A Sea-Change On Government Attitudes To Protesting

[Author’s Note: This piece originally appeared in a September edition of my Sex, Drugs & Electoral Rolls column for Craccum Magazine. In light of the planned Protest Flotilla actions this week timed to coincide with the US Navy’s ship-visit for our own Navy’s anniversary celebrations, I’ve chosen to reprint it here for a broader audience]

In 1973, New Zealand Prime Minister Norman Kirk sent our frigate, the HMNZS Otago, to the French nuclear testing site of Mururoa Atoll. On board was the Kiwi Cabinet Minister Fraser Coleman. The stated – and, indeed, officially mandated – purpose of those two hundred and forty three men was to put themselves in the path of foreign military activity, on a ship, as a protest action.

This was a pretty proud moment in New Zealand history – a real David vs Goliath sort of sentiment pervaded domestic remembrance of that time a small group of Kiwis took on the military (and, earlier that year, legislative) might of an Old World nuclear-armed former colonial power.

I open this piece by referencing the exploits of the HMNZS Otago (and, immediately subsequent to this the HMNZS Canterbury) not simply because it is an incident worth remembering in these modern days of our Government tiptoeing around the internationally expressed wills of the Great Powers. But instead, because there is a clear, present, and utterly immense difference in terms of both principle and courage between what the Kirk Government sought to do 43 years ago, versus what the Key Government seeks to do today.

In case you missed it, the Nats are presently attempting to push through legislation which would criminalize protesting at sea. In fact, it’s worse than that. With the bill as presently drafted, you would be liable to be labeled a “terrorist” if you disrupted the actions and activities of a foreign military vessel.

You know, like we used to rightly celebrate and lionize doing in both the 1970s and 80s.

Government MP David Bennett supplied the rationale for deeming maritime protesters to be terrorists:

“This is a foreign power’s vessel – a military vessel. You’re getting in the way of it – so it’s a terrorist act on a foreign country, isn’t it.”

That’s a pretty pithy piece of legal reasoning. In the botanical sense of the term ‘pith’, of course, wherein it refers to the significantly less desirable bit under the rind of a fruit which surrounds the morsels you actually want to eat. Sounds like David Bennett all up.

Now here in New Zealand, we know a thing or two about nautical acts of terrorism committed against foreign countries. 21 years ago, the French carried out exactly such an act in our waters against the Greenpeace flagship, the Rainbow Warrior. (As a point of historical trivia, it had been preparing to depart for Mururoa, to once again continue the mission of observation and disruption against illegal French nuclear testing begun twelve years before by our very own Navy)

What this bill therefore seeks to do, by apparent conscious design, is place legitimate protest actions such as those carried out in New Zealand waters against American naval vessels in the eighties upon the same opprobium-heaped pedestal that we customarily reserve for craven and cowardly acts of actual terrorism like the Rainbow Warrior bombing.

And while this is a singularly egregious situation, it’s not entirely accurate to state that the criminalization of potentially significant dissent is an exclusively National-produced phenomenon. The Terrorism Suppression Act brought into force by Labour in 2002 also has some problematic provisions, including 5 (3) (d), which in concert with 5 (2) (b), could effectively have rendered something as innocuous as the anti-TPPA road and motorway blockade action which took place earlier this year an apparent act of terror.

Even though the Terrorism Suppression Act contains a dedicated subsection (5 (5)) which seeks to clarify that the mere fact of an action being protest-motivated is not, itself, grounds to call something a terrorist act … the fact that such a clause was necessary in the first place goes some ways to illustrate just how problematic previous New Zealand Government efforts at legislating against terrorism (or, more accurately, to punish ‘terrorism’ post-facto) have been.

Some cynics might even conclude that exploitable ‘flaws’ in the legislation such as that outlined above would constitute, as an IT professional would say, “a feature, not a bug”.

And lest we think that the New Zealand security apparatus, police, courts, and other arms of state are far too ‘benevolent’ or ‘Kiwi-casual’ to want to do dodgy things with the powers we give them … consider the illegal spying which was carried out on Kim DotCom at the behest of what amounts to an ineluctable combination of a foreign government and big-name overseas corporate interests. We literally had our foreign intelligence service using military-grade hardware to stake out an eccentric German tech-magnate over a case of copyright infringement of all things.

The miscellaneous miscreantery of the NZ Deep State doesn’t stop there, either.

I still vividly remember in 2013 getting a visit from the detective who’d been second in command of the Urewera Raids, accompanied by an intelligence service spook. Apparently, the fine boys down at the counter-terrorism unit of the New Zealand Police had had me under wiretap surveillance for the previous eighteen or so months. The reason why? We think they were trying to get Winston for something which they thought I was involved in (in connection to the 2011 Tea Tapes scandal) – and they thought that monitoring my communications would prove it. The *official* reason why? I was allegedly a “threat to national security”.

My first thought afterwards was wondering whether there was supposed to be an apostraphe and an S after the word “National”.

Followed swiftly after by a sense of mounting horror as I realized that pretty much everything I’d said over the last year and a half via facebook messenger, or through txt had quite possibly crossed the desk of at lest one nameless analyst somewhere in the New Zealand security apparatus and/or Police. An acrimonious breakup with a girlfriend (and the resultant emotional fallout), personal secrets confided in close mates … all of it was now in the databanks of the state and subject to easy, at-will persual by those with the right security clearance.

And all because I just happened to be in the right place at the right time outside a cafe in late 2011.

(Also, if you’re wondering just why I got a housecall – the previous relevant legislation governing search and surveillance mandated a duty to report to the target what had happened once the surveillance was lifted – something which is still somewhat present in the 2012 act which replaced it at 61 (1) (c).

This is apparently a check and/or balance for their power – knowing that some judge, somewhere, will force them to front up to explain to the person under surveillance that all their deep dark secret-communications are now Official Knowledge. I guess the idea is that the (potentially mutual) embarrassment of getting the wrong guy and then having to look them in the eye and TELL THEM that, is supposed to keep our security intelligence services in line. Riiiiight.)

The reason why I cite this incident is because it handily demonstrates that i) laws put in place to protect us from terrorism can and have been misused even very recently in the past; ii) that the specific forms of that misuse very quickly cross over into the realms of the political; and iii) that even seemingly innocuous or rather small-scale acts of potential dissent (like standing outside of a cafe in the presence of a few TV cameras) can quite quickly conjure the Heavy Hammer of the State coming down upon you.

When we talk about not just criminalizing – but ‘terrorizing‘ – protests, we go rather beyond the simple maintenance of public order.

We instead send chilling messages with chilling effects upon certain aspects of public participation in the hallowed apparatus of our democracy.

As I’ve said earlier, these increasingly seem to be “a feature, not a bug”, in the minds of many of our august policy-makers. With the Key Government preparing to lionize itself for effectively normalizing military relations with the US, sanctified by a potentially nuclear-armed ship-visit (you know … EXACTLY the sort of thing we rose up in (maritime) protest against back in the ’80s) – it’s not hard to see just whom this new kind of “terrorism”-fighting legislation might be aimed at to please.