Hon MARK BURTON (Minister of Justice) on behalf of the Minister of Foreign Affairs: I move, That the Terrorism Suppression Amendment Bill be now read a second time. I wish to begin by thanking the Foreign Affairs, Defence and Trade Committee for its work on the bill. With the exception of one member—the Green Party member; and I acknowledge that—the committee was united in its support for the bill to proceed.

Before discussing the bill’s key provisions, I would like to note up front that this bill is not connected to the events of the last few days. The bill was introduced to Parliament in March 2007. It followed a review of the Terrorism Suppression Act undertaken by the Foreign Affairs, Defence and Trade Committee in 2005. The committee identified a number of issues around the working of the Act and its compliance with our international obligations. New Zealand had also signed two new international treaties that required us to create new offences relating to terrorist attacks using nuclear material. The Terrorism Suppression Amendment Bill contains the amendments required to address these issues.

I will address firstly the issue of United Nations terrorist designations. New provisions are required to ensure that terrorists listed under United Nations Resolution 1267, which deals with al-Qaeda and Taliban activities, are automatically designated as terrorist entities under New Zealand law, and that those designations remain in force until removed from the UN terrorist list. This change is required to reflect the mandatory nature of New Zealand’s obligations under the Security Council’s al-Qaeda and Taliban sanctions regime. The mandatory nature of those obligations is not well reflected in the Act as it stands at present. It is not an option for New Zealand to maintain a procedure that allows the Prime Minister or courts to second-guess the Security Council and refuse to implement a designation made under a Chapter 7 resolution. Nor is it necessary to maintain a process by which New Zealand is required to consider, individually, every inclusion on the UN list.

Changes are also required for reasons of practicality. Under the current procedure, all designations lapse automatically after 3 years unless extended by the High Court. With 420 designations due to expire at the end of November, it is clearly not feasible for the High Court to review this number of designations, particularly when the court does not have access to the evidence on which the Security Council based its initial designations. For policy, administrative, and evidential reasons, the current process is clearly inappropriate for UN list terrorists, and requires amendment. The changes proposed in the bill will bring New Zealand into line with virtually all other Western countries.

I turn now to the non-UN terrorist entities. Under the Act as it stands at the moment, the Prime Minister is responsible for making designations of terrorist entities that are not related to al-Qaeda or the Taliban. The bill will not change that position. The changes it will make relate only to the extension of initial designations. The bill will replace the role of the High Court in extending the designation of non-UN terrorist entities when these expire after a 3-year period. Instead, the Prime Minister will renew a designation if satisfied on reasonable grounds that the entity continues to be engaged in terrorist activity. As the committee itself has noted, these decisions, like initial decisions to designate, involve judgments about national security and are appropriately made by the executive. That is consistent with the approach taken in Australia and Canada where decisions at the renewal stage are made by the same office holder who made the original designation, and the same test is applied. Although the role of the court in extending designations will be removed, the amended Act will retain judicial oversight over the designation process. Any decision by the Prime Minister to designate an entity, or a decision not to revoke a designation, will remain subject to judicial review. The select committee has also added a further provision, recommending that as a final step the Prime Minister report the renewal of terrorist designations to the Intelligence and Security Committee.

This bill will also repeal the “avoidance of doubt” provisions related to offences of financing terrorism. These provisions were included in the Act with the intention of providing clarity on the scope of offences in the Act. They have, however, had the opposite effect. The provisions create uncertainty by confusing the mental elements of the offences. Because of the way section 8(2) is drafted, it has the potential also to undermine one of the key purposes of the legislation—that is, to criminalise the intentional financing of terrorist acts—and would be inconsistent with both the Security Council resolutions and indeed our own position that acts of terrorism simply cannot be justified. The removal of these provisions will not compromise the right of New Zealanders to engage in or financially support peaceful protest activity, but the provisions as they stand cannot achieve the purpose for which they were enacted. They do not remove doubt; in fact, they create it. They were never intended to provide a defence for a person who intentionally collects funds to be used to commit a terrorist act or who intentionally makes property available to a terrorist organisation. There is no comparable provision in like-minded jurisdictions, or indeed in our own criminal law.

I also point out that the definition of “terrorist act” states expressly that legitimate protest, advocacy, or dissent is not by itself a sufficient basis for implying an intent to commit a terrorist act. Therefore, to the extent that a safeguard is needed to ensure that the Act is not used to repress legitimate protest activity, this is provided for in that definition. The bill will also strengthen the Act by creating a new offence of committing a terrorist act. Although the Act currently criminalises terrorist bombings and a range of other specific terrorism-related offences, it does not criminalise the commission of a terrorist act, per se. The creation of a generic offence is intended to reflect the gravity of terrorist offending, and to ensure that appropriate penalties can be imposed in appropriate cases if the actions fall within the definition of a terrorist act—that is, for example, if the actions were intended to cause death or serious injury, or major economic loss, for the purpose of inducing terror in the civilian population or to compel the Government to do, or not to do, something. These are not trivial matters, and this change is not made lightly.

The bill also addresses shortfalls in the Act by adding the mental element of recklessness to the offence of participating in a terrorist group. The addition of recklessness will maintain consistency with other offences in the Act. Adding this element will also expand the scope of the offence to include, for instance, persons with knowledge of a UN terrorist designation but no specific knowledge of a designation under the Terrorism Suppression Act. The test for recklessness sets a high threshold for a prosecutor to cross. For people to be deemed reckless, they must know there was a risk that a group was a designated terrorist entity or carried out terrorist acts, but they participated in the group anyway. It would also be necessary to prove that taking this risk was unreasonable, when having regard to the nature and the degree of the risk.

In addition to addressing shortfalls in the current Act, the bill incorporates amendments necessary to bring New Zealand up to date with its international obligations. The bill creates new offences involving nuclear and radioactive material that are required to enable ratification of the International Convention for the Suppression of Acts of Nuclear Terrorism and comply with the recent amendments to the Convention on the Physical Protection of Nuclear Material. In response to submissions, amendments have been made to better implement the international conventions. The new offence provisions were also narrowed to address concerns that the provisions could apply to legitimate protest activity.

The handling of classified security information was also raised by submitters. The committee did not recommend any change to the process in the bill, which involves the provision of a summary of classified security information. The recently introduced Immigration Bill proposes a special advocate procedure. Consideration should be given to the application of procedures for dealing with classified security information, following the adoption of that Act. Discussion of this legislation will raise issues regarding the appropriate balance between giving effect to our international obligations and maintaining respect for human rights and civil liberties here in New Zealand.

Despite some of the statements that have been made over the last few days, this bill is not intended to substantially change the way in which the Terrorism Suppression Act operates; rather, the primary purpose of the bill is to make the Act more workable and to update its provisions to reflect New Zealand’s international obligations. The changes proposed will bring New Zealand into line with other countries with similar legal systems, and will do so in a way that is both appropriate and necessary. I commend this bill to the House.

Hon MURRAY McCULLY (National—East Coast Bays) : The National Party supports the Terrorism Suppression Amendment Bill. Indeed, we have been calling for some time for amendments to make this country’s counter-terrorism machinery more workable. We have been calling for better precautionary use of that machinery as nations like Australia and Canada have used similar machinery to ensure that all sensible steps are taken to counter international terrorist activity.

This debate is given greater significance as a result of events of this month. Those events and the controversy that surrounds them in no way weaken our support for this bill or for the counter-terrorism machinery contained in the Terrorism Suppression Act 2002. The bill does not in itself, as the Minister has told the House, extend in any substantive way the powers of the State to act against the threat of terrorism. Those powers are contained in the principal Act of 2002. They include the sanctioning of steps by the authorities to intercept communications, weapons, and funds of groups designated as terrorist entities.

This bill streamlines the machinery by which designations of terrorist entities are made and renewed. The current provisions are, in many respects, unworkable and impractical. They provide for a lengthy process for the designation of terrorist entities under UN Resolution 1267, when it is obvious that we should merely follow the lead that has been taken by the United Nations Security Council in making such a designation.

With regard to designations made of New Zealand’s own initiative under UN Resolution 1373, the current procedures treat the renewal of designations as matters that are capable of being dealt with through a judicial process, according to a normal standard of proof in the courts. The reality is that the process of making and renewing terrorist designations must be a matter for the exercising of subjective judgment based upon intelligence information and other material, much of which cannot be allowed into the public domain.

The National Party accepts that the appropriate authority to make and renew designations under UN Resolution 1373 should be the Prime Minister. The Prime Minister is the Minister in charge of the NZ Security Intelligence Service and is the elected official most fully and regularly briefed on security matters. We do have some concerns about the manner in which this process has worked under the original Act since it was passed in 2002, and I shall come to that a little later in these comments. That does not change in any way the fact that in terms of the design of our counter-terrorism machinery, the Prime Minister is the logical person to carry the responsibility for designations of terrorist entities under UN Resolution 1373.

In recent days there has been considerable comment—some of it highly emotive—about the actions of the New Zealand Police in arresting a number of individuals on charges under the Arms Act and the Crimes Act with consideration being given to further charges under the Terrorism Suppression Act 2002, presumably under section 13, which creates an offence of participating in a terrorist group. The manner of the police actions, and the public references to the prospect of charges under the Terrorism Suppression Act, have raised the stakes in this case well above the ordinary enforcement of the Crimes Act or the Arms Act.

My colleagues and I will not buy in to debate or speculation as to whether the police were justified in taking this course or whether their actions have generally met the standard that should be expected of them by this Parliament. At this stage of proceedings we cannot possibly know, and the members of the public and the members of this House who have been so critical of the police cannot possibly know, either. We owe it to the law enforcement authorities, to the public, and to ourselves to wait, to allow the facts to emerge in the courtroom, and then to make considered and professional judgments based upon those facts.

Having said that, I want to give some reassurance to the members of the public and the members of the House who have expressed concerns about these events. In providing the authorities with a tool kit to deal with the threat of terrorism, it is a brutal reality that this Parliament potentially overrides the civil liberties of some individuals or groups. This Parliament has done so because we have been persuaded that the threat of terrorist activity and the consequent danger to the safety of the public is such that we have little choice but to sanction some carefully considered intrusion into the civil liberties of some individuals or groups considered to be a risk to the safety of the New Zealand public. We can take some comfort in this regard from the fact that the steps we have taken are considerably less intrusive than those taken in jurisdictions like the United States or United Kingdom, where there is a perception of a higher level of terrorist risk.

From the select committee proceedings in relation to this bill, and from the commentary of recent days, it is clear that there will always be debate about where to draw the line in these matters. I personally remain comfortable with the evidence I have seen that we have the balance right in this country in this respect. But having provided this tool kit for the authorities to fight terrorism, it would be a very serious matter indeed if it was misused. At this stage it is, in my view, appropriate that members of this House should operate on the presumption that the police have raised the stakes in this recent operation because there has been good reason for them to do so, whilst remaining alert to any evidence that might emerge to the contrary.

As one who supports the need for strong, effective counter-terrorism legislation I accept that there is a particular responsibility on myself and others to scrutinise the actions of the authorities in relation to the use of this legislation when the facts are on the table to make such scrutiny possible. After those facts emerge and after such scrutiny is possible, if it does appear that the police or other authorities have got it wrong, then obviously there will consequences—very serious consequences indeed. But I believe we should leave the matter there until those facts emerge.

In reporting back the findings of the Foreign Affairs, Defence and Trade Committee, the National Party has taken the unusual step of submitting a minority report to the House. It is an unusual step to take in relation to a bill that we support, but we have done so for very strong and good reasons. Since the original Act, the Terrorism Suppression Act, was passed in 2002 in the wake of the terrorist action in the United States, New Zealand has met all its obligations under UN Resolution 1267 and has duly designated as terrorist entities all 450-odd individuals or groups that have been so designated by the United Nations Security Council. However, in relation to UN Resolution 1373, which is the resolution that relates to non-Taliban or non-al-Qaeda - related terrorist entities, our track record simply does not stand up to scrutiny.

Since 2002 Australia has designated 88 individuals or groups as terrorist entities so that its enforcement authorities are licensed to employ the provisions of its terrorism suppression legislation to the supervision of those persons or groups. Canada has designated over 50 terrorist entities under similar provisions in its law. Yet, to date, New Zealand has not designated a single terrorist individual or group under UN Resolution 1373. In practice, that means that groups like the Tamil Tigers, Abu Nidal Organisation, al-Aqsa Martyrs’ Brigade, Hamas, Hezbollah, and many others are designated as terrorist entities in Australia, with their actions therefore circumscribed by the attention of the Australian authorities, but in New Zealand not one of those organisations is so designated under our legislation.

Even if we take the charitable view that there is no direct threat from terrorist activity to members of the New Zealand public, I think members would have to accept that Australia could not be said to be in such a situation. Clearly, the Australian Government apprehends that there is a risk of terrorist activity to members of its public. Clearly, members of the Australian administration have taken the view that these 88 groups should be the subject of some attention from its law enforcement authorities.

Given our proximity to Australia, and given the openness of our border with Australia, it simply does not make sense that New Zealand should be operating from such a different page than that from which the Australian authorities operate. So in supporting this legislation, National takes the opportunity to draw the attention of the House and the public to the fact that this tool kit for our authorities to deal with the threat of terrorism is only as good as the Prime Minister making the designations that the legislation makes possible. Those designations under Resolution 1373 have not been made in this country, and we say to New Zealanders that this legislation can only be as good as the Prime Minister who has the tool kit to be able to enforce the law.

DIANNE YATES (Labour) : I thank the member opposite, Murray McCully, for his support and I thank his party for its support of the Terrorism Suppression Amendment Bill. I also thank members for the comments that have been made, and for the comments made about recent events.

I also mention that the minority report from the National Party, which is included in the report back to the House, is not about the actual content of the bill but about the application of the bill. I also remind the House that New Zealand is a sovereign State, and is not necessarily governed by lists that are compiled in Australia. However, the Foreign Affairs, Defence and Trade Committee did include the National minority report about the application of the bill in the report back to the House.

We also included the Green Party minority report, which was concerned about civil liberties—as were all members of the committee. When we tried, as the Hon Murray McCully has mentioned, to achieve a balance between civil liberties and the protection of New Zealanders, we discussed a great deal the wording in section 8. We were assured by officials and by our legal advisers that the wording we have presented to the House does achieve that balance between civil liberty and protection of New Zealanders, and that the previous wording in there was unnecessary as a safeguard.

I wish to thank all those who made submissions on the bill. There were 35 submissions from interested groups and individuals, and the committee heard 14 of those submissions. We considered them very carefully and, as I say, there was considerable debate.

There were changes made to the bill in the light of New Zealand interests around the offences concerning the Convention on the Physical Protection of Nuclear Material and the International Convention for the Suppression of Acts of Nuclear Terrorism. Those changes were made by the committee to ensure greater clarity, and to ensure that the definitions were those that were suitable for New Zealand and the policies of New Zealand around those issues. We also noted that there were changes—as has been mentioned by the Minister Mark Burton in his opening speech in this debate—that may be necessary to the Immigration Bill. The committee has written to the appropriate Minister to point out that those changes may be necessary.

Once again, we are concerned that New Zealand does respond appropriately to international terrorism, that we meet our United Nations obligations, and that we are a very good member of the United Nations and honour our obligations. We are probably a leader in countries that sign up to agreements and keep those agreements. We wish to say that generally New Zealand is a very good and compliant member. As members will see, the schedules to the bill give all the details of the implications for the conventions.

One of the additions that the committee also made was in the matter of transparency. To ensure transparency, clause 21, concerning renewing designations, was amended to provide that the Prime Minister must report to the Intelligence and Security Committee on the proposal of renewal. That was a change that the committee also made to ensure there would be greater transparency.

I can assure the House that the deliberations of the committee were rather long and serious. We had some very serious discussions with those who made submissions about achieving the appropriate balance for New Zealanders—I can say once again—between civil liberty, and maintaining civil liberties within New Zealand, and protection against terrorism. This was, as I have said, very much to do also with the collecting of funds and the legislation around the collecting of funds and—I think Mr Locke will agree with this—the discussion that we had reflected on what has happened in the past when New Zealanders have contributed to movements that have been involved in anti-apartheid and so on, and that New Zealanders should be free to contribute to these. We also wanted to make sure that people who might accidentally contribute to something—sometimes people are raising funds and New Zealanders will, when somebody comes to the door, give money to a collection—would not be caught up in any provision concerning terrorist collection of funding in that regard.

So we have been very careful around the collecting of funds and the supporting of democratic agencies. As we have said, and as the Green Party minority report says, funding to the African National Congress, for instance, would not be seen as an offence under this legislation. We were assured that that was not the case, but we note that the Green Party minority report wanted to make doubly sure on that regard. So, once again, I thank the committee for its consideration of this legislation and for the work that has been done. I also thank the officials who worked on this and all those who made submissions.

Dr WAYNE MAPP (National—North Shore) : I guess many people in the country will be asking why we have this bill, and why we are debating it now.

Rodney Hide: Yeah, I am.

Dr WAYNE MAPP: Those are perfectly reasonable questions to ask.

Rodney Hide: I want to know why National is supporting it.

Dr WAYNE MAPP: I have to say, given the circumstances, those are proper questions to ask. But this bill is not actually related to current events. It is, in fact, all about designating international terrorist organisations.

I will explain to the member why I say that. The current designations of groups by the UN, mostly around al-Qaeda and associated groups, expire later this year, and if we did nothing at all, those designations would all have to go through the High Court. The only way they could be renewed under the Terrorism Suppression Act 2002 would be to go through the High Court. We could have had a normal High Court hearing, with the prospect of al-Qaeda members or some other international terrorists coming along, seeking a hearing, saying they are not terrorists, and so forth. Frankly, that is an untenable proposition, and I think even members of the New Zealand Māori Party would recognise that reality. Designating international entities as terrorists, particularly when nominated by the United Nations, is par excellence a function of the Government, not a function of the judiciary. That is why this bill is before the House, because those entities do need to be redesignated.

There was a lot of discussion in the Foreign Affairs, Defence and Trade Committee about who should do the redesignation. The initial designation was done by the Prime Minister, and that is what is being proposed now. But we have added an additional requirement: the Prime Minister must inform the Parliament’s Intelligence and Security Committee. That committee is made up of the Prime Minister, the Deputy Prime Minister, Mr Anderton, and two members of the Opposition, those members being Mr Key and, indeed, Mr Hide. The committee does have an important oversight role.

We recognise that there is a great deal of public interest in the terrorism laws at the moment. That is to be expected, given that the police have used the surveillance and tracking powers of the legislation from 2002, which actually came out of the counter-terrorism bill of that time. In fact, those provisions were added to the Crimes Act. So when the police used those powers, they raised the question of whether there are terrorists in our country.

Terrorism strikes at the stability of the nation, because terrorism is no ordinary crime. Terrorists intend to overthrow the Government. They intend to create disorder. They intend to threaten the lives, and, indeed, the infrastructure, of the entire nation. So when the authorities raise the spectre of terrorism, those are the fears they convey into society. It should be, rightfully, a very high threshold that the police have to meet before they can invoke the powers of the legislation. Clearly, the actions of the police will be judged in the courts of this land, and by the public and by this Parliament. We acknowledge that, and we say as well that there is no prejudging of those actions. But I would say that the police need to be right on this issue, because of the very implications of what terrorism raises in society.

Parliament has dealt with the issue of terrorism on a number of occasions, and the powers that we have conferred give the authorities more powers than is conventionally the case. They now have much greater power to track individuals. They now have much greater power to surveil bank accounts and the like. Those powers are contained in the legislation, and approval for their use has to be granted by warrants issued through the District Court and the High Court.

I say also that those powers need to be carefully controlled. The New Zealand Parliament has not gone as far as other countries have gone—in particular, the United Kingdom, the United States, and Australia. We have not allowed the police to detain suspects without a charge; we have not given the police any power to question people without a charge. Those fundamental rights of New Zealanders are protected. The police can detain a New Zealander only if they arrest the person. The police can arrest someone only if they charge the person with an offence. When the police charge a person with an offence, that person has certain rights under the New Zealand Bill of Rights Act, which are given automatically. Anyone who is arrested must be brought before a court within 24 hours, and a charge has to be laid or, indeed, withdrawn. It is the courts, not the police, that decide who gets bail. It was the High Court in Auckland that refused bail to one of the people charged last week; it was the District Court in Rotorua that also refused bail for Mr Iti. The courts have done that, not the police. That is an important protection that all citizens have.

Tariana Turia: The police opposed bail.

Dr WAYNE MAPP: I know that they opposed it, but the courts refused it. That is an important point. The defendants are able to put their cases before the courts, and they are making appeals on the issue of bail.

I want to make it absolutely clear that those fundamental rights of New Zealanders have been embedded in our law for literally centuries, and at no stage has our terrorism legislation overridden any of those fundamental rights. New Zealanders need that assurance, because there have been misstatements about that. It is easy to be alarmist, it is easy to raise concerns—and I do understand why those concerns are raised—but I say that we should wait to see the evidence.

I want to turn my attention to a particular offence. This bill creates a new offence, and I know that that will be the subject of discussion. It creates the new offence of terrorism: carrying out a terrorist act. That offence carries a sentence of life imprisonment. I will point out what a terrorism act is. It is defined in the Terrorism Suppression Act 2002 by a threefold test, and it is a cumulative test. Firstly, the terrorist act itself must have an ideological, political, or religious motivation. It is not an ordinary crime; it must have a very particular motivation. Second, the act must induce terror in the civilian population, or be designed to compel a Government to do something. Third, the act must be intended to result in death, to threaten the health and safety of the population—anthrax, for instance—or to threaten major economic systems. The intentional release of foot-and-mouth disease, for instance, would be a case in point. All three tests must be satisfied, and that is the important issue that I want to bring to the public point of view. In order to convict someone of committing a terrorist act, a jury would have to be satisfied that all three tests were met. That is a high threshold.

In conclusion, I say this bill is necessary at this stage. It is simply coincidental that it comes at this particular time. The bill is primarily aimed at international terrorists. But when issues of terrorism are raised domestically, the public are right to be concerned. They have a right to be satisfied that the threat is real, because terrorism strikes at the core of society. We must wait to see the evidence that the police have, but that evidence will have to be compelling or else there will be an accounting.

KEITH LOCKE (Green) : This debate is important, because for the first time the police are considering laying charges under the Terrorism Suppression Act against several New Zealanders. This issue has brought home the debate. No longer are we talking about al-Qaeda and the like.

The fundamental problem with domestic anti-terrorism laws is that all serious violent offending is covered by our Crimes Act. We do not need a parallel set of laws called anti-terrorism laws where higher penalties are imposed simply because the offender has a political motive. That political motive may be shared by many ordinary, peaceful New Zealanders. It might be protecting Tūhoe land rights or saving a block of native forests. Why should we penalise it with a higher penalty? Why should someone trying to save some dolphins or some native snails, if the person ever happened to turn violent, be subject to more years in jail than a violent gang member with no social conscience would be? Also, those with a social conscience are designated as “terrorists” into the bargain.

Most environmentalists or supporters of Māori rights would never, in a million years, think of resorting to violence, and they would be in favour of any violent people being brought to justice, but by using the criminal law, not anti-terrorist laws that smear only their own political cause. The Terrorism Suppression Amendment Bill sets up a new offence of engaging in a terrorist act, with a maximum sentence of life imprisonment. If this is passed, someone could potentially get a life sentence for even engaging in peaceful, civil disobedience, where one does not intend to harm anyone.

A terrorist act can be one where undue pressure is put on a Government by “serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:”. Greenpeace tried to get the Foreign Affairs, Defence and Trade Committee to narrow that definition so that it would catch only those people, in Greenpeace’s words, “with the intention of endangering human life”. But the Greens were the only supporters of Greenpeace in the select committee, on that amendment. As things stand, if this bill passes, those organising a hospital strike or a disruptive protest on the scale of the 1981 Springbok Tour demonstrations could be up for a life sentence for serious disruption of an infrastructure facility, in a way likely to endanger human life, even if they in no way intended to endanger human life.

Many submitters to the select committee were also worried about the removal of the “avoidance of doubt” clause, whereby one would not be in trouble if one’s donation to an organisation was “for the purpose of advocating democratic government or the protection of human rights.”, even if the organisation one was donating to had engaged in some terrorist activity as broadly defined in the Terrorism Suppression Act—that is, if one donated to an anti-apartheid cause yesterday, or for a democratic Palestinian state today, then one would not necessarily fall foul of the Act, even if some African National Congress or Hamas members had been engaged in violent acts. The “avoidance of doubt” clause also recognises that we are in politically fraught territory and that one person’s terrorist can be another person’s freedom fighter. It all depends on where one stands politically.

For example, earlier this year, a self-confessed State terrorist visited New Zealand, and an Auckland judge ordered him to be arrested for war crimes under the Geneva Conventions Act. His name was Moshe Ya’alon, who is a former Israeli defence chief who admitted ordering the bombing of a civilian neighbourhood in Gaza, killing many people. The police, to their shame, point-blank refused to obey the judge and arrest him. Instead, they declared they would wait for the Solicitor-General and Attorney-General to consider whether the prosecution should proceed. That consideration was either a model of bureaucratic efficiency or a travesty of justice. At 1 o’clock on a Tuesday afternoon, the Solicitor-General received from Auckland a big box of legal submissions and detailed evidence. In a few hours he had speed-read and assessed them all, recommended that the prosecution not proceed, and forwarded them to the Attorney-General, who signed them off by 5 p.m.

State terrorists, particularly if they are aligned to the American superpower, are off our police and Government radar. Tūhoe and local environmentalists are seen to be easier targets, which is not to prejudge the current cases before the courts until we have seen the evidence. Anti-terrorism laws seem to bring out the worst in police forces, here and overseas. There is no way that the police had any justification or legal right to stop and search every vehicle going in and out of Tūhoe country, and to photograph everyone into the bargain. All sense of proportion and respect for people’s rights seem to have been lost in our rush to join in the war on terror.

But there is a better way: do not politicise the issue with anti-terrorism laws. If people have committed arms offences, or other offences, under our Crimes Act, then charge them with those offences. If any offenders had a political motive, then I am sure there are many, many New Zealanders who would be setting them straight—their families, their friends, and their colleagues in political movements.

We who are activists on environmental and social issues can use what is happening today to rededicate ourselves and all our organisations to peaceful campaigning, to inoculate ourselves against any temptation to use violence. We have a wonderful tradition of non-violent protest in New Zealand. Sometimes it stretches into the realm of civil disobedience, as when a peace flotilla confronted US nuclear warships in Auckland harbour. I think some of the people in this House were on those boats. We probably would not be nuclear-free today without those mass non-violent protests, some of them against the law, that took place in the 1970s and 1980s.

The big protests against the impending Iraq war back in late 2002 and early 2003 helped ensure that we did not join George Bush’s disastrous invasion of that country. Although we did not join that war, our Government has been an all-too-willing recruit into Mr Bush’s so-called war on terror, which has undermined human rights across the world. This bill is another expression of that. It puts more powers into the hands of the State, operating in secret, and it reduces due process and the role of the courts.

If this bill is passed, the Prime Minister not only will be in charge of designating terrorist groups but also will be reviewing those 3 years later, when previously the High Court had the review role. The designation and the review 3 years later will not be a transparent process, because a lot of the classified information will not be shown to the affected person or group.

The select committee did make one concession in relation to the designation process. It said that after the Prime Minister makes a designation he or she must report it to the Intelligence and Security Committee in Parliament. The problem is that that committee—and I asked a written question about it recently—has met for only 2 hours and 38 minutes in the 2 years since the election, unless it has had a meeting in the last week or two.

Due process is even more undermined by a provision in the bill to automatically put UN designations on the New Zealand list, even when our Government has clear evidence that the people or groups concerned are not terrorists. It is just silly to take out of the existing Act a provision that evidence contrary to the UN evidence can be taken into account. Following UN Security Council resolutions and recommendations does not mean that we should abandon our adherence to all the other international human rights standards and stop giving people a chance to prove their innocence.

The Green Party will be voting against this bill as it is a serious attack on our human rights, reinforcing and extending what is already bad in the Terrorism Suppression Act. However, the Green Party does support one part of the bill—that is, the provisions implementing our adherence to the nuclear terrorism convention and the Convention on the Physical Protection of Nuclear Material.

I am most disappointed that the Government did not listen to the overwhelming majority of submitters opposed to the bill, including expert submitters from the Human Rights Commission, who said that this bill should not proceed before a proper review of the existing weaknesses in the Terrorism Suppression Act, and other expert submitters from Greenpeace, Amnesty International, and the New Zealand Law Society. The Law Society said that it was stupid to set up a parallel set of terrorist offences, which would only make it confusing for judges in our courts to decide whether to prosecute on terrorism charges or on charges under the Crimes Act. It will be very confusing, and, as I said earlier, it will be prejudicial to many people to have this set of terrorism laws.

TE URUROA FLAVELL (Māori Party—Waiariki) :Tēnā koe, Mr Deputy Speaker. Kia ora tātou, itēneipō. The report back from the Foreign Affairs, Defence and Trade Committee on the Terrorism Suppression Amendment Bill could not have come at a more pertinent time. Last Friday I fronted up to the community that has been forced into the national spotlight. It is small, rural community under siege, accused of being a breeding ground for terrorists.

The valley of Rūātoki in my electorate has now assumed a distinctive classification in the national psyche as the place targeted with allegations of terrorism. The community came out in force on Friday—tamariki, whānau, teachers, bus drivers, and caregivers—all forming a hīkoi to the Whakatāne police station. Some of these people wore placards stating: “I’m innocent”, “I’m a hunter, not a terrorist”, or “Don’t point the gun at me—I’m under five”. In one particular case a placard caught my eye. It stated: “State violence to Tūhoe: yet another generation, 1866, 1916, 2007”.

The statement on that placard is at the heart of the discussion on this new Terrorism Suppression Amendment Bill. The Terrorism Suppression Act is being reviewed in three ways: first, in a political context, as the laws to repeal sedition are being overthrown, and while Tūhoe await the Waitangi Tribunal report on their claim; second, in a social context, best summed up by a young Tūhoe mother who, describing her inability to leave the Rūātoki valley, and the appearance of the black-garbed officers, talked about “being terrorised when we were innocent”; and, third, in a historical context, carved out in Tūhoe tribal memory by the confiscation line that marks the site at which they were punished for their supposed rebellion against the Crown by the confiscation of all their lands in 1866.

Our party, like others, supports the notion that we take terrorism and the protection of our country very seriously. But in the case of the actions we have seen in the last week or so, I want to make one simple point about the longstanding impact that the police raids have had on Māori psyche. A couple of weeks ago a game was played and lost and a nation mourned. The stages of grief immortalised by Elisabeth Kubler-Ross were described on national radio. The sportspeople were treated to grief therapy. New Zealanders psychoanalysed every last moment of the 90 minutes of pain, critiquing the role of the ref, reviewing the build-up activities, and assessing the state of national identity as they moved through the process of loss. The trauma was taken seriously. The national heroes had suddenly tasted defeat, and New Zealand reeled in shock.

This is a useful example to show how the collective spirit of nationhood works in success and in the crushing overwhelming sense of loss. You see, for tangata whenua, what happened last Monday, 15 October, was even more traumatic and sinister because it was much more than a game; it was an armed and terrifying invasion of a community. It was an action that has carried a negative stereotype of Tūhoe to the nation as a tribe of terrorists, and that has left trauma, horror, bewilderment, and fear in its wake for people in that community, who wonder whether their house will be next.

The hurt that has been caused through the impact of the anti-terrorist Operation Eight has brought to the surface historical parallels that must be considered in any debate on the suppression of terrorism, rebellion, and political activism. The use of the 2002 Terrorism Suppression Act has forced Tūhoe back to the memory of the 1863 Suppression of Rebellion Act. As the events unfolded last week, we heard Tūhoe people talking of having been there before—referring to the massive confiscation of some 181,000 hectares of land from the supposed rebel tribes of Tūhoe, Te Whakatōhea, and Ngāti Awa in 1866. They were labelled rebels because of their stand against Government atrocities.

One koroua spoke of the hunt for Tame Iti having parallels with the pursuit of the Te Kooti Arikirangi Te Tūruki. Te Kooti was hunted by the Government of the day in a relentless scorched earth campaign in which people were killed, homes destroyed, lands and stock ruined, and an iwi starved and deprived by the impact of Government actions. Another kuia spoke of a day in 1916 when the then Police Commissioner John Cullen and some 70 constables, armed with rifles and revolvers, marched into Maungapōhatu and arrested Rua Kēnana on charges of sedition and resisting arrest. The sedition charges were later thrown out.

Now there is yet another generation. The perpetuation of injustice, generation after generation, cannot be forgiven or forgotten. To those who say that this was all way back I say: “Remember the foreshore and seabed legislation of 3 or 4 years ago.”

I find it deeply worrying that the definition of a terrorist act in the principal Act that is under amendment here—the intimidation of a population in a situation of armed conflict that causes serious injury to civilians not involved in the hostilities of the situation—so specifically describes the actions of the police in Rūātoki.

The reason we are now considering this bill to amend the Terrorism Suppression Act 2002 is that we are told that certain provisions of the Act are inconsistent with New Zealand’s obligations under the United Nations charter and the United Nations Security Council resolutions on terrorism. The bill is designed to bump up compliance with international counter-terrorism obligations—obligations that give effect to a number of mandatory resolutions relating to Osama bin Laden, al-Qaeda, and the Taliban. It is fascinating that the executive, although unable to sign up to the United Nations Declaration on the Rights of Indigenous Peoples just 2 months ago, now expects us all to be very scared about the consequences of not signing up to these other United Nations charters and resolutions.

The Māori Party is particularly concerned about the extension of national designations recommended in this bill. We are concerned that the independence of the High Court jurisdiction in the continued designation of terrorist entities is removed in favour of a determination by the Prime Minister. We believe that the process of review of designations would become less independent and even more vulnerable to political interference. There is also the risk of enabling greater influence from other nations, such as the United States.

We agree with the submission from the Global Peace and Justice group that if such a provision were to proceed, then independent scrutiny of cases would be minimised, as, in effect, the Prime Minister will become judge and jury. At least with the courts there is the ideal of independent scrutiny, which, if absent, can be appealed for.

Another key objection from the Māori Party rests with the creation of a new offence of the commission of a terrorist act—an offence that becomes punishable by up to life imprisonment. The Law Society brought forward its concerns that terrorist activities are not clearly defined in the bill, the interpretation being more about motivation and intention rather than defining the actions committed in the actual terrorist offence. It is here that the recent events give us particular cause for concern, when we consider the likelihood of double jeopardy.

By the police detaining suspects under the Summary Proceedings Act and Firearms Act, while they then search for evidence for another crime to fit the definition of the Terrorism Suppression Act, there has been considerable speculation that the police are at risk of placing the defendants under double jeopardy—being charged with one crime but detained for the purposes of another. That is unlawful, as I understand it. The terrorism suppression legislation makes it quite clear that the Attorney-General’s consent is required before a charge may be laid against a person. The time period is not specified, yet natural justice must surely act against unreasonable delay in challenging a continued remand in custody.

Finally, I want to refer to the codes of secrecy that have led to such uncertainties around this week. Many of the submitters noted their concerns in the bill about issues of procedural fairness and about the human rights of designated persons in relation to the use of classified security information in court. The key message coming through from this week has been to query why people have been remanded into legal custody without being given reasons for the deprivation of their liberty—a legal right dating back to the Magna Carta. But it appears that no reasons have been given as yet, despite repeated requests by legal counsel.

We think it is important to note that although the general emphasis of this bill is focused on the threat of international terrorism, the assumption that tangata whenua have been making this last fortnight is that it very clearly can also be applied to attack the activist cause across our domestic law. This bill seeks to create a climate of fear around anyone who supports liberation struggles and the fight for justice, democracy, and human rights, whether in Aotearoa or offshore.

This Parliament, and the citizens of this country, must be alert to the fact that any concept of democracy and free speech in Aotearoa, given the events of the past week, is very much at risk. This bill is a fresh attack on our civil liberties, our human rights, and the continuing story of injustice against injustice in opposing indigenous rights. We in the Māori Party oppose the bill in our strongest rejection of this Government yet.

RODNEY HIDE (Leader—ACT) : I rise on behalf of ACT to oppose the Terrorism Suppression Amendment Bill. We should reflect calmly and soberly in the wake of terrorist attacks and think very carefully about our response. We cannot fight terror by terrorising our own people. We cannot defend our freedoms, which we cherish, by adopting fascist policies. We oppose terrorism because we all wish to live in a free and open society. That means a society in which there is a rule of law and we are ruled by rules, not by men and women. With our anti-terrorism legislation we have the rule of men and women, because a body of people can declare an organisation or a person to be a terrorist and that is it. Once a person is declared a terrorist, that person is a terrorist.

The amazing thing about what this Parliament is signing up to is that it is not even our own Government—as bad as that would be—declaring who and who is not a terrorist. It is an outside agency—

Dr Wayne Mapp: Al-Qaeda!

RODNEY HIDE: Mr Wayne Mapp says: “Al-Qaeda!” Actually, declaring al-Qaeda a terrorist organisation has not sprung its members out of their cave. Mr Wayne Mapp says that we have to pass this bill because maybe Osama bin Laden will turn up in court and challenge his terrorist designation. I think it would be quite good if he did, because then we would arrest him.

Jumping up and down about bogeymen, as scary as it is, and then giving a response like this is not appropriate. How can it be that we are signing up to a group of people, not elected by New Zealanders, who can declare the ACT party or the National Party, or the Green Party for that matter, to be terrorists? Everyone will sit here and say: “Oh well, that would never happen.” Well, why allow for it to happen? Why allow that to happen, in this Parliament? We are supposed to be protecting the people of New Zealand.

Then we have the situation where the Prime Minister, on his or her own bat, can declare someone or some group to be terrorists. The assets of that person or group are frozen, and that is it. I have huge respect for Helen Clark’s integrity. I do not think she will misuse that power. However—and I know this will be a shock to the Labour Party—she will not always be the Prime Minister, although I know Labour members are working hard on the Electoral Finance Bill to make that a possibility. We should ask ourselves this question in this Parliament. We remember Sir Robert Muldoon. What would he have done with this legislation? What would Sir Robert Muldoon have done with this legislation? Are we seriously suggesting that the man who used the Economic Stabilisation Act to freeze everything in the entire economy to try to beat inflation would not be above declaring those in political protest movements that he did not agree with to be dissidents? Indeed, would he not be above declaring people who opposed the Springbok Tour to be terrorists? Would that not fit the definition in this bill?

Why are we giving that power to our Prime Minister? Why are we surrendering this power to an overseas agency, over which we have no sway and no say? Let us track down criminals, let us incarcerate those who offend against our person and our property, but let us not indulge in a political witch-hunt, and the opportunity for a political witch-hunt, where people, not the law, rule and where a person can declare someone essentially illegal and does not even have to say why. How do we challenge it? Under this law, one cannot.

I think in New Zealand we live in a big village. I think we live in a village that is remote from the world’s troubles. We think of our Government as the fellow or the fellowess next door. We cannot imagine our political leaders misusing their powers. So we find ourselves very relaxed about passing enormous, awesome powers across to our Government and saying: “Well, we need this because there are terrorists.” Someone who stands up for our basic rights—like the Māori Party, the Green Party, or the ACT party—immediately gets accused by the parties that do not have an argument of somehow harbouring terrorists or going soft on terrorists.

We do not want to concede awesome powers to our political leaders. We do not want to have a country and to live in a country where we can be declared guilty without a trial. We do not want to live in a society where the Prime Minister can declare someone to be persona non grata, without actually having to charge that person, and where there is no recourse, simply on the basis that the legislation would not get misused and simply on the basis that we have this awesome threat called terror.

I believe that with the passage of these measures—and New Zealand obviously is not alone in passing such laws—the terrorists are winning. In waging their terror, the very freedoms that we are trying to protect are being eroded by our Governments in response. We should reflect on why we do not want to live under the Taliban. We should reflect on why we do not want to live in a society where we do not have basic human rights and where we cannot stand up for what we believe in. We should reflect on why we not do want to live in a society where rulers can just declare us to be guilty. And then we should ask ourselves: “Why oh why are we passing this bill?”.

RON MARK (NZ First) : Well, that was interesting. Can I say for a start that New Zealand First does find it somewhat ironic that we are debating the Terrorism Suppression Amendment Bill at this moment, and that we will shortly follow that with the third reading of the Crimes (Repeal of Seditious Offences) Amendment Bill, which will seek to do away with the offence of sedition. It would be nice to think that the concerns that people have for the security of New Zealand might well have been part of the discussion we had yesterday in the Committee stage of the Crimes (Repeal of Seditious Offences) Amendment Bill. It seems that New Zealand First is on its own on that bill, but not so on this one. We support the passage of this bill. We believe that it does enhance the Terrorism Suppression Act of 2002. We understand the reason for the amendments to this bill that have been put forward. It is the need to ensure we are compliant with international counter-terrorism obligations, including the provisions that cover the designation of United Nations - listed terrorist entities, the extension of national terrorist designations after 3 years, the freezing of the assets of a designated entity, and new offences involving nuclear materials.

It is interesting that we should be seeing legislation in that respect. It was not so long ago that I was reading books and seeing movies about fictitious attacks on Western democracies using small nuclear devices. People I have spoken to, some of whom are in this House, seem to share similar views that people then looked at such possibilities as being a nonsense, as fiction and fantasyland. These days it is taken as a given that such potential exists, and it needs to be countered or catered for.

I want to take the moment right now to point out, because people tend to forget, when they launch into vitriolic attacks on the counter-terrorism legislation and the actions of the New Zealand Police—and by innuendo make statements that are derogatory of and inflammatory about our security agencies—that these agencies are staffed and manned by personnel who in the main are New Zealanders. They are men and women, mums and dads, sons and daughters, aunties and uncles—they are Kiwis. So New Zealand First wants it on the record here that we give our respect and thanks to the men and women who staff our security services in New Zealand, be they with the Security Intelligence Service, the Government Communications Security Bureau, or the New Zealand Police, or be they members of the Special Tactics Group, the armed offenders squad, the Special Air Service, the counter-terrorist action groups, or the Royal New Zealand Army, Navy, or Air Force. We want it on the record, because we do not view those New Zealanders as irresponsible, as irrational, or as people who would act against the interests of their nation.

Tariana Turia: What are you looking at us for?

RON MARK: Well, I am looking to my right because it is the Greens, the Māori Party, and the ACT party that are vehemently against this bill, and two parties in particular have made some rather strong statements about the men and women of our security forces. By innuendo, they have deemed them to be the types of New Zealanders who would specifically and deliberately set out to do ill to Māori without good cause, and to do ill to any New Zealand citizen without good cause. They bring all Māori who serve in those organisations into disrepute. Let us be clear: the SIS is not staffed just by middle-class, white Pākehā.

Tariana Turia: It’s not the SIS.

RON MARK: Well, the SIS is involved in the security services, and there are Māori in there. There are Māori in the Government Communications Security Bureau, and there are Māori in the SAS. We all know about that now, do we not? We know it very well. So let us be very mindful, when we denigrate, criticise, and ridicule the police in particular, of what it is we are saying. Let us also be mindful that many of those are Māori who have affiliations with many tribes. They are, as I am, tauiwi. I have whakapapa going back into Whakatōhea, as well, through my grandmother on my mum’s side, but I do not share some of the views that come out of the mouths of people and are trumpeted around this House as being the views of all Whakatōhea people—they are not.

But let us also look at the aspects of this bill that put the responsibility firmly with the Prime Minister in designating who is and who is not a terrorist, which, in the eyes of Rodney Hide, is alarming. But Rodney Hide needs to look at the National Party’s minority report in the commentary on the bill. What I see in that report there is more alarming. The fact is that the Prime Minister has designated no one—no one, I tell Rodney Hide—nobody. Far from a situation that that member has just espoused here, where the Prime Minister is capable of designating the ACT party a terrorist organisation, the real concern New Zealand First has is the concern, so well expressed in the minority report by the National members, that the Government has designated nobody.

Rodney Hide: What about me, in Epsom?

RON MARK: Well, Mr Hide may be somewhat misguided in some areas, but he is not a terrorist. He terrifies some of his political opponents, but he does not terrify me. The need to actually specify what a terrorist act is, is smart; it is essential. New Zealand First has no issue with that. We point out, though, that terrorist acts, by their nature, must have a political motivation. For those who are challenging the police and making some rather outlandish statements about what they perceive as over-the-top reactions from certain people who have information available to them about activities up in Tūhoe land, there is a political motive and background.

I was of the clear belief that the motivation, the goal, of some Māori is to have sovereignty over New Zealand, to achieve self-determination—to take back the land, and rule as an independent nation—that is a political goal. What is interesting is the fact that no one has ever challenged these people, to have them explain how they see themselves achieving that political goal. Is it by diplomacy? Is it by political activism? Is it by force of arms? The evidence that we are reading in the paper today would suggest that some people have given other people a clear impression that they intend achieving that political goal by force of arms. Some members may want to call that the activity of freedom fighters. Some members may want to sit in this House and envisage themselves as being a sort of replication of Sinn Fein in supporting their IRA mates out on the street, but I say that that is terrorism.

You see, we are unique in this part of the world. We have enjoyed 150 years of democratic rule. We have seen many changes of Government, and many of them have had hotly contested and fiercely fought election battles—and I think of the 1990 election as an example—but we have never ever in this nation witnessed an uprising or attempt to take control, power, or sovereignty by force of arms.

Some would argue that if the police and the intelligence agencies throughout New Zealand have evidence that some people see that as a means—whether or not they are capable of doing it—there is an obligation to act. Let us be clear: some political parties in this House would be the first to string up the police if something did happen and it was found that the police had had intelligence but had not acted on it.

That brings me to Mr Ross Meurant, in my final minute I think I might have. Mr Ross Meurant astounded the nation by saying that he was brainwashed and that he believed that the police were overreacting and that their intelligence was misguided. He made a number of statements. This is the same Ross Meurant who in a post-protest meeting in Hamilton, where protesters against the Springbok Tour actually breached the fence, berated and belittled police commanders for failing to act on the intelligence they had that clearly pinpointed the part of the fence the protesters were going to target and breach. This is the same Ross Meurant who chastised, criticised, and demonised his commanders for not acting on the intelligence they had.

I say to Mr Meurant that as time moves on, some people’s memories get a little fuzzy and—to be kind—maybe that is what has happened. But I say to everyone in New Zealand that they should not judge the police hastily. We have a Police Complaints Authority, and as a democratic country we have a process to hold people to account and to examine their actions after the fact. If they are found wanting, no doubt we will hold them to account, but right now we need to support the intelligence agencies and the police as they go about the work they have been given to do. New Zealand First supports this bill.

JILL PETTIS (Labour) : This is an important bill, and I acknowledge the contribution made by other people in the House this afternoon, and the very serious way in which this bill has been debated. A lot of rather extravagant claims have been made over the last few days in regard to what this bill might mean. One of the funny things about human nature is that we seem to hate a void, and we feel we must fill it—fill it sometimes with inaccurate statements while we are waiting to discover the facts. I am a bit disappointed that a degree of that has happened in New Zealand over the last couple of days.

Some of the claims that have been made about what the Terrorism Suppression Amendment Bill will do have not been accurate. Those of us on this side of the House have participated in protests for as long as we can remember. Some of us have taken our children along to protests, as well, and some of the people we protested with in the past have made claims over the last few days suggesting that this amendment bill will mean they will no longer be able to protest, and could be arrested and prosecuted as terrorists.

In regard to the events that took place and were carried out by the police in recent times, I repeat that those people who have been detained have been detained on charges stemming from the Arms Act, not the Terrorism Suppression Amendment Bill that we are discussing this afternoon. We all hope that accurate information about those events will come out soon. I point out that the definition of terrorist acts expressly states that legitimate protest, advocacy, or dissent is not by itself sufficient basis for inferring an intent to commit a terrorist act. Therefore, to the extent that a safeguard is needed to ensure that the legislation is not used to repress legitimate protest activity, it is provided for within that definition.

I think we, as members of Parliament, have to be very responsible in what we say at times like this. Although legislation like the Terrorism Suppression Amendment Bill attracts controversy because it is not the usual run of the mill bill that we consider in New Zealand, we as MPs must ensure that we are not being mischievous in deliberately misrepresenting what the bill really does. Those who misrepresent the bill do so, I suggest, in their own political interests, rather than in the public or New Zealand’s interest. This bill does an awful lot less than what a lot of people in New Zealand over the last week have thought it does. This bill is not like laws that are passed in other countries; this bill does not create search or arrest powers. This bill does not allow indiscriminate phone tapping. It does not allow people to be detained for indefinite periods of interrogation or lengthy periods of incarceration without charge; that will not be allowed in New Zealand under the provisions contained in this bill. The bill does not permit the use of secret evidence in terrorism prosecutions, and it certainly does not prohibit the media from discussing what is going on. We just ask for responsible discussion about what is going on.

I also have to say that terrorism offences in New Zealand are treated the same as other offences. The same criminal procedures are used and the same conditions under which people are arrested for other activities apply under this bill, as well. So, despite all of the colourful phrases and predictions we have heard over the last few days, I assure New Zealanders that they can continue to protest in a peaceful and orderly way—as they do 99.9 percent of the time. They can continue to do that. I know that protests are planned in various parts of New Zealand this Saturday; I think there is to be one on my own patch. Those protests will carry on the same on Saturday as they did last week, and as they did the year before, and the year before that. New Zealanders will continue to be allowed to protest in a peaceful and orderly way, just as they always have. This bill is not what it has been made out to be by some people over the last few days, and I suggest that people breathe through their nose, as they say, and consider this bill in a responsible way. Thank you.

Hon PETER DUNNE (Leader—United Future) : I am pleased to speak in support of the second reading of the Terrorism Suppression Amendment Bill, and I want to echo some of the comments made by Jill Pettis, the member who has just resumed her seat. I have been appalled in recent days to see the linkages made by some groups between recent police events and the likely imminent appearance of this bill before the House. The suggestion that any Government of New Zealand would conspire with the police to arrest significant numbers of New Zealanders simply to create a climate that made the passage of a particular piece of legislation desirable was not even what happened back in 1951—the heyday of those sorts of things—and it certainly would not happen today. I am appalled that there are groups in our community that have sought to play the conspiracy card the way they have done over recent times.

Ron Mark: Loonies.

Hon PETER DUNNE: My colleague to my right says “loonies.” I would probably not use that word, but I would not disagree with his use of it in respect of at least some of those people. Their actions are not only inaccurate in terms of the current situation, but they completely ignore the history of this legislation.

I will take a moment or two to share with the House what has actually happened here. In the wake of the atrocities in the United States in September 2001, the Government passed a Terrorism Suppression Act in 2002. At that time, the Government indicated that certain provisions of that Act would need to be reviewed by the Foreign Affairs, Defence and Trade Committee during the life of the 2002-05 Parliament, to put in place more permanent legislative provisions in respect of those issues. During that Parliament, I was the chair of the Foreign Affairs, Defence and Trade Committee that undertook the review that led to this bill, which, when it is passed, will be known as the Terrorism Suppression Act 2007.

The process has, therefore, been a very long one. The select committee in the 2002-05 period, when it undertook the review, sought submissions from people on the way in which the previous legislation—the 2002 Act—was working. Then, as a result of those submissions, the committee made a report to this House and to the Government of the day that eventually appeared as this legislation, which I note was sent to a select committee in March of this year. That select committee received some 35 submissions, 14 of which were heard orally. In addition, evidence was provided by the Ministry of Justice, the Ministry of Foreign Affairs and Trade, and the Crown Law Office. Everyone who has had a legitimate interest in this legislation and in any imposition it might make on their human or democratic rights has had not one but at least two opportunities to be heard, to state their concerns, and to have those concerns heard by two different foreign affairs, defence and trade committees and two different Parliaments prior to this legislation emerging in the House today.

When one looks at the scope of this bill, one sees that it deals with a number of very significant areas. It talks about the designations of United Nations - listed terrorism entities. It talks about the extensions of national designations—those designations that might apply to national organisations. It talks about a freezing of assets and forfeiture regime, new offences being instituted involving nuclear material, and the use of classified security information in court. It also brings into the principal Act a significant number of international agreements, which are referred to in the schedules.

I think that we have been through a very considered and careful process here. As I said in an earlier debate on one of the earlier pieces of legislation relating to counter-terrorism, we will never get it absolutely right—that is the nature of the beast. We have to make our best efforts at the time. In New Zealand there will always be the suspicion that because we are not an immediate terrorist target or a hotbed of international terrorism—despite what some may say about recent events—we can somehow take a more lax attitude than other countries.

I submit to the House that whatever the outcome of the recent police activities might be, they should serve as a due warning to people that any sense of laxity is, in fact, misplaced. We are lucky. We are not facing an immediate threat. We are not under risk. But that does not mean we have no need to act responsibly. The whole process since September 11, as far as I can ascertain in respect of New Zealand, has been about ensuring that our domestic environment puts in place laws that strike that traditional balance between protecting the rights of the individual to free speech and dissent and ensuring that the security of our nation is not put at undue risk. I see the provisions in this bill as being a further step down the path of providing those protections.

It is unfortunate that there are some who choose to see—and they are mainly outside this House, thankfully—the passage of this legislation as being some sinister plot to try to overtake their liberty and impose fresh limits on their freedom. The reality is that it is too late after a significant terrorist event to say: “If only we’d had legislation in place that would have prevented this. If only we had known of the existence of these organisations. If only we had acted at the appropriate time.”

In the last couple of years—I cannot remember precisely when, but other members may—there was a suggestion in Australia that various nuclear plants of theirs were a target. It seemed extraordinary. It did not eventuate thanks to the vigilance of the Australian police and security services, but we should just imagine for a moment what the consequences might have been had those attacks occurred. Now, members may well say that that does not apply in New Zealand and that we do not have nuclear facilities in this country. But we do have nuclear material. There are people who are capable of developing such material here and using it for adverse purposes. So I think the provisions in respect of this legislation in so far as they relate to that are important as well.

I have read with interest the minority view expressed by the Green Party. I have a huge respect for my friend Mr Locke, and I know that although there are some issues we do agree on and we work very well and closely together on, there are some we disagree on. But I would never doubt for a moment his sincerity or his integrity in pursuing those views. I think it is important that he continues to be an advocate for democratic and human rights, even in a climate where, perhaps, there may be a majority of this House who are inclined to scoff at his views. Having said that, however, I do not agree with the conclusion that he reaches in his minority report. I think he is taking it too far. I think he is reading too much into the bill in terms of its import, but I do believe that it is important that he is there to state the case, and I acknowledge his contribution in that regard.

So I simply reaffirm United Future’s support for this legislation. It is critical. It is important that it be passed, and it is part of securing New Zealand’s long-term future. This is not about dealing with contemporary events; this is actually about making sure that some of those events that we might fear never come to pass. As I said before, it is simply too late after they have happened to say “if only”, and no one in New Zealand would thank this Parliament if it placed our country in that position.

TIM GROSER (National) : Life, even parliamentary life, can be full of surprises. Like other members of the Foreign Affairs, Defence and Trade Committee who put a lot of time into this bill, I thought, until the events of last week, that this would be pretty much a slam dunk, politically—pretty much a routine piece of parliamentary politics because of the very large measure of agreement between the two major parties on what the Terrorism Suppression Amendment Bill sets out to do. But through a piece of spectacularly bad timing, entirely fortuitous and entirely coincidental, we find that it has become a matter of some real controversy in our country.

I am not going to rehearse National’s position on the events of last week. I think Mr McCully in his intervention put our position in very, very clear terms. We are withholding our judgment, and there is every good reason to do so. But although I did not write down Mr McCully’s precise words at the time, there was also contained there an implicit challenge. That challenge is this. If the legal process is now to unfold as it should in a country of our type, and we find it was not done in terms of the letter and spirit of the law, we will expect to hold people accountable for it. That is the way the system works, and that is the way it should work. So we just want to park that issue on the side and come back here in this debate to the real substance of the issue. Because when the events of last week have played out—however they play out—I suspect this will become, in the long run, a relatively small political footnote in the history of New Zealand. What will remain is a much, much bigger issue of international terrorism.

I have to say that I am simply astonished at some comments that have been made, not just in the House but outside the House, at the way and the speed with which people have forgotten exactly what is the nature of international terrorism. The defence of the realm in classical political literature is meant to be the No. 1 responsibility of any State, and I believe that is still the fundamental bedrock reality behind this legislation. Like many, I have no doubt that for New Zealand in the 21st century the defence of the realm is threatened more by this issue of international terrorism than any other conceivable direct, strategic threat. So although I talked about this being a piece of routine legislation until it got knocked off the rails by the events of last week, I did not mean that I thought this was not an important issue. No, I think this is a very, very important issue, and it is very important to get this right for precisely the reason that Mr Dunne has just reminded us. There will be no takers, politically, or in any terms of human reaction, for any politician in any political party that could be held accountable after the event for not having taken this issue seriously.

Listening to some of the comments of people, I sort of wondered whether these people think that Osama bin Laden follows the Marquess of Queensberry Rules here; I mean, giving them all the evidence so that they can sift through it in a reasonable way. This is simply naivety of the highest order. What we have here is a situation that actually has been around for centuries and centuries. For centuries there have been obscure bandits and warlords like Osama bin Laden, and they have carried out their terror inside a localised community for obscure reasons, which we and our predecessors were totally unaware of. But married to the modern technology of globalisation these hate merchants have been able to project their message of hate into a nightclub in Bali and into the twin towers of New York, and they will do it again. Of that I am absolutely certain.

This is not war conducted by the rules of the Marquess of Queensberry, and, I am sorry, a State needs to defend itself with coercive power to survive. That is the ultimate responsibility of a State. That is why the Labour members and the National members of the select committee took this issue very seriously, indeed, while always having a discussion about where the balance between preserving the coercive powers of the State to preserve itself, including the security of New Zealanders, and civil liberties lay. This is actually a very fragile balance, and when it breaks down it can break down unexpectedly, markedly, and, I believe, in any society. We saw it in Los Angeles in 1965 with the Watts riots. We saw it in Paris in 1968. I have actually seen something not as dramatic but of a similar process in a street called JalanDiponogoro, where the New Zealand Embassy in Jakarta lies. The moment the Suharto regime started to lose control, I saw the process of people running amok, and let me tell members that there is only one word to describe it. It is scary. It is seriously scary to see it up front.

This issue of preserving the ultimate security of the State requires coercive power, but in a society like ours it has to be disciplined by a very high test to preserve the civil liberties on which our system rests. If we look at the submissions we received, we see that they were overwhelmingly from good people who were looking at the issue legitimately in terms of only the civil liberties side of the equation. That is exactly what one would expect. Standard political theory tells us that when the public interest is so diffuse we will not find lobbies that come together necessarily, except in times of real crisis, to put forward the general public interest in maintaining the security of the State and the security of the people who live in this country. So it was really up to the politicians to provide the counterbalancing arguments. As a conversation essentially developed across the table of the select committee, it was very clear that there was a very high degree of concern that we absolutely get the balance right between the coercive power of the State on the one hand, and the need to deal with this extraordinary threat of international terrorism, using the powers of globalisation and civil liberties, on the other hand.

I think it is a commonplace thing to say that terrorism, like water, always seeks the weakest link in the chain. There are only so many things we can do to stop a terrorist act. Ultimately, if somebody with a suicide bomb walks into a certain place in New Zealand, I do not suppose that there is anything we can do about it. But what the theory of counter-terrorism rests on is prevention and trying to send a very clear message that one—in this case, our country—is not the weakest link in that chain. What we know about international terrorism is that it is a borderless activity. It pays no respect to borders. It pays no respect to human liberties. It will use the existing legal frameworks and processes that societies like ours have built up over centuries for their own advantage, and naive people in some of our communities will no doubt lend political support, completely unwittingly, to these people. We must make sure that this country is not the weakest link in the chain. This bill is a part of that process.

There has been a lot of confusion, in my opinion, in this discussion over the issue of the designation of terrorist organisations. Let me just give members my own particular take on it. We have these two resolutions. One resolution came out of the political history of September 11. It used the political impetus of a crisis to get international agreement on a particular set of terrorist organisations and some international cooperation around the politics of the moment. The idea that New Zealand would not be part of that is, to me, almost inconceivable. So what this bill has done is remove, possibly, a theoretical possibility, but in situations like this we have to look at things in extremis—the extreme possibility that the procedure agreed on at the time, and in the haste of that appalling event, could have led New Zealand to be in breach of a Security Council resolution. I find it inconceivable that people have problems with that. So that is the fundamental purpose of this bill. That is what this bill is tidying up, and I am absolutely certain that we are doing the right thing.

Hon PAUL SWAIN (Labour—Rimutaka) : That speech made by Tim Groser, in which he congratulated and praised the speech made by Opposition spokesperson Murray McCully, will not do his promotional chances in the National Party any harm at all—

Hon Member: How are yours going?

Hon PAUL SWAIN: —I do not need to worry about mine. I was pleased to hear that speech. I agree with virtually everything the member said, including the very high level of agreement, apart from that of the Green Party, on the major aspects of the bill.

I do not want to go over all the old arguments that have been made, but I will just make three broad comments at the start. I agree with the member for Ohariu-Belmont in that this bill was the product of quite a major review of the Act, so the implication that somehow this bill has sort of popped up out of nowhere because of the events of the last week is just plain silly.

The second issue we grappled with quite considerably in the select committee concerned the balance—which the member who has just resumed his seat talked about—between the right of people to protest in a democratic community and the right of the broader community to come down very strongly against those who want to commit acts of terrorism against it. That balance was quite openly debated.

Thirdly, I want to make it absolutely clear that this legislation, as that member also said, is to do with timing in Parliament. It has nothing to do with the events of the last week.

The select committee has made a couple of really important changes. The renewal of the designation process was something we spent some time on, and now it has been recommended—if I remember rightly, the recommendations were from some National members—that the renewal process be taken to the Intelligence and Security Committee. I think that was a good suggestion. In the end, I think there is potentially some transparency in that, which would involve all party leaders in Parliament.

We also looked at the new offences involving nuclear material, and we said they were too broad. It is a bit disingenuous for the Green Party member to make comments about the fact that this will mean that people cannot protest against ships carrying nuclear waste. In fact, I will read from the committee’s commentary on the bill: “We were concerned that the proposed new offence of committing an act against a nuclear facility in clause 13(3) was too broad, and could apply, for example, to protest action against ships transporting radioactive waste through the Tasman Sea.” So we actually listened to what the member said, made changes, and narrowed it down, yet he still wants to criticise the committee—

Keith Locke: I raise a point of order, Mr Speaker. The member is misquoting; I said no such thing.

Mr DEPUTY SPEAKER: That is not a point of order.

Hon PAUL SWAIN: Well, notwithstanding that, the member could have at least said that the committee took some positive action on some of the comments that were raised.

Finally, there is an issue about the new immigration bill. There are some processes in there relating to classified information and decisions to be made under that legislation. So we decided that once that immigration bill had been passed, we should look at the relationship between it and this particular legislation. I support this bill and commend its further progress in the House.

Hon MARK BURTON (Minister of Justice) : I move, That the Crimes (Repeal of Seditious Offences) Amendment Bill be now read a third time. This bill implements the recommendations of the Law Commission in its report Reforming the Law of Sedition. In the report the Law Commission concludes that seditious offences are overly broad and uncertain, that they infringe on the principle of freedom of expression, and that they have the potential for abuse.

In respect of the Australian sedition offences, Laurence Maher argued in 1992: “So long as the various sedition offences remain, governments will inevitably be tempted to use them improperly, especially when highly unpopular opinions are expressed … the law of sedition is anachronistic and an unjustified interference with freedom of expression … abolition of sedition offences at both Commonwealth and State level is therefore to be preferred to any attempt to ‘modernise’ the crime of sedition.”

The Law Commission, as with the majority of submitters on the bill, agree with that argument: “As long as the New Zealand seditious offences remain on the statute book there is the potential for their misuse against people who criticise the government publicly, especially at times of civil unrest and of perceived concern for national security.” I agree, as does the Law Commission, that it is not appropriate to retain, modernise or clarify the provisions; nor, for that matter, is it necessary to do so. To the extent that such conduct should continue to be a crime, we can rely on prosecutions for existing crime such as incitement, conspiracy, and other public order offences.

The seditious offences in New Zealand are contained in sections 81 to 85 of the Crimes Act 1961. The offences cover making or publishing a statement that expresses a seditious intention, conspiring with a seditious intention, and using apparatus for making seditious documents or statements. The offences hinge on a seditious intention. This is defined in the Crimes Act very broadly as an intent: “(a) To bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice; or (b) To incite the public or any persons or any class of persons to attempt to procure otherwise than by lawful means the alteration of any matter affecting the Constitution, laws, or Government of New Zealand; or (c) To incite, procure, or encourage violence, lawlessness, or disorder; or (d) To incite, procure, or encourage the commission of any offence that is prejudicial to the public safety or to the maintenance of public order; or (e) To excite such hostility or ill will between different classes of persons as may endanger the public safety.”

Three main options were looked at by the Law Commission’s report in respect of our seditious offences. The first option was to maintain the status quo and leave the offences unchanged. The second was to amend and modernise the relevant sections. The third was to abolish the seditious offences. The principal argument for retaining the status quo is that we do not know what the future will hold, so we should not remove sedition as a weapon from the law enforcement armoury. This is a position that was strongly argued by Mr Mark during the Committee stage. I acknowledge the interest he has taken in this particular bill. However, I suggest that one could equally argue that because we do not know what the future will hold we must try to ensure that the law does not contain a weapon that might be used in the future to suppress dissent.

The second option, as I indicated, was amending and modernising the offences. This could be done to limit the ambit of the offence to focus on speech that amounts to an incitement to violence against lawful authority. However, the Law Commission argued that if the offences were so amended, they would add very little, if anything, to existing offences of incitement to commit other crimes already proscribed in the Crimes Act.

The third option was to repeal the offences. The term “sedition” carries with it considerable historical baggage and is closely associated in the public mind with its origins as a Tudor-era crime, rooted in criticising or exciting disaffection against established authority. Thus, as a matter of policy, the present law of sedition invades the democratic value of free speech for no adequate public reason.

Five principle reasons are given in the Law Commission report for repealing sedition. The first reason is the legal profile of the offence, which is broad, variable, and uncertain. The meaning of sedition has changed over time, from an insurrection or revolt to describing the act of inciting or encouraging revolt. The common law then added the act of exciting violence between different classes of people and an intention to incite violence against lawfully constituted authority as an element of the offence. In New Zealand the statutory provisions have included inciting lawlessness generally. Unlike other jurisdictions, under the New Zealand defence one can be found to have had a seditious intention without ever intending to incite violence against an established authority.

The second reason is that it is a matter of policy. The present law invades the democratic value of free speech for no adequate public reason. A US judge has said that debate on public issues should be uninhibited, robust, and wide open, even if it includes vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. That is something most members of this House are well familiar with.

The third reason is that the present law falls foul of the New Zealand Bill of Rights Act 1990. Specifically, freedom of expression is endorsed by section 14 of the New Zealand Bill of Rights Act. The Law Commission does not see the breach as justifiable in the case of sedition.

The fourth reason is that the seditious offences can be inappropriately used to impose a form of political censorship. They have been used for this purpose. In fact, in the past sedition has been used for this purpose on a number of occasions, as was well canvassed by a number of speakers, including myself, during the Committee stage. The State should be entitled to punish such statements advocating imminent violence against the State, the community, or individuals only when a criminal offence is the likely outcome and when there is proof of intention to advocate it.

The final reason is that the law is not needed because those elements of it that should be retained are covered more specifically by other offences. An argument made in support of sedition is that it is easier to establish than some of the other offences. As the Law Commission also noted, I consider that in the interests of freedom of expression such speech-only offences should not be easy to prove.

A number of existing offences in New Zealand law that adequately deal with the elements of seditious offending should be retained. These include the offences of conspiracy and incitement that can be used in conjunction with other offences. Incitement and conspiracy, like sedition, can be a thought or intention crime. For example, one could be found guilty of incitement of an offence even if the offence one was inciting was not actually committed. In addition, if the inciting leads to the committing of an offence, then the inciter could be prosecuted as a party to the offending under section 66 of the Crimes Act 1961.

Offences that are particularly relevant to sedition are treason, riot, unlawful assembly, criminal nuisance, offences in the Summary Offences Act, and inciting racial disharmony, which is an offence under the Human Rights Act 1993. The fact that a victim of an offence was targeted because he or she was part of a particular group, such as race, nationality, or religion, can be taken into account at sentencing as an aggravating factor under the Sentencing Act 2002. The offender may therefore be subject to a higher sentence if it can be shown that the person incited the offence because of his or her attitude towards the victim’s race, nationality, or religion. Thus behaviour covered by the sedition laws that still needs to be criminalised can more appropriately be dealt with by other provisions of the criminal law.

In closing, I would like to thank again the Justice and Electoral Committee for its efficient and thorough consideration of this bill, and also those who took the time to make submissions on the bill. Parliament should always appreciate those who take the time to engage in the democratic process through our select committee submissions. The submissions, in my view, in the vast majority were in strong favour of the bill. Finally, I again acknowledge the excellent report by the Law Commission, which led to the introduction of this bill. I commend the bill to the House.

Dr RICHARD WORTH (National) : I suppose it is fair to say that in the process of a bill through Parliament the highlight for that bill is the third reading, for a number of hurdles have been surmounted—sometimes effortlessly, sometimes with great difficulty. Now, in the final stage, there is but one, perhaps, small further part to follow before we see this legislation in its full-blown form. That final stage, of course, is the Royal assent, which sees, in due course, the enactment of the legislation.

I have had the opportunity, as has the Minister Mark Burton, of making several contributions in the course of the perambulation of the Crimes (Repeal of Seditious Offences) Amendment Bill through the Parliament. I will pick up three or four points that I think summarise where this bill sits in the context of a number of issues. The starting point—and the Minister dwelt very briefly on this—was a report by the Law Commission that was tabled in Parliament in 2007 called Reforming the Law of Sedition. I note that the Law Commission and the report that it did then recommended the abolition of New Zealand’s seditious offences. Sir Geoffrey Palmer, the ever-popular president of the Law Commission, said in the comments he made at that time: “These offences are too wide. They are unclear. They can be misused to suppress dissent,”. He went on to say: “Sedition has been used to muzzle vehement and unpopular political speech. It is high time the offences were removed from the New Zealand statute book.” So it is that the report recommended that the seditious offences set out in sections 81 to 85 of the Crimes Act be repealed and not replaced.

Rt Hon Winston Peters: No, no, no. Fix up the police; don’t change the charge.

Dr RICHARD WORTH: I am interested in these faint interjections, which have come from the current Minister of Foreign Affairs. I hope that when there is an opportunity for him to speak in the debate he will give us the benefit of the suppressed excitement that he currently feels.

Another point that Sir Geoffrey made, which I think is probably important, was: “Where behaviour that would be covered by the existing sedition provisions needs to be punished, it can be more appropriately dealt with by other provisions of the criminal law. By abolishing sedition, we will better protect the values of democracy and free speech.”

We have been treated in past debates on this topic to a history of the law of sedition, and that has been marked by references to a number of cases that have occurred over a significant period of time, illustrating various aspects of those offence-creating provisions. But I suppose in the New Zealand context what really stirred up those who follow these issues with interest was what happened to Tim Selwyn in 2006. Tim Selwyn faced a number of charges, including sedition, after sending emails calling for militant action against the Government’s foreshore and seabed legislation. He smashed the Prime Minister’s electoral office window. He published two sets of pamphlets. He was jailed for 15 months for an unrelated, fraud-related offence, and the District Court judge, seeking to do justice in all the circumstances, added a further penalty of 2 months for criminal damage, conspiracy, and publishing a seditious statement.

What is sedition? It is variously defined, but I think for present purposes it is neatly picked up in the proposition that it is a term of law that refers to covert conduct that is deemed by the legal authority as tending towards insurrection against the established order. In very simple terms, it is stirring up rebellion against the Government in power. It is more about encouraging the people to rebel, whereas treason—to which the Minister has referred—is actually betraying the country.

One of the issues that I very provisionally explored last night was to suggest that in the context of the New Zealand Bill of Rights Act 1990 we are talking about balances. We are talking about, on the one hand, the desirability of continuing with an offence called sedition, and, on the other hand, these rights of free speech and free expression, which are contained as freedoms and as rights in the New Zealand Bill of Rights Act. It needs to be said that they are not absolute rights; I dealt with that last evening.

I would say something about freedom of speech in the context of the sedition law. Freedom of speech is the concept of being able to speak freely without censorship. It is often regarded as an integral concept in modern liberal democracies. The right to freedom of speech is guaranteed under international law through numerous human rights instruments. Article 19 of the Universal Declaration of Human Rights is an illustration of that, and in a domestic setting we have our New Zealand Bill of Rights Act. The right is called freedom of expression or freedom of speech—maybe “freedom of expression” is the preferred term, because the right is not confined to verbal speech.

If one looks at the writings of those to whom this is an aspect of interest, one sees that the most important justification for free speech is a general liberal or libertarian presumption against coercing individuals from living how they please and doing what they want. However, there are a number of specific justifications that are commonly proposed to justify freedom of speech. I think of the decisions of the Canadian Supreme Court—in particular, in a case called R v Keegstra in 1990, which was a case on hate speech where one of the judges identified four elements that he thought characterised free speech. He said: “free speech promotes ‘The free flow of ideas essential to political democracy and democratic institutions’ and limits the ability of the state to subvert other rights and freedoms.” The second thing he picked up was a concept that has been freely floated by philosophers, which is that free speech promotes a marketplace of ideas. That is a concept that people like Oliver Wendell Holmes and others have propounded, which includes, but is not limited to, the search for truth. Thirdly, the judge said: “It is intrinsically valuable as part of the self-actualisation of speakers and listeners;”. The fourth point the judge made was: “It is justified by the dangers for good government of allowing its suppression.”

I guess we all know that there are significant restrictions on free speech. That is where part of the debate arises. A well-known example—I do not want to dwell on this in any detail—is typified by the statement that free speech does not allow one sitting in a crowded theatre to shout falsely: “Fire! Fire! Fire!”. That has been a classic statement in a number of decisions. There are a whole lot of restrictions on free speech. They include defamation, slander and libel; hate speech that is defamatory or causes incitement to violence; and a third illustration is, of course, what we are concerned with here—sedition.

What happens now, in terms of this legislation, is that a chunk of the Crimes Act 1961 is changed; it is repealed. A whole lot of offences that touch sedition disappear from the statute book. If one looks at what is left in Part 5 of the Crimes Act, which deals with crimes against public order, one sees that still quite a lot remains. As I said last night, it is somewhat of a hotch-pot, really, that is left behind. Treason remains, espionage remains, unlawful assembly remains, forcible entry and detainer remains—[Interruption]—and, of interest to the Minister of Foreign Affairs, offences like piracy and dealing in slaves are still there. The Minister has a detailed knowledge, as I know from my past associations with him, of those important issues.

There is another criminal provision that sits in section 98A of the Crimes Act, which deals with participation in criminal gangs. I am not sure whether the Minister has had any interest in that, but doubtless we will hear about that. That is why National supports this legislation. It looks at some arguments propounded by New Zealand First and says: “How sad. How stupid.”

LYNNE PILLAY (Labour—Waitakere) : It is a pleasure to stand and speak again on the Crimes (Repeal of Seditious Offences) Amendment Bill, this time in the third reading. At this stage, firstly, I would like to thank the Law Commission—

Rt Hon Winston Peters: I raise a point of order, Mr Speaker. The last thing I want to do is interrupt this speech—

The ASSISTANT SPEAKER (H V Ross Robertson): It has only just started.

Rt Hon Winston Peters: I know, and the last thing I want to do is interrupt it. I know there are rules, Mr Assistant Speaker, by which you choose whom the next speaker will be, but if you are going to have all “for” and none “against”, then the rules somewhat change. As you well know from the previous speeches, the National Party, in its inimitable style, goes along with the Government, as it does on most issues, and is for the bill. The Government is proposing the bill and it is for it, too.

The ASSISTANT SPEAKER (H V Ross Robertson): Thank you, Mr Peters.

Rt Hon Winston Peters: No, no. You have missed my point. There is a party here that is against the bill. In the interests of parliamentary debate, can we hear the other side as soon as possible after the start of the debate, not at the end? That is why we have had this adjustment in the rules, and I am just reminding you of it.

The ASSISTANT SPEAKER (H V Ross Robertson): I thank the honourable member for his point of order. If he wishes to raise something like that, then it should be done through the proper channels. All I can say is that this is a Government bill and that the rules of debate have been established for some time—since the start of this Parliament. The honourable members will have an opportunity to debate the issue.

Rt Hon Winston Peters: I raise a point of order, Mr Speaker. I know when the rules of this Parliament were set and how many times they have been changed. Where there is a need for a debate, not just repetition of one side of the argument, the order of the call as called surely should be changed, and that has been recognised in the past by Speakers. It is time in this debate we heard from the other side. You have heard two “for”; how about one “against”?

The ASSISTANT SPEAKER (H V Ross Robertson): I just say to Mr Peters that I have already called the member to speak, and under Speaker’s ruling 24/5 she has the call. I cannot take it back.

LYNNE PILLAY: Thank you, Mr Assistant Speaker. I am sorry to cause so much concern to the member and I look forward to hearing the debate.

Dr Richard Worth: We’re all looking forward to hearing from him.

LYNNE PILLAY: Yes, indeed. Meanwhile, the debate might seem a little repetitive, but I am standing to speak in support of the Crimes (Repeal of Seditious Offences) Amendment Bill at the third, and final, reading.

As I started to say, I think it is very important to acknowledge the Law Commission’s work. Its consultation document on reforming the law was produced in October 2006. Then the report, which advocated repeal, was published in March 2007. The bill is now before the House for its third reading. I think that is very efficient, and probably indicates, except for one or two parties, pretty widespread support for this bill in the House.

I would like to talk very briefly about the select committee process. The Justice and Electoral Committee received 17 submissions from groups and a variety of individuals, and heard five submissions.

Hon Ruth Dyson: 17.

LYNNE PILLAY: Yes, 17. Only two submitters opposed the bill. The committee did take those points into consideration, but, in the end, all members agreed that the bill should progress without amendment.

I also want to acknowledge the submission made by the New Zealand Police. We listened very carefully to the evidence, particularly about sections 81 to 85 of the Crimes Act. The police advised that these sections had very rarely been relied on by police officers, that in bringing charges they were quite confident that there were other means to address the crimes, and that there were no specific guidelines for officers on the application of those sections. That indicated that the sedition laws are not in the mainstream of charges—if I can use that term—that police officers consider when they are looking to prosecute.

It was good to receive a unanimous report from the committee that the bill should progress unamended. We have some important work before the select committee at the moment and I hope that we are able to have a meeting of the minds on that legislation, but we will have to wait and see. I also think Dr Worth spoke very articulately about cases of sedition and about having perhaps, a more common-sense approach to cases that may have previously fallen, and may currently fall, under seditious offences, but would easily be covered by a number of other charges.

If we ask ourselves, and I know that I have done so in previous speeches, whether repealing the offences of sedition leave gaps in the law, I think the majority of this House agrees there will not be gaps left in the law. Incitement and conspiracy, like sedition, can be either thought or intention crimes. One can be found guilty of incitement of an offence, even if the offence one was inciting was not actually committed. Additionally, if the inciting leads to the commission of an offence, then the inciter could be prosecuted as a party to the offending, under section 66 of the Crimes Act.

Dr Worth mentioned offences that are particularly relevant to sedition: treason, riot, unlawful assembly, criminal nuisance, offences under the Summary Offences Act, and inciting racial disharmony, which is an offence under the Human Rights Act 1993. The fact that a victim of an offence was targeted because he or she was part of a particular group—such as race, colour, nationality, or religion—can be taken into account at sentencing as an aggravating factor under the Sentencing Act 2002. The offender may therefore be subject to a higher sentence if it can be shown that the person incited the offence because of his or her attitude towards the victim’s race, nationality, or religion. Thus behaviour covered by the sedition laws that still needs to be criminalised can be more appropriately dealt with by other provisions of the criminal law. Like the majority of the members in the House who support this bill, I cannot think of an instance where the lack of a sedition charge would result in justice not being served. Quite clearly, there are other means and other ways of dealing with those misdemeanours

I have said before that the heart of the case lies in the protection of freedom of expression, and, in particular, in this day and age, of political expression and its place in our democracy. We can all feel very proud to live in a country where democracy is celebrated and where people may hold dissenting views. [Interruption]

LYNNE PILLAY: I cannot quite hear what the member Sandra Goudie is saying, but I am sure the member’s comments would, like sedition, be considered unpopular and unreasonable by most people. However, such expressions—

Hon Ruth Dyson: That’s just within her own caucus.

LYNNE PILLAY: The member may well be right. Such expressions should not be branded as criminal simply because they involve political opposition or a political statement. [Interruption]

LYNNE PILLAY: Yet again I cannot quite hear what the member is saying—

Hon Ruth Dyson: Unintelligible.

LYNNE PILLAY: It is unintelligible. I am sure we could not envisage a day or an age where something a member says in this House—no matter how offensive or silly—would be ruled unlawful. I think that applies to sedition as well.

This bill certainly did not spend a huge amount of time in the select committee process, but members of the Justice and Electoral Committee can put their hands on their hearts and say that everybody who wanted to be heard was heard, and that all submissions were considered very carefully, which is a very important part of the select committee process. I am very pleased to commend the bill to the House at its third reading.

CHRISTOPHER FINLAYSON (National) : I have only a few brief comments to make about the Crimes (Repeal of Seditious Offences) Amendment Bill. I too very much enjoyed the opportunity to look at this legislation—legislation that, for most lawyers, is looked at in law school then is never gone near again. But it was a very interesting exercise, as the chair of the Justice and Electoral Committee said, to receive a limited number of submissions from interested parties, to reflect on those submissions, to read the Law Commission’s report, and to send this bill back to Parliament for a full debate in the Committee of the whole House.

As the National Party spokesperson, Dr Worth, said, National supports this legislation. It is timely for a repeal of the offences related to sedition. I do not intend in the course of this speech to spend any time analysing those parts of the Crimes Act that are to be repealed; I covered those aspects in my second reading speech, and in the Committee debate we had last night. Rather, I want to confine my comments as follows.

In the United States Congress, when members of the Senate or the House of Representatives sponsor legislation, sometimes, as an honour to them, the legislation is named after them. So, for example, a former Democratic senator from Maryland, Senator Paul Sarbanes, and a United States Congressman by the name of Oxley sponsored securities enforcement legislation that is now well known throughout the world as the Sarbanes-Oxley Act.

I think that if we were to accord names to this legislation, then it could be called the “Locke-Hide Bill”, because those two members from smaller parties are responsible for running with the idea that sedition is a crime whose time has now passed in New Zealand. They worked very effectively in this MMP Parliament to persuade the Government to ask the Law Commission to look at this issue and then sponsor legislation. I repeat what I said in the Committee on the bill last night in congratulating Mr Locke on his passion for human rights and on his dedication to the cause of reforming the law of sedition. I also repeat what I said last night in hoping he applies that same zeal for freedom of speech and for fundamental human rights to the vile Electoral Finance Bill, which this Government is sponsoring, aided and abetted by some parties that should know better.

I also congratulate Mr Hide on the work he did with Mr Locke to ensure the passage of this legislation, and on the hugely significant speeches he has made in this Chamber on the subject of sedition. His second reading speech on this issue is far and away the most impressive contribution that I have heard for some time. Certainly, it would far exceed anything the Minister of Foreign Affairs would ever contribute. I suggest that instead of wittering away like an oaf he should listen very carefully to what is being said in the course of this third reading speech, because important issues are raised by this bill.

Sedition is a crime that was used from time to time in the 20th century. Various speakers, including me in both my first and second reading speeches, and the Minister in the Committee stage, outlined some of the historical charges that have been brought against New Zealanders. There was the very sad case of Te Whiti, there was Bishop Liston in Auckland, and we heard mention of various Labour party politicians, including the late Walter Nash, over the years.

Then nothing was done for many, many years—for at least 42 years after the Crimes Act 1961 was introduced—until the legislation was used in the infamous case of Mr Selwyn, who hiffed an axe through the front window of the Prime Minister’s Mount Albert office. Then there was another attempt to use it, in Dunedin, in respect of some students who were burning couches. Clearly, when one looks at the legislative history and at the number of prosecutions that have been brought over the years, one sees that sedition is an offence that has not been used very much at all, and that the rationale for its existence has been called into question.

The most powerful argument that was raised against repeal was raised by Mr Mark, and I acknowledge his very careful and considered speeches on this issue. I know that the New Zealand First Party was initially in favour of repeal but, in light of recent events, has changed its mind. Mr Mark’s speech last night was a very considered one. He raised the issue of whether, in light of the events of recent times, it would be better to keep the offences on the statute book in order to determine whether there is a rationale for them.

I reflected long and hard on what he said, but I think that when one looks at other legislative mechanisms available to the executive, one sees that they address more effectively the kinds of issues he raised than the sedition legislation does. I refer particularly to the Terrorism Suppression Act, which was passed in the aftermath of the dreadful incident in New York in September 2001. Although I am not on the Foreign Affairs, Defence and Trade Committee, I understand that the committee has been looking at that legislation again recently. So although I note Mr Mark’s concerns, I think that Parliament need not be too troubled by those concerns and that the legislation can safely be repealed.

I too join with the chair of the Justice and Electoral Committee in congratulating the members who have worked so hard on this particular issue; the Law Commission, which once again has shown what good work it can do for the State and has produced a very important report—a very interesting historical report—at reasonably short notice; the officials of the Ministry of Justice, who have brought together this legislation; and all those who have made submissions to the select committee. Whether we accept their views is almost beside the point, because important constitutional and criminal law issues were raised and they all made a contribution.

At the end of the day, this is very simple legislation, comprising only two parts. As Dr Worth said, the effect of it is that the definition of sedition in the Crimes Act goes, the particular seditious acts that are covered in the Crimes Act go, and there are some small, consequential amendments to the District Courts Act.

In conclusion, it is an idea whose time has come. Sedition has never been a particularly good servant of the criminal law, particularly in the 19th and early 20th century, when it was used as an instrument of oppression. As I said, there are much better legislative devices for dealing with some of the issues that can be raised by sedition. It is for that reason that the National Party, having reflected on the Law Commission’s report, and having noted very carefully the submissions of those who came before the Justice and Electoral Committee, has concluded that this legislation is timely and should be supported.

RON MARK (NZ First) : I was beginning to think for a moment I was going to be denied my freedom of speech and I would have to bring a member’s bill to the House to ensure that the right to speak at an appropriate time, since I am a member of the third-largest party in this House, is respected and accorded. We know now how many people in this House are determined to uphold the freedom of speech. I can only conclude from the debate and discussion—and it has been a good debate and, in the main, in good heart—that the only parties who have stuck firmly to principles that they believe in are the Māori Party, the Green Party, ACT, and New Zealand First.

It might seem strange that I should say that, because we have all taken different positions on the legislation. The Māori Party, the Green Party, and ACT are supporting this legislation for reasons that they have stated very, very clearly; New Zealand First is opposing it for reasons that, I believe, we have put very, very clearly. The National Party and the Labour Party are supporting this legislation but I note that in the debate we have just concluded—on the Terrorism Suppression Amendment Bill—they also both supported that. If we are to go through the reasons that have been espoused by those in support—[Interruption]—and Mr Hide has just twigged to what I have just said and he agrees.

Rodney Hide: It wasn’t that hard!

RON MARK: For some it is, I say to Rodney. For some it is very hard out there.

The ASSISTANT SPEAKER (H V Ross Robertson): First names!

RON MARK: Mr Hide.

The ASSISTANT SPEAKER (H V Ross Robertson): Thank you.

RON MARK: I am sorry, Mr Assistant Speaker. We are actually good mates and we do refer to each other by our first names on occasions. I know that it does not often happen in the Labour Party; often members refer to each other by surname only, over there, but Mr Hide and I do refer to each other by our first names all the time, actually.

But let us stop and think about what has just happened in this House; we have a Minister standing up to say that this legislation needs to be repealed because it is not used. Well, hello—neither has the Terrorism Suppression Act, until very recently. But then he goes on to say that this legislation needs to be passed because the Seditious Offences Act has been inappropriately used in the past and that is not a good thing. Well, hello—there are people saying that the application of the Terrorism Suppression Act right now has been inappropriately used. The Māori Party has said that and continues to argue that—and so do the Greens. They have consistency, not schizophrenia.

The Minister then went on to say that this legislation brings with it a whole lot of historical baggage. Well, I ask the Minister the following question. If 6 or 8 months, or 2 years, down the line, when the current processes have been followed through and we have a decision out of the courts that is not in the police’s favour and we have a whole heap of political baggage attached to the Terrorism Suppression Act, do I take it from what the Minister said that the Government will go back and repeal the Terrorism Suppression Act? Will it now have tagged to it a whole heap of political baggage? It does not make a lot of sense, does it?

How can one stand up in this House and argue the passage of highly controversial legislation aimed at protecting our democracy, aimed at protecting our citizens, and then come to the House within 1½ hours and argue that legislation that does exactly the same thing should be got rid of because it denies freedom of speech? Well, hello—people are arguing, and have always argued, about this, and I have to point to Mr Locke. He has always said the Terrorism Suppression Act denies freedom of speech. How can he argue that it should be repealed because it is not used? Well, hello—we have only just been debating the Terrorism Suppression Act, and currently, at this point in time, that legislation has not been used, despite all the claims and all the hoo-ha out there. How can he come here and say we must repeal it because there is a lot of political baggage? Well, excuse me—there is a whole heap of political baggage around the Terrorism Suppression Act right now. It seems to me that the two major parties share a lot in common and now it would appear that one of those things they share is schizophrenia. They have one thing to say on one day and completely the opposite thing to say on the same thing the next day—in this case, within 1½ hours.

A lot has been made of the need to protect freedom of speech, and New Zealand First has been consistent. We will stand and defend people’s right to say what they are able to say, no matter how stupid we think it is, no matter how bizarre we think it is, no matter how inappropriate we think it is—right up to the point—[Interruption] Here we go, hold on to the varnish again, she is back. I can hear her somewhere around here. I ask members whether Sandra Goudie is in the House or whether that is the plaintive cry of one of those Wairarapa parrots that seem to be inhabiting my place lately—I cannot quite figure it out. But let us just be clear—

Sandra Goudie: Back to this bill, for instance.

RON MARK: There it goes again. It is one thing to stand up to advocate freedom of speech and demand it, whilst at the same time shutting down Brian Connell and kicking him out of the caucus for saying simply what was on his mind.

Rt Hon Winston Peters: That’s true!

RON MARK: And the real gut-ripper, the undies-tearer, is that what he said was true! [Interruption] I ask members whether it was true. Did he ask? In fact, did he ask a question of the leader? Well, Mr Assistant Speaker, you want me to narrow my focus to the third reading.

I raise a point of order, Mr Speaker. I am taking a point of order because I do not want to lose speech time. I see you waving the bill at me and indicating to me that I should narrow my debate. But am I not correct in saying that the third reading is an opportunity to canvas the entire debate that we had at all other stages and that where the debate was allowed to move in certain areas during the second reading and Committee stage, so too should it be allowed to be dealt with in the third reading? Is that not true?

The ASSISTANT SPEAKER (H V Ross Robertson): The third reading is a wrap-up of the debate.

RON MARK: Thank you, Mr Assistant Speaker. I will continue. It is fine, and we support people who advocate that this bill needs to be repealed because it impinges upon freedom of speech. But let us not have people coming into this House saying that that is what they stand for, when they fired and got rid of one of the brightest stars to ever grace their political party—the Rt Hon Winston Peters. And there are others. Marilyn Waring—what did she do that was so bad, that was so wrong? This party, whose members now stand here and say they support the Government legislation on the main principle of ensuring freedom of speech, is littered with the corpses of people who have been shot for daring to speak their minds.

I ask members to think back. In fact my colleague Barbara Stewart was reminding me that when she was sitting over on that side of the House in the last term, sitting beside her, not in front of her, was a former senior member of the National Government—Maurice Williamson. Why was he at the back? It was because he dared to speak the truth freely and openly on television. He criticised his leader, and one is not allowed to do that in the National Party.

New Zealand First has said that it objects to this law being passed because we do not believe that the response to repeal is an appropriate response, and particularly not now. We believe that the other options that were put forward by the commission, and that were ruled out by the commission, and ruled out by the Government and the National Party, were worth exploring further. Specifically we believe the focus should have been on an amendment to deal with it that would have zeroed in, very tightly and narrowly, on violence—and purely violence—and any challenge to lawful authority and the lawful institutions that underpin and actually give us our democracy.

We have heard the arguments, and we understand them, that say that other legislation will cover these offences. But we actually believe that democracy is special, that Parliament stands above that, and that there are institutions that give us the democracy that we enjoy, that underpin our society. Their value is far greater than having them treated just within common law, within the Crimes Act, or through other legislation, as has been claimed. We are concerned that some of the historical examples that have been used have been misrepresented. Specifically we talk about the example used to justify the passing of this bill of Te Whiti o Rongomai and TohuKākahi being charged with sedition. Everybody seems to forget that the charges of sedition were dropped and never resumed, and that they were imprisoned using other law. It is the very thing that people are saying that they want to happen now.

My nana always used to say: “Be careful what you wish for, you just might get it.” If what we are saying now is that we will use other laws, then I am sure that is of no satisfaction to Te Whiti o Rongomai, given what happened to him. I caution the Parliament and say that from New Zealand First’s perspective we would have supported an amendment, but we certainly do not support the repeal at this time.

KEITH LOCKE (Green) : I think there is a certain celebratory atmosphere in the House tonight, and rightly so, in that this Parliament can take considerable credit for knocking these archaic provisions off our statute book. When we think back, as others have mentioned, to the roll-call of those who have been charged with sedition, we see that it is really a roll-call of our political heroes. When students today study our history in secondary school, the names that pop up quite regularly in their studies are Rua Kēnana, Te Whiti o Rongomai, Peter Fraser, Harry Holland, Bishop Liston, and Walter Nash. The names of all of those people pop up as part of our history and as important leaders in our society. I feel them on my shoulder today, in a sense, as we get rid of the laws that so hurt them those many years ago.

Perhaps the one I am thinking about most today is Rua Kēnana. Let us just remember who he was. He was a very strong Tūhoe leader, and very strong on the Tūhoe people running their own show up in the Ureweras. Despite the fact that when he was arrested one or two of his people had guns, he had strong anti-war views against the First World War and against Māori being a part of it. He was treated as being seditious and dragged away.

I think it is interesting, in the light of current developments, that one of his direct descendants is the well-known TV star, personality, and artist named Tame Iti, who is much in the news today. It may be that some of Tame Iti’s comments over the years could be seen to be a little bit seditious. He was not all that keen on the Queen and the Queen’s representatives being here when he went up to Waitangi, and he did and said certain things. He will not have to worry about the sedition laws from today, when we scrap them off the statute book.

I noted the Minister Mark Burton’s comment that some of the things that previously might have been seen to come under the sedition laws will still be offences under the Crimes Act, and that is right. Direct incitement to a crime and conspiracy to do criminal activity are already covered in our Crimes Act. It was interesting to reflect, when I was listening to that speech, as to why we need to use the Terrorism Suppression Act in the way it is envisaged if there are such fall-back crimes on our statute book as incitement to commit a crime, conspiracy, and offences like that. If people are really what we might regard as terrorists, they would fall under those Crimes Act provisions. The situation is a bit like that of the sedition laws we are considering here tonight.

In some ways I regret the passing of the sedition laws—the end of the sedition laws—because the offences themselves in the Act have a certain ring about them. Section 81(1)(a) states that one act that counts as sedition is: “to bring into hatred or contempt, or to excite disaffection against, Her Majesty, or the Government of New Zealand, or the administration of justice;”. It trips off the tongue a little bit, and in some ways I feel a bit of sadness at its passing.

I think the origin of those words, in both the British and the New Zealand jurisdictions, goes back to well before the full flowering of parliamentary democracy. They were really put in legislation to keep the British King or Queen of the time, however incompetent or oppressive he or she was, beyond both public criticism and criticism within the emerging parliamentary system. In the days when we did not have a proper parliamentary democracy, an MP would be carted off to the Tower of London if he or she was deemed to be seditious in criticising the monarch for one thing or another. The result of that problem is reflected in a tradition in our Parliament whereby neither the Queen nor the Governor-General are allowed to enter this Chamber, because the monarch or the representative of the monarch did tend to come in and nab MPs and put them in the Tower of London.

As parliamentary democracy fully evolved and we had constitutional monarchies in Britain and in New Zealand, the Government also thought sedition laws were a good thing. The laws might have started out to protect the monarch, but the new parliamentary Governments thought: “We want to protect ourselves from criticism too.” It is interesting that sedition laws were used against early Labour leaders to protect the Government not only against criticism of the monarchy, which some of these early radical Labour leaders tended to do, but also against the more trenchant attacks on the institutions of the time and criticisms that Parliament and the institutions of the State were very much run by wealthy business people, landowners, etc.

Harry Holland, later to become a Labour leader, fell foul of the sedition laws because of his strong, in working-class terms, challenge to the Government of that time. I think he fell foul of another part of section 81, which we are amending tonight, which renders it an offence “to excite such hostility or ill will between different classes of persons as may endanger the public safety.” Lynne Pillay talked about some of the essence of that provision continuing in the human rights legislation, but I think that the sedition laws were really to stop those who were challenging the system from below—the poorer people, the working people of the time—rather than protecting people who were not from the dominant culture, such as racial minorities, etc. The procedures we have under the Human Rights Act today are more to protect people who are subject to racism or put into some sort of second-class position in society. It is a different concept altogether.

I think that New Zealand society will welcome the passing of this law. It is interesting that the select committee did not get very many submissions. Nobody got terribly exercised about the passage of this law. It is interesting that although people were a little cautious about any change a year or two ago when I started talking about this law, once the movement for change started—and Sir Geoffrey Palmer had a big role in this—most politicians got on board. I congratulate the select committee on that. I think it means that we can take up what might seem to be more controversial things with greater ease. For example, the blasphemy laws need to be taken out of the Crimes Act as well.

I think what we are doing tonight reflects what New Zealand society is all about. We have a very robust democracy where we can criticise each other, often in very harsh terms, without really breaking the ties between people. I think that rather than using the law to stop people from speaking out, the very fact that we can speak out and say all sorts of outrageous things is actually a safety valve in our society—a safety valve that makes us a peaceful and harmonious society. I hope that as time goes on, bearing in mind current worries about people talking about violence, we will allow more tolerance for a certain amount of outrageous speech and see it as something that can be rectified by taking people aside and teaching them better manners, or whatever.

I also thank Tim Selwyn, because in some ways, even though he suffered a prison penalty under the sedition laws, he, along with Sir Geoffrey Palmer and the work of the minority parties in coming together, produced this change. So I think we should thank him tonight. He might have suffered a bit of time in prison, but he will be remembered as one of the people who helped to end these outdated laws. I thank Chris Finlayson for his comments, and for his idea of naming bills after people. I think Rodney Hide might talk a little bit about that in his contribution.

TARIANA TURIA (Co-Leader—Māori Party) :Tēnā koe, Mr Assistant Speaker. Tēnātātou katoa. Nothing in this House is a matter of chance, and we in the Māori Party have wondered, then, why today of all days the minority Government has deemed that Parliament must deal in rapid succession with Acts to do with terrorism suppression, seditious offences, armed forces, courts martial, and defence. As any keen historian would know, today, 24 October, marks the 90th anniversary of the Bolshevik revolution, which overthrew the Russian Provisional Government and was followed by civil war. The revolution was led by the Bolsheviks, the Left Socialist Revolutionaries, and anarchists, with troops commencing their takeover of the Government buildings on 24 October. Far be it for me to draw any comparison between the October uprising of 1917 and events in Aotearoa in the last few weeks, but I do have to wonder at the cause of the timing in the sudden placement of these bills at the top of the Order Paper.

I say from the outset that the unity and spirit of cooperation evident amongst the MMP parties has been a key feature of getting the Crimes (Repeal of Seditious Offences) Amendment Bill on to the agenda in the first place. This time last year my esteemed colleague Hone Harawira was drafting a private member’s bill to amend the Crimes Act 1961 in such a way as to repeal all offences related to sedition. As is the way with MMP parties, a chance discussion with Green Party members revealed that they too were seeking to repeal those offences that cut across the concept of freedom of expression.

We joined forces and, on 24 April this year, we welcomed the ACT party and United Future in a joint call to the Government to push through legislation that would pick up on the recommendation of the Law Commission to scrap the charge of sedition. And here we are today, 6 months to the day after that historic press conference, with Parliament finally discarding the charges of inciting rebellion or resistance. But, unfortunately, it is putting in place more Draconian laws, such as the legislation that is also in the House today.

It is reason for great jubilation that MMP can prove, and has proven, its effectiveness in the form of this significant legislation before the House. I also have other reasons to acknowledge the important precedent this bill has set Parliament, for in reviewing the question of sedition all political parties have invested in the very important task of looking critically at our history.

The parties in this Chamber have become familiar with the pacifist prophets of Parihaka, Te Whiti o Rongomai and TohuKākahi. They have recounted the legacy of passive resistance that has been passed down to subsequent generations. We have heard the stories of how the peoples of Taranaki refused to accept the brutal land confiscations, the extensive land loss, and the military force and takeover by the terrorist actions of a rampant colonial force. Taranaki stood firm, like their majestic maunga. They ploughed up the fields, put the fences back up again, and resisted colonial imposition and theft with the simple statement nāku te whenua—mine is the land. This statement, which saw Te Whiti and Tohu charged with sedition and sent to jail, is a statement that to this day remains embedded in the heart and on the lips of the people of the land, the tangata whenua.

Through the passage of this bill our thoughts in this House have also turned eastwards to the Urewera settlement of Maungapōhatu, the home of the Tūhoe prophet Rua Kēnana. We have heard how over 1,000 supporters from Tūhoe, Ngāti Awa, and Whakatōhea established a communal farm, a temple, and a communal bank as their spiritual movement blossomed into a significant force. It was a movement based on the return of the whenua and mana to Māori—nāku te whenua. Members of the House reflected on this history, our history in Aotearoa, in which Rua Kēnana spoke out against the war and was duly arrested on the charge of sedition. He was eventually found not guilty of the charge, but, nevertheless, he had already spent 9 months in Mount Eden Prison.

As this bill has progressed through the House, other, more contemporary, episodes have been raised to illustrate the urgent need to reform the law of sedition. We have heard about the case of Tim Selwyn and the Pākehā movement that he led to express Pākehā disgust and fury at the Government’s attempts to steal, by confiscation and without consultation, Māori land in the form of the seabed and foreshore legislation—nāku te whenua. We have heard how my dear friend, the late Nico Tangaroa, along with Annette Sykes, Mike Smith, and Tame Iti, was threatened with a charge of sedition over comments they made opposing overseas investment in our assets during the Asian Development Bank conference—again, nāku te whenua.

Democracy must be about justice for all. We must have certainty in the law and certainty in its application; values that would be given life through the means of free speech. During the process of hearing this bill we have received many, many responses from everyday New Zealanders who are proud of their tradition of supporting and participating in civil actions against injustice. One person wrote to us telling how his late great-uncle, Bramwell Robinson, was arrested and taken to prison in 1912, and served a sentence for sedition for protesting against the action of the police in breaking the Waihī strike. In Mount Eden, this seditious character kept good company with Peter Fraser, before he became Prime Minister, and with Bob Semple, who was Minister of Works in the first Labour Government. Both Peter Fraser and Bob Semple were leaders of the miners union, and were also in prison for sedition.

Finally, I bring to this debate an unfortunate exchange that occurred in the House yesterday, as my colleague Hone Harawira raised issues to do with Māori perceptions of the justice system. As a proud and independent Māori voice, the Māori Party is here to raise issues as they are expressed to us, regardless of whether they are issues that everyone accepts or understands. The relationship between Māori and the criminal justice system is probably best expressed in the work of Moana Jackson and his publication The Māori and the Criminal Justice System: a new perspective—he whaipainga hou. In that epic work, Moana stated: “When the analysis of law is founded in the belief that ‘one law for all’ means ‘one process for all’ rather than ‘one resultant justice for all’, the debate becomes confined by monocultural strangulation.”

This comment came home to me last evening when another member in this House described the speech delivered by Mr Harawira as “one of the most disgusting, embittered, divisive, and downright irrelevant speeches I have heard in this House for a long time,”. There is no place for political censorship in a healthy democracy. We must have the courage in this House to listen to alternative points of view, to consider the context from which such views emerge, and to value independent thinking as the very basis of our democratic right to freedom of speech.

The Māori Party celebrates the third reading of this very significant Crimes (Repeal of Seditious Offences) Amendment Bill as a benchmark for upholding and ensuring the rights of free speech, and as recognition that more than one cultural reference point is valued across this Parliament. We will almost certainly be supporting this third reading of the bill. Kia ora.

RODNEY HIDE (Leader—ACT) : I have to say that my friend Mr Ronald Mark actually has a point. I think, as I survey the debates we have had, that only two parties have been entirely consistent—one being New Zealand First and the other being the ACT party. We have disagreed on every bill, but we have done so consistently. The ACT party believes that the individual citizen should enjoy the maximum freedom, but it is very clear that Mr Ron Mark thinks that we should pile up law upon law just in case the authorities need it, that there is always someone who needs dealing to by the police, the Security Intelligence Service, or the agents of the State, and that it is handy to have the odd weapon or two to throw around. Well, the ACT party does not go along with that.

It was quite something to hear the Minister of Justice, Mark Burton, introduce a bill at the second reading with a quote from the New Zealand Bill of Rights Act, and to hear him talk about the importance of freedom of speech, which I think there is agreement on, when we have a bill before Parliament—which New Zealand First supports, and which I guess the Government supports with some changes—that shuts down freedom of speech once every 3 years.

Chris Auchinvole: For a year.

RODNEY HIDE: For a year, which is pretty astonishing. So what I will do in this third reading speech is talk about what the law is for. The law is not the plaything of Parliament; it is not to give politicians and the authorities the ability to do as they please. The law does not serve the role of shutting down people who disturb us or upset us with what they say—people we might disagree with, or people who we think look suspicious or different, or people who express way-out or wacky views. That is not what the law is for. The law actually exists to protect us—and when I say “us” I do not mean MPs, political parties, or this Parliament; I mean the citizens of New Zealand. I find that we are passing laws that, far from protecting individual New Zealanders, actually allow us to be attacked by the very agencies that should be protecting us.

So what is it that we have that should be protected? What is it that we enjoy, which the law should be protecting?

Chris Auchinvole: Freedom!

RODNEY HIDE: Well, I think freedom is important, but let us put some context in it. The first thing is, obviously, our life; our lives should be protected. As a free citizen one cannot just come along and extinguish my life or another person’s life. We have a law against that; it is called murder. We have a right to our life. So, firstly, the law should be protecting us. Secondly, the law should be protecting our property. That is what it should be doing. It should be protecting our property from the bullies and the thugs who would come along and steal it from us. In fact, I believe that is fundamentally why we have a Government; it is the big policeman to protect us from the thugs and the bullies. But we have passed law here today that allows, on the say-so of the Prime Minister, our property to be seized—and the National Party voted for it. Funnily enough, Gordon Copeland voted for it, and he has a bill in his name to protect our property rights! The National Party, which was founded on the protection of the private property rights of New Zealanders, voted that, on the say-so of the Prime Minister, a free citizen who is not charged with anything in court can have his or her property seized. That is astonishing. Labour members go with that, I know, because they are socialists; they do not think we should have property. But I did not think that was the National Party’s position. The law should be protecting our property. Why did National members not stand up for that? I do not know why they did not.

The third thing we should be protecting is our freedom, so that we can live our lives as we best see fit. I have nothing against people who choose not to work, or who choose to have as many kids as they possibly can; it is their right to do so—they just have to accept the responsibility of the consequences. People’s freedom has to be that they can think what they like and say what they like, as long as they do not infringe the rights of others—as was expressed very eruditely by my colleague Dr Richard Worth. One cannot go into a crowded theatre and shout “Fire!”, because that impinges on the rights of others. One cannot go around defaming someone—unless you are Mr Peters or Dr Cullen operating in Parliament—because that is to take the property right that that person has in his or her good name.

I think that there is also a third thing: one cannot use bad language around my mother. I think that is a restriction on the freedom of speech—one we should enforce more vigorously.

Ron Mark: Well, stop swearing in front of her.

RODNEY HIDE: I never swear in front of my mother. My mother is convinced that I do not swear.

They are the reasons that we restrict free speech. Beyond that, one can say whatever one likes, as Keith Locke says. One can stand on a soapbox and preach fascism. One can stand on a soapbox and say that the greatest man in the universe is Osama bin Laden. I think that is great, because when one hears it, it sounds so silly. It is when we shut it down that it sounds attractive and interesting.

Hone Harawira is a good case in point. I have got to like Hone; I sit with him on a couple of committees. He is always good for a sound bite on TV; it is not so good when one hears 10 minutes of it. You know what I mean? So we want to hear the whole story, the whole argument, the whole debate. If we shut down political speech we make it exciting and attractive. Nothing turns a person off more than hearing a Marxist give a lecture. Their slogans are hot; it is the speeches that are deathly—as Keith Locke knows, having sat through a few of them. So we want people to have the freedom to say what they want. People should be able to say: “Let’s get rid of the King.”; “Let’s get rid of the Government.”; “Let’s vote the Greens out.”; “Let’s destroy the capitalists.”; or “Let’s vote the ACT party in.” People should be freely able to say those sorts of things. So why, oh why—as we get rid of the sedition laws, which are wrong—are we passing law to allow the seizure of people’s assets if the Prime Minister thinks they are terrorists and declares them to be so, or because some foreign agency like the United Nations declares them to be terrorists? And why, oh why, are we passing a law to regulate political speech so that everyone has to register with the State every 3 years if they want to make a political comment and spend their own money doing so?

Rt Hon WINSTON PETERS (Leader—NZ First) : Advocating a vote for the ACT party is not sedition; it is just plain stupid and senseless. I ask members to consider this: “If the Government tried that sort of [expletive deleted] here the people up north wouldn’t take it. The boys would be out on the streets with guns and I’d be with them.” That was said recently by a New Zealand member of Parliament. I ask members to also consider these words: “When I first saw the planes fly into the towers I jumped for joy. I was so happy that at long last, capitalism was under attack,”. That was said by Annette Sykes, a person who is tonight being quoted as someone being wronged by the laws of this country, in respect of 9/11.

I want to make it very clear that this country has become terribly naive when it comes to security and protecting its citizens, and that is what the Crimes (Repeal of Seditious Offences) Amendment Bill we are talking about tonight is all about. All sorts of weak-kneed decisions have led to this country having very bad border control. The warnings on our airplanes are so kind as to be of no concern to anyone seeking some nefarious purpose that will threaten the biological security of New Zealand, let alone anything else.

Then there is the question of medical clearances. Who was it that let out hundreds and hundreds of people already suspected of having tuberculosis, because it was said they had been confined too long and they needed to be with their families? In Auckland today one can see whole wards paid for by the taxpayer, filled with tuberculosis victims, all of whom were not born here but were brought in and never properly supervised on the way through. The response from the authorities in New Zealand is to hide the truth from the people, because in other countries it would be the cause of a full-scale inquiry and people being fired. Here, there is nothing. I can tell members right now that Aids is increasing in New Zealand, and its increase can be measured precisely with transient worker movements around New Zealand. That is how precise it is. Why do we not hear from the authorities? Because someone would be responsible for that. In New Zealand no one has to be responsible, and that is why we have the kind of soft, lily-livered discussion that has characterised the debate in the last 2 days. All sorts of people have been standing up, majestically talking about freedom and liberty, who by their past actions understand nothing about it whatsoever. Who checks the documentation from all sorts of sources of those coming to this country? In the main, the answer is no one at all.

I am told that the Law Commission says we should do this measure, so we will do it. Well, who heads the Law Commission? Sir Geoffrey Palmer, who is a very esteemed former parliamentarian. But Sir Geoffrey is a former MP, a former Minister of Justice, a former Deputy Prime Minister, and a former Prime Minister, and in all the time he was here he was not moved to do this. What has changed since 1979 and 1990, and now? Actually, the circumstances internationally are worse. The concern regarding terrorism is far worse than it ever was back then.

I see these sorts of phrases in the explanatory note of the bill: “[sedition] can be more appropriately dealt with by other provisions of the criminal law.” Which ones? Have members heard? Not in tonight’s or yesterday’s debates. It states so blandly: “more appropriately dealt with by other provisions of the criminal law.” This is the marvellous sort of legalese that so many people repeat in this House. Let me ask members this: which areas of the criminal law? Were members told? No. Apparently, members are going to vote for this without knowing. I ask members to consider this phrase: “the present law invades the democratic value of free speech for no adequate public reason:”. Is that true? How? Were members told how it does that? No. Apparently, members are going to vote for it even though they do not know.

This is meant to be a debating chamber where sometimes things should be seen beyond the political divide and for their merit because they may have some legal, historic, or present substance. I believe that this law has present substance—more present now since 9/11 and the events since—than it had in any past period in this country’s history. I know that some people were wrongfully prosecuted, but some members decided tonight that we never prosecuted under that law. So why are those examples part of the reason being used? In short, it becomes a straw man. For example, inciting racial disharmony is not really the core of the sedition legislation. Sedition is about the promoting of rebellion and anarchic acts that have nothing to do with democracy or a vote, but, rather, to supersede the will of the people—

Ron Mark: Like the Russian Revolution.

Rt Hon WINSTON PETERS: Like the Russian Revolution, as was recited tonight. It has been 90 years since the Russian Revolution. What a breakout of freedom that was! I cannot believe that that was used as an example tonight. Did a glowing plinth of freedom not waft across the world as a consequence of that!

Let me ask members this question: why would one repeal these offences when there is every reason to believe, if one listens to certain radio stations, that in New Zealand today sedition is more of a concern than it has ever been? I know of radio stations receiving all sorts of calls cheering on Osama bin Laden whenever he gives a warning to the West about what is going to happen next. The radio stations hum with approval, condonation, and acceptance of it. There are some naive people in this Parliament if they do not know that. Maybe they should get out on the streets and find out a bit more about what is going on in their own country, because it is going on in this country. If members do not believe that, what makes us so exempt from the circumstances of certain activities in Britain, France, and other parts of the world? Those countries are known to be as strong believers in the rule of law and freedom as we are, but their circumstances have led them to believe certain things, and they are not just suspicions; they are based on detailed investigation and fact. What would make New Zealand in 2007 exempt from that? Nothing.

The point that Ron Mark made, on behalf of New Zealand First, is simply this: members now will have suppression laws that set the stakes very, very high when it comes to reasons of proof and causality in a court case. Members may well find themselves missing or failing to sheet the charge home, when a charge of sedition would have been more appropriate. Alas, because this Parliament has been swooned into thinking that that charge is no longer required, it will abolish it. Well, who was the last person charged with necrophilia in this country?

Rodney Hide: Couldn’t tell you.

Rt Hon WINSTON PETERS: Then we had better get out there and repeal it. It was not Rodney. Members could imagine it would be Rodney, by the look of him—his eyes are too close together. Rodney is a nice guy and he would not think of that, but I know people who would suspect him of it. When was the last time someone was charged with necrophilia, and is that really cause, reason, or logic to say: “Well, we’ll repeal the law because of it.”? Sometimes things on the statute book are to prevent people from even conceiving of committing those offences.

But the point I come back to is this: would we, as a country, feel safer having repealed this law? Not 12 lovely sentimental feelings but one hard fact is what parliamentarians should be governed by; not a whole lot of sentiments and applause from outside from a certain lot of people who are not committed to, or charged with, the security of this nation, but, rather, one hard fact in respect of what happens inside the Parliament of this country and the Government.

I have just given members a whole lot of explanations of how weak-kneed, liberal, wrong-headed decisions have got this country into severe trouble. On medical security, border security, and questions as simple as Aids, which we have sought to confront for over two decades now—and all, in the main, by way of increase, imported. And today we have imported some further liberal lily-livered stupidity.

CHRIS AUCHINVOLE (National) : I support the third reading of this bill. My understanding is that the third reading is a summary of the progress of this bill. It has been very, very interesting for me, as a new member of Parliament, to sit in the House and listen to the quality of the debate, particularly that which has occurred tonight. I am grateful, as I am sure my colleagues are, for the opportunity to listen to those who have had a lot of experience in debating. I guess it is something we can all learn from and develop as we go. I do query, though—and I am sure that in the spirit of parliamentary debate there will be no objection from the member—why in a recent debate Mr Mark is recorded in Hansard as saying “and that is why we will be supporting the passage of this bill.”

Rt Hon Winston Peters: To the select committee.

CHRIS AUCHINVOLE: Indeed—I understand that. I am grateful to Mr Mark for the expression of his opinion, which I listened to last night. I would have thought, though, that New Zealand First, a party founded on the very stuff of dissent and radical opposition, would be quite comfortable about losing the law on sedition. But I say that, perhaps, as a little light-hearted remark, and I do understand the approach the member has taken.

There has been general support for this bill from pretty much all parties—

Ron Mark: You don’t agree with this, do you?

CHRIS AUCHINVOLE: No, not really, and I am perfectly happy to explain why. I listened very carefully when the member, being keen, made heavy emphasis on the point that we should reconsider, reflect, and wonder whether in fact this bill should be dispensed with. I have thought about that. I thought about it during the day and I reflected on it, just as the member asked us to do. The member raised some questions in my mind.

However, let us look at some of the points that have been made during the first reading debate by a number of speakers. Keith Locke told us that the laws were put on the statute book to constrain dissent against Governments, and have been used for that purpose ever since. He gave the example that they were used to convict Māori leaders in the 19th century, notably Te Whiti and Rua Kēnana. Then in the earlier part of the 20th century a Catholic bishop, Bishop Liston, was charged for making supposedly seditious statements when he hinted that he supported the Irish nationalist cause. We have also had the example of three leaders of the Labour Party—Harry Holland, Peter Fraser, and Walter Nash—who were convicted of sedition for supporting workers’ struggles, for being against conscription, and for selling left-wing books. I think it has been commented on more than once that copies of those books were actually in the Parliamentary Library at the time.

The other event that propelled change, which Keith Locke mentioned, was Sir Geoffrey Palmer’s Law Commission report entitled Reforming the Law of Sedition, which called for the law’s repeal and provided all the reasoning as to why it should be repealed. It has been suggested that one of the reasons this bill is before the House is that the Government’s legislative programme is slightly light, and that may be the case. But the Green Party has supported the bill, and has been quite instrumental in bringing it before the House and generating support for it.

I, too, heard the honourable member Hone Harawira when he spoke in the debate. He certainly spoke very strongly and with passion. He spoke about the celebrated prophets of sedition, Erueti Te Whiti o Rongomai and TohuKākahi, who in 1881 were both charged—

Ron Mark: He was acquitted.

CHRIS AUCHINVOLE: Yes, but they were charged. We spoke about this last night when Mr Mark said that the charges still had to be proven. He said: “Yes, they can charge them. It doesn’t matter; it still has to be proven.” I do not think that in the reality and fairness of justice the member simply wants to be able to go around charging people so that they have to prove themselves innocent. There are connotations in my mind in relation to these sedition charges—and I am sure in the minds of many—that once a person is charged, the person really has to prove his or her own innocence rather than it being the other way round. The very wording of it implicates a person in guilt, and as a freeborn Scotsman I find that a little hard to stomach, I really do.

We heard an expression of views from someone who is certainly very strongly influenced by the rights of the tangata whenua, or should we say by the lack of those rights in the past. I quote him: “Sedition has been used to quieten the natives and to suppress and oppress anyone daring to challenge the status quo. In fact, even former Prime Minister and President of the Law Commission, Sir Geoffrey Palmer, admits that the archaic offence of sedition was too wide and too unclear, and had been used to muzzle unpopular political speech.” I have something to tell that will possibly appeal to those in New Zealand First who oppose the bill. I went to a school in a very old town in Bury St Edmonds in Suffolk, where the knights gathered before they went down to Runnymede to sign the Magna Carta.

Hon Lianne Dalziel: You went to school?

CHRIS AUCHINVOLE: Yes, I did go to school. I thank the member for the inquiry. I am able to affirm that during tonight’s debate. The reality is that the rights of people are hard fought, and freedom of speech is a hard-fought thing to go for.

Then we heard Peter Dunne, who gave instances of earlier generations of his family who were caught under this law. In one case a very elderly relative said she would not like to see sons of hers go to war. I am sure that other families in New Zealand have had that experience. She was taken away and threatened with being charged with sedition.

If we look back at earlier times, we see that the Elizabethans introduced the law of sedition. I think Henry VIII did it first, and the government of Elizabeth I probably took it further. It was an uncredited quote but it was designed to control the commoners, frighten the intellectuals, and deal to people like Jesuits and clergy. It has always been a legal frightener. I can see my military colleague Mr Mark thinking “Yes! What’s wrong with that?”. But we should not really need that sort of thing, and indeed it is the opinion of this Parliament, clearly, that we do not need that sort of frightener.

The Hon Peter Dunne finished his speech by saying: “I stand here delighted to see the bill before the House, urging expedition in its passage, and looking forward to a time when the references to sedition in this country are purely historical, never to be repeated again. A country that is confident about itself and its direction”—and I think this is important—“does not need laws of this type to regulate its behaviour. I look forward to the third reading of this bill, which will hopefully be not too far away, when we can farewell this particular legislation to the dustbin of history, where it deserves to lie and rot.”

So the debates and discussions have gone on from other parts of Parliament. I think it was the National Party that suggested that this was very much an MMP type of legislation, as it has emerged from the smaller parties and has been picked up and debated. Certainly, having sat on the select committee that heard the public submissions, I know there were really not very many strong supporting voices in favour of the sedition laws. I think we had 17 submissions in all.

Ron Mark: Peace in our time.

CHRIS AUCHINVOLE: Oh, no; I think the member probably knows me a little better than to credit me with that sort of expression. But I am confident, and the police were clearly confident, that they have sufficient laws to cope with the possible requirements of offences that normally would attract convictions under the sedition law. But even the strongest supporters of retaining this law would have to admit that it has not really been used very much at all, effectively.

Ron Mark: Neither has necrophilia.

CHRIS AUCHINVOLE: Well, yes, there is necrophilia, and—what was that other one? Running off with an adulterous—no; running off with a nun! Those things changed in about 1960, and this one can go. I really do not think we will be overly concerned at not having this law, but I would be concerned, as I said, as a good, free-thinking person, to think that it was being retained for no good purpose. I am very proud to be part of this Parliament, and I will be very proud to tell the people of the West Coast - Tasman seat—that ever-increasingly marginal seat—that I have been part of reducing some of the laws and regulations in this House.

RUSSELL FAIRBROTHER (Labour) : I want to pick up on the challenge laid down by the Rt Hon Winston Peters in his speech tonight. He put to the House—and perhaps to the nation—the question of whether we will feel safer if the law of sedition is repealed tonight. Of course, we will not feel unsafe if it is repealed tonight, because the law of sedition does not accompany acts of violence or threats to property; the law of sedition concerns the offence of words said. It was described best, perhaps, by one of the submitters to the Justice and Electoral Committee, the Maxim Institute, which was reported to be the lone voice in support of sedition laws. On 16 August a person from the Maxim Institute said that to remove the law of sedition would be against democratic principles, because it would erode the sense of respect that people hold for authority and may then lead to a lack of engagement with democracy, which is a danger to democracy itself. So the Maxim Institute was saying that the law of sedition should remain, because its removal may undermine the respect people have for our democratic process.

What the Maxim Institute forgot—and what the Rt Hon Winston Peters forgot when he criticised Sir Geoffrey Palmer, who during his time as Minister of Justice and Prime Minister failed to remove the law of sedition—is that in 1990, or just before, Sir Geoffrey Palmer ushered in the New Zealand Bill of Rights Act 1990, which in section 14 decreed that everyone is entitled to express their views on any matter and that free speech is a fundamental right in New Zealand. No one has criticised that tonight. If free speech is a fundamental right, then one cannot have the present law of sedition that is contained in our Crimes Act.

In contrast to the Maxim Institute, we had a comment at about the same time from The Republican Movement of Aotearoa New Zealand, which is a movement that has much going for it. It pointed out that the monarchists on the other side of the fence believe that if anyone questioned whether Prince Charles should become the King of New Zealand, then he or she could possibly be committing a seditious offence. Clearly, if that is the ludicrous level that the present crime has reached, then it should be removed.

More seriously than that, we must also pick up on the Rt Hon Winston Peters’ comment that people in this debate have referred to other crimes or offences that make otiose the requirement to have the law of sedition in the Crimes Act. As that challenge has been laid down, and as it has been suggested that no one had dared to enumerate or identify the offences, I want to take the time of the House to put on the record what other offences could be included. First of all, we have in our Crimes Act the crime of conspiracy. Conspiracy is when two or more people reach an agreement to commit another offence.

Ron Mark: When was it last used?

RUSSELL FAIRBROTHER: It is used frequently, in drug trials particularly. It was probably used this year and as recently as last month.

Conspiracy is when two or more people agree to commit an offence. It is the act of the agreement that is the crime, but accompanying that is the agreement to commit a further offence.

The crime of incitement is defined in section 311 of the Crimes Act. It states that everyone who incites, counsels, or attempts to procure any person to commit an offence is himself or herself committing an offence. In respect of the crime of incitement, one does not oneself need to cause violence or property damage, but one does need to set about encouraging others to commit a crime. The statement of encouragement to commit a crime is the act of incitement.

Other relevant offences include treason, which is still in the Crimes Act. That is surely another matter we should be looking at more closely. There is unlawful assembly. That is an interesting offence. It is a gathering of three or more people who have a common purpose to carry out conduct that is unlawful, or to conduct themselves in a way that will cause disorder. Three or more people who act in a way that will cause disorder, or is likely to cause disorder, are responsible for the crime of unlawful assembly. Disorder does not need to occur, and another crime does not need to occur, but conducting oneself in a way that is likely to lead to disorder, or is intended to carry out a crime, is the offence of unlawful assembly.

Also contained in the Crimes Act is the offence of rioting. A riot, as defined in section 87, is a group of six or more people acting together and using violence against people or property. Every member of a riot is liable to imprisonment for up to 2 years. Another part of the Act deals with threatening to commit specific offences. Again, that deals with a statement, but the purpose behind the statement is to encourage others to commit offences. Then, of course, under the Summary Offences Act we have the offences of disorderly behaviour and offensive behaviour, and under the Human Rights Act we have inducing racial disharmony and other similar offences.

Ron Mark, in speaking against this bill, made extensive reference to the Terrorism Suppression Act and to its amending bill, which had its second reading earlier today. I want to dwell on that for a few minutes. In his speech, Mr Mark harked back to the events of last week and said that today of all days is the worst time to be removing the law of sedition. In fact, I think today is one of the more appropriate times to be removing the law of sedition, because one of the underlying issues in this country is the issue of Māori sovereignty.

Sovereignty is not an issue that is unique to New Zealand. It is an issue that exists in countries around the world and on the international stage. We see the Kurds, for example, advocating their own degree of sovereignty. The argument for Māori sovereignty is a deep-seated and sincerely held argument, and one with considerable merit. But for us to move to the stage of giving true expression to that in a constitutional sense requires vigorous debate, challenging present authority and our concept of democracy, and trying to understand how concepts of Māori sovereignty would be embedded into our constitutional principles. That can be achieved only by vigorous debate with excitement, overstatement, rhetoric, and making clear the commitment to one’s cause. We have heard mentioned in earlier speeches today some of the radicals who are committed to Māori sovereignty, and some of the members of this House who also hold that view. Of course, there are valid arguments to support that developing concept. I say “developing” because although it is certainly a well-known concept, many members of the public are unwarrantedly afraid of it.

The Terrorism Suppression Act is not about repressing arguments in favour of Māori sovereignty; the Terrorism Suppression Act relates to acts of terrorism. Section 5 defines what terrorism is. There are three requirements: first, the acts must be designed to create terror—the dictionary defines terror as real panic—second, there must be a desired outcome; and, third, that outcome must be one that is specified in section 5, and that includes death, damage to significant buildings, or other infrastructure damage. Making inflammatory statements is not an offence under the Terrorism Suppression Act. Making inflammatory statements designed to bring about an outcome defined in section 5 of the Terrorism Suppression Act is an offence under the Act.

That is the difference between the law of sedition as it presently stands—and by the end of the day it will have been removed from our statute book—and the Terrorism Suppression Act. One Act deals with the mere words—we are censoring people’s thoughts and the articulation of those thoughts, and we might think back to the Springbok Tour. One can imagine many occasions in 1981 when the present law would have been applied if those in authority had not exercised common sense and restraint.

The law of sedition is entirely about rhetoric, overstatement, and challenging authority. The Terrorism Suppression Act, and the offences outlined in the Crimes Act, the Human Rights Act, and the Summary Offences Act—to name a few—are about encouraging dissent through the vehicle of violence, through challenges to personal safety, or, at its lowest level, through challenges to public disorder. The Terrorism Suppression Act, of course, is at the high end of that, in that it threatens the welfare of the democratic State of New Zealand, not by oral challenge but by physical confrontation—either death, or damage to significant infrastructure or property.

So this bill is not about people feeling unsafe in their beds. It is not a challenge to the safety of anybody, at all. It may, in fact, enable people in this country to move toward a greater agreement on some of the deep-seated dividing issues in New Zealand, as we prepare and state our case on either side of, for example, the Māori sovereignty issue, and find an ultimate resolution, because the case is argued strongly, colourfully, and clearly. It is time that this bill passed and the sedition laws were repealed in this country.