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.
The manner of the 9/11 attacks was so unthinkable that the terrorists' American flying school instructors apparently were not at all fazed by their students' indifference to learning how to land an aircraft. The main body of evidence of preparation for an attack would likely have been found in the extensive communications required to coordinate it. There was a major intelligence failure here.
"Lone wolf" attack preparations are unlikely to provide that kind of evidence. Instead it must be gleaned from activities and acquisitions displaying a likely lethal combination of capability and intention. In the case of the Lynnmall terrorist such evidence appears to have been available which is why the Police were tailing him with highly trained personnel who knew he could go on a rampage at any moment. There needs to be an independent inquiry into why he was allowed to roam freely and why he was not deported.
50 years ago the State Services Commission used to advertise for policy positions in Wellington with quotations from Plato, along the lines that only the best should serve the State. Many of the most capable graduates responded to that call. Try running that line now.
The PCO wasn't swept away. It still exists, and writes all the Government's Bills. http://www.pco.govt.nz
In the wake of the Apollo 1 fire in January 1967 that killed three astronauts there was a massive Congressional inquiry that looked into every detail of what had gone wrong - and naturally what NASA had done wrong.
But it was none other than the lead astronaut of NASA's internal program to find and fix the problems, Frank Borman, who summed it all up when he said that "we had suffered a failure of imagination".
In the case of 9/11, for all the detailed problems that led people to miss what was planned, was the simple assumption that terrorists seized airliners in order to bargain the passengers as hostages. The idea that they would take over planes in order to then use them as missiles against buildings simply did not occur to them - well, aside from Tom Clancy in Debt of Honor
No matter how well drafted and how tightly prescribed our new terrorist laws may be we will always be subject to that limit.
To: Matthew Hooton
From Wikipedia entry:
"In 1985, the Fourth Labour Government reformed the public service via the Parliamentary Service Act 1985. It abolished the Legislative Department and replaced it with a Parliamentary Service and Parliamentary Service Commission. It also ensured that PCO staff, aside from principal officers, were appointed by the Chief Parliamentary Counsel, within maximum numbers set by the Attorney-General."
Meet the new boss, just a wee bit different from the old boss.
The Open Government Partnership is now New Zealand's key piece of policy that determines the scope of legislation. Certainly, the most significant piece of lawmaking relevant to the past couple of years and the next few.
I may be corrected however I believe that the first literary illustration of using commercial aircraft as missiles was a couple of years before Clancy in the book Quiller Solitaire by Adam Hall / Elleston Trevor.
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