Wednesday, September 29, 2021

Building themselves a petard?

The government's Counter-Terrorism Legislation Bill is expected to pass its third reading today. The bill weakens the definition of "terrorist act" and creates a new offence of "planning", which would do exactly nothing to stop attacks like the most recent one and shows the government took exactly the wrong lesson from the Urewera raids. There's lots of criticism that the law is over-broad and will criminalise too much, and if politicians need to be convinced, I'd like them to consider the following scenario:

A political party leader is running for election on a platform of racism and being "tough on crime". They frequently use threatening and intimidatory language in their speeches towards the intended targets of their campaign - people who are not rich and white. They promise to "clean up" parts of New Zealand by "letting police off the leash", promising that those police officers will be armed. They say repeatedly that they want "criminals" to be afraid, dismiss concerns that this will lead to more people being shot by police by saying that only "criminals" should have anything to fear. They release a detailed plan to do this.
So far, so ordinary. We've had such politicians in the past. We have such politicians now. Its ugly, despicable politics, but sadly normal in our country. But the government's new law seems to make it a crime.

How? Look at the definition of terrorism as amended by the bill. An act is a "terrorist act" if it is carried out for one or more purposes that are or include advancing an ideological or political cause and with the intention of intimidating a population or unduly coercing a government and if it is intended to lead to one or more specified outcomes - one of which is the death or serious injury of one or more persons. Now look at the politician. Advancing a political or ideological cause? Check - that's literally what politicians do. Intimidate a population? Check - its well-established that "a population" means specific communities, rather than everyone. Specified outcomes? Check. While engaging in the usual equivocations (because in NZ not even a "tough on crime" platform lets you glibly dismiss police shootings), its clear that this policy will lead to deaths and injuries, so insofar as the policy is intended, the deaths and injuries are. If the politician is elected and the policy enacted and someone is shot, that shooting is arguably a terrorist act (which isn't as weird as it sounds, insofar as historicly most terrorism is state terrorism, carried out by those in power to keep people in line).

So, moving from "induce terror" to "intimidate" is a problem for politicians, because while no politician credibly intends to induce terror, plenty of them intend to intimidate, and some build their entire political brand around it. But it gets worse. Because the new "planning" offence criminalises "planning or other preparations to carry out [a terrorist] act, whether it is actually carried out or not" and covers acts "too remote to constitute an attempt to commit an offence". The key question is "if the act was carried out, would it be a terrorist act"? Policies are pretty remote, but they're absolutely plans. And it seems that if framed in an intimidatory context, they are arguably covered by the law.

[Yes, there's an "advocacy" clause, but its not clear how it interacts with the new planning offence, or what degree of planning is required to be allowed to infer intent from what people are saying publicly. And obviously, where government Ministers are concerned, they're not advocating, but doing.]

I do not for a moment believe the politicians intend this, and I do not for a moment believe they will ever apply it in the context suggested above (because politicians always intend for the law to apply to other people, never themselves). But its the law they're passing, and we should hold them to it. With private prosecutions if necessary.