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Terrorism Suppression (Control Orders) Bill - Submission to the Foreign Affairs, Defence and Trade Committee [2019] NZHRCSub 9 (10 November 2019)

Last Updated: 14 June 2020

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Submission of the New Zealand Human Rights Commission to the Foreign Affairs, Defence and Trade Committee on the Terrorism Suppression (Control Orders) Bill and Supplementary Order Paper 397

Introduction

1. The Human Rights Commission (“the Commission”) welcomes the opportunity to provide the Foreign Affairs, Defence and Trade Committee (“the Committee”) with this submission on the Terrorism Suppression (Control Orders) Bill (“the Bill”) and Supplementary Order Paper 397 (SOP 397).

2. At the outset, however, we wish to note our concern at the brief period provided for providing submissions, particularly in light of the complex human rights and public interest considerations that the Bill gives rise to.

Summary of the Commission’s recommendations

3. In summary, the Commission strongly recommends that the Committee:

1. Incorporates SOP 397 (clauses 6A and 35) into the Bill (with a couple of small suggested amendments);

2. Enquires with the Ministry of Justice as to the current status of its response to the Law Commission’s review of national security information in proceedings (NZLC 135);

100. Ensures the Bill retains its current age threshold and does not apply to children and young persons aged under 18 years; and

4. Amends the Bill to provide that it is expressly subject to statutory review by the Intelligence and Security Committee and is included in the next periodic review of intelligence and security legislation under s 235 of the Intelligence and Security Act 2017.

4. We set out our reasons in detail below.

Focus of the Commission’s submission

5. The Commission’s submission focuses on the following:

1. The application of human rights principles when considering rights-limiting measures;
2. The effect of SOP 397;

100. The civil nature of the proceedings and standard of proof;

4. The age threshold; and

5. Review of the legislation.

The application of human rights principles when considering rights-limiting measures

6. The purpose of the Bill is to introduce “a civil regime of control orders to manage and monitor a small number of people who are returning to, or who have arrived in, New Zealand after having engaged in terrorism-related activities overseas.”¹

7. The proposed requirements that can be imposed by a control order are set out in section 16 and include such things as non-association and restriction of movement requirements, (including being subject to electronic monitoring and being restricted to stay at a place of residence for up to 12 hours a day) and the prohibition/restriction of the use of the internet and telecommunications equipment². The Bill also provides that the High Court may hear applications for interim control orders and issue such orders on a “without notice” basis. This would circumvent the rights of the defendant to natural justice and the presumption of innocence.

8. The control orders regime introduced by the Bill therefore places substantial limitations on human rights protected under the New Zealand Bill of Rights Act 1990 (BORA) and the International Covenant on Civil and Political Rights (ICCPR), including the rights to freedom of movement, freedom of association, privacy and natural justice.

9. The Commission notes that Crown Law has reviewed the Bill for its compliance with the BORA³. Crown Law considers that the Bill is “problematic from a human rights perspective” and constitutes a “significant degree of intrusion into the life and activities” of the subject person. Crown Law also observe that the Bill imposes restrictions that generally may only be imposed following a criminal conviction⁴ and refer, by analogy, to the Extended Supervision Order (ESO) regime⁵. Nevertheless, Crown Law conclude that, on balance,

¹ Explanatory Note

² Clause 16

³ https://www.justice.govt.nz/assets/Documents/Publications/Terrorism-Suppression-Control-Orders-Bill.pdf

⁴ Ibid at para 2

⁵ Ibid at para 25

the Bill’s safeguards “overcome” those concerns and as such form the view that the Bill is not inconsistent with the BORA.⁶

General legal obligations of the state parties under the ICCPR

10. The UN Human Rights Committee has found that:

Where such restrictions [to ICCPR rights] are made, States must demonstrate their necessity and only take such measures as are proportionate to the pursuance of legitimate aims in order to ensure continuous and effective protection of Covenant rights. In no case may the restrictions be applied or invoked in a manner that would impair the essence of a Covenant right.⁷

11. National security measures inevitably involve restrictions upon individual rights in favour of collective rights to security. In order to ensure that such measures do not breach international human rights obligations, they must conform with the above principles. The First Independent Review of Intelligence and Security in New Zealand, undertaken by Sir Michael Cullen and Dame Patsy Reddy⁸ recognized this, and accordingly highlighted the “need to maintain both security and the rights and liberties of New Zealanders”⁹ through a balancing, rather than a trade-off, of those rights¹⁰. The Commission supported this approach and referred to the similar methodology and principles developed by David Anderson QC in his contemporaneous review of UK intelligence and security legislation¹¹.

12. This has led to national security legislation and policy that is rights-affirmative by design. The Intelligence and Security Act 2017 (ISA), the legislative product of the Cullen Reddy Review, provides in its purpose statement the need to ensure its functions “are performed... in accordance with all human rights obligations recognised by New Zealand law”.¹² Furthermore, it is notable that the international human rights principles of legality, proportionality and necessity referred to above at paragraph 9 are expressly incorporated

⁶ However, it is notable that the Crown Law opinion, while detailed, does not attempt to expressly apply s 5 of the BORA nor the R v Hansen test set by the Supreme Court in its assessment of the Bill.

⁷ General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13. at para 6

⁸ Intelligence and Security in a Free Society, Report of the First Independent Review of Intelligence and Security in New Zealand, available at http://www.igis.govt.nz/assets/Uploads/Review-report-Part-1.pdf

⁹ Intelligence and Security in a Free Society at para 4

¹⁰ See paras 1.6-1.10.

¹¹ See Human Rights Commission: Submission on the Independent Review of Intelligence and Security Services, 14 August 2015, paras 1.1, 7-11

¹² Section 3(c)(i) Intelligence and Security Act 2017

into the Ministerial Policy Statements issued under sections 206 and 207 of the ISA (and which guide the practices of the intelligence and security agencies).

13. It follows that this Bill, as a national security instrument, must maintain these human rights standards. As Crown Law have identified, safeguards are an essential factor in this regard.

14. The 2009 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights commissioned by the International Commission of Jurists emphasises the crucial importance of procedural safeguards in any control orders regime:

Control orders are qualitatively different from preventive measures such as surveillance. The orders are not aimed at determining risk levels, and gathering information for subsequent criminal proceedings, but rather at placing restrictions (amounting to sanctions) on the individual concerned. Accordingly, control orders could give rise to a “parallel” legal system and, especially over the longer term, undermine the rule of law. This risk can only be minimised by treating control orders as exceptional measures, subject to time limits and judicial review against tests such as “legality”, “necessity”, “proportionality”, and “non-discrimination”. If control orders are to be used, it is also essential to build in appropriate safeguards.¹³

The effect of SOP 397

15. The Commission submits that SOP 397 significantly improves the Bill’s conformity with human rights standards in this respect through the addition of two new procedural safeguards which:

1. introduce a requirement (via new clause 6A) that the High Court must, for determining whether a person is a “relevant person” for the purposes of the legislation¹⁴, have regard to the source of any evidence and the validity, authenticity and reliability of that evidence and/or the validity, authenticity and reliability of any overseas conviction or “foreign country action” against that person¹⁵.

2. Require (via new clause 35) the High Court to request that the Solicitor-General appoint a Special Advocate under rule 10.22 of the High Court Rules 2016 to act

¹³ International Commission of Jurists, Assessing Damage Urging Action - Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, at p 121, https://www.icj.org/wp- content/uploads/2012/04/Report-on-Terrorism-Counter-terrorism-and-Human-Rights-Eminent-Jurists-Panel- on-Terrorism-series-2009.pdf

¹⁴ Clause 6 of the Bill

¹⁵ SOP 397 Clause 6A

in the interests of, and receive instructions from, a “relevant person” with regard to information that is non-disclosable for national security purposes.

SOP 397 – new Clause 6A

16. Clause 6A is an essential addition to the Bill. There are overseas jurisdictions where valid concerns arise regarding the source, validity, authenticity and reliability of evidence, particularly those jurisdictions where torture may have been used to obtain that evidence, resulting in a conviction or similar action being taken.

17. The Commission notes that the Convention Against Torture (CAT) provides an absolute prohibition against allowing evidence obtained by torture to be used as evidence in proceedings¹⁶. The Ministerial Policy Statement on co-operation with overseas public authorities, issued under the ISA, reiterates that absolute prohibition¹⁷ and imposes a duty upon the intelligence and security agencies to establish a practice of due diligence¹⁸ to:

establish an awareness of and regularly monitor the human rights practices of any overseas public authorities with which the agencies cooperate. The agencies are also expected to further enquire when there is an indication that human rights breaches might occur in a situation and decline or stop cooperating with the overseas public authority where a real or substantial risk of breach of human rights obligations (such as the prohibition of torture) is identified.¹⁹

18. The Commission notes the use of the specific term ‘evidence’ in clause 6A, a term which does not appear to be used in the Bill. The Bill instead refers to “any information supporting the application”²⁰ which could possibly be interpreted to include information that does not meet standards of evidential material for the purposes of clause 6A. To mitigate against this possibility and maintain a reference to the Bill’s terminology, the Commission recommends that clause 6A(1) and (3) of SOP 397 is amended to add reference to “information supporting the application” alongside “evidence”.

SOP 397 – new Clause 35

¹⁶ Article 15

¹⁷ https://www.nzic.govt.nz/assets/assets/mpss/Ministerial-Policy-Statement-Cooperation-with-overseas- public-authorities.pdf at para 26

¹⁸ Ibid para 23

¹⁹ https://www.nzic.govt.nz/assets/assets/mpss/Ministerial-Policy-Statement-Cooperation-with-overseas- public-authorities.pdf at para 23

²⁰ Clauses 14 and 15

19. Clause 35 also provides for another essential procedural safeguard through the requirement that the person subject to a control order application have the benefit of the appointment of a Special Advocate in cases where non-disclosable information is being considered by the Court.

20. This ensures that the person subject to control order proceedings has some opportunity to answer the case against them, a fundamental due process right. We note that the UN General Assembly has resolved that the Member States ensure that due process guarantees consistent with international human rights treaties and protocols are in place in respect of any measures designed to counter or prevent terrorism or related activity.²¹

21. This right has been affirmed in final-tier judgments concerning control order regimes issued by the European Court of Human Rights²² and the House of Lords²³. However, the appointment of Special Advocates in of themselves is not a cure-all. The ICJ note that:

The judiciary has...held that a system of “special advocates” will not necessarily compensate for the grave legal disadvantage experienced by those being issued with a control order, and that courts must look “at the process as a whole” to determine whether or not, on the facts of a particular case, justice has been done.²⁴

22. It follows that summary information of sufficient quality should available to relevant persons to balance (at least somewhat) the inherent procedural disadvantage they are facing. In addition, the costs of the Special Advocate should be met in full by the Ministry of Justice.

23. The Commission notes that the Law Commission has recommended the introduction of reforms governing the use of national security information in proceedings, which would require provision to a person of a summary of the information withheld for national security purposes in proceedings that affects their rights.²⁵ The Law Commission further recommended that the Terrorism Suppression Act be amended for that purpose.²⁶ We note that the Special Advocate provisions under the Immigration Act 2009 provide for Court-approved summaries of classified information in cases under that legislation.²⁷

²¹ A/RES/68/178, Protection of human rights and fundamental freedoms while countering terrorism

²² A and Others v The United Kingdom (Application no. 3455/05, Grand Chamber, 19 February 2009) see [220] and [224]

²³ Secretary of State for the Home Department v AF [2009] UKHL 28 (10 June 2009)

²⁴ Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, at p 111, citing UK House of Lords, Secretary of State for the Home Department v. MB (FC) 2007 UKHL 46 para 35

²⁵ Law Commission, 2015, The Crown in Court: A Review of the Crown Proceedings Act and national security information in proceedings, NZLC 135, Chapter 7 Recommendation 18

²⁶ Ibid Recommendation 23

²⁷ Section 256(2)

24. The status of the Law Commission’s report notes that it is “Awaiting Government Response’. We recommend that the Committee enquire with the Ministry of Justice as to the current status of its response to the Law Commission’s recommendation.

25. The Commission accordingly strongly recommends that SOP 397 (clauses 6A and

35) is incorporated in the Bill.

26. Further to that recommendation, the Commission recommends that:

1. Clause 6A(1) and (3) is amended to include “and all other information supporting the application” after the word “evidence”; and

2. Clause 35 is amended to provide that relevant persons are provided with summaries of non-disclosable information.

100. The Committee enquire with the Ministry of Justice as to the current status of its response to the Law Commission’s recommendation that legislation governing the use of national security information be introduced.

The civil nature of the proceedings and the civil burden of proof

27. As noted above, Crown Law’s assessment of the Bill draws a correlation between the control orders regime with criminal sanctions under the ESO regime. Despite this, Crown Law concludes that control orders are “primarily civil” in nature²⁸.

28. The Commission encourages the Committee to carefully scrutinise the current civil standard of proof under clause 30(2), given the quasi-criminal nature of the sanctions the Bill imposes and the resulting need for strong procedural safeguards to mitigate against the significant rights-limiting impact of the control orders regime on fair trial rights and civil rights and liberties. The ICJ has noted that in control order systems in Australia and the UK: ²⁹

1. the evidentiary standard required is often low – that of “reasonable suspicion”;

2. there is a limited ability to test the underlying intelligence information;

100. there are no definite time-limits and the orders can last for long periods;

²⁸ At para 26

²⁹ Assessing Damage Urging Action - Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights at page 121

4. there are limitations on effective legal representation and to legal counsel of one’s own choosing;

5. the right to a full fair hearing (guaranteed in both civil and criminal proceedings) is denied.

29. The ICJ has further observed that appropriate safeguards “are all the more important given that criminal sanctions often flow from the currently flawed procedures.”

The age threshold

30. The Commission refers to public reports of debate concerning whether the Bill should be amended so that it could apply to persons aged 14 years and over.³⁰

31. Given that the Bill’s proposed control orders regime is quasi-criminal in nature and inherently problematic from a human rights perspective, the Commission strongly recommends that the Committee maintain the current age threshold of 18 years. In the Commission’s view, any reduction in the current age threshold would be incompatible with New Zealand’s obligations under the best interests, child participation and right to justice provisions of the Convention on the Rights of the Child.³¹

32. The Commission strongly recommends that the age threshold of the Bill is maintained at 18 years.

Review of the legislation

33. The Commission notes that there is no provision in the Bill mandating periodic review of the legislation. In keeping with New Zealand’s primary national security legislation, the Commission recommends that the Bill be amended to require that it is subject to review by Parliament’s Intelligence and Security Committee and that it is included in the terms of reference for the next periodic review of intelligence and security legislation under section 235 of the ISA. The next review is due to commence no later than September 2022.

34. The Commission recommends that the Bill is amended to expressly require:

³⁰ https://www.rnz.co.nz/news/political/401110/government-introduces-new-bill-to-prevent-terrorism

³¹ Convention on the Rights of the Child, Articles 3.1, 12 and 40. See also Committee on the Rights of the Child, General Comment 24 on children’s rights in the child justice system, 18 September 2019, CRC/C/GC/24 paragraphs 100-101. The Committee notes, among other things, the UN Security Council’s resolution (2427 (2018) that Member States consider non-judicial measures as alternatives; and recommends that States Parties adopt preventative interventions to tackle social factors and root causes, as well as social integration measures.

a. That it is subject to review by Parliament’s Intelligence and Security Committee; and

2. That it is included within the terms of reference for the next periodic review of intelligence and security legislation and practice under s 235 of the ISA.