The police are looking at laying charges under the Terrorism Suppression Act against at least some of those arrested last week. And they will have been very careful. Most of the time, police search warrants will be prepared by cops themselves, perhaps with a little input from an in-house legal adviser. Decisions to press idiotic charges – like the sedition charge against the Dunedin bar-keep offering a couch and petrol as a prize – will have been made at a low level, with little legal input. We can usually rely on the prosecutor (who is not the person who lays the charges) to see sense; and if they don't, a judge at an early hearing will usually set justice on its course (like one did with Shane Ardern's disorderly tractor driving).
Not this time though. The cops will have been very careful. Before listing the Terrorism Suppression Act on an application for a warrant, advice will have been sought not just from legal advisers, but senior lawyers at national headquarters, independent crown prosecutors, and crown counsel. They will have dissected the evidence, and the law. They'll be doing it again now. Asking the question 'can we prove that anyone we've arrested participated in a terrorist group?' and more fundamentally 'what does it mean to have participated in a terrorist group?'
Which leaves one question. Is their advice right?
We know from the search warrants (thanks Scoop!) that the police are looking at charges of “participating in a terrorist group” under section 13 of the Terrorism Suppression Act, so what will they have to prove if they're to succeed in court?
Let's start with the law:
13 Participating in terrorist groups
(1) A person commits an offence who participates in a group or organisation for the purpose stated in subsection (2), knowing that the group or organisation is—
(a) an entity that is for the time being designated under this Act as a terrorist entity; or
(b) an entity that carries out, or participates in the carrying out of, 1 or more terrorist acts.
(2) The purpose referred to in subsection (1) is to enhance the ability of any entity (being an entity of the kind referred to in subsection (1)(a) or (b)) to carry out, or to participate in the carrying out of, 1 or more terrorist acts.
(3) A person who commits an offence against subsection (1) is liable on conviction on indictment to imprisonment for a term not exceeding 14 years.
We can immediately see that merely being a member of a terrorist group isn't enough. Whatever you do, it has to be participation – aimed at enhancing the ability of the group to engage in terrorism. Making the tea isn't going to be enough. The participation also has to occur at a time when you know that the group is a terrorist group. But these matters are largely questions of fact – what was each individual doing that might lead us to this conclusion? Those for whom there isn't evidence around this won't be charged, but what about the rest?
The legal argument will focus on whether the group (which I'll dub “Te Qaeda”) is a terrorist organisation. As you'll note from above, this requirement can be met one of two ways – using either paragraph (a) or paragraph (b).
New Zealand hasn't designated any terrorist entities (so far we've just copied and pasted the UN's list), and no New Zealand group has been designated a terrorist entity, so paragraph (a) is out. And on a first look that leaves a bit of a problem – can a group that hasn't yet committed a terrorist act qualify under paragraph (b)? It's not 100% clear, but I'll get back to this important question soon, I'm jumping ahead of myself.
The question is whether TQ is “an entity that carries out, or participates in the carrying out of, 1 or more terrorist acts.” And just what is a “terrorist act”? There's a definition in section 5.
An act is a terrorist act if it is intended to cause:
[you need one of these]
a) death or serious injury (other than to the terrorist);
b) serious risk to health or safety;
c) serious interference to an infrastructure facility likely to endanger human life;
d) destruction or serious damage to property of great value or importance, or major economic loss, or major environmental damage if likely to cause a, b, or c;
e) the release of a disease bearing organism if likely to devastate the economy; or
and if it is carried out for the purpose of advancing:
[and you need one of these]
a) an ideological cause;
b) a political cause; or
c) a religious cause.
and if it is intended to:
[and you need one of these]
a) induce terror in a civilian population; or
b) unduly compel or to force a government or an international organisation to do or abstain from doing any act.
So it's a tough ask. The definition might be wider than those things some people might think are terrorism, but it won't catch legitimate protest. If the cops can prove the above, then they're probably rightly alarmed.
But remember that that's not all. That's the definition of terrorist act, something by itself not yet illegal. A terrorist entity under section 13(1)(b) is a group that “carries out” terrorist acts. Can TQ qualify if it was planning to strike, but hadn't yet? The cops obviously think so, and will be relying on section 25. It states:
For the purposes of this Act, a terrorist act is carried out if any 1 or more of the following occurs:
(a) planning or other preparations to carry out the act, whether it is actually carried out or not:
(b) a credible threat to carry out the act, whether it is actually carried out or not:
(c) an attempt to carry out the act:
(d) the carrying out of the act.
There's obviously a good argument that this will overcome any problems associated with the fact TQ hadn't actually done a terrorist act by the time arrests were made. But I don't think it's 100% clear.
If I was the lawyer of one of the Urewera 17, I'd be arguing a couple of things.
First, section 25 appears under the heading “Further provisions relating to interim and final designations” and section 5 of the Interpretation Act 1999 makes it clear that headings can be used to interpret legislation. I'd be arguing that what this section means is that an organisation can be designated a terrorist entity even though “all” they've done so far is plan or threaten terrorism. I'd be arguing that if this was intended to apply not just to designations but to all the offences too, it would be included in the definitions section earlier in the act – not in a part solely related to designations (the “organisation” of a statute can also be used to help interpret it).
Second, I'd be arguing that committing a terrorist act isn't actually a breach of the Terrorism Suppression Act (this is something they're “fixing” in the amendment bill currently before Parliament), and there isn't a crime of conspiracy to commit a terrorist act (like there is a specific crime of conspiracy to murder, or conspiracy to commit treason), then allowing section 25 to be used in an expansive way would effectively mean adding an offence Parliament hadn't at the time the law was passed intended to create.
This might not be enough – the phrase “for the purposes of this Act” is broad – but there are other arguments too. Assuming that planning or preparing to carry out a terrorist act gets you close enough, the prosecution will still have to overcome the intention bit.
Is the act of planning a terrorist act done with the intention of inducing terror or compelling government action? Arguably not – a terrorist act, lets say the assassination of a politician to secure a legislative change – is obviously done with the intention of compelling government action or inducing terror, but is practising the attempt or planning the attempt also done with that intention? How can the secret amassing of terrorist weapons or the creation of plans compel or induce anything?
I don't want to be seen as scotching the prospect of properly-laid terrorism charges: there are a bunch of arguments in favour of the presumed police interpretation of the law. None of this is clear cut. But there's a lot of legal argument to be had before we can know whether anyone will be tried under the Terrorism Suppression Act. The facts, when the come out, will be important: what if anything was planned in Tame's wananga?
There will almost certainly be charges under the Arms Act, but will there be charges under any other act? Using the evidence obtained from the search warrant will be problematic for charges under the Crimes Act, but to me, at least some of the leaks/speculation in the media suggested charges of treason might be appropriate in some cases. Somehow, I doubt the cops have thought of it.