Legal Beagle by Graeme Edgeler

98

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.

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