KEY POINTS:
Western nations have, by and large, not coped all that well with the legislative demands arising from the increased threat of terrorism. Sometimes, panic has usurped rational analysis in the drive for heightened security. Sometimes, the process has fallen foul of cynical politicking. Australia and Britain have had well-publicised difficulties. Now, it is clear that New Zealand is far from immune. Over the past few days, two pieces of law designed to address areas of vulnerability have been shown to be thoroughly deficient. Together, they represent a gross embarrassment to Parliament.
Most attention has focused on the Solicitor-General's decision that he could not authorise prosecution against 12 of the so-called Urewera 16 under the Terrorism Suppression Act. David Collins, QC, did not hold back when outlining his reasons. The act was, he said, "unnecessarily complex, incoherent and as a result almost impossible to apply to the domestic circumstances observed by the police in this case". Difficulties in applying the 2002 act, rather than lack of evidence, were "a very significant factor" in his decision.
Dr Collins made it clear the decision not to prosecute was a close call for some of the accused. But his dissection of the act revealed the extent of its shortcomings. One major issue was the law's focus on a "terrorist entity"; if individuals were working towards carrying out a terrorist act, they were not yet that entity. That suggests it would be difficult to prosecute any loosely organised group of people who did not embrace a terrorist-like nomenclature and all but broadcast their intention. Charitably, Dr Collins observed that there was "a tautology in the legislation which is extremely difficult to unravel".
Equally abysmal law-making was highlighted by the case of detained Iranian Amir Hoshang Mohebbi. He spurred a rushed amendment to the Immigration Act in 2003, which allowed the continued detention of overstayers who could not be deported to their home country. That legislation was effectively shredded this week when a High Court judge ruled that, after four years in jail, Mohebbi's detention had become "arbitrary" and, therefore, breached the Bill of Rights.
Immigration Minister Clayton Cosgrove noted, more than a little lamely, that the judgment was at odds with Parliament's intention. It would, he said in a statement of the blindingly obvious, have to look at the case.
The country's law-makers need, in fact, to look at their whole approach to security legislation. Balancing the need for added protection against traditional laws and values is especially difficult. Dilemmas abound. But that is a reason to exercise the utmost caution, to listen carefully to every viewpoint and to seek a carefully calculated balance. It is also a reason for legislation to be penned with the utmost clarity, so that confusion and controversy are minimised.
One upshot of this should have been the paying of special attention to legislation amending the Terrorism Suppression Act. This was, after all, a bill adding clauses to an act that had been ridiculed and dispatched to the Law Commission for review.
Yet within hours of Dr Collins' pronouncement, Parliament ploughed ahead with the amending law.
It was as though senselessness had been supplanted by witlessness.
The law-makers of Australia and Britain can at least point to their countries' direct involvement in Iraq as excuse for any confusion and distortion in their anti-terrorist legislation.
New Zealand has no such justification. While the major parties were always going to be tempted to jump on the anti-terrorism bandwagon, there was no reason for a panicky response or incoherence. Sadly, that is exactly what has happened.
