The following is the official submission by the Free Speech Union on the Counter-Terrorism Acts (Designations and Control Orders) Amendment Bill:

Summary of Submission:

• The amendment to Section 8A of the Terrorism Suppression (Control Orders) Act 2019 (TSA) to broaden the definition of “specified objectionable material” for the purposes of the eligibility of a control order is a dangerous expansion of the ability of the Government to prosecute for objectionable material.
• The broadened definition of specified objectionable material beyond that which promotes terrorism would open kiwis up to persecution under terrorism-legislation without having actually engaged in any terrorism related activities of any kind. This represents an erosion on what constitutes “terrorism”, a specific term with especially strong social and legal implications. It is important that the possession or publication of non-terrorism related objectionable material be dealt with under non-terrorism related law.
• We recommend the removal of clause 15 of the Bill and that section 8A of the Terrorism Suppression (Control Orders) Act 2019 not be amended. If terrorism-related legislation is to include restricting objectionable material, it is imperative that it be limited to that which is related to terrorism.

Introduction

1. The New Zealand Free Speech Union is a registered trade union with a mission to fight for, protect, and expand New Zealanders’ rights to freedom of speech, of conscience, and intellectual inquiry. We believe in the use of speech to convey and promote ideas rather than their imposition through the use of violence, threats, or any other means of force. Terrorism, the unlawful use of violence and intimidation for political ends, is the antithesis to free speech.

2. As such, we strongly believe that the use of speech should not be conflated with the violence of terrorism, and that terrorism-related legislation must not be expanded to include the use of speech unrelated to terrorist activity. Terrorism is something with especially strong social and legal implications, the consequences for partaking in such activity are appropriately severe. Clause 15 of this Bill unjustifiably expands that which may bring about such social and legal consequences.

Terrorism legislation particularly severe

3. Terrorism is a uniquely severe and serious issue. It is appropriate that the legislation which deals with and prevents such heinous activity is equally serious. Short of imprisonment, the making of a control order against someone posing a risk of committing terrorist-related activities, restricting of freedom of movement, freedom of association, freedom of speech, restricting access to certain financial services, among many others, is one of the most extreme constraints on an individual’s liberty at the disposal of the Court. These extreme constraints are deemed justified by the extremity of terrorism- in almost any other context it would be widely recognised as oppressive power wielded to suppress opposition. It is imperative then that these extreme measures themselves be kept strictly constrained to only that which is absolutely necessary for the prevention of terrorism.

4. The current law defining terrorism-related New Zealand offences makes this constraint with regards to the possession and publication of material clear: section 8A(b)(ii) of the TSA limits offences around the use of objectionable material to that which promotes or encourages terrorism. Any further expansion of this constraint, naturally, drifts the scope of control orders to non-terrorism related actions. New Zealand’s uniquely strict censorship regime

5. New Zealand has a uniquely strict censorship regime for allegedly objectionable material. The threshold for material to be deemed “objectionable” is significantly lower than overseas. While some material is objectively harmful (such as sexual material involving minors), there is also a slew of material that is widespread overseas, but illegal to possess in New Zealand. Should clause 15 of this Bill become law, it could make those who possess this material which is legally available overseas subject to terrorism-related legislation.

6. Some examples of objectionable material include films such as Cannibal Holocaust, The Human Centipede 2, and Fireball: Muay Thai Dunk. The video game Reservoir Dogs, based on Quentin Tarantino’s film of the same name also has the classification of “objectionable”, as too do the games Manhunt and its sequel Manhunt 2, produced by Rockstar games, the same company that made the Grand Theft Auto series.

7. These films and video games have been widely viewed overseas; Fireball having even won an award at the Fant-Asia Film Festival for “Most Energetic Film”, yet the possession of them in New Zealand, with the knowledge of their objectionable rating, is a crime punishable by up to 10 years in prison. They all display excessive violence enough to face the censor’s pen, but they do not promote or encourage terrorism. Despite this, as the mentioned offence comes from s131A(1) of the Films, Videos, and Publications Classification Act 1993, under clause 15 of this Bill, simply viewing or playing them would be a terrorism-related offence.

Control orders on non-terrorism related activity

8. With the expanded definition of “terrorism-related New Zealand offence” to then include the viewing of content unrelated to terrorism, the Court would have the ability to place control orders meant to prevent terrorism on individuals for engaging in activities unrelated to terrorism. If a person is convicted of possessing any of the above mentioned violent, objectionable material, and a court determines they pose a risk of again viewing such material, under this Bill they would have the ability to impose the severe restrictions on liberty the TSA allows.

9. We note, too, that clause 14 of the Bill also expands the meaning of “relevant person” to include those sentenced to home-detention or a community-based sentence, not just imprisonment. This expansion means that convictions for possessing violent objectionable material would need not be serious, for the purpose of allow the courts to impose control orders. Being unrelated to speech the Free Speech Union does not have a position on this change in itself but, in conjunction with clause 15, significantly increases the risk of less serious, non-terrorism related offences being dealt with under the seriousness of terrorism control orders.

Danger of expanding scope of control orders

10. It should be readily apparent that the expansion of the definition of “terrorism-related New Zealand offences” to include non-terrorist activity, and the ability for control orders to be placed on people convicted of less serious offences, creates a risk that someone could face the severe restrictions of a control order for non-terrorist related activity through the simple possession of “objectionable” material, a notably broad thing in New Zealand law. In itself, this is a violation of the free speech rights of Kiwis, the simple possession and distribution of material not being an inherently violent act and should therefore never be treated as constituting terrorism. Nonetheless, this expansion, coupled with the potential abuse of New Zealand’s expansive censorship regime, could allow for perfectly legitimate publications to be declared objectionable, and its possessors and distributors subject to terrorism control.

11. What constitutes violence, while generally something able to be objectively defined, can be subjectively interpreted and therefore abused for political ends. One could imagine a particularly conservative censor declaring material promoting abortion rights, for example, as advocating violence against the unborn and therefore objectionable, and under this bill capable of being part of a terrorism-related offence. So too could one imagine the glee that the censors of the “red scare” of the 20th Century would have had regarding this bill, being more than happy to declare the works of Marx and others as objectionable, violent material, and the proponents of such an ideology as terrorists. Looking to both history and the present, the dangers that clause 15 of this Bill may create are clear.

12. That such scenarios may be unlikely is no reason to allow the breadth of this Bill does. For our democratic institutions to remain strong, it is imperative that legislation be constructed robustly, as the protection of civil liberties must also be. What constitutes terrorism must be kept strictly narrow so as to never allow the abuse of terrorism-related legislation to unjustifiably violate the speech rights of Kiwis, as this Bill may very well do. It could be a part of a “death by 1000 cuts” that the speech rights of supposedly liberal nations regularly face, even under the guise of good intentions.

Conclusion

13. Terrorism, the use of violence to further political, ideological, or religious goals, is considered a uniquely evil act with strong social and legal implications (especially under the control framework being dealt with here). This seriousness of terrorism is what gives the mandate for such restrictions as control orders. For that societal mandate to remain strong, the use of it should be tightly constrained, especially where speech rights are involved. The publication of material is not an inherently violent act; indisputably, it has no place where the publications themselves are not even related to terrorism.

14. As such, we recommend that clause 15 of this Bill be removed and section 8A of the Terrorism

Suppression (Control Orders) Act 2019 not be expanded. We note that this clause has already faced amendment for the sake of protecting free speech, but we do not consider this amendment to have gone far enough until this clause is completely removed.

15. We request the opportunity to present an oral submission to the Committee, speaking to this written submission.