We're already stopping people from using NZ passports to go and fight in the Middle East. So why do we now urgently need to change the law to do this?

Back in February, I wrote this about the legal basis for refusing to grant passports to/revoking passports from those individuals who felt the call to take up armed struggle in groups using terrorist tactics in places like Syria and now Iraq. The tl;dr of that post was that the Minister of Internal Affairs has only very limited grounds for refusing to grant (or for taking away) someone's passport for a 12 month period on "National Security" grounds:

Consequently, the Minister must believe on reasonable grounds that the person's intention in going to Syria is to carry out actions there that involve causing death or serious bodily injury to people other than the Syrian armed forces (or the armed forces of other factions in the confict), or to "facilitate" such actions. Because it is only such actions that are "terrorist acts" in the Syria context, and only an intent to commit or facilitate terrorist acts will do to cancel a passport.

The same thing then applies in reverse: the Minister cannot take away the passport of a New Zealander who already is over in the Middle East fighting alongside ISIS (or similar group of baddies) in order to prevent them coming back to New Zealand purely because of general concerns that they've become "radicalised" and represent "a threat". Instead, the Minister must believe on reasonable grounds that taking away their passport is necessary to stop them carrying out (or "facilitating") a specific terrorist act here in New Zealand.

Of course, whilst I say that these grounds are "very limited", they appear to have allowed the Minister to refuse to grant a passport to (or revoke existing passports from) a handful of people planning to head over to the Middle East for somewhat cloudy reasons. And back in February, John Key apparently was very relaxed about the whole issue: "We have our own way of handling it which is adequate and appropriate", he was quoted as saying. So that being so, why is there now the perceived need to rush to change the law as it currently stands?

Well, putting aside general concerns about Governments leveraging off crisis in order to expand their powers, maybe that law hasn't actually let the Minister of Internal Affairs do what has been done up 'till now. In my earlier post, I suggested that the Government was justified in taking passports off those intending to travel to Syria to join up with Jihadist groups because:

even if a New Zealander goes over to Syria with the intention of "fighting fair", if they are going to be fighting as part of a group who use "terrorist" tactics, then she or he will be "facilitating" such actions.

But maybe that last assumption actually is wrong. Maybe merely fighting as the part of a group that uses terrorist tactics doesn't actually "facilitiate" any specific terrorist acts, as this latter term instead requires taking active and purposeful steps to help bring such acts about. In which case, someone simply saying "I want to go and join ISIS to help them defend the true Caliphate" won't be enought to justify taking away that individual's passport in order to stop her or him from doing so.

Of course, we don't know exactly what information the Government has on those individuals it has used its powers against - that's all national security stuff that never gets seen. But equally, we've not had any of the individuals who have been denied passports challenge the Minister's decision in court. So maybe the Government has decided the legal position here is unacceptably hazy, and it wants to clarify the law to make sure that it really can do what it has been doing.

Alternatively, perhaps this sort of case has focused the Government's mind on the threat that is posed by generally radicalised individuals returning to New Zealand after having fought in places like Syria or Iraq. Because absent any sort of proof that such individuals have a specific intention to engage in a "terrorist act" upon their return, there's no legal way that New Zealand can stop them coming home. And maybe the Government wants to institute a sort of de-facto exile policy, whereby those who decide to go and fight overseas alongside groups employing terrorist tactics really are buying themselves a one-way ticket to Palooka-ville.

Or, maybe this unanimous resolution of the UN Security Council has caused the Government to look again at New Zealand's existing laws and consider whether they adequately:

prevent and suppress the recruiting, organizing, transporting or equipping of individuals who travel to a State other than their States of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training ... .

Because given all the time and effort we've put into trying to get ourselves elected onto that body, we can hardly ignore what it calls upon the world community to do.

Whatever the reason, it is going to be interesting to see how the Government words its proposed new law. My test as to whether that law is acceptable will be this: would it have stopped members of the International Brigade (which included a number of New Zealanders) from fighting in the Spanish Civil War, or returning to New Zealand having done so? If the answer is "yes", then I think we will have a problem.

