SUBMISSIONS OF MICHAEL BOTT ON THE COUNTERING TERRORIST

FIGHTERS LEGISLATION BILL

1.     I write these submissions in my personal capacity. I wish to appear before the Select Committee to speak to my submissions.

2.     I am deeply concerned at the speed at which the Government is seeking to pass this legislation in to law.

3.     This proposed Bill seeks to grant the SIS power to surveil New Zealanders and people lawfully in New Zealand for periods of up to 48 hours without a warrant.

4.     Additionally the Bill seeks to grant government the power to unilaterally revoke a person’s passport and therefore deny them the freedom to travel.

5.     It is lamentable that the advent of such powers and the resulting affect on the rights and freedoms of New Zealanders is deemed to be of such a low priority that the public have been given just one day to make submissions on this major erosion of their civil rights.

6.     I note that the Attorney General on Morning Report (RNZ) this morning offered the reassurance that these measures were only “stop gaps” as there will be a full review of our security laws next year. Despite this it appears that the measures contained in the Bill will not expire until 2018.

7.     I also note that when asked on Morning Report, as to why the rush with urgency, regarding this Bill, the Attorney General stated that the government did not need “six months of chit chat”. With respect this remark displays a risable contempt for the democratic process and the public right to be heard before the Select Committee.

8. To describe the Select Committee process as mere “chit chat” has the hallmarks of predetermination, and suggests that public consultation is merely “Claytons consultation.”

9.     It is noted that the Explanatory Note to the Bill observes that New Zealand is at best a “low risk” to threats from terrorism. Our neighbours across the ditch and indeed the United Kingdom face considerably higher terrorist risks and have allowed their citizens weeks and in the case of the UK, some six months to make submissions.

10.  It is lamentable that New Zealand in response to a UN request to take steps against foreign fighters should be so quick to stamp upon the very democratic processes we claim we are trying to defend.

11.  As a first position it is noted that one of the chief purposes of the Bill is to prevent the entry or departure of “foreign terrorist fighters”. But how is an as yet unmanifested terrorist intent or purpose to be detected at the moment of border crossing? In more concrete terms: how can it be determined whether a person is travelling to Egypt (for example) as a tourist or is only using Egypt as a transit country to join ISIL in Iraq or Syria?

12.  The Bill has a worrying silence as to the source and testing of the information relied upon as the basis for “reasonable grounds to believe” that the person in question is pursuing a terrorist purpose. This will be developed below. However, the tighter preventive measures thus called for, particularly in the context of border controls, may lead to discrimination based on stereotypes. 

13.  Yet again, we are seeing rushed legislation being pursued in an attempt to look tough in the face of terrorism, that may create another recipe for injustice and resentment by closing down the open society we seek to promote.

14.  The reliability of secret information about individuals can lead to grave injustices, as the very nature of the information being deemed secret only adds to its perceived credibility despite the fact that the information may in fact be inherently unreliable.

15.  For example Ahmed Zaoui a man once dubbed a threat to national security by the Security Intelligence Service due to a reported association with a suspected terrorist group, spent two years in custody when in reality he was a democratically elected Algerian politician who fled Algeria following a military coup.

16.  The Algerian Government convicted Mr. Zaoui in his absence in 2003 of terrorism and sentenced him to death. This was despite him not being in Algeria  since 1992.

17.  In reality Mr. Zaoui was a threat to no one, spent two years in custody because of secret information.

18.  There is a real risk that people with innocent motives may be seeking to travel to or from “countries of concern” who may in fact find that their travel documents are suspended or revoked on specious grounds.

19.  Further the cross-fertilisation of secret information between national and foreign security agencies can lead to errors and labelling of people as militants and threats when in fact that is not the case.

20.  Intelligence agencies while frequently using conventional language have become renowned for attaching meanings to those terms that are far from conventional.

21.  For example it was reported this year that the CIA claimed to have killed “militants’ in a drone strike. While this may be reassuring, it subsequently transpires that that term actually means, “all military-age males in a strike zone as combatants.”[1]

22.  As international lawyer Glenn Greenwald observed, “By “militant,” the Obama administration literally means nothing more than: any military-age male whom we kill, even when we know nothing else about them. They have no idea whether the person killed is really a militant: if they’re male and of a certain age they just call them one in order to whitewash their behavior and propagandize the citizenry (unless conclusive evidence somehow later emerges proving their innocence).”

23.  Thus as in the Zaoui case a reliance on foreign intelligence fed to politicians by our own agencies can be inherently unreliable. Language is used which while appealing to ordinary usage, may in fact contain meanings that are anything but. Further the source of the information may be knowingly unreliable or deceptive.[2]

24.  The Explanatory Note contains insufficient detail about the reasons that the current passport regime is inadequate. Why for example is a one-year cancellation period inadequate? Further why should it be that the Minister can specify a period of up to three years, rather than reapplying for an additional twelve month period? This is especially so, when it appears the Minister does not have to apply to Court to extend a cancellation. 

25.  I further oppose the move to allow the SIS to undertake warrantless surveillance for up to 48 hours. As is repeatedly claimed it is vital for New Zealanders to have confidence in the integrity and reliability of our law enforcement, and intelligence agencies.

26.  Further it appears that the person(s) being surveilled without warrant will potentially never know that they have been surveilled, so the reasonableness of the intrusion into their privacy will never be properly checked.

27.  Currently no New Zealander can be spied on by any state agency unless a warrant is approved by an independent judicial officer be they a judge, JP or the Commissioner of Security Warrants.

28.  This is a level of judicial oversight that provides a level of check and balance against the wishes of the state.

29.  The Bill purports to see the erosion of this important check and would see the erosion of this long standing right for New Zealanders to be free from state surveillance unless authorised by judical approval.

30.  Further the Bill grants the Minister the power by fiat to cancel the passports of people overseas. This in effect renders them stateless and as matter of process means they are in fact exiled, or subject to imprisonment in a foreign country, with no practical ability to challenge the decision.

31.  The Bill seeks to grant to the Minister the ability to suspend a passport for 10 days without evidence. By definition this is an arbitrary restriction on a person’s freedom of movement. In essence the rights of every New Zealander to travel beyond our borders may be subject to the views of the Minister.  

32.  As noted above the reliance on secret information, cannot of itself instil confidence by New Zealanders in the process – one need only look at the case of Ahmed Zaoui.

33.  Further secret evidence is offensive to open justice, is offensive to access to justice and the fair trial principle of equality of arms. The ability to use secret evidence in appeals against these actions violates the right to justice and undermines the credibility of the courts.

34.   In essence given the track record of the SIS and the inherently unreliable nature of secret information (e.g. Zaoui etc) the SIS and the Minister should not be trusted with these powers.

35.  With respect currently following the recent Gwyn Report far from entrusting the SIS with greater discretionary powers to intrude into our rights and freedoms, it appears the SIS needs greater checks and boundaries around their powers, not less.

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[1] Glenn Greenwald: http://www.salon.com/2012/05/29/militants_media_propaganda/

[2] ibid.

Labour: Some Difficult Questions

Years ago I was involved in a car accident. I was sitting in the front seat as a passenger in a car controlled by an erratic person, driving like a ball bearing in a pin ball machine. I saw a car on our left pull out from a parked position. The driver did not. The ensuing seconds felt like minutes as my adrenalin heightened senses observed almost in slow motion the carnage that ensued. I remember grabbing my seat belt and swinging my legs up onto the seat as the engine bay sliced guillotine-like into the front seat, where my legs once were.

Thoughts of watching a car accident in slow motion unfortunately returned to me in the weeks leading up to and culminating in last Saturday's election results. It was apparently Labour's worse result in ninety two years. What to do? Blame the leader? Start a period of introspection and navel gazing? Does Labour need to rebuild and how?

I should declare at the outset that I support the Labour Party and have stood as a candidate in an electorate seat in the past. I gave the Party over a year of my life, and practically gave up paid employment for a year as I campaigned full-time. I also sought a position on the party list. I can say now that while I support Labour, I have no wish to seek nomination as a candidate again. So in writing my thoughts in this particular blog I have nothing personally to gain.

It is pretty evident that there are a number of divisions within the Labour Party. The first one is over the leadership. Simply put it appears that most the Labour caucus do not want David Cunliffe as Leader and have never wanted him. A large number of the Labour membership however do, or at least did. There is a call to replace David Cunliffe with David Shearer or some other individual, of which there seem to be three eager to grasp that chalice.

Mr Shearer was leader before Mr Cunliffe. Now away from the pressure of that role he has performed reasonably well. With respect while leader, to my mind he did not distinguish. We now all know that before his incarnation as an MP, he helped take school books to children in a war zone, but you need more than that as part of your story. Additionally Mr Shearer was extraordinarily inarticulate and garbled when it came to his ability while leader to use spoken English. To my mind he will be forever be remembered for one of his last appearances in the House as leader, when he stood up and in a desperate attempt to make a point, held a dead fish in each hand. His leadership slept with them shortly thereafter.

Today we have presidential style campaigns where there is a focus on the leader of each political party. When you appoint a leader a number of things are important. They must be able to galvanise the Party, be intelligent, but more importantly they must be able to front foot it in debate with the Prime Minister, John Key. I just do not think Mr Shearer could even hold a candle to Mr Cunliffe in that regard.

Also important is the ability of the leader, but also the Party and especially the caucus to be identified with and accepted as credible by the electorate. This is where I think the Labour Party is missing the mark.

Without doubt the Labour Party had an impressive array of policies. They were so impressive that the National Party stole some of them as part of their attempt to brand themselves as National lite and centrist. The National Party has occupied the centre and has adopted a strategy of appealing to "middle New Zealand" with a range of policies built upon an appeal to prejudice (e.g taking the vote off inmates and beneficiary bashing) and tokenism (e.g. a possible tax cut sometime in 2017) while advancing larger systemic moves that favour corporates and the business sector.

The important point being that the National Party has made an art form out of appealing to middle New Zealand, while to all intents and purposes the Labour Party appear to ignore them. In saying this I am not advocating being hard on beneficiaries or even jettisoning Labour's socially progressive policies, rather I am saying that Labour needs to look at the core voting block and understand how they tick.

I think the Labour Party can be justifiably proud of their attempts to bring gender equity to political representation for example. However, in doing that you must also carry the voting public with you. It is no use inventing an iPhone 6 two centuries ago, if the technology and market are not there to support and accept it. You may be advanced and ultimately correct, but as with most things in life politics is the art of the possible and unless you can gain the Treasury benches you will languish. Believing that you are the only ones who are correct will not take you very far in politics.

Well known blogger Morgan Godfrey sat in on Labour's 2011 Wellington list selection meeting and as an outsider observed what he saw as a culture of "poisonous patronage that pervades the Labour Party." Of the actual list, when it was released, he wrote: "Overall, a pretty shitty list in my opinion. The Labour Party needs to stop rewarding service with political patronage. Internal politics is always at play with this sort of thing."

Therein to my mind lies one of the Labour Party's problems. There has been a perception that Labour does not reflect in its composition middle New Zealand. I recall for example the Labour list selection process for the Wellington Region for this year. We had only one male put his hat in the ring. I am advised that potential male candidates were told that they would be wasting their time. As the New Zealand Herald reported on 5 September 2014 in a nationwide poll Labour's support among men has fallen to 18.4 per cent, while 28.9 per cent of women support Labour. Overall support came out at 23.8 per cent, which was not too far removed from the actual result on election night.

While the outcome of the list selection process may reflect the best of intentions, it underscores the fact that it does not and has not carried the electorate. In saying these things I am not underrating the women that put their names forward. They were articulate, intelligent and would each have much to add to any caucus.

The list selection process may accord with Labour's constitution and reflect where New Zealand should be heading. But processes like this play into the hands of the right who spin it as an example of the "man ban" and we are seeing a withering of Labour's party vote. If the electorate are rejecting where Labour wants to go, is it not time that Labour started listening?

Imagine a yacht race where the crew on one boat are battling over who will be captain and who will perform what function. Worse still imagine a race, where the rival teams are out sailing around the course, while this yacht remains at its berth arguing over the composition of the crew. At times with Labour it appears that there are so many vested interest groups not willing to cede ground that it seems they would rather lose the race, taking comfort that they at least have their people on board. In short I think Labour is in a state of vested interest gridlock. This has to change. This will be difficult as it will involve a cultural shift, from years of manoeuvring by niche groups, to the realisation that to effect political change, you have to be in Government and that means appealing to the majority of New Zealanders.

As a lawyer I have acted in numerous jury trials. I have won more trials than I have lost. One of the biggest battles in a trial is over getting the jury to identify with and to believe in the person you represent. Labour has to start taking real steps to get the electorate to identify with and believe in them.

On a practical level the Labour Party has to start doing deals in advance with the Greens. This is common sense and should have been done as long ago as 2011. That the Labour Party refuse to do this is frankly stupid. The National Party do it with Act and United Future, to great effect. At the last election if the Labour leadership had a discussion with the Greens and the Greens agreed to give their electorate votes to Labour, there were possibly four extra seats that could have have gone to Labour. Two examples will suffice. In Ohariu, which is Peter Dunne's seat, on election night he received 12,270 candidate votes, Labour's Virginia Andersen received 11,349 and the Greens 2,266. Another example is Auckland Central. On election night National's Nikki Kaye received 10,040 candidate votes, Labour's Jacinda Adern 9,303 and the Greens just 1,537. Given current figures the Greens will never win those seats.  Labour's intransigence to embrace MMP in this way is costing it seats.

If the Labour Party does not start appealing to middle New Zealand, by choosing people and adopting an approach that the majority of voters can identify with, then they run the risk of abdicating the largest voting block to a right wing party led by a multi-millionaire currency trader who most appear to think represents them more than the Labour Party. Unless these issues are actually addressed, in the near future the Labour Party risks becoming an irrelevance.

The Act Party and Maori

Act leader Jamie Whyte's view on the Maori Seats and comparisons with the pre-revolutionary France is bollocks. Act ignore the notion of contract contained in the Treaty of Waitangi. It is through the signing of the Treaty that the Crown gained its legitimacy to govern in this country. The Treaty is not a document that gives Maori special privileges, rights and millions of dollars to which they are not entitled. Rather the Crown for over a century reduced Maori to being the party to a broken contract. In terms of special favouritism, Act should look at themselves where they have to rely on the patronage of the National Government to get into Parliament, as their own policies are so repugnant that they have little hope of making it on their own.

The Christian Lawyer

Come and hear

The Christian QC

Arms extended

Alms sought

A public meeting

To talk about his faith

A life devoted

To a forgiving God

Bending the knee

Taking the bread and wine

This is my body broken

This is my blood

Shed for your forgiveness

Hungrily he eats

Meanwhile during the week

The QC sits on a school board

In the evening

Tirelessly giving his time

Though unpaid

He swells with another accolade

A young boy, third generation

Working class, devout

He’s been wagging

Dad’s spoken

His mum’s broken

“Please give our boy a chance?”

“No, he’s broken the rules.

You’re expelled, get out.”

On Sunday with pure heart

The QC takes the bread and wine

And gives thanks

To his forgiving God

On bended knee

Helping Victims Should Not Come At The Expense Of Fair Trial Rights

Last week Labour's Justice Spokesperson issued a press release, which I believe signals a fundamental erosion of two basic foundations of criminal law. In fairness I should point out that the Government's Minister of Justice mooted proposals that were worse and that Labour's Justice Spokesperson acknowledges the importance of preserving fair trial rights. However, notwithstanding that concern, the announcement appears to involve an erosion of those very rights. For completeness I have copied the press release:
"Victims should be at centre of domestic violence measures    2 JUL 2014

Serious measures to stem our appalling record of domestic violence are overdue but creating another Ministry of Justice adviser and abolishing fair trial rights for alleged offenders will make little difference, Labour's Justice spokesperson Andrew Little says.

The Government today announced a number of measures to address domestic violence including creating a chief victims adviser and allowing courts to draw a negative conclusion if an alleged offender doesn't personally give evidence in a trial.

"The people who most need advice are the victims themselves, not the Minister who has access to an army of public servants to advise her every day.

"It is the victim who needs help navigating a police investigation and a criminal justice system that often overlooks that they are even there.

"Victims need a court-based advocate so they know what is going on, what they can do, how they can have a say and what their rights are as a witness in any trial.

"As for trials of sexual offences, the reason why many victims either don't lay a complaint or don't go through with one is fear of the court process and the likelihood of humiliation and re-victimisation.

"Allowing an adverse inference to be drawn if an alleged offender doesn't give evidence is an open invitation for defence counsel to be even more aggressive in their cross-examination.

"A better measure would be to hand control of all examination of a victim to the judge with lawyers for both sides notifying the court which issues they want dealt with, along with shifting the burden of proof on the issue of consent to the defence.

"This approach does not contradict the fundamental principle that a defendant is innocent until proven guilty - the basic facts of the case still have to be made out - but it does mean the prosecution doesn't need to prove a negative, namely that there was no consent.

"Judith Collins’ approach is as good as the defendant being regarded as guilty until proven innocent, something she says she is opposed to,” Andrew Little said.

Labour's policy on dealing with domestic violence will be announced on Friday."

 What causes me deep concern over that statement is the emboldened sentence above. I can find no logic for eroding the right to silence, or shifting the burden of proof, just because a trial is one that involves an allegation of rape. It is fundamentally repugnant to justice, that just because the charge is one of rape, that the burden of proof shifts to an accused person. To assert that the burden must shift to an accused, because the charge is rape, effectively involves an erosion of the presumption of innocence, no matter how you try and spin it. The state would be effectively saying, that unlike other crimes, when there is a claim of rape, the complainant is somehow, more truthful, so much so, that the burden of proof shifts to an accused.

I have been involved in trials, where as a result of cross examination of a complainant, a new line of defence emerges in the process of trial. To transfer the right for the defence to cross examine a complainant because the charge is one of rape, to the judge, who vets the questions and asks them, means the defence effectively loses the right to silence and has to telegraph its defence in advance.

I have also been involved in sexual violation trials, where it emerges that the complainant has been untruthful. It is sad, but true, that it is not only accused persons who may lie, sometimes complainants do as well. Sometimes a complainant may have been violated as they claim, are convinced that X did the deed, but in fact it was someone else (for example in the David Dougherty case). Sometimes, the Police take short cuts and have just got the wrong person. Further, sometimes over time the complainant makes mistakes and memories become inaccurate.  This is especially so in cases involving delay. Delay is often involved in many of the sexual violation cases that come before our Courts. In cases where there is delay one can see the need for the robust protections of our criminal law most clearly. The usual or ‘presumptive’ results of long delay are the possibility of honest unreliability on the part of the complainants, including possible unconscious substitution of an imagined reality for what actually occurred, the fading and loss of recollection of pertinent details by an innocent accused and the loss of legitimate opportunities to test the detail of allegations and marshal evidence pointing to innocence.  McHugh J (in remarks later approved in Crampton v the Queen (2000) 206 CLR 161 by Gaudron, Gummow and Callinan JJ, said in Longman v R (1989) 168 CLR 79 at 107:

‘The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented.  The longer the period between an “event” and its recall, the greater the margin for error.  interference with a person’s ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling.  recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine:  …

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complainant and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. …

 Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be....  By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant’s testimony.’

The reality of human nature and long trial experience, point out the need to maintain robust fair trial protections. The move to shift the burden of proof and erode the right to silence, albeit for noble intentions, marks a major weakening of the Golden Thread that runs throughout our justice system.  The term "Golden Thread" comes from the decision in Woolmington v DPP  [1935] UKHL 1, a famous House of Lords case in English law, where the presumption of innocence was said to be first articulated in the Commonwealth. In articulating the ruling, Viscount Sankey made his famous "Golden thread" speech:

Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner... the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

We all agree that rape is a horrid crime that involves cruelty and an abuse of power. Once properly convicted offenders should be punished and victims should be given as much assistance as practically possible. However, eroding basic protections of our criminal law should never be a solution.