The New Zealand Law Society | Te Kāhui Ture o Aotearoa appeared before the Justice select committee today to present its submission on the Counter-Terrorism Legislation Bill, which was introduced as part of the Government’s initial response to the Report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019.
In its submission, the Law Society raised concerns about several aspects of the Bill, including the proposal to extend the control orders regime to individuals who have been convicted and completed their sentence.
“The proposed amendment to the control orders regime would enable a control order to impose significant constraints on a person’s liberty after they have completed their sentence,” explains Rule of Law Committee spokesperson Chris Griggs. “This would effectively constitute a second penalty for the same offending.
“We are concerned this constitutes double jeopardy, contrary to a right affirmed by the New Zealand Bill of Rights Act, because it allows sanctions that are equivalent to criminal penalties to be imposed, without the protections inherent in the criminal justice system.
“The conditions of control orders are similar to orders that can already be made as part of a criminal sentence, so the objective of the Bill, which is to protect society from individuals who are involved in terrorism, can be achieved by imposing conditions through the criminal justice system and the Sentencing Act 2002.”
The Law Society’s submission also highlighted the need for clarity in relation to the proposed new offence of planning or preparing to carry out a terrorist act. In particular, the submission noted that in some contexts the proposed offence of “planning to act” will be difficult to distinguish from “planning to plan” or “planning to attempt to act”, which are not categorised as offences under the Bill.
“Clarity of drafting is particularly important in the criminal context. Otherwise, there will be significant difficulties when it comes to prosecuting an offence,” says Mr Griggs. “The prosecutor, defence, judge, and jury all need to be able to easily understand the elements of the offence and how they apply to the facts in a particular case.
“This new offence would also unlock a number of warrantless search and surveillance powers under the Search and Surveillance Act. Such powers should infringe as little as possible on rights protected under the New Zealand Bill of Rights Act, so the scope of their application should be clearly and precisely defined.”