Thursday, November 08, 2007

Making sense of the Terrorism Suppression Act

I haven't blogged at all about the recent Te Qaeda fuss because as soon as I heard Tame Iti was involved, I figured the people involved were clowns who ought to be beaten with cluebats rather than anything serious. The defendants still face charges under the Arms Act, which specifies sentences of up to five years. What's more interesting to me is that the Solicitor-General has decided that there won't be prosecutions under the Terrorism Suppression Act of 2002 (ordinarily this would be the Attorney-General's decision but since Michael Cullen is not a lawyer or a wise minister of finance for that matter, he has delegated the decision to the Solicitor-General) because the act is "extremely complex, very, very tortuous in the way in which it is put together and almost impossible to apply in a coherent manner". Strong words. But for people familiar with the legal thinking of the then Minister of Justice when the legislation was drafted, one Margaret Wilson, they should not be surprising ones.

So this led me to think what exactly did the Solicitor-General have problems with? The act is here. To give a flavour of what must have caused the Solicitor-General to start beating himself senseless against a brick wall, Terrorism Acts are defined in s5(1) as:
1) An act is a terrorist act for the purposes of this Act if—

(a) the act falls within subsection (2); or
Subsection 2) states that the act is terrorism if it is intended to cause certain outcomes that are listed in subsection 3) and that these acts are carried out with a purpose and also with certain intentions. So in order to assess whether my plans to blow up the Beehive (for the sake of an example I assure you) is terrorism, the police must not only ascertain the likely outcome but also my intentions as well as my purpose. Why my intentions and purposes should be considered separately, I have no idea. Moving on:
(b)the act is an act against a specified terrorism convention (as defined in section 4(1)); or
The specified terrorism conventions are defined in section 4(1) as being specific treaties listed in Schedule 2. So why did the act not say instead "as listed in Schedule 3"? Looking at the next subsection:
(c)the act is a terrorist act in armed conflict (as defined in section 4(1)).
The definition in s4(1) for some reason fails to describe what an armed conflict is or what the acceptable means of armed conflict is. Have a look at s13:
(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.
Two subsections both of which refer to each other. It would have been much simpler to define "terrorist group" in s4 so that s13 can be rewritten as:
A person commits an offence by knowingly participating in a terrorist group to either enhance its capability to carry out terrorist acts or to carry out one or more terrorist acts or both.
See the difference? Why couldn't Margaret Wilson?