Submission in respect of Maritime Crimes Amendment Bill 2016

 

1.0 Introduction

 

1.1 The New Zealand Council for Civil Liberties Inc [NZCCL] welcomes the opportunity to present a submission on this Bill, and I make this submission on behalf of the Council.

 

1.2 This Bill arises out of 2 events that can reasonably be described as “historical”.  The first is the Archille Lauro affair which took place in 1985 and involved the hijacking of an Italian liner off the coast of Egypt by members of the Palestine Liberation Front.  The second is the 2005 Rome Convention and Protocol which highlighted the inadequacy of the then existing anti-terrorism measures and the laws relating to piracy in their application to the situation of the seizure of a ship by terrorists.  In between those 2 dates the New Zealand Parliament enacted the Maritime Crimes Act in 1999.  

 

1.3 It is this Act which is now to be amended 17 years later, and more than a decade after the Rome Convention.  It might thus be reasonably inferred that here in New Zealand those developments were regarded as being of low priority and having little relevance.   There is virtually nothing that has occurred subsequently in this country to justify any change in those assessments.

 

2.0 NATURE OF PROPOSED CHANGES

 

2.1 The 1999 Act already provides for various offences relating to ships and fixed platforms, or for threatening another person in order to compel that person to do or abstain from doing a related act with that threat being likely to endanger the safety of either the ship or the fixed platform.

 

2.2 This Bill now includes the description of “terrorism” in relation to those offences, and it has widened the threat aspect to include the intimidation of a population, or compelling a government or an international organisation to do or abstain from doing a related act.

 

2.3 From a situation where an overt act of piracy occurred on the other side of the world more than 30 years ago, the thinking behind this Bill seems to envisage the possibility that something comparable  might be imminent in this country.  While that course of action is always a possibility, the likelihood is fairly remote.  While we understand that it is better to be safe rather than sorry, the down side of that approach is that it incorporates a kind of “function creep” in several respects viz. the nature of the language [specifically the use of “terrorism”], and the expanding reference to “population”, “government” and “international organisation” – being groups as contrasted with individuals.  It is wide- ranging far beyond what is needed.

 

2.4 The more sinister aspect of “function creep” is the way in which each extension eases the way for the next extension, whatever that might be.  Once the description of “terrorism” is applied to what were hitherto simply “unlawful actions”, and those actions described as a threat to “government” and this then becomes part of the legislative environment, it is a great deal easier for a government to assume a potential range of powers, and/or introduce a further batch of offences, whenever it perceives that it is useful to do so.  The situation is potentially even more precarious where a government is acting as a consequence of   perceived external factors.

 

2.5 Our final observation about “function creep” is that it operates in 2 directions.  First, it extends the powers of the state in respect of the citizens [again], and second, it restricts the freedoms and civil liberties of the citizens [again].  This process has been ongoing for a number of years and, regrettably, shows little sign of stopping any time soon.

 

3.0 FREEDOM OF EXPRESSION

 

3.1 Allied to “function creep” is the potential in clause 4A[2] to inhibit freedom of expression and the associated right to protest.  The rhetoric that sometimes occurs at gatherings where there is an issue that generates considerable feeling might easily be misconstrued as a “threat” when it was little more than an emotional outburst.  Those occasions can occur almost anywhere, and are especially applicable within a political context.  The potential breadth of the clause might easily inhibit robust discourse and associated action.

 

3.2 Much protest action is designed to persuade organisations and government to refrain from a certain course of action, and where such action does result in criminal behaviours such as trespass, vandalism or graffiti it is crucial that any punishment is proportionate to the scale of the offence, rather than the scale or purpose of the protest.  

 

4.0 HOW ELSE TO PROCEED?

 

4.1 The straight-forward approach is to link the description of “terrorism” directly with actions such as piracy, and unlawful boarding and overpowering of a vessel or floating platform, or the use of BCN weapons, or even the transportation of fugitives, with a series of new provisions, rather than being a repeal of the existing provisions.  These latter appear to have been quite adequate for the past 17 years, and deserve to retain that particular status.