New Zealand proposes a new legal tool to tackle the foreign terrorist traveller problem

26 October 2019

By Leah West

This week the Attorney General of New Zealand introduced new and novel legislation authorizing the imposition of Terrorism Suppression Control Orders on foreign terrorist travellers, returnees, individuals convicted of terrorism in foreign jurisdictions, and those who have been subject to immigration or citizenship consequences for security reasons connected to terrorism. Specifically, the bill is aimed at “individuals who pose a risk of engaging in further terrorism-related activities and for whom a criminal prosecution for their past terrorism- related activities overseas is not viable because of the significant difficulties associated with securing evidence from overseas jurisdictions.” Intrepid listeners will recognize this as part of the intelligence to evidence dilemma raised by Public Safety Minister Ralph Goodale as part of the reason why Canadian’s currently detained in Syria for their support of ISIS- often referred too often as “terrorists”- have not been charged with any terrorism offences. (Not to mention the 60 returnees currently walking around in Canada without charge).

The Terrorism Suppression Bill has dual goals of protecting the public from terrorism and prevent engagement in terrorism-related activities reintegration, while its incidental purpose is to support person’s rehabilitation and reintegration into New Zealand.

The Commissioner of Police may make an application for a control order from a Court, and the Court may issue either an interim or final control order if they are satisfied on a balance of probabilities “that the relevant person poses a risk of engaging in terrorism-related activities.”  

Interim control orders may be issued for 3 months without notice to the relevant person in certain circumstances including where they have not yet returned or arrived in NZ. Final orders, however, require notice to the relevant person. Both may be based on non-disclosable information but doing so requires the appointment of a special advocate to represent the interests of the relevant person. (A process that could surmount some of the intel to evidence concerns prevalent in the debate about the possibility of successfully prosecuting Canadian returnees.) A final order may not last longer than 2 years but may be renewed twice.

There is a long list of potential requirements that may be imposed but the bill is clear they are only examples. Some possible measures include prohibitions on forms of association, travel, speech and communication; mandatory reporting; electronic surveillance; and participation in treatment programs (although the relevant person must provide informed consent to undergo treatment.) Breach of a condition is a criminal offence and may result in a year in prison or a fine of up to $2000.

To impose any requirements, the Court must be satisfied that they advance the primary purposes of the bill and are necessary and proportionate in regards to that aim considering how their imposition will/may affect the person’s finances, health, personal circumstances or any other matters deemed relevant, such as whether the requirement are a justified limit on a protected right or freedom under the New Zealand Bill of Rights. Interestingly, the bill explicitly prohibits publication of the identity of a person subject to an order to protect their identity and support their reintegration.

In general, the proposed bill does a good job of wrestling with a tough problem and is something Canadian lawmakers should consider and evaluate in light of the Canadian Charter of Rights and Freedoms. However, should Canada seek to introduce similar legislation, officials must be careful not to substitute control orders for prosecution that requires proof of criminal liability in open courts simply because it’s easier. Moreover, like terrorism peace bonds under the Canadian Criminal Code, control orders are not a silver bullet and will not stop someone from committing an act of terror upon their return  if they are driven to do so. That said, the bill bridges a gap that currently exists in New Zealand (and arguably Canadian) law and, if passed, offers a new tool to enhance national security while allowing for return, rehabilitation and reintegration.