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Dunne: Lessons from a tragic misfit

So-called "Kiwi Jihadi" Mark Taylor will always be a New Zealand citizen, even if New Zealand is under no obligation to assist him to return here - but his case is a reminder that our terrorism suppression legislation is outdated and in need of an overhaul, writes Peter Dunne.

Every conflict produces its share of tragic and foolish well-meaning misfits - people from one side who end up trying to serve the interests of the other side for whatever misguided reason. Seldom are they successful, and most pay an awful price for their stupidity.

One of the most bizarre cases was that of British citizen John Amory in World War II. He spent the war in Germany trying (unsuccessfully) to organise a British "Freedom" Army to rise and stop the Allied war effort, punctuated by the occasional propaganda radio broadcast. At the end of the war he was quickly arrested by the British, tried for treason, convicted after just a 12 minute trial, and executed.

What made his case more incongruous was that his father had been a distinguished member of Churchill's wartime Cabinet, and his younger brother who was also an MP at the time, was to serve with distinction in a series of Ministerial roles in Conservative Governments from the 1950s right through to the 1980s. In the end, those family connections counted for nothing for John Amory.

Mark Taylor may not have the family connections, but he is New Zealand's equivalent in the Amory mould.

His level of involvement with ISIS has been about as trivial and unsuccessful as Amory's dalliance with the Wehrmacht. Neither were terrorists in the general sense of the word, but both were seen to have acted in a way strongly detrimental to their own country's interests.

An awesome obligation

Taylor, like Amory, cannot escape the consequences of his actions. Should he return to New Zealand and be tried and convicted for offences under our anti-terrorism legislation, he will not face execution. But potentially he could face a long time in prison. And, like Amory, he will remain a citizen of the country of his birth for the rest of his life.

The Prime Minister is right to make the point that we do not - and indeed cannot - remove New Zealand citizenship from a person if, as in Taylor's case, that would render them stateless, but that we owe people like him no more than that. After all, his engagement with  ISIS was neither brief nor accidental. It was deliberate and calculated on his part, and must be treated as such.

While he has the right to remain a New Zealand citizen, New Zealand is under no obligation to assist him to return here.

Under legislation passed in 2014, the Minister of Internal Affairs can, in certain circumstances, suspend a person's passport for up to two years, but cannot cancel their citizenship if they are not also a citizen of another country. I was the Minister responsible for most of the time since the passage of the 2014 Act, and had to exercise that authority on a limited number of occasions over the subsequent three years.

Each case was considered on its merits. I would always receive a full briefing from the Security Intelligence Service on the case, as well as separate briefings from Internal Affairs' legal advisors, and on occasions the Crown Law Office, before reaching a decision which I would then convey to the SIS and the DIA to implement. I made a point of never discussing any case outside that tight circle, including no discussions with other Ministers.

Every few months I would release publicly a list of the numbers of suspensions, without revealing any details that could lead to the identification of any particular persons.

At all times, I was acutely conscious that the authority to suspend a person's passport was an awesome obligation, to be exercised as rarely and judiciously as circumstances permitted. Indeed, one of my reasons for the periodic release of numbers was so that the public could see how infrequently the situations arose. Also, I fully expected a rightful public backlash had any sense emerged that the provision was being applied too frequently, making the periodic release process a useful check on my authority.

Should Taylor return to New Zealand he will face the full weight of anti-terrorism legislation, including the possible suspension of his passport, for his activities. That is as it should be, and in the protection of our national security, and within the scope of our domestic law he should be shown no leniency for his behaviour, no matter how utterly misguided he may have been, and how remorseful he may be now. He should be allowed his day in Court, and be judged accordingly.

Legislation from a different era

Nevertheless, it has to be said that it may well now be time to review the continued relevance of our current terrorist suppression legislation. After all, it dates from what is now a different era - the immediate aftermath of 9/11, not far short of almost two decades ago.

While many of the potential risks remain today, and we should not drop our guard on them, there are also many new risks to be considered. As the spate of alleged hackings of nations' computers and attempts to disrupt national election systems are showing, the threat of cyberterrorism is far greater today than even five years ago and is increasingly at an alarming rate.

Intelligence services, like the GCSB, must have had some of these potential concerns in mind when they recommended against the involvement of the Chinese communications giant, Huawei, in the 5G Broadband roll-out, for example.

So how adequate are our systems, and electronic and physical borders to deal with such mounting threats? Our legislation is, after all, a product of a time where the predominant threat was a physical one. The fact that Taylor is seen today as more a symbol of inane buffoonery than evil intent highlights the point.

None of this is to suggest in any way that we should soften our existing terrorism suppression legislation. While the level of immediate risk may be diminishing, it is still there. (Taylor alone is reminder of that!) Rather, we ought to be looking at our current legislation to review whether it is still fit for purpose, and if not, what changes, consistent with the protection of the public interest, and the rights of the individual need to be made.

Whatever happens to Taylor from here should be a secondary concern to ensuring that we always have the right, and up-to-date, law in place to defend our country's interests in these situations.  

The response of the responsible Minister, Andrew Little, will be worth watching.

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