KEY POINTS:
Solicitor-General David Collins asks us to believe that police have probably mustered enough evidence to arraign the "Urewera 12" on terrorism charges but the current laws are too incoherent to apply in this case.
That's not how Collins puts it of course. In his words the decision to prosecute was a close call: "A number of people could, on one view of it, [have] possibly come close to meeting the criteria under the act ... If the legislation had been framed differently, it is possible that charges under the Terrorism Act may have been able to be brought."
It is, to put it impolitely, a "bugger's muddle". Here we have the Solicitor-General in all seriousness asking us to believe that the failure to press terrorism charges is because the relevant act is "unnecessarily complex, incoherent, and as a result almost impossible to apply to the domestic circumstances observed by the police in this case."
The Terrorism Suppression Act 2002 made it a criminal offence to take part in, finance or recruit for a terrorist organisation or terrorist act. Planning a terrorist act or making a credible threat is also illegal even if the act is not carried out.
Collins has cited all sorts of deficiencies. But the one that takes the cake is this: "If individuals are actually developing towards, possibly ... carrying out a terrorist act, they are not yet [that] entity. So there is a tautology in the legislation which is extremely difficult to unravel."
Pity Collins, who heads the Crown Law Office, didn't tender this advice at a much earlier stage. He wasn't in the box seat when the original legislation was introduced. But he was in a position to raise issues before Parliament rushed through the latest amendments to this draconian piece of legislation this week. Particularly as each bill is submitted to Crown lawyers before being introduced.
Collins has at least provided police with a "comfort statement" by applauding their professionalism in the face of very disturbing activities.
But because the intercepted communications will not now see the light of day, New Zealanders will never know whether the whole affair was a hysterical overreaction by police, or, a genuine response to a critical public safety threat.
This is an important factor because what Collins has proposed is a rewrite of the Terrorism Suppression Act so that charges (presumably like those the police requested against the Urewera 12) can be legally brought.
This would mean making sure that domestically-originated terrorism is covered even if the terror suspects do not belong to existing designated terror groups.
Our legislation - on this score - has tended to follow British models.
Right now Prime Minister Gordon Brown plans to extend the time terrorist suspects can be held without charges being laid (currently 28 days but 48 hours before September 11). There are proposals to allow post-charge questioning of terrorism suspects and draw adverse inferences from the refusal by a terrorist suspect to say something during questioning that is relied on later in court during the defence process. If Helen Clark runs true to form, counter-terrorism rhetoric will feature large during the 2008 campaign following the trend set by British Labour, which has mastered the politics of fear.
Despite the collapse of the police terrorism case, Clark will still be able to make use of the court of public opinion, in the knowledge that the National Party is too immersed in me-tooism to defend our ancient liberties.
But there's another consideration. What Collins didn't mention is the fact that the Prime Minister had also arguably contaminated the justice process by stating publicly that the arrested activists at the very least have illicitly used firearms, constructed Molotov cocktails and trained themselves how to use napalm.
She trod a very thin line indeed by making such allegations at a time when the Urewera 12 (already facing Arms Act charges) were still waiting to hear whether they would have to defend themselves against terrorism charges in a subsequent show trial.
Clark does not face a contempt of court charge for her insinuations and subsequent refusal to back away from such comments. But if Collins had cleared the way for terrorism charges it would not have been long before lawyers acted for the arrested argued the Prime Minister had already prejudiced a fair trial.
The Prime Minister's malevolence towards the arrested may have been heightened by a belief that she was to be a target for a terrorism plot. This scenario which also nominated US President George W. Bush and National's John Key as targets was leaked the same day 300 police made their anti-terrorist swoop and published widely.
But we still don't, or may never, know whether a credible threat existed, or, whether it was purely hype.
