Why we should care about law making

Written by Denise Evans

For many of us the process of law making may seem irrelevant and often we won’t care unless something happens which impacts directly on us. 

History is littered with examples of laws made in hard times to deal with serious issues such as the threat from terrorism.  The laws are made to respond to the fear of terrorism and to satisfy the public that those who represent them are serious in their efforts to protect the public from such fearful and destructive acts.

For example, in the United Kingdom from 1974 to 1989 the UK passed a succession of Acts designed to deal with terrorism. The first of these Acts followed IRA bombs in Birmingham which killed 21 people and injured 123 others. At that time, there were demands for “the reintroduction of the death penalty, internment and legal restrictions on Irish people living in Britain.”

Further Acts were passed in 2000 and in 2001 following the 9/11 attack in New York. These Acts have similar features, the most worrying of which is the ability to detain people without trial on suspicion they are terrorists or could be involved in terrorist acts.

In 2004 the House of Lords in decidedthat the detention without trial of eight foreigners (known as the 'Belmarsh 8') at HM Prison Belmarsh under Part 4 of the Anti-terrorism, Crime and Security Act 2001 was unlawful, being incompatible with European human rights laws.

In 2005, the UK Parliament responded by passing the Prevention of Terrorism Act 2005. The Act allowed the Home Secretary to impose "control orders" on people who were suspected of involvement in terrorism, which in some cases may have derogated (opted out) from human rights laws.  In April 2006, a High Court judge issued a declaration that section 3 of the Act was incompatible with the right to a fair trial under article 6 of the European Convention on Human Rights. The system of control orders was described as an "affront to justice".

The Act was repealed on 14 December 2011 by section 1 of the Terrorism Prevention and Investigation Measures Act 2011 (“TPIM”).  The TPIM Act created the ability for the Home Secretary to impose restrictions on the behaviour of a specified individual”.

Even today, legislative developments concerning the threat of terrorism continue to drive debate. Some commentators have suggested that the Brexit decision is also driven by a desire for the UK to do more to protect itself from terrorism and enhance its ability to remove “terrorist suspects from the country.”3

It is interesting that this series of laws began to deal with the threat of terrorism from the Irish. The history of conquest and colonisation of Ireland by the English is fascinating and very important for New Zealanders to understand as we grapple with issues about the Treaty of Waitangi, and in particular the history of laws which breached the obligations under the Treaty and the impact of colonisation on the history of our country.  

During the period 1536 to 1691 Ireland came under the rule of England. Despite previous Viking and Norman invasions, Ireland remained a locally driven, intertribal, clan-based Gaelic society which had many of the same features as pre-European Māori.  The English imposed their culture including the Protestant religion on the Irish and forced subordination of the country to their London based government.

At school, we were taught that the conflict in Ireland was a “religious issue” with deeply rooted ideological differences between Catholics and Protestants. It is clear to the writer now that the cause of the conflict is the conquest and colonisation of a people which attempted to destroy the fabric of Irish society and that conflict parallels the conflict we have in New Zealand.

The only difference which the writer can see between the conquest of Ireland and New Zealand is that by the beginning of the 19th century England had learned to offer a Treaty to secure sovereignty rather than engage in brutal warfare.

At this juncture, it is opportune to reflect on the role that Dispute Resolution plays in assisting people to enter into agreements which are negotiated. Pause and think about the agreements which are negotiated with “non-disclosure” provisions that deal with breaches of human rights such as confidential settlements of sexual harassment and abuse claims.  This reflection moment provides space to think about such things as power imbalance, cross cultural issues, language barriers and the assumptions which underlie the basis for negotiation.  For example, when the English were negotiating with Māori the fundamental cultural misunderstanding of “land ownership” was inevitably going to lead to conflict when one party saw ownership as a collective right to use and the other as an individual right of exclusive possession.

Post the Treaty, New Zealand has its own history of laws which were passed to deal with terrorist acts from Māori.  A history of how New Zealand’s colonial government misused laws to crush the non-violent protest at Parihaka written by Alexander Gillespie4 featured in The NZ Herald.

There are however very recent examples of New Zealand government making laws5 to deal with terrorism which have had a devastating effect on Māori communities6 and the imprisonment of people linked with terrorism.  Interestingly no charges were laid against the “Urewera 4”7 under the Terrorism Suppression Act 2002 (“TPA”).

The TPA has an important safeguard in section 5(5) which makes it clear that engaging in some forms of protest, advocacy, or dissent, or industrial action is not, by itself, a sufficient basis for inferring that the person has an intention to engage in terrorism or intends to cause an outcome as specified in subsection (3) of the Act.8

The concern of course it that once arrested although the burden of proof lies with the Crown, a person arrested under this Act may still face time in prison pending a trial.

The first prosecution under this Act has been issued following the horrific Christchurch Mosque attack and New Zealand will for the first time have the opportunity to see how this Act may operate in practice.9

In some ways, it is unfortunate that this is the case which will consider the provisions of the Act because the nation will rightly be focussed on the horrendous act which resulted in the death of so many.  That horrific act had the perverse result of uniting New Zealand and giving its citizens an opportunity of focussing on the benefit to the country of cultural diversity and inclusion.

Ken Cloke in his most recent book ‘Conflict Revolution: Designing Preventative Solutions for Chronic Social, Economic and Political Conflict’ encourages the use of dialogue and organisational design to prevent terrorism and war.  His message is that peace requires active engagement in deep enquiry to understand what drives the conflict and then active collaboration to co-design systems which mitigate the impact or even better use the conflict to improve outcomes for all those involved.10

We have an exemplar of this in Tama Iti who has recently been “Activist in Residence” at Massey University11 where he engaged with academics and through subscribed lectures with the purpose of generating knowledge and sharing his experiences. The writer has had the privilege of attending some of his lectures during which he delivers with power, humility and humour the important message of why we need to decolonise ourselves and change our thinking about why an activist may behave in ways that cause affront to the “mainstream.”

Maybe we should listen closely to Green MP Golriz Ghahraman’s concerns about the human rights implications of the proposed Terrorism Suppression (Control Orders) Bill. This Act, if enacted which would give police the ability to apply to the High Court to impose "control orders", or restrictions, on New Zealanders who have engaged in terrorism overseas.  She says that there are adequate provisions in the Crimes Act to deal with the impending return of the hapless kiwi Jihadi, Mark Taylor. 

The loss of life and fear created by “terrorists and terrorist acts” does need a response. Making laws which breach human rights and create a new definition of “terrorism or terrorist” may not be the right response. Threatening to kill and killing people are crimes and should be dealt with on that basis. 

Let’s debate vigorously proposed laws and ensure that our laws uphold the values of our society and the international obligations we have accepted specified by the many treaties we have signed. Most importantly let’s use the skills of dispute resolution to understand activism and activists, listen to their messages and engage in dialogue to understand and create a fair and just society.     

To follow the progress of legislation, visit https://www.parliament.nz/en/pb/bills-and-laws/progress-of-legislation/ where the list is updated each week.

About the author 
Denise Evans is Principal, Dispute Resolution at FairWay. As part of this role, Denise provides Dispute Resolution leadership within FairWay and champions the use of Dispute Resolution services in New Zealand and internationally.
Denise has over 35 years’ experience as a lawyer, mediator and arbitrator, and she has vast experience in resolving commercial and family disputes.
If you would like to get in touch with Denise, please contact her by email at denise.evans@fairwayresolution.com

1 https://www.irishtimes.com/opinion/lessons-of-the-past-show-hard-cases-make-bad-law-1.65325 9
2 A and others v Secretary of State for the Home Department [2004] UKHL 56
3 https://www.e-ir.info/2018/05/31/brexit-and-the-fight-against-terrorism-in-the-united-kingdom/
4 https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12283848
5 Terrorism Suppression Act 2002
6 http://www.stuff.co.nz/national/crime/8703308/Urewera-police-raid-actions-unlawful?rm=m 9
7 Tame Iti, Urs Signer, Emily Felicity Bailey and Te Rangikaiwhiria
8 Terrorism Suppression Act s5(5)
9 http://theconversation.com/charging-the-christchurch-mosque-attacker-with-terrorism-could-be-risky-but-its-important-117513
10 https://www.fractalfriends.us/fractalfriends/kenneth-cloke
11 https://www.massey.ac.nz/~wwcare/2019/03/07/stuff-activist-tame-iti-to-take-up-residence-at-massey/