Commissioner of Police v The Queen
[2021] NZHC 1022
•7 May 2021
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PUBLIC VERSION ORDER PROHIBITING PUBLICATION AS SET OUT IN PARAGRAPH [4] OF THIS JUDGMENT.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-183
[2021] NZHC 1022
UNDER the Terrorism Suppression (Control Orders) Act 2019 IN THE MATTER
of an application for an interim control order
BETWEEN
COMMISSIONER OF POLICE
Applicant
AND
R
Respondent
Hearing: 6 May 2021 Counsel:
C A Brook and K Laurenson for Applicant
D A Manning and S H Lamain for Respondent
Judgment:
7 May 2021
JUDGMENT OF ELLIS J
INTRODUCTION
[1] The Commissioner of Police (the Commissioner) applies for an interim control order, pursuant to s 15 of the Terrorism Suppression (Control Orders) Act 2019 (the Act), in respect of the respondent (R), who is presently overseas.
[2] The application was made on notice to R. R does not oppose the making of an interim control order, but they also do not consent to it. Ms Manning advised that R
COMMISSIONER OF POLICE v R [2021] NZHC 1022 [7 May 2021]
does not accept that they pose a risk under the Act. They acknowledge, however, that the New Zealand authorities need time to make their own assessment of that, following their arrival here.
[3] Given both R’s absence of consent, and the impact of an interim control order on R’s rights, it is important that the application be carefully considered and that reasons be given for any order made. Notably, it is also the first such order to have been made in this country.
Suppression
[4]In accordance with the Act, significant suppression orders are in place:
(a)By virtue of s 33(3) of the Act (the application of which is mandatory) all persons are prohibited from publishing, in any report or account of this proceeding, R’s name, address or occupation, including (under s 33(8)) any identifying particulars.1
(b)In the exercise of the Court’s inherent jurisdiction (preserved by s 33(6) of the Act), the following may also not be published:
(i)[ ]; and
(ii)[ ]:
· [ ]; and
· [ ].
(c)The Court file may not be accessed or searched without the leave of the Court.
1 The terms of this order are very slightly different from the order originally made by me on 19 April 2021. The change is simply intended to better reflect the wording of s 33.
RELEVANT PROVISIONS OF THE ACT
Purpose
[5] Section 3 of the Act states that its purpose is to allow requirements to be imposed on a relevant person by a control order to the following ends:2
(a)to protect the public from terrorism;
(b)to prevent engagement in terrorism-related activities in a country; and
(c)to support the relevant person’s reintegration into New Zealand or rehabilitation, or both.
[6] The first two purposes are described as “main purposes”. The third is referred to as an “incidental purpose”.
Definitions
[7] “Requirements” are the prohibitions, restrictions and other related directions that may be imposed on a relevant person by way of a control order. They are set out in s 17 and are aimed either at the “main” (protective and preventative) purposes referred to in s 3(a) and (b) or the “incidental” (reintegrative and rehabilitative) purposes referred to in s 3(c).
[8] By way of example only, requirements of the first kind could include orders that:
(a)prohibit or restrict the relevant person from being in or at specified areas or places (for example, international ports, gun clubs, or specified residences) without Police escort; and
(b)require the relevant person to report to specified constables at specified times and places (for example, meeting a constable twice a week).
2 The definitions of the italicised words are discussed below.
[9] And requirements of the second kind could include an order that require that the relevant person undertake alcohol and drug assessments, and rehabilitative or reintegrative needs assessments.
[10] The term “relevant person” is defined in s 6 to mean a person who is 18 years old or older, who is or may be coming to New Zealand or has arrived in New Zealand, and who before their arrival in New Zealand:
(a)engaged in terrorism-related activities … in a foreign country; or
(b)travelled, or attempted to travel, to a foreign country to engage in terrorism-related activities in a foreign country; or
(c)was convicted in a foreign country of an offence because of conduct that is or includes engaging in terrorism-related activities in a foreign country; or
(d)was deported from, had a visa cancelled by, or had any passport, citizenship, or nationality revoked by, a foreign country for reasons that are or include a security risk related to conduct that is or includes engaging in terrorism-related activities in a foreign country; or
(e)is or was the subject of any control order regime, or other analogous supervisory regime, in a foreign country, because of conduct that is or includes engaging in terrorism-related activities in a foreign country.
[11] “Terrorism” is defined in s 5 of the Act to mean “a terrorist act as defined in s 5 of the Terrorism Suppression Act 2002”. This includes any act that is intended to cause certain defined outcomes and is carried out:
(a)for the purpose of advancing an ideological, political, or religious cause; and
(b)with the intention of inducing terror in a civilian population or unduly compelling or forcing a government or an international organisation to do, or abstain from doing, any act.
[12]The defined outcomes are:
(a)the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act);
(b)a serious risk to the health or safety of a population;
(c)destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d);
(d)serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life; and
(e)introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.
[13] And s 8 states that a person engages in “terrorism-related activities” if the person:
(a)carries out terrorism (whether as a or the principal party, any other party, or an accessory after the fact):
(b)facilitates or supports materially the carrying out of terrorism.
[14] Finally, those two concepts are then further defined. Section 8(3) provides that:
(3)For the purposes of this Act, terrorism is facilitated or materially supported only if the facilitator or material supporter knows, or ought reasonably to know, that terrorism is facilitated or materially supported, but this does not require that—
(a)the facilitator or material supporter knows, or ought reasonably to know, that any specific terrorism is facilitated or materially supported:
(b)any specific terrorism was foreseen or planned at the time it was facilitated or materially supported:
(c)any terrorism was actually carried out.
Making control orders
[15] Section 12 of the Act governs the making of control orders. It provides that where the Court is satisfied that a respondent is a relevant person (as defined), it may make an order imposing requirements on that person for the purposes set out in s 3. The Court may make a control order only if satisfied that:
(a)the relevant person poses a real risk of engaging in terrorism-related activities in a country; and
(b)the requirements that the order imposes are only those that are necessary and appropriate to satisfy the purposes of the order.
[16] Under s 12(3), in determining any requirements to be imposed, the Court must also—
(a)consider how requirements, if imposed, will or may affect the person’s personal circumstances (including financial position, health, and privacy); and
(b)consider whether requirements are justified limits on rights and freedoms in the New Zealand Bill of Rights Act 1990, and consider any other matters the court thinks relevant; and
(c)comply with section 17 and with the limits in sections 18, 19, and 20.3
[17] Sections 13 and 14 provide (among other things) that an application for a control order must specify:
(a)whether it is an interim or final control order that is sought;
3 Section 18 provides that a relevant person cannot be required to remain at a specified address for more than 12 hours in any 24-hour period. Section 19 provides that electronic monitoring may not be imposed if a less restrictive requirement or combination of requirements would suffice to meet the s 3 purposes. Section 20 emphasises that the informed consent of the relevant person is a prerequisite to any requirement to engage with rehabilitative services (such as drug and alcohol counselling) and that the relevant person may withdraw their consent without breaching such a requirement.
(b)whether the application is made on notice or not; and
(c)the requirements sought and for which of the s 3 purposes they are sought.
Interim control orders
[18] Section 15 governs applications for an interim control order. It provides that such an application may only be made:
(a)before the relevant person arrives in New Zealand; or
(b)within 12 months after the relevant person arrives in New Zealand; and
(c)where the Commissioner believes on reasonable grounds that it is necessary and appropriate that the interim control order is made as soon as practicable in order to manage the real risks posed by the relevant person of engagement in terrorism-related activities in a country.
[19] Section 15(2) addresses when interim control order applications can be made without notice and other related matters. Subsection (4) states that an application for an interim control order must be heard and determined as soon as practicable. And subs (5) provides that:
(5) On or after making an interim control order in respect of a relevant person, the court must consider whether to direct under section 16(1)(b) a period (longer or shorter than 3 months after the date on which the interim order was served on the relevant person) as the period within which the Commissioner may make an application for a final control order in respect of the relevant person.
[20] Lastly, s 16(1)(b) provides that, if the Court makes an interim control order, the Commissioner must make any application for a final control order within three months of service of the interim order on the respondent (service in this case will not be effected until R has returned to New Zealand, if they have not returned by the time the order is made).
THIS CASE
Islamic State in Iraq and the Levant
[21] As will be evident from the overview above, the Act is centrally concerned with protecting the public from terrorism and preventing engagement in terrorism- related activity. In R’s case, those concerns are engaged because of their association with the Islamic State in Iraq and the Levant (ISIL).4 ISIL is a “designated terrorist entity” in terms of s 4 of the Terrorism Suppression Act by dint of its status as a United Nations listed terrorist entity.
[22] Because proportionality is central to the task the Court is required to undertake when considering an application for a control order under the Act, it is useful to begin by recording that (by way of example) the United Nations Security Council has by Resolution:5
(a)Expressed “its gravest concern that territory in parts of Iraq and Syria is under the control of Islamic State in Iraq and the Levant (ISIL) and Al Nusrah Front (ANF) and about the negative impact of their presence, violent extremist ideology and actions on stability in Iraq, Syria and the region, including the devastating humanitarian impact on the civilian populations which has led to the displacement of millions of people, and about their acts of violence that foment sectarian tensions”.
(b)Reiterated “its condemnation of ISIL, ANF and all other individuals, groups, undertakings and entities associated with Al-Qaida for ongoing and multiple criminal terrorist acts aimed at causing the deaths of civilians and other victims, destruction of property and of cultural and religious sites, and greatly undermining stability, …”.
4 ISIL is also commonly referred to as the Islamic State of Iraq and al-Sham (ISIS), Islamic State (IS) and Daesh. [ ]’s listing of ISIS as a terrorist organisation also includes many of its other names, including Al-Qa’ida in Iraq, Dawla al-Islamiya, Jama’at al-Tawhid wa’al-Jihad, and the Islamic Caliphate.
5 UNSCR 2170, 14 August 2014.
(c)Reaffirmed “that terrorism, including the actions of ISIL, cannot and should not be associated with any religion, nationality, or civilization”.
Should an interim control order be made?
[23] The analysis below is based on the supporting evidence filed by the Commissioner, which has not been refuted by R, at least for present (interim) purposes.
Section 6: is R a relevant person?
[24] I am satisfied that R is a “relevant person” as defined in s 6. Section 6(1) is satisfied on three separate bases:
(a)R is over the age of 18. [ ].
(b)R is coming to New Zealand. They are currently detained in [ ], having travelled there unlawfully from [ ]. They are not entitled to remain in [ ], nor to enter any other country. Repatriation to New Zealand is therefore inevitable.6
(c)R has had their passport and/or citizenship revoked by [ ], for reasons including a security risk related to engaging in terrorism-related activities in a foreign country. More particularly:
(i) [ ]:
· [ ]; and
· [ ].
(ii)R’s [ ] passport has consequently been revoked, on the basis that they are no longer [ ] citizen.
6 The timing of their repatriation remains uncertain, due (among other things) to COVID-19.
Prerequisites for making an interim control order
[25] I am also satisfied that the s 15(1) criteria for making an application for an interim control order are met because:
(a)the application has been made before R’s arrival in New Zealand; and
(b)the evidence filed by the Commissioner establishes the reasonable grounds for his belief that it is necessary and appropriate that the interim control order is made as soon as practicable in order to manage the real risk of R engaging in terrorism-related activities in New Zealand.
[26] In the circumstances of this case, the Commissioner accepted that it was appropriate that the application was made on notice to R, who was represented by Ms Manning and Mr Lamain at the hearing before me.
[27] For completeness, in terms of s 15(3),7 the Commissioner did not rely on any non-disclosable information for the purposes of this application. The documents served on R were as filed.
[28] In accordance with s 15(4), the application has been be heard and determined as soon as practicable.
Section 12(2)(a): is there a real risk that R will engage in terrorism-related activities in New Zealand?
[29] On the evidence before me, I am satisfied that the relevant risk exists, for the following reasons:
(a) [ ].
(b)[ ]
7 Section 15(3) provides that where an interim application is made on notice, the documents served must exclude any information supporting the application that is not disclosable (as defined).
(c)Expert evidence filed by the Commissioner establishes that:
(i) [ ].
(ii)[ ].
(iii)People in similar circumstances to those of R pose a continuing risk of terrorism-related activities to countries to which they are repatriated. Some are encouraged to return to Western countries to facilitate ISIL’s agenda, which may, in extreme cases, include carrying out terrorist attacks, but more commonly involves providing financial support for ISIL (by earning money in the West and sending it back to ISIL members) and to promote the ideology of ISIL in an attempt to persuade others in the West to support it.
(iv)In R’s case, the principal risk is assessed as being that they will provide financial support to ISIL and promote its agenda to others.
Section 12(2)(b) and (c): are the requirements sought appropriate and necessary in light of their respective s 3 purposes?
[30] The requirements sought by the Commissioner to be imposed under s 17 are as follows:
(a)Under s 17(b),8 a requirement:
(i)prohibiting R from leaving New Zealand; and
(ii)prohibiting R from seeking or possessing passports, or other international travel documents of any kind, issued by any country; and
8 Which permits a requirement prohibiting or restricting the relevant person from leaving New Zealand or possessing passports, or other international travel documents of any kind, issued by any country.
(iii)that R is to surrender any existing passports, or other international travel documents of any kind, issued by any country, to Police.
(b)Under s 17(c),9 a requirement prohibiting R from communicating or associating with any person specified by a Police constable in writing, on the basis that the person is associated with a terrorist entity designated under the Terrorism Suppression Act, or is themselves at risk of radicalisation or may further radicalise R.
(c)Under s 17(d),10 a requirement prohibiting R from disclosing or receiving any material, whether in hard copy or electronic format, supportive of any terrorist entity designated under the Terrorism Suppression Act.
(d)Under s 17(e),11 a requirement prohibiting R from accessing the Internet, except on devices known to, and approved by, the Police.
(e)Under s 17(f),12 a requirement prohibiting R from possessing any material, whether in hard copy or electronic format, supportive of any terrorist entity designated under the Terrorism Suppression Act.
(f)Under s 17(g),13 a requirement:
(i)that R disclose all existing social media accounts to Police;
9 Which permits a requirement prohibiting or restricting the relevant person from communicating or associating with specified individuals, or a specified class of individuals (for example, individuals identified as being at real risk of radicalisation, or individuals identified as posing a real risk of further radicalising the relevant person).
10 Which permits a requirement prohibiting or restricting a relevant person from disclosing or receiving specified information or otherwise dealing with specified classes of information.
11 Which permits a requirement prohibiting or restricting the relevant person from accessing or using, in any setting, specified forms of telecommunication or other technology (whether the devices or facilities concerned are public or private), including the Internet.
12 Which permits a requirement prohibiting or restricting the relevant person from possessing or using specified articles or substances.
13 Which permits a requirement prohibiting or restricting the relevant person from carrying out specified activities related to the real risk that the relevant person poses, including specified activities ill respect of their work, occupation, or recreational activities.
(ii)prohibiting R from accessing any social media accounts other than those disclosed to and approved by Police; and
(iii)prohibiting R from operating any new social media accounts without Police approval.
(g)Under s 17(h),14 a requirement:
(i)prohibiting R from holding any bank accounts except as approved by the Police; and
(ii)prohibiting R from conducting international financial transactions (whether R is the intended sender or recipient), except with prior approval of Police.15
(h)Under s 17(j),16 a requirement that R is to reside at an address specified by the Commissioner and to not move from that address without the prior written approval of a constable.17
(i)Under s 17(k),18 a requirement that R is to report to a Police constable specified by the Police, at the discretion of that constable but no more than twice a week, at the time and place directed by the relevant constable.
(j)Under s 17(n),19 a requirement that R is to facilitate:
14 Which permits a requirement prohibiting or restricting the relevant person from holding accounts, possessing certain financial instruments, or using specified financial services.
15 On the assumption that the requirement sought under s 17(h) is imposed, no requirement under s 17(i) (which permits a requirement prohibiting or restricting the relevant person from transacting in property) is sought.
16 Which permits a requirement requiring the relevant person to reside at a specified address agreed between the relevant person and the Police (or as otherwise specified by the court) and to remain at that address between specified times each day, or on specified days.
17 No curfew is sought, so there is no issue about compliance with s 18.
18 Which permits a requirement requiring the relevant person to report to specified constables at specified times and places.
19 Which permits a requirement requiring the relevant person to facilitate reasonable access by the Police or their agents to premises, equipment, or information, if that access is necessary for monitoring compliance with the requirements stated in the order.
(i)reasonable access by the Police or their agents to search their residence in order to monitor compliance with the requirements of the order; and
(ii)reasonable access by the Police or their agents to all electronic devices used by them to access the Internet in order to monitor compliance with the requirements of the order.20
(k)Under s 17(m),21 a requirement that R be photographed, and have impressions made of their fingerprints, by the Police.
(l)Under s 17(o),22 a requirement that R undertake alcohol and drug assessments, and rehabilitative or reintegrative needs assessments, as directed by the Police or their agents; and
(m)Under s 17(p),23 a requirement that, if sought by the Commissioner (after carrying out a rehabilitative needs assessment), R engage with a specified rehabilitative service, provided they have given and not withdrawn their informed consent to do so.
[31] The requirements listed at [30] (a) to (k) above are sought for the purposes set out in s 3(a) and (b) of the Act. The final two requirements listed at [30] (l) and (m) are sought for the purpose set out in s 3(c).
[32] On the basis of the evidence before me, I am satisfied that the requirements set out at [30] (a) to (k) are necessary and appropriate for the purposes of protecting the public from terrorism and to prevent R’s engagement in terrorism-related activities in New Zealand. Their focus is appropriately on:
20 This includes allowing the Police to check or clone on site, or remove off site for the purposes of checking, if required, any electronic device in their possession capable of accessing the Internet and/or storing electronic data.
21 Which permits a requirement requiring that the relevant person allow themselves to be photographed and impressions made of their fingerprints.
22 Which permits a requirement that the relevant person undertake alcohol and drug assessments, and rehabilitative or reintegrative needs assessments.
23 Which permits a requirement that the relevant person, if they have given and not withdrawn their informed consent to do so, engage with specified rehabilitative services.
(a)preventing R from accessing or disseminating information/propaganda about, or supportive of, terrorist-related activities;
(b)restricting R’s ability to associate with, or provide financial support to, members of ISIL or other designated terrorist entities; and
(c)assisting Police to monitor R’s activities.
[33] I am also satisfied that the requirements set out at [30] (l) and (m) above are necessary and appropriate to support the purpose of reintegrating R into New Zealand, rehabilitating them, or both.
Section 12(3): impact on rights and freedoms
[34] In terms of s 12(3), the requirements sought will, inevitably, have an effect on R’s personal circumstances and on their rights and freedoms under the NZBORA. In particular, the requirements will impinge, to some degree, on R’s:
(a)freedom of association;
(b)freedom of movement;
(c)freedom of expression; and
(d)privacy.
[35] It is possible that other rights are also engaged, although none were specifically drawn to my attention. Due process (s 27) rights are not in issue because the application was made on notice to R. And I also note the advice received by and accepted by the Attorney-General prior to the enactment of the Act that protection orders are civil in nature, and so do not engage criminal process rights. For interim purposes, at least, I am prepared to proceed on that basis.
[36] I must be satisfied that any requirement contained in the interim control order that limits the rights and interests just mentioned is both proportionate to the risk posed
and capable of justification in a free and democratic society. The following matters support my conclusion that the limits resulting from the requirement are both proportionate and justified:
(a)in the words of the United Nations Security Council:24
… terrorism in all forms and manifestations constitutes one of the most serious threats to international peace and security …
(b)R’s involvement with and promotion of ISIL means that they have been involved in terrorism-related activities;
(c)the public interest in being protected from, and the prevention of, such activity is, accordingly, very high;
(d)there is, however, nothing before me to suggest a risk that R would themselves engage in acts of terror or violence;
(e)rather, the evidence suggests that R poses a real risk of engaging in activities that facilitate or materially support the carrying out of terrorism;
(f)there is also a significant public interest in assisting R to reintegrate into New Zealand and to assist in their rehabilitation;
(g) [ ];
(h)the requirements sought that would restrict R’s freedom of movement are designed either to prevent them travelling overseas or to enable their activities to be monitored, at least in the short term;
(i)although R will be required to live at a specified address, the absence of any curfew means there is no deprivation of liberty and no aspect of detention in the requirement;
(j)there is a clear link between those restrictions and preventing continued terrorist activities, preventing their own radicalisation, and protecting members of the public who may be at risk of radicalisation;
24 UNSCR 1805, 20 March 2008.
(k)there is a clear and obvious link between the requirement restricting access to the Internet and social media (and so limiting R’s freedom of expression) and the risk of their continued radicalisation, the risk of their attempting to radicalise others, and the risk of their attempting publicly to support and promote the agenda and activities of ISIL;
(l)similarly, there is a clear and obvious link between the requirement restricting their ability to freely associate and the risks referred to above;
(m)R will not be compelled to undergo any rehabilitative treatment because their informed consent is a prerequisite and can be withdrawn at any time;
(n)the proposed requirements comply with s 17 and with the limits in ss 18, 19, and 20;
(o)the proposed requirements will be interim in nature and of finite duration;
(p)R (or the Commissioner) is able to apply to the Court under the Act to have the requirements varied; and
(q)R has not opposed the order or the requirements, at this interim stage.
Duration
[37] The Commissioner seeks that the period for making an application for a final control order be extended to 12 months, to monitor compliance with the conditions of the interim control order and R’s rehabilitation and reintegration into New Zealand. I agree that this extension is likely to operate to R’s advantage as it minimises the possibility that they will be made subject to a final control order, which may turn out to be unwarranted.
RESULT
[38] The Commissioner’s application for an interim control order is granted, with the requirements set out at [30] above. Its term will be for 12 months running from the date of service of the order on R.
Rebecca Ellis J
Solicitors:
Crown Law Office, Wellington for Applicant
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