for that flight or is being escorted by a crew member or a representative of the operator;

This is the bit of the law that means you don't break the law when you leave the terminal and walk accross the tarmac to your aeroplane. And it simply does not require you to go through security screening before entering an airport security area. All it requires is that you have a valid boarding pass, and I am pretty sure Gerry Brownlee will have had one. [Please see the update below.] Issuing an infringement notice for a breach of this rule in these circumstances simply makes no legal sense. 

I'll leave aside the question of whether there should be a rule that imposes an infringement fee for someone who attempts to board an aeroplane subject to security screening without actually going through security screening, but we simply don't appear to have one. I have no doubt that Gerry Brownlee took the politically proper course by paying the infringement fee quickly after it was imposed, but it is still wrong for the Civil Aviation Authority to impose liability where none exists, which you'd think a four-month investigation might have pointed out.

I await the response to my OIA response with interest :-)

[UPDATE (~2 hours after posting): I have just listened to Mary Wilson's Checkpoint Interview with CAA Director Graeme Harris. During that interview, principally dealing with the witholding of the report, Mr Harris indicated that, at the time that Gerry Brownlee entered through the door he ought not to have, he did not have had a boarding pass, noting these were subsequently obtained from the Koru Club by Mr Brownlee's associate. This would change my analysis, which as I note rests on the basis that "... I am pretty sure Gerry Brownlee will have had [a boarding pass]". If my "pretty sure"-ness is unsubstantiated, my criticism of the CAA for issuing an infringement notice for a breach of rule 19.357(b) is misplaced, and I apologise.]


Terrorism is already illegal

Prime Minister John Key was interviewed by One News Deputy Political Editor Michael Parkin on TVNZ's Q+A this morning, primarily discussing the role New Zealand may play in the campaign against ISIS:

Parkin: On the foreign fighters issue that you mentioned earlier there, you're taking some papers to cabinet tomorrow. What are the options here, what are you looking to change?

Key: So first cabinet tomorrow, and I'm taking a paper that would look at setting up some terms of reference that would say should we make some short term - under urgency - changes to the way we control the rights and authority in this particular area. So if you look at what's happening at the moment, you look at say cancellation of passports: at the moment you can cancel those for 12 months. It's not a criminal act in New Zealand to currently go off shore and fight for a terrorist group. In a country like Australia, it is. 

Now the view of the officials is that there could be deficiency in the current setting we have. Now all of that legislation is going to be reviewed. It has to start by the 30th of June 2015 as a result of some of the changes we made to the GCSB law and the Intelligence and Security Committee law last year. But that will take a good year to work its way through and what the officials are saying to us is that the settings that we've currently got in relation to passports but also in a couple of other areas potentially argue the case that change should take place on a much quicker basis. So we'll spell out those terms of reference tomorrow.

Parkin: So you're looking at a law under urgency to cancel passports for people wanting to be foreign fighters?

Key: So at the moment we can cancel them for 12 months, not necessarily for longer. At the moment we have very little rights if someone says they want to get up and go and fight for a terrorist group. So in Australia for instance it is a criminal act if you're looking to go and fight for a known terrorist group. Now to give you an example, last week there was a New Zealander, a dual passport holder Australian and New Zealand passport holder who had been detained as a result of the Australian law. Now let's say for a moment, hypothetically he went off to Syria and fought for ISIS and then returned: under Australian law it would be illegal, under New Zealand law it would not; so where is he likely to go? And the answer is he's far more likely to come to New Zealand than Australia. Then the question is, what domestic threat does an individual like that potentially pose?

Parkin: And so you'll have the power to arrest that person?

Key: Potentially we would have greater powers and potentially even powers to look at arresting someone under the view that they would undertake what would then be deemed to be a criminal act. So that's a very big step. I'm [not] saying we will take, but what I am saying is that we're going to ask cabinet tomorrow to consider the paper and then ultimately go and look at what are the areas where we think potential change needs to happen very rapidly.

You may have noticed the bits with added emphasis. That's because this is a fact check, and those claims are false.

A New Zealander who fights for ISIS commits a serious crime against New Zealand law. They can already be arrested, they can be charged, and depending on exactly what they did while a member of ISIS, can potentially be imprisoned for life.

The Terrorism Suppression makes participation in a terrorist group an offence. Here's something I prepared earlier, but in short, you illegally participate in a terrorist group if you act in a way that enhances its ability to commit or participate in terrorist acts. While there isn't any New Zealand case law that addresses what this means, it seems to me to be a very low bar. Even if all you're doing is making the sandwiches, you're probably still guilty of this offence (the legal issue that prevented participation charges arising from the Urewera raids wasn't whether there was participation, but whether the group that had formed was a terrorist group, which I'll address with respect to ISIS/ISIL later). Participating in a terrorist group carries a maximum penalty of 14 years imprisonment.

The hypothetical New Zealander John Key describes isn't just making the sandwiches, however. The Prime Minister instead describes people fighting for ISIS. Fighting with a terrorist organisation is clearly enough to constitute participating in that organisation. And depending on what that fighting involves, the charge might be more serious. If that fighting involves:

  • trying to kill or seriously hurt people;
  • in order to induce terror or force governmental action or inaction;
  • in order to advance an ideological, political or religious cause

Or if that fighting involves:

  • trying to kill or seriously hurt civilians
  • during an armed conflict;
  • in order to induce terror or force governmental action or inaction

Either of which most people would think was being described when the Prime Minister discusses someone who "fought for ISIS". Then what that person is doing isn't just participating in a terrorist group, but is committing a terrorist act, and can face life imprisonment.

While most of our criminal laws only apply to actions in New Zealand, both the offence of committing a terrorist act and the offence of participating in a terrorist group have extra-territorial effect, meaning that if you are a New Zealand citizen, you are breaking the law and can be charged in a New Zealand Court wherever you are when you commit a terrorist act or participate in a terrorist group.

The offence of committing a terrorist act is committed any time a terrorist act is committed, but there is an additional element of participation in a terrorist group. The group you're participating in must be a terrorist group. This is the aspect that seems to have troubled the Solicitor-General when he declined permission to charge those arrested during the 2007 raids.

The Terrorism Suppression Act allows the government to designate terrorist entities. While New Zealand has not designated Islamic State (or ISIS or ISIL) as a terrorist entity, this is because it doesn't need to. Under the definition of designated terror entity in section 4, New Zealand automatically includes what we term United Nations listed terrorist entities on its list. UN listed terrorist entities are those organisations designates as such under UN Security Council resolutions 1267, 1333, and 1390, which relate to the Taleban and Al-Qaida.

The UN helpfully provides a list. And the Islamic State is on it. And just to be sure, the New Zealand Police have a list as well (.pdf). And ISIL is there too: in both places, listed as an alternative name of Al-Qaida in Iraq.

Strictly speaking, given that there is no doubt that ISIS commits terrorists acts, it isn't necessary for it to be listed, as the law applies to unlisted terrorist groups, if you can prove they are terrorist groups. But if the Prime Minister is unsure whether the UN designation is sufficient, and he wants to absolutely certain that New Zealand could arrest returning ISIS fighters, he doesn't need a law change, especially one under urgency, he could simply exercise his powers to designate ISIS as a terrorist entity.

We do not know exactly what the Government is considering doing in its urgent review of the law around foreign fighters. Tomorrow's post cabinet press conference may not enlighten us further. But if we are told that a law change is needed in order to arrest New Zealanders returning from fighting for ISIS, we are being misled.

New Zealanders who fight for ISIS break the law. They commit serious crimes over which New Zealand asserts extra-territorial jurisdiction, and can already be arrested, detained pending trial, and locked up for long prison terms when convicted.


Election 2014: The Special Votes

We have a provisional result, and now await the official result after special votes are counted. Special votes are:

  • those cast overseas;
  • those cast on polling day by people voting outside their electorate;
  • those cast by people who enrolled after the printed electoral roll was closed;
  • those cast by people on the unpublished roll; and
  • those cast by people who think they’re on the roll, but aren’t (these votes don’t count).

The final result is due on October 4.

At the last election, I conducted a quick analysis of the provisional results to try to determine how the special votes might change the makeup of Parliament. I wasn't sure that the time whether it would work, but I was pleased with how accurate it was.

I have no particular reason to believe that the effect of special votes will, at this election, mirror the effect in the 2011 election. The advance votes certainly didn't. But we have little else to go on.

That said, adopting the same method I used last time, based solely on how special votes broke in 2011, along with the Electoral Commission’s estimate of the number of special votes at this election, I predict the following final result:

  Preliminary   Estimated  
National 48.06% 61 47.24% 61
Labour 24.69% 32 25.05% 32
Green 10.02% 13 10.50% 13
New Zealand First 8.85% 11 8.52% 11
Māori Party 1.29% 2 1.38% 2
ACT 0.69% 1 0.68% 1
United Future 0.22% 1* 0.21% 1*
Conservative 4.12% 0 3.92% 0
Internet MANA 1.26% 0 1.38% 0
    121   121

That's a pretty boring table, as it happens. If the projection holds then, unlike in 2011, it seems like there will be no change. No party does well enough on the specials to take a seat of another party.

In 2011, the Green Party did ~38% better during special votes than it did on the preliminary count, and the National Party did ~13% worse than on the night. That was enough for the Greens to take a seat off National. If the same happens this time, it won't be. For the Greens to gain a seat on the special votes this time, their support among special votes would have to be ~42% better, or National's ~16% worse (or some combination of the two). Could this happen? Sure. But based on the information we have, it's not nearly as likely this time 'round.

In 2011, the Greens were closer to get that extra seat that they are this election. They have more ground to make up this time, and no other party in contention historically does well enough on the Special votes to make up the gap they face either. History suggests there will be no change this election.


Election 2014: the no threshold counterfactual

As I have done on election night of the last two elections, I present below the New Zealand House of Representatives, had the election been conducted with no threshold: 

National – 57
ACT – 1
United Future – 1

– 5

New Zealand First – 11
Maori Party 
– 2

Labour – 30
The Greens – 12
Internet MANA – 2

(total 121 MPs)

Obviously, if the rules were different, the vote would be different. I make no claim that this would have happened (almost certainly, it would not have), but I think it's interesting to look at it anyway.