Speech delivered by Grant Illingworth QC on 10 December 2014
Under s 18(3) of the New Zealand Bill of Rights Act 1990 everyone has the right to leave New Zealand. By virtue of section 5 of BORA, that right may be subject to restrictions only if the limitations are prescribed by law and are demonstrably justified in a free and democratic society. Once a New Zealand citizen or resident has exercised her democratic right to leave New Zealand, it would seem obvious that she should be able to travel where she pleases without interference from our government. The problem with all this, however, is that:
- to be able to leave New Zealand and travel overseas, our hypothetical citizen needs a passport, or at least some form of travel document; and
- s 18 of BORA can be overridden by ordinary legislation enacted under urgency, via a simple majority in a unicameral legislature, without necessarily having full regard to what can be demonstrably justified in a free and democratic society.
On 9 December 2014, by a vote of 94 to 27, the Countering Terrorist Fighters Legislation Act passed into law. Previously, under s 8A of the Passports Act 1992 the Minister could by notice in writing recall any New Zealand passport and cancel it or retain possession of it if:
- the Minister believed on reasonable grounds that the person concerned was a danger to the security of New Zealand because the person intended to engage in or facilitate certain terrorist activities, and
- the danger to the security of New Zealand could not be effectively averted by other means and
- the cancellation would prevent or effectively impede the ability of the person to carry out the intended action.
Similar provisions applied to other forms of travel documentation.
The old provisions did not enable a passport to be cancelled or suspended where the danger in question was other than a danger to the security interests of New Zealand.
Under resolution 2178, the United Nations Security Council recently resolved to require countries to take action to prevent or impede terrorists from travelling to facilitate terrorist activities.
In compliance with that resolution the NZ government announced that (among other things) the Passports Act would be amended to extend the ability to cancel or suspend passports and other travel documents. Following that announcement, on 25 November 2014 the government introduced the Countering Terrorist Fighters Legislation Bill. The last day for making submissions was 27 November 2014.
At Labour’s insistence, the draft Bill had been released to the NZLS a little earlier, under embargo, and by the urgent combined efforts of the Rule of Law committee and the Human Rights committee, a comprehensive submission was made to the Parliament’s select committee - presented by Sir Geoffrey Palmer and Andrew Butler. As a result of that presentation some of the more extreme aspects of the Bill were ameliorated.
The Act is intended to be a temporary measure only pending a more comprehensive review of the relevant legal framework. In line with that objective, the Bill incorporates sunset provisions which set a use-by date in April 2017. This date was brought forward by a year as a result of the NZLS submissions.
The new legislation contains a number of provisions that are very significant in relation to basic rights but my present purpose is to focus only on the passports issue.
Under the old s 8A, the threshold requirement was that the person concerned intended to engage in or facilitate:
- a terrorist act within the meaning of s 5 of the Terrorism Suppression Act 2002 or
- the proliferation of weapons of mass destruction or
- any unlawful activity designed or likely to cause devastating or serious economic damage to New Zealand carried out for purposes of commercial or economic gain.
Obviously the last of these three requirements could not apply to an overseas country, but the first two requirements may be applicable to countries other than our own. Thus, o comply with the Security Council resolution, the amendment extended the statutory test to include danger to the security of other countries as a result of the intention to commit a terrorist act or the intention to facilitate the proliferation of weapons of mass destruction.
Under the old s 8A there were notification requirements and also a provision which enabled the Minister to apply to a Judge of the High Court for an order to extend the period of withholding of the passport for a further period not exceeding 12 months. The Judge was required to make the order if satisfied of certain specified requirements.
The amendments go further in certain important respects. Under the new provisions:
- First, the Minister may defer notifying the person concerned for a period not exceeding 30 days if the Minister is satisfied that giving notice sooner would prejudice an ongoing investigation or put the security or safety of any person at risk. Notice is to be treated as given if the Minister has taken all practicable steps to provide that notice.
- Secondly, the Minister may specify a longer period in the notice not exceeding 36 months if the Minister is satisfied that the person would continue to pose a danger to New Zealand or any other country. But, if the period exceeds 12 months, the person has a right to make submissions and the Minister must give an opportunity to be heard at every 12 month period.
As previously, the Minister may at any time before the expiry of the period apply to a Judge for an order to extend the period for a further 12 months and the Judge must make the order if certain conditions are fulfilled. Potentially, therefore, the restriction on obtaining a passport or travel document could last for a period of four years.
The regime created by the amendment appears to have a basic justification in that international terrorism and terrorist activities are a global problem and it is clearly inadequate to focus on the security of New Zealand alone. All countries have a common concern in relation to terrorism and there appears to be no sensible reason to conclude that each country should focus on its own interests without regard to the effect on the international community. But, having said that, it is arguable that the proposed measures go too far and are procedurally inadequate.
Under s 3 of the Passports Act, every NZ citizen is entitled to a passport, except as provided in the Act. It is extremely difficult to leave New Zealand without a passport or other travel document, so the decision to cancel or suspend a person’s passport or travel document clearly interferes with the right to leave.
Also, the cancellation of a passport or travel document for a lengthy period is undoubtedly a form of penalty from the point of view of the person affected. Indeed to prevent a person travelling abroad for 3 or 4 years is a more severe penalty than would be given for many quite serious criminal offences. It could perhaps be viewed as a kind of mega home detention.
It is a basic component of the rule of law that no one should be punished without having first committed an offence. The idea that a penalty may be imposed because of a perception that the person intends to commit crimes against international law, or against the laws of another country, sits uncomfortably with that principle.
Indeed it could be argued that to impose a penalty, because of an intention alone, amounts to a form of "thought-crime" reminiscent of situations depicted in George Orwell's famous novel 1984. Interestingly, the scene for those fictional events was the super-state of Oceania, which included Australasia, and the events in question took place under circumstances of intense government scrutiny via advanced surveillance technology.
The effective suspension of a person’s right to leave New Zealand for a period of, say, a few months, might well be seen as demonstrably justifiable in a free and democratic society if the authorities have strong evidence to support the conclusion that the person concerned is actively preparing to carry out unlawful activities of the kind referred to in the Act.
A suspension period of that kind could allow legal proceedings to be brought to substantiate the need for further travel restrictions. But to impose a passport restriction for a period of up to four years, without the need for formal court proceedings (other than a warrant) based only on the suspect's presumed intention, seems draconian, excessive, disproportionate and, I suggest, Orwellian.