On Wednesday, the Government announced a new Terrorism Suppression Bill aimed at solving the security risk presented by New Zealand citizens who had gone overseas to join ISIS returning home.
While it immediately became the centre of a political kerfuffle, with neither the National Party nor the Greens willing to support it without changes, the bill also raises important questions about human rights and the lawmaking process.
Critics have asked whether the proposed law is designed for just one man, so-called ‘bumbling jihadi’ Mark Taylor. Human rights organisations and experts have also cautioned that the bill could be used to target people who aren’t terrorists.
Turkish invasion accelerated process
Minister of Justice Andrew Little announced the new law on Wednesday, just days after Turkey invaded northern Syria and Kurdish officials revealed that nearly a thousand former ISIS fighters had escaped from a prison camp in the ensuing chaos.
Critics of the legislation have said the timing makes it look like the Government is scrambling to make sure some legal framework is in place if Taylor or other fighters with New Zealand citizenship attempt to return.
In March, the ABC reported that Taylor was in the custody of the Syrian Democratic Forces, a mostly Kurdish militia. At the time, Prime Minister Jacinda Ardern said that the Government had explored stripping him of his citizenship but was unable to do so because of UN rules against rendering people stateless.
However, she noted at the time that Taylor had intentionally destroyed his New Zealand passport and said that New Zealand would not go out of its way to bring him home. Were Taylor to present himself at a New Zealand consulate – the nearest of which are in Baghdad and Ankara – the Government would be forced to provide him with a new passport, she said.
That eventuality seemed unlikely at the time, as he was in Kurdish custody. Now, with northern Syria descending into chaos as Turkish troops and Ankara-aligned militias battle Kurdish and Syrian regime forces, Taylor’s return seems more plausible.
Critics worried about rushing
Given the situation in Syria, some worry that the Government is rushing the legislation through Parliament without giving it the time needed for proper consultation. Little denied this, saying that the review of New Zealand’s terrorism laws had begun in September 2018 and that the law was largely drafted by the end of August.
“It was pretty much ready at a time that coincided with when Turkey invaded Syria, which considerably increased the probability that foreigners currently detained there will have to or want to return to their country of origin. Some of the timing is coincidental but the work started a while ago,” he said.
Chris Wilson, a senior lecturer on terrorism and violent conflict at the University of Auckland, told Newsroom that, “my concern would be that any laws that are introduced need to be scrutinised and deliberated on over a decent amount of time”.
“I don’t know why the Government appeared quite flippant at the time [Taylor was captured]. It shouldn’t come as any surprise that his incarceration was quite tenuous.”
Amnesty International also issued a call in which it “urges the Government not to rush the law through”.
Proactive or reactive?
The sudden introduction of the bill also raises questions about whether it represents responsible lawmaking. Wilson said the Government needed to be sure it was doing proactive lawmaking, not reactive lawmaking.
Green Party spokesperson for foreign affairs Golriz Ghahraman echoed this worry. “There’s certainly cause for concern in that area, given that it seems to have been crafted to address the issue of – in particular, Mark Taylor – but returning fighters,” she said.
“There’s no argument that this was a law that was being drafted and now by chance it will have application to these people. It does seem to be – and the minister sort of admitted – that it’s in reaction to [the situation in Syria]. And that’s concerning to me.”
Paul Buchanan, a former intelligence analyst and international security expert, told Newsroom that the bill represented both proactive and reactive lawmaking. “They’ve been working on this law reform for a while, but they’ve been taking their time to get the wording right,” he said.
“Then, when Trump precipitated the Turkish invasion of Syrian Kurdistan, the spectre of all these jihadis being released from the prisons accelerated the need to have something in place in the event that someone comes back here.”
Ghahraman is also worried that the law was designed with a single person in mind: Mark Taylor. “That’s what it would appear to be. It’s that adage of, ‘bad cases make bad law,’” she told reporters on Thursday.
Little said that there were more Kiwis in Syria who worked for ISIS in some capacity than just Taylor. “There’s four or five people, at least, in Syria, who have either participated in combat activity in support of ISIS or have otherwise supported ISIS.”
Buchanan agreed. “The issue is not so much about Mark Taylor. Taylor is not really a threat, okay? He was never allowed by ISIS to fight on the front lines because he’s an idiot.
“The concern is that there’s far more dangerous New Zealanders – only a handful – who may still be alive and who were front line fighters for ISIS.”
Ghahraman clarified on Friday that although Taylor wasn’t the only individual, it was still dangerous to be making laws for a single situation. “It’s not necessarily just one man – we’ve heard from the minister that there’s more people that this law is hoping to catch – but it’s certainly a law that’s designed to address one particular set of circumstances: returning ISIS fighters. But it purports to apply beyond that and that’s the concern.”
Little stressed that the law would also apply in other scenarios. “The reality is, with the rise of extremist activity, including … right-wing extremist activity, you could expect that at some point in the future it would apply to a New Zealander who commits a right-wing extremist terrorist attack in another country and has to or wants to come back. We want a means to deal with him,” he said..
Are the current laws sufficient?
Ghahraman contends that New Zealand’s existing terrorism laws are sufficient for dealing with people like Taylor.
“The Government wanted extra reassurance given that there was a novel situation where we have Kiwis returning after fighting with ISIS but that doesn’t mean that our law wasn’t already equipped to deal with the situation,” she said.
Under the Terrorism Suppression Act 2002, it is a crime to participate in a terrorist organisation and a conviction can carry a sentence of up to 14 years in prison. On Friday, a District Court judge issued a warrant for Taylor’s arrest, ensuring that he would be apprehended at the border if he tried to return to the country.
“There’s still a lot of uncertainty about the efficacy of [the existing laws],” Little said. “I think the most important thing was [making sure] there was a means to intercede at the border. Not necessarily taking a punitive approach but actually knowing where he is and having some influence on what he does on his return.”
Where the current law might fall short is with extremists or terrorists who are not members of a designated organisation and who the Government may immediately not have enough evidence on to prosecute. In particular, right-wing extremists are less likely to operate in designated groups, in part because there are no UN-designated right-wing terror organisations.
Human rights could be violated
The new law seeks to rectify this by allowing the Government to issue control orders against people even if it doesn’t yet have the evidence to charge them. The legislation allows the Government to serve these orders – which could prohibit them from visiting certain locations, restrict them from certain activities, or mandate deradicalisation courses, for example – to a wide range of people.
… we have concerns that the new law could still harm people falsely characterised by oppressive regimes overseas.
This is where Ghahraman and Amnesty International see potential for abuse. In addition to targeting people already subject to New Zealand’s terrorism laws, the new legislation can target people deported from a country for terrorism-related activities, convicted in another country for terrorism-related activities, or subject to a control order or “analogous supervisory regime” in another country for terrorism-related activities.
“What we’re concerned about is that it risks catching people who have been convicted of or deported from other countries for the types of activities that we actually prize in New Zealand. Political activism, environmental activism, things like that,” she said.
“People have pointed out that it would potentially apply to someone that’s traveled overseas to join the Hong Kong protests and China may identify them as a terrorist.”
“Whilst the local definition of terrorism is much narrower here in New Zealand, we have concerns that the new law could still harm people falsely characterised by oppressive regimes overseas, if that information is influencing a New Zealand judge’s decision,” Amnesty’s Annaliese Johnston said in a statement.
“There’s no question that these sorts of measures are a breach of people’s civil liberties – that is the nature of intrusive and controlling orders like this,” Little admitted.
“But the checks and balances principally include the fact that a High Court judge has to be satisfied that that is justified for the particular person and that the extent of the control regime that is called for is warranted.”
Nonetheless, Ghahraman pointed to the case of Ahmed Zaoui, an Algerian opposition parliamentarian who was falsely imprisoned when he arrived in New Zealand for two years based on terror charges against him in other countries. Buchanan and Johnston also mentioned Zaoui as a concern.
“This law brings us closer to that sort of Zaoui-esque case and may well capture an opposition MP from another country,” Ghahraman said.