I do not like the Terrorism Suppression (Control Orders) Bill. However, I believe it is necessary evil. I believe this for two reasons.
First, although this current tide of terrorism is declining, it will not be the last. This is not a problem which will disappear. Second, everything changed after March 15. It is no longer sufficient to dismiss risks as too remote, that they will not happen here.
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The group that the current law is responding to is Islamic State. This group was deeply involved in crimes of war, crimes against humanity, crimes against cultural property, slavery and even genocide.
These people were terrorists, not tourists. Now that their attempt to control the Levant has failed, with most having been killed, or fled, somewhere between 10 to 30 per cent of the original foreign volunteers are trying to make their way to their home country. Of these returnees, only a small minority may be recidivists, wanting to directly carry on, or propagate, their violent ideologies. Sometimes it is the latter which is most important as the inspiration and magnetism of a veteran can be a catalyst for future mayhem.
Within this minority, what the person did in the war, how the war impacted upon them, and how much it galvanised - or blunted - their worldviews matters. The answers to these questions helps provide the answer as to whether the terrorist returnee is a ticking time bomb or an inert piece of extremism surplus.
In the context of New Zealand, the returnee numbers would probably equate to only a handful of people. This presents a risk which is small, but it is not invisible.
The broad principle that needs to be underlined is that anyone challenged in a court of law should have the ability to see the evidence used against them.
The current law is trying to deal with this risk, and in particular, the problem of those with whom sufficient evidence does not exist to prosecute and potentially incarcerate them under the existing terrorism related laws. To deal with this risk, the Control Orders (such as on internet connections, where they may go, whom they can talk, and their inability to propagate terror-related material) are clear restrictions on the liberty of anyone whom gets an order attached to them.
However, they are less onerous than other options practised by other countries, such as preventing their return in total, or allowing them back but then putting them directly into prison. Moreover, in New Zealand, the checks and balances within the proposed law and review mechanisms mean that they are less heavy than the possible Control Orders in comparable countries. To my mind, these restrictions, although undesirable, are proportionate to the risk at hand.
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There are, however, areas where the proposed bill needs to be improved.
There must be a greater emphasis upon efforts to rehabilitate and de-radicalise those who may have been involved with violent extremism. The efforts here have to be upon ending the alienation of those concerned. This requires a mix of employment, programmes to counter violent extremism, and tethering them into a community. The power of a scholar deeply versed in theology to defuse a radical who had been purposely isolated from such critique, should not be underestimated.
Unless these root causes are addressed, additional surveillance and restraints upon liberty, will amount to very little.
Another area needing improvement is with regards to the evidence presented to convince a judge that the person under suspicion was involved in terrorism or a recognised terrorist group. The broad principle that needs to be underlined is that anyone challenged in a court of law should have the ability to see the evidence used against them. The caveat to this is that if such evidence needs to be kept secret on the grounds of national security.
While this is a fair defence, it must only be allowed with the most extreme reluctance. It cannot be waved around like a magic wand by the security agencies to prevent their findings being questioned.
Accordingly, if an accused is not allowed to see evidence used against them, this decision to withhold should be verified by an independent authority, akin to the Inspector General of Intelligence and Surveillance.
The final area that needs attention are the three steps that will help future decision makers about the utility of this current measure. There should be an annual report which details how much, and in what ways, the law is being used each year; there should be a review of the law in three or five years' time, independently conducted from those who administer it, and key groups, such as the Human Rights Commission and the Law Commission, should be deeply entrenched in this process.
Finally, the Terrorism Suppression (Control Orders) Bill should have a sunset clause
built into it, whereby the law will lapse at a set date in the future, unless Parliament expressly decides that the need to renew it is justified.
• Alexander Gillespie is a professor of law at Waikato University