John Armstrong: Poor legislation arouses fears.
It was all rather shabby, shoddy and shameful. How else to describe the latest and one of the most flawed and consequently divisive pieces of anti-terrorist legislation to hit the statute books? How else to characterise National's seeming contempt for Parliament's role in ensuring that new law is subject to proper scrutiny? "Procedural abomination" was the terse but accurate judgment of Green MP Kennedy Graham of National's truncating of the passage of the Countering Terrorist Fighters Legislation Bill through the House. Such a verdict is a bit harsh on Chris Finlayson who, as the minister responsible for the Security Intelligence Service, steered the measure through Parliament. Finlayson was all charm, all obliging and just a little bit accommodating as he sought to get Labour on board to share the odium. By that stage it was too late. Not that Finlayson or his colleagues would have cared too much. Sometimes governments just have to govern. Moreover, National believes the great majority of New Zealanders think the Government is doing the right thing or do not care. The bill's objective was simple -- to block budding local jihadists from leaving the country and ending up in the living nightmare otherwise known as Islamic State. But the issues the bill raised are complex -- essentially trading off civil liberties in return for enhancing public safety. The Prime Minister is utterly unapologetic about giving priority to the latter over the former. John Key knows full well who will be blamed if the extra powers which the bill granted to the SIS were not in place and a random terrorist attack occurs in New Zealand and results in deaths or serious injuries. Perversely, the new legislation increases the odds of that happening, if only very marginally. Like any rushed law, gaping holes are already appearing in its fabric. One such void exists at the very heart of the measure. The big question is what should happen after the passports of would-be "foreign terrorist fighters" have been cancelled? That is not spelt out in the legislation. The answer appears to be not a lot. The bill does not prescribe any new offences which would enable authorities to detain someone who intended heading for the Middle East and joining the Holy War being waged in Iraq and Syria by Islamic State. And neither should it do so. Unless found to have breached an already existing law, such as the Terrorist Suppression Act, any passport-deprived recruit to radical Islam stuck in New Zealand will presumably be free to radicalise themselves to an even greater degree. And with what ultimate aim or result in mind? A "disclosure statement" produced by the Department of the Prime Minister and Cabinet, whose officials have responsibility for the emergency bill, argues that developing new offences to explicitly capture foreign terrorist fighters might be "appropriate", but there is no urgent or immediate gap in the system that needed to be addressed "at this time". The department's advice to Parliament's foreign affairs and defence select committee, which briefly heard public submissions on the bill, was more forthcoming. The creation of new offences would require reconsideration of the definition of a "terrorist act" -- and that was best left to a wider and less time-pressured review. As chance would have it, just such a broad-based review is required under the provisions of the Intelligence and Security Act to get under way next year. In the meantime, an extra $7 million is being injected by the Government into the SIS during the current and next financial years to specifically monitor foreign terrorist fighters, including presumably those unable or unwilling to leave New Zealand. The looming review has proved to have become a crutch for both officials and politicians, allowing them to kick for touch when confronted with tricky questions about intelligence matters. Key quite rightly notes the bill is a temporary measure which will be discarded once the broad-based review has reported back to the Government with recommendations for change. There is deep suspicion, however, that the SIS is using the current bill as a means to gain and retain extra powers ahead of the review. Those extra powers will allow the SIS to conduct video surveillance through installing devices on private property. The agency will also be able to conduct surveillance in an emergency for 24 hours without first obtaining a warrant. As Otago University law professor Andrew Geddis noted in his submission on the bill, once those powers were given to the SIS, they would not be rescinded. That was just not how things worked. Enter Labour. Given National already had enough votes to pass the bill, Labour opted to be constructive and extract concessions from National in the form of greater safeguards in the bill. In return, Labour's backing for the bill gave National the bipartisan approval it was hoping for -- if belatedly. Labour got panned from the left for selling out. The party is punting, however, that it will earn respect from those to its right who will see it as being both responsible in terms of national security and liberal in diluting the bill's more disturbing features. As a consequence, Labour managed to insert restrictions in the bill which, among other things, ensure video surveillance is confined solely to the SIS's anti-terrorism work. Meanwhile, every instance of warrantless surveillance will now have to be referred to the intelligence world's watchdog, the Inspector-General of Intelligence and Security, for scrutiny. That will not satisfy those who see no justification for expansion of the powers of the SIS, especially given its rather bumbling track record. As the Islamic Women's Council noted in its submission on the bill, the SIS was able to identify up to 80 potential recruits to the cause of Islamic extremism using its existing methods of surveillance. What convinced most MPs on the select committee of the need to boost the SIS's capabilities was the data provided by the agency which apparently showed a dramatic escalation in those numbers over a relatively short time. It confirmed the reach of Islamic State. The Greens and New Zealand First could still rail against the bill. But for National and Labour, it is a different story. Their job is to form governments -- not make up the numbers. They are the ones who really hold the power. And with that come obligations, one being to protect citizens from harm. The tragedy is that in doing so they so often damage the very thing they are trying to preserve.