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First published on Werewolf

On its current timetable, the Royal Commission of Inquiry into the mosque attacks (to be headed by Justice William Young) will begin its work next month, and is due to report back by December 10 at the latest – which would be apt, given that date is International Human Rights Day. Inevitably, there will be a fair degree of focus by the Commission on the Christchurch shooter, his background, what the authorities knew about him beforehand, and the role that social media played in his radicalisation.

Ultimately, much of that information will be useful only to the extent that it illuminates two of the meatier aspects of the Inquiry’s terms of reference:

· Whether there were any impediments to relevant state sector agencies gathering or sharing information relevant to the attack, or acting upon such information, including legislative impediments, and

· Whether there was any inappropriate concentration or priority setting of counter terrorism resources by relevant state sector agencies prior to this attack.

In plainer English that means… was the SIS operating with the wrong priorities? And if so, was this because (a) the SIS and our 5 Eyes allies were treating jihadi terrorism as their over-riding concern and/or (b) was there anything in its governing legislation that constrained the security services from pre-empting the mosque attacks. (Clearly, this line of argument could be deployed as a rationale for extending SIS powers. We didn’t pre-empt the attack because we didn’t have instrusive enough powers. Yeah, right.)

In the course of its work, the Royal Commission will consider whether the SIS put a lopsided amount of their time and resources into countering Muslim radicalism and placed the eventual victims under undue surveillance – while paying comparatively little attention to the threat posed by the white nationalist groups that nurtured the attack.

On the available evidence (including its annual reports) the unfortunate reality is that the SIS and the white supremacists appear to have shared in common a jaundiced view of the Muslim community in New Zealand. It will be up to the Royal Commission to find out how and why that happened, so that the security services don’t make similar mistakes in future.

The Commission’s Dilemma

One thing we can be pretty sure of is that the SIS will not turn up to the Royal Commission and say words to the effect of: “ Sorry, our bad.We totally over-rated the threat of Muslim radicalism in New Zealand, and totally under-rated the threat from white supremacists. You can’t believe how really, really bad we feel about this.” Nothing like that is going to happen.

What will happen is that the SIS (and presumably the GCSB) will attempt to defend and rationalise their actions in the light of the “Muslim threat” priorities set out in the string of SIS annual reports for the past decade or more. Again and again, those reports cite the over-riding threat to New Zealand from local and foreign jihadi agents, influences and social media recruitment efforts. That’s the dilemma. This Commission of Inquiry has been established in the wake of a horrific attack, amid a groundswell of public compassion for the victimised Muslim community in our midst.

If, however, the SIS is going to conduct a high profile defence of its concentration of time and resources on Muslim surveillance, there is an obvious risk that this process will result in the re-stigmatising of the Muslim community all over again. Clearly, Justice Young is going to have to walk a tightrope if and when the SIS chooses to defend itself by claiming that it – and everyone else in their fellow security agencies overseas – believed that surveilling mosques and Muslim communities was a good and necessary policy at the time. Easy to be wise afterwards, the SIS may well claim – while adding for good measure that the situational logic back then was different to what we know now, and had seemed compelling.

And why so? Well, that would be because of Islamic State’s online recruitment efforts, because of Charlie Hebdo, because of Bataclan etc etc. One can imagine the SIS putting forward evidence of bouts of fiery radicalism detected by it within this or that mosque. Meaning: will our current compassion for the Muslim community survive unscathed an investigation where that kind of defence is aired and vigorously rationalised by the alleged experts in the field? Finding the right tone and balance on this issue is going to pose a challenge for the Commission.

Obviously, and for a raft of reasons both good and bad, the Commission will not be embarking on a witch-hunt into SIS incompetence, and it will come under pressure to find extenuating circumstances for the SIS level of performance. Yet in ensuring the natural justice rights of the SIS and its leadership are protected, the Commission will simultaneously need to avoid creating a platform for re-stigmatising the Muslim community that came under such deadly attack on March 15, even as the agency meant to protect them was steadfastly looking in the wrong direction. If it is to regain public confidence at all, the SIS needs to confess to its mistakes and apologise for them. The Muslim community deserves no less than that.

Footnote One: The Commission’s handling of classified information will pose a crucial test of just how much of a ‘public facing’ exercise this Royal Commission of Inquiry can be. We have already seen (from the Operation Burnham inquiry) how readily the authorities fetishise their security information, to the point where its protection becomes the over-riding goal of the entire proceedings. Like a blanket dropped over a birdcage, the “need” for secrecy can be used to conceal incompetence, or worse.

The Commission will need to make it very, very difficult for the SIS to claim that it needs to protect its sources of foreign intelligence when – arguably – one of the main points at issue here is whether this same foreign intelligence (and its skewed priorities) misled the SIS into pursuing a jihadi threat that bore little relevance to New Zealand conditions. Why, the Commission needs to vigorously inquire, should the sanctity of protecting foreign intelligence sources be recognised, when – arguably – evidence exists to suggests that it may have been this very same foreign intelligence that swayed the SIS into putting its time and resources into the wrong targets, thereby deflecting its attention from the real and imminent threat.

Usually, when classified evidence is relevant to proceedings, a ‘special advocate’ is appointed to review the documentation, and report to the court about it. If such an advocate is appointed to that task by the Royal Commission, their terms of employment need to indicate that one of their prime tasks would be to determine whether the claim to secrecy for each item is, in fact, justified. To do its job prioperly, the Commission needs to give itself the means to challenge and evaluate in public the relevant material, including the testimony of the security services leadership.

Footnote: Justice William Young. The last time we had a serious case of the SIS barking up the wrong tree on a security issue was in the early 2000s, when the agency convinced itself it had caught an Algerian refugee (Ahmed Zaoui) that it then excitedly treated a security threat to New Zealand equivalent to the likes of Osama Bin Laden.

This was virgin territory for New Zealand, and much of the spadework in establishing the court’s role in security matters was done via the High Court judgement by Justice Williams and – in a major Court of Appeal judgement in October 2004 - by Justice Susan Glazebrook. One point of raising this history is to suggest that among the current Supreme Court bench of justices, Glazebrook would (arguably) have been an even better choice to head this Royal Commission, given her proven grasp of how the role of security agencies intersect with competing rights and responsibilities.

In fact, much of the Supreme Court’s subsequent ruling inn the Zaoui merely followed in the footsteps she had laid out so cogently in the Court of Appeal.

Justice William Young was one of three judges sitting in the Court of Appeal on an appeal by the Crown against what had been a previous victory by the Zaoui team in the High Court. The High Court ruling had established ground rules for how the SIS Inspector-General should exercise his powers under his own legislation, mindful of the lawful SIS role with respect to security threats, and also mindful of Zaoui’s own competing rights under the Refugee Convention. The Crown unanimously lost its appeal, and Young’s contribution to the judgment largely deferred to the views of his colleagues, justices Anderson and Glazebrook.

No doubt though, Young has had a highly successful career both before and after his elevation to the bench of our highest court, and there is no suggestion that he is under-qualified for the task ahead.

The other case involving Young that comes to mind was his dissenting role in the Right to Life NZ case brought against the Abortion Supervisory Committee. This case was fought over the extent to which the decisions of certifying consultants to approve abortions could be opened up to challenge and to review. This important case was analysed in Werewolf by Alison McCulloch in 2012, as a warning about the vulnerability of New Zealand’s current system of abortion rights. Basically, a conservative statute has been interpreted liberally but at any point, the legal balance could tip the other way and overturn the single precedent on which the entire edifice currently depends.

By a razor thin majority decision in the Right to Life case, the Supreme Court continued to (largely) exempt the decisions of certifying consultants from review. In their dissenting opinion, justices Young and McGrath argued that the Committee’s statutory powers were wide enough to seek information retrospectively from certifying consultants about their diagnoses of individual cases.

Questions, Questions

If the SIS is casting around for a theme song as it prepares for the Royal Commission investigation, maybe this old Graham Parker track would be as good as any for their purposes. There’s a line here about the need to throw tidbits to the crowd… and the couplet that goes “who does this treachery I shout with bleeding hand/Is it you or is it me? /well, I never will understand” seems a pretty accurate description of the SIS response to date.

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