HE WAS PROBABLY the smartest student I met during all my years at Otago University. After nights out carousing at the Captain Cook Tavern, he was famous for scribbling out essays in the Gazebo Lounge of the Student Union as the deadline loomed (yes, that’s right, people actually wrote essays longhand in those far-off days!) and receiving the, by then, obligatory A+. This fellow seriously impressed Otago’s Philosophy Department, which was – and still is – an extremely difficult thing to do. As Douglas Adams might have said, he had a brain the size of a planet.
It was always a source of curious consolation to me that after leaving university this guy ended up working in the Parliamentary Counsel Office. That the nation’s laws were being drafted and edited by a top philosophy grad, whose brain was the size of a planet, seemed entirely appropriate. Typical, too, of those far-off, pre-Rogernomics days, when having faith in the nation’s public servants did not seem at all naïve or foolhardy.
God knows what happened to this guy. As with most agencies of the old social-democratic Godzone, the Parliamentary Counsel Office was swept away in 1985 – just one more casualty of the Fourth Labour Government’s blizzard of neoliberal reforms.
Why am I recalling all these memories from forty or more years ago? Well, because how our laws are written matters – a lot. As the late Sir Michael Cullen explained in a speech to mark the retirement of the Chief parliamentary Counsel, George Tanner, in 2007:
“My former parliamentary colleague Sir Geoffrey Palmer once speculated that a junior drafter of laws might be as powerful as the most senior jurist, because a drafter makes so many decisions on constructing policy into statutes and regulations. Both drafters and judges give effect to the intentions of Parliament, but inevitably there are tactical decisions about the best way to approach a problem. A drafter of laws is in a pivotal, influential position.”
Indeed they are. We have only to recall the events of the past week to understand how pivotal and influential. A badly drafted piece of legislation – like the Terrorism Suppression Act 2002 – can produce the most appalling consequences. Indeed, when it comes to forestalling even well-signalled terrorist intent, the Act is so poorly drafted as to be practically useless. So much so, that a judge felt compelled to warn the Government that it could prove to be the “Achille’s Heel” of New Zealand’s national security legislation.
The Judge was right.
What the New Lynn terrorist attack has made agonisingly clear is the need for a legislative formula empowering New Zealand’s national security apparatus to identify words and deeds indicative of a clear and firm intention, on the part of an individual, or group, to execute an act of terrorism.
This is by no means as straightforward as it may sound. Empowering the state to indict a person for the thoughts in his or her head is not something a healthy democracy should lightly endorse. What a person might be thinking is bound, at times, to be entirely unworthy of public scrutiny. As Bob Dylan puts it in “It’s Alright Ma (I’m Only Bleeding)”:
If my thought dreams could be seen
They’d probably put my head in a guillotine.
In the urgent task of making the Terrorism Suppression Act fit-for-purpose, language and logic must advance in lock-step. Police officers, prosecutors, judges and juries must be able to check-off the necessary mental and physical steps leading towards the commission of a terrorist offence. In addition to intent there must be action. Thoughts must be communicated verbally: either electronically, in writing, or on-line. The wherewithal of terror: knives, guns, explosives; must be acquired and assembled for the explicit purpose of inspiring terror. Purposive preparatory action, preceded by the tangibly expressed intention of carrying out a terrorist act. These are the sort of elements around which the legal draftspersons will have to make their “tactical decisions”.
Tomorrow, 11 September, is the twentieth anniversary of the New York and Washington terrorist attacks. Think of the preliminary steps required to make 9/11 happen. Had they been detected, the tragedy could have been prevented. We need legislation equal to that task. It will require not just legal expertise, but all the philosophical brilliance of that far-off genius in the Gazebo Lounge.
This essay was originally published in The Otago Daily Times and The Greymouth Star of Friday, 10 September 2021.