A weak spot in the armour of counter-terrorism legislation had been identified, but not fixed in time to prevent the Auckland supermarket attack by an Isis sympathiser

The Islamic State extremist shot dead by police after an Auckland terror attack had previously exposed a gap in New Zealand’s counter-terrorism law which Parliament was preparing to close.

Speaking after the man had stabbed six people at a New Lynn supermarket, leaving three in critical condition, Prime Minister Jacinda Ardern said the Crown had “utilised every legal and surveillance power available to us to try and keep people safe from this individual”.

“Many agencies and people were involved and all were motivated by the same thing – trying to keep people safe.”

The NZ Herald reported on Friday the man had previously been arrested for allegedly planning a ‘lone wolf’ knife attack – but was only prosecuted on lesser charges of possessing Isis propaganda that had been deemed objectionable, due to New Zealand’s lack of so-called ‘precursor offences’ which can cover behaviour in the lead-up to terrorist acts.

The High Court judge presiding over the case said that while terrorism was “a great evil” and lone wolf attacks were “far from unheard of”, the courts could not create an offence which did not exist and it was for Parliament to resolve the issue.

“The absence of an offence of planning or preparing a terrorist act (falling short of existing inchoate offences) could be an Achilles heel,” the judge said.

In its final report, the Royal Commission of Inquiry into the Christchurch terrorist attack identified the lack of precursor offences as the main shortcoming in New Zealand’s counter-terrorism legislation.

“There are…no explicit offences that catch the activity of a lone actor terrorist that is preliminary to a terrorist act.”

While there were some offences related to the financing of terrorism and recruiting members of terrorist groups, those only applied “to terrorist activity in which two or more people are involved (for example, the recruitment offence requires both a recruiter and a potential recruitee, while the financing offence requires a fundraiser as well as a donor)”. 

“They do not apply to the activities of lone actor terrorists. There are thus no explicit offences that catch the activity of a lone actor terrorist that is preliminary to a terrorist act.”

The Royal Commission said the gap in the law meant New Zealand was in breach of a United Nations Security Council resolution which required countries to “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice”. 

A number of case studies had indicated that counter-terrorism targets could have been prosecuted for precursor offences had they existed, while the absence of such crimes also made it harder for police to obtain search and surveillance warrants.

The Royal Commission acknowledged the creation of a planning offence or offences could prove controversial, saying: “It can catch a person’s preliminary behaviour (for example, research into possible methods and targets) even if their intention to engage in acts of terrorism was only conditional (for instance, as depending on future circumstances) and thus not necessarily very likely to be carried out.”

The Government sought to fill that gap in its new Counter-Terrorism Legislation Bill unveiled in April, which included a new offence covering “planning or other preparations” to carry out a terrorist act, “whether it is actually carried out or not”.

Justice Minister Kris Faafoi said police needed the authority to move quickly before a terrorist could seize “an opportune moment”. Photo: Lynn Grieveson.

Speaking at the bill’s first reading in May, Justice Minister Kris Faafoi said New Zealand’s laws needed to move with the changing nature of terrorism, as lone actors and small groups overtook larger organised terrorist syndicates both here and overseas.

Faafoi said the offence would allow police to intervene when a person or group was planning or preparing a terror attack, but would not overreach as it required “proof that the preparatory behaviours were done with the intent to carry out a terrorist act, whether that be a few hours or a few months away”.

With the new offence, police needed the ability to use warrantless powers of search or surveillance where necessary for early intervention, he said.

“Terrorist preparations may quickly escalate into a terrorist attack, particularly where a terrorist wants to seize an opportune moment, so police must be able to intervene and stop this from happening.”

National and ACT supported the bill’s first reading, although ACT MP Nicole McKee said the party was concerned about lowering the threshold for warrantless search and surveillance to support the precursor offence.

“Yes, we recognise that there are some safeguards against misuse of a warrantless search, including it being used when a serious or imminent threat is identified, and we also recognise that this power could only be exercised when a warrant could not have been readily obtained.

“But this change does have human rights implications, and there are concerns the law could be abused.”

“The Law Society is particularly concerned that ‘planning to act’ (which would be an offence) is almost indistinguishable from ‘planning to plan’ or ‘planning to attempt to act’ (which would not).”

Both the Greens and Te Paati Māori voted against the legislation, arguing the intelligence apparatus which had failed minority communities could not be trusted with sweeping new powers.

Green Party MP Golriz Ghahraman said the Royal Commission’s “damning findings of prejudice” in the spy agencies and police had not led to any meaningful change, and as a result the proposed law changes would not make the community any safer.

“To broaden the powers granted to that institution and the definition of what we call terror before we can be assured that that institution is not still riddled with the kind of prejudice that allowed the March 15th attack to happen and go unchecked is callous.”

Te Paati Māori co-leader Rawiri Waititi said the legislation would “widen the net of potential terrorist activities even more, making it even more likely that Māori and others are wrongfully accused under these laws”, while arguing that planning terrorist attacks was already illegal.

Legal issues with the proposed planning offence have been raised during the bill’s select committee process, with the Law Society saying its scope was “unclear and will be difficult to apply in practice”.

“The Law Society is particularly concerned that ‘planning to act’ (which would be an offence) is almost indistinguishable from ‘planning to plan’ or ‘planning to attempt to act’ (which would not).

“It is not clear, for example, how the facts of R v S…would fall under the new provision. This is a concern as that case is cited in the explanatory note as evidence of the problem that the new…offence attempts to resolve.”

In addition, University of Otago law professor Andrew Geddis pointed out to Newsroom that the charges the terrorist was convicted of (knowing possession of objectionable material) carried a potential jail term of 10 years, while the proposed “preparing for a terrorist attack” charge would only have a maximum sentence of seven years. 

Parliament’s justice committee is due to report back on the bill by November 5 – but it seems likely the changes will become law well before then, with National leader Judith Collins already encouraging the Government to push the bill through its remaining stages under urgency.

1.30pm, Saturday 4 September: This article has been updated with some additional comment from law professor Andrew Geddis

Sam Sachdeva is Newsroom's national affairs editor, covering foreign affairs and trade, housing, and other issues of national significance.

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