NZ'S TOP LAWYER THROWS OUT TERROR CHARGES

UNCLAS SECTION 01 OF 03 WELLINGTON 000830

SIPDIS

SIPDIS
SENSITIVE

STATE FOR EAP/ANP
PACOM FOR J01E/J2/J233/J5/SJFHQ

E.O. 12958: N/A
TAGS: PGOV PTER PHUM NZ
SUBJECT: NZ'S TOP LAWYER THROWS OUT TERROR CHARGES



1. (U) Summary. In a landmark decision, New Zealand's
Solicitor-General ruled on November 8 that the 17 people (Maori and
other activists) arrested on terrorism charges during nationwide
police raids on October 15 cannot be charged under the Terrorism
Suppression Act (TSA),the country's 2002 anti-terrorism law. Many
Maori community leaders criticized the raids as divisive and
racially motivated. Other charges, e.g., possession of illegal
firearms, will stand. Following the SG's ruling, a national daily
paper published excerpts of police secret evidence detailing plans
to bomb public buildings and kill political figures collected during
the investigation. The NZ Police expressed disappointment that the
terrorism charges will not be used, but stood by the police arrest
decision, as did PM Helen Clark. The story has since receded from
front-page news, with both major parties arguing over the
controversial election campaign finance draft legislation that the
Labour Party hopes to pass before MPs recess in December. End
Summary.

Police Raids Jolted New Zealand
--------------


2. (U) On October 15, New Zealand police arrested 17 people and
seized a number of arms, including semi-automatic weapons and petrol
bombs, during a series of raids throughout the country. The 17 were
initially charged with beaching New Zealand's Arms Act. More than
300 police were involved in the raids, which were aimed at Maori and
environmental activists rather than foreign groups. Among those
arrested was high-profile Maori activist Tame Iti, who police allege
was running a guerilla-style training camp in a remote part of New
Zealand's North Island. The raids dominated the news for weeks and
sparked protests around the country, mainly from Maori activists and
human rights groups. The Greens Party called those arrested
political prisoners. The Maori Party claimed that the raids had set
back race relations 100 years.


3. (U) Following the raids, New Zealand Police Commissioner Howard
Broad raised the prospect of the Terrorism Suppression Act (TSA)
being invoked for the first time since its passage through
Parliament in 2002. Broad, however, cautioned that charges to be
laid under the TSA had to first receive the necessary consent of
Solicitor-General Dr. David Collins. (Note: The only judicial
approval the police needed before engaging in this particular
operation was sign-off on a communications intercept warrant by a
High Court Judge, which was granted. After reviewing the intercept
product and on the basis of its understanding of the TSA and the
Arms Act, the police decided to proceed with the operation. End
Note).

Solicitor-General Rules No to Terrorism Charges
-------------- --


4. (U) On November 8, New Zealand's most senior public lawyer,
Solicitor-General Dr. David Collins, declined authorisation of any
prosecutions under the TSA. Although Collins believed that the
police evidence showed "very disturbing activities," he ruled that
the high threshold required to authorize prosecutions under the act
had not been met. Collins described the TSA as "unnecessarily
complex, incoherent, and as a result almost impossible to apply to
the domestic circumstances observed by the police in this case." He
said difficulties in applying the TSA, rather than lack of evidence,
was a "very significant factor" in his decision. The media said it
more succinctly, noting that bad law makes for bad outcomes.


5. (U) The five-year-old TSA provides for sentences of up to 14
years in jail for anyone convicted of planning or preparing to carry
out a terrorist act regardless of whether it is actually carried
out. The law was introduced to bring New Zealand into line with UN
and other international conventions on terrorism, but was not
created to address domestic terrorist acts. The law's provisions
also were to apply if there was a "credible threat" that such an act
might be carried out, regardless of whether it is actually carried
out or not. A "terrorist act" is deemed to be carried out for the
purpose of advancing an ideological, political, or religious cause
with the intention of inducing terror in a civilian population or
forcing a government to do something against its wishes.

6. (U) The TSA had the backing of all parties in Parliament apart
from the Green Party, who argued that the definition of a "terrorist
act" was too broad and risked encompassing standard and non-violent
political protests. The legislation was rewritten to exclude any
act of "protest, advocacy, dissent, strike or lockout." The law
also criminalizes the financing of terrorism and the recruiting of
members to a terrorist entity but stops short of criminalizing
simple membership of a terrorist entity.
Arrested Still Not in the Clear, But Almost
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7. (U) Collins pointed out that although those arrested will not
be charged under the TSA, they may still be charged under the Arms
Act for illegal possession of firearms and ammunition. This offense
carries a maximum sentence of 3 years in jail or a fine not
exceeding NZ $4000 (US $3000) or both. New Zealand Police have told
post that they expect those charged to escape incarceration and
likely to pay only a fine.

Dominion Post Leaks Secret Wiretap Evidence
--------------

8. (U) On November 14, the daily Dominion Post paper published
excerpts from the secret wiretap evidence that was included in the
156-page affidavit presented to one of the local courts by police
officials. The information contained excerpts from suspects'
conversations, describing possible assassinations as well as
destruction of public buildings. On November 23, the SG requested
an explanation from the owners of the Dominion Post, Fairfax Media,
as to why the paper published the secret information on November 14.
The SG has suggested that some of the published information would
constitute a contempt of court, which could lead to legal action
against the newspaper's owner. Fairfax has a week to respond to the
SG's request. A police inquiry into how the information was leaked
and whether any laws were broken was launched immediately after the
November 14 publication and is continuing.

Law Seen by Some to be Result of US Pressure
--------------

9. (SBU) Following the October 15 raids, some politicians,
journalists and activist argued that the TSA is out of place in New
Zealand and that it was merely passed into law to appease the United
States' Global War on Terror (GWOT). On November 9, Matt McCarten,
a former left-wing Member of Parliament and now a weekly newspaper
columnist, wrote that he "never thought that there was a need for
the Terrorism Suppression Act and believe that it was motivated by
our establishment's need to be seen by our international allies to
be doing our bit for George Bush's "war on terror." In a newspaper
article on November 5, well-known New Zealand activist John Minto
argued that New Zealand's anti-terror laws are "George Bush's laws.
They were never designed for New Zealand."
Public Reaction to the Raid
--------------

10. (U) A UMR Research poll conducted 10 days after the raids found
that while 13 per cent of those surveyed felt police acted
inappropriately almost fifty per cent said it was too early to know.
However, the figures are dramatically different when the views of
Maori are separated out from the survey sample, with 41 per cent
saying police overreacted. Thirty-six per cent of the wider group
felt the police acted appropriately under the circumstances, while
only 22 per cent of the smaller Maori group thought they did.
Indeed, individual comments from many citizens following the raids
indicate a sense among some in New Zealand that domestic terrorism
could never occur in this country.
Political Implications of the Raids
--------------

11. (U) For the ruling Labour Party, the police raids could spell
more problems at election time with Maori, many of whom have still
not forgiven Labour for enacting the controversial Foreshore and
Seabed Act in 2004, which refused the Maori claim to ownership of
part or all of New Zealand's foreshore and seabed. With the
upcoming election likely to be tight one, the Maori Party could
leverage Maori anger over the raids to wrest some Maori seats from
Labour and damage Labour's chance of forming a parliamentary
majority in the next Government. (Note: The Labour Party has
historically enjoyed loyal political support from Maori and has held
a virtual monopoly on the Maori seats in Parliament since Labour
first came to power in 1935. However, at the 2005 election, the
newly formed Maori Party - having broken with Labour over the
Foreshore legislation in 2004 -- won four of the seven existing
Maori seats. End Note).
Government Reaction to the Solicitor-General's Decision
-------------- --------------

12. (U) In response to the Solicitor-General's criticism, the
Attorney-General Dr. Michael Cullen underscored that he TSA was
written to cover terrorism activities by foreigners and never
intended to be used in a domestic context. The Government also
reminded the public that those who had escaped possible terrorism
charges still faced serious charges under the Arms Act. Cullen
agreed to Collins' recommendation to refer the act to the Law
Commission - an independent, government-funded organization that
reviews laws - for further examination. Drawing attention to
Collins' statement that the police had acted appropriately but the
threshold was very high, Cullen stated that "anybody who claims this
is some kind of vindication for all those involved is misreading
what the Solicitor-General said." PM Helen Clark's office said that
she "noted" the decision but wished to remind the public that those
questioned still facing serious firearms charges.

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Police Disappointed, but No Public Apology
--------------


13. (U) In response to the decision of the Solicitor-General, New
Zealand's top cop -- Commissioner of Police, Howard Broad -- has
stated disappointment that no charges would be made under the
Terrorism Suppression Act. Although Broad refused to offer a
general apology for police actions during the raids (as had been
demanded by many in the Maori community),he did, however, offer his
regrets for any hurt and stress caused to the Maori community by the
police and promised to "seek an appropriate way to repair the damage
done to police/Maori relations."

14. (SBU) Comment: In the post-9/11 world, one would expect that
New Zealand would have an adequate law to deal with foreign as well
as domestic terrorism - it does not. Critics of the TSA say that
the law was never envisaged to apply to domestic terrorism, but one
wonders if it would have applied to foreign terrorists plotting much
the same activities as those leaked by the press. The inherent
weaknesses of the TSA underscore that the Labour Party and its minor
party partners in government (many of whom are veterans of Vietnam
War-era street protests) are not comfortable with legislation that
in any way would undermine legitimate political expression. We hope
the Law Commission, which will review the law and make
recommendations, will find a way to preserve peaceful political
dissent and civil liberties without leaving the country vulnerable
to those - foreign or domestic - who would do it harm. End
Comment.

McCormick