Gavin Ellis: NZ lacks safeguards against a disproportionate response to an act of terror
OPINION: Picture the scenario: An act of terrorism like those that have blighted Europe and North America is repeated on New Zealand soil.
Now consider how we would react.
There would be a well-practised operational response that would end the immediate danger but it would be followed by measures that could have lingering consequences.
On one hand there would be considered measures that are the result of rigorous plans, strategies and organisational responses overseen by the Security & Intelligence Group led by Howard Broad, deputy chief executive in the Department of Prime Minister and Cabinet and former police commissioner. This group co-ordinates the work of a hierarchy of committees and agencies charged with ensuring domestic and external security.
We might call this the cool, calm and collected end of the anti-terrorism spectrum.
At the other end of the spectrum, however, is the emotional responses that will inevitably sweep through the population and, to some degree or another, through the political ranks. They will range from fear and alarm to anger and, perhaps, xenophobia or bigotry.
Why should we expect our reactions to be any different to those witnessed in France, England or the United States?
Citizens, who complacently took freedom for granted, will now make strident calls for our streets to be made safe once more, for anyone with the remotest perceived link to 'terrorism' to be neutralised. And for sweeping powers to ensure this happens.
New laws will be rushed through to give effect to these measures. Draft legislation may well exist already, prepared as a contingency under the guidance of the Officials Committee for Domestic and External Security Co-ordination. It will have had input from the Strategic Risk and Resilience Panel, whose membership includes representatives from the private sector.
The draft laws will have been tested to determine whether they are necessary and proportionate.
However, a clamouring electorate and politicians keen to be seen to be 'taking all necessary measures' could see amended legislation put before Parliament which, intentionally or otherwise, has effects that go well beyond what is needed to deal with an isolated act of savagery.
That has been the case in countries where this scenario has become grim reality.
In Canada, sweeping anti-terrorism laws were drafted following the shooting of two soldiers at Parliament Hill in Ottawa in 2014. The Canadian Bar Association's submission on the bill stated that measures in it would deprive Canadians of liberties without increasing their safety.
Draconian laws were passed in Australia that criminalise disclosing information on the activities of security services and authorise mass data retention that can compromise journalists' sources.
This scenario is set out in Complacent Nation, a book I wrote to highlight the erosion of part of our freedom of expression – our right to know – and to sound a warning over greater inroads that could be made if scenarios such as this played out here.
We lack safeguards to ensure that Parliament and its officials do not go beyond what is necessary in the public interest. That lack is due in part to the fact that our Bill of Rights Act can be overridden by a mere majority of Parliament.
That is why the Official Information Act – supposedly premised on the notion that official information should where possible be made available – contains 56 reasons for withholding material. The 'thin' nature of our Bill of Rights Act has also emboldened politicians to subvert the system to ensure that political risk is the lens through which decisions on the release of information are viewed. Senior bureaucrats are complicit in this process.
Complacent Nation sets out other scenarios that could further erode our right to know but in every case draw the same conclusion: Safeguards are needed to ensure that measures that (in the name of public good) erode our rights do not exceed what is absolutely necessary.
Those safeguards would be met by reconstituting the Bill of Rights Act as supreme law. This would require that laws, regulations and executive directives did not erode our rights.
Exemptions would be limited and the Supreme Court would have the right to tell Parliament that it should reconsider measures in breach of the act.
Former prime minister and constitutional law expert Sir Geoffrey Palmer has gone a step further and enshrined provisions of the act in a written constitution that he is about to put out for public discussion.
Either proposal would allow any laws enacted in response to an emergency or other eventuality to be tested against a powerful presumption of fundamental rights.
No sound-minded person would wish to see an act of terrorism perpetrated on our shores, but nor should we be unprepared for such an eventuality. The state has prepared for that awful contingency. However, it has yet to put in place all of the appropriate checks on its power to ensure that, in the cause of freedom, we do not compromise a basic right.
Dr Gavin Ellis, a senior lecturer at the University of Auckland, is a media commentator and former newspaper editor.
- The Dominion Post