A Tourniquet on Terror – The Counter-Terrorism Legislation Bill

By Isaac Lam

A New Age of Terror

New Zealand is usually seen as an oasis of relative stability, isolated from the biggest threats to world peace.

Yet, barely a year into her second term, Prime Minister Jacinda Arden has already had to address the state on two terror attacks which made international headlines.

The Government’s response to the attack in Christchurch on 15 March 2019 was the Counter Terrorism Legislation Bill. Following the recent events at Lynn Mall, the Bill was expedited and has since come into force.

The Bill’s introduces a new criminal offence – the planning and preparation of a terrorist act. This change remains controversial even in passing – touted as long overdue by its proponents, but draconian by its critics.

Another concern is whether it will protect us from the rapidly evolving threat of digital violent extremist groups and their self-radicalised actors, like the Christchurch murderer. But perhaps asking that of it is too much.  

The Change

The Bill criminalises the planning and preparation of a terrorist act. It amends the Terrorism Suppression Act, including “preparations, credible threats, and attempts” into the criminal offences defined as terrorist acts.[1]

This gap was originally highlighted as a concern by the royal commission of inquiry into the Christchurch mosque attacks. It has also received media attention more recently, following the Lynn Mall attack.

A year prior, the Crown had attempted to charge and imprison the Lynn Mall attacker under the Terrorism Suppression Act for planning a terrorist attack. Their prosecution failed as the High Court found that no such offence existed at the time.[2]

Will It Work?

Had the authorities been able to charge the Lynn Mall attacker for planning, he would have been removed from the community before he could carry out the attack. In this sense, the existence of a planning offence would have prevented Lynn Mall.

This may only have been possible because existing counter-terrorism legislation was drafted with situations like these in mind. The attacker was radicalised by propaganda materials from ISIS, a well-known designated terrorist entity under the law, and had been subject to close surveillance for years.[3]

Outside the Fringes: Lone actors

But what happens when a threat defies the stereotypical post-9/11 conceptions of terrorism? New Zealand witnessed the bloody aftermath of letting a white nationalist lone actor terrorist slip under the radar, in Christchurch on March 15, 2019.

The planning of the Christchurch attack went completely undetected by the authorities. The Royal Commission found that authorities could not have known about the attack more than 8 minutes before it began.[4]

The Commission’s report found an unjustified inordinate concentration of surveillance on Islamic extremist terrorism. They emphasised, however, that the attacker’s planning and preparation did not slip by authorities due to negligence alone.

They called the attacker’s planning and preparation “fragmentary”, saying that his observable behaviour provided little indication of an attack in the works.[5] They emphasised that attacks by lone actors “are difficult for intelligence and security and law enforcement agencies to detect and stop”.[6]

Would a planning and preparation offence have done anything at all, under such circumstances? After all, to charge someone with an offence, there must be sufficient evidence. 

The Standard and Discretion

For a planning and preparation offence, the prosecution must prove that the alleged planning or preparation conducted is for an act that, if carried out, would amount to a terrorist attack.[7]

There is no further clarification of what would meet the standard for ‘planning’. In the High Court case involving the Lynn Mall attacker, the prosecution raised the possession of objectionable ISIS propaganda, and the possession of a knife in a public place.[8]

In some ways it is ideal that this standard should be flexible and allow some discretion. The threats posed by terror are fluid and evolve with technology; this flexibility helps future-proof the law.

There is also little concern that this discretion would lead to unwarranted charges, as intention, a credible threat, or an attempt to carry out the act must also be proven.[9] This overall leads to a high bar for prosecution.[10]

Surveillance Concerns

Where this discretion gives rise for concern, is what it signals for surveillance. An emphasis on the possession of objectionable material is unlikely to change the current propensity to over-survey Arabic and Muslim Kiwi communities, and under-survey alt-right and misogynistic extremist groups.

Part of the challenge of detecting lone actors is how they are not radicalised by a singular individual or entity. Lone actors are radicalised by engaging with online communities where they meet like-minded individuals, egged on in echo chambers unhinged by the veil of anonymity.

The reality is that most radicalisation today occurs through access to discussions on forums, anonymous imageboards and social media.[11] It is difficult to impose an equivalent to possessing disseminated propaganda on this radicalisation pathway.

Execution Problems

Such access is not only more difficult to police, often requiring the cooperation of foreign commercial entities[12], but also needs to be balanced against rights to freedom of information. It also needs to be considered in the context of the far-right media platforms where the signs of possible attacks are likely to emerge.

Chris Wilson, head of the Masters of Conflict and Terrorism program at Auckland University, notes that only a tiny proportion of those who hold extremist views go on to commit violence.[13] This makes it difficult to justify criminalising access to certain online communities in the same vein as possessing objectionable material.

It also makes it harder to envision actions on social media like joining an extremist group or liking an extremist post proving enough to support a planning or preparation charge. Even making a potentially inciting comment may be hard to press charges with, given the prevalence of ironic ‘shitposting’ in these online communities.[14]

The lack of clarity on what counts as planning or preparation will limit the ability of authorities to survey and pre-emptively deal with potential self-radicalised, far-right lone actors.

Particularly where far-right threats are concerned, it still leaves too much discretion. Many white nationalist groups disguise their propaganda as mundane-seeming media like memes or cooking shows,[15] which will be difficult to prosecute for without clearer guidelines.

The Realities

In such uncertain times, there is only so much precedent for what we can expect moving forward.

The March 15 attacks have radically shaken our country’s psyche. In tandem with the recent Lynn Mall attack, it should have sent a strong message to New Zealand security services: that terror comes from a variety of threats, which all warrant equally serious attention.

On the other hand, the government does not have a stellar track record being mindful of minorities when exercising their counter-terrorism discretion. As recently as 2007, counter-terrorism powers were used to controversially raid Tūhoe Maori in Urewera.[16] The Human Rights Commission received 31 complaints of police actions during the raids, and most charges against those detained were eventually dropped on grounds of inadmissible evidence.[17]

Being Practical

Ultimately, it may be best to not expect too much from the Counter-Terrorism Legislation Bill.  

The Terrorism Suppression Act was introduced in the wake of 9/11, to support the American-led war on terror.[18] Its frameworks were designed with Islamic extremist militants in mind; not today’s greater threat of lone actors.[19]

These amendments merely patch the Terrorism Suppression Act with what always should have been there, according to international obligations New Zealand has owed since 2001.[20] They do not substantially update our counter-terrorism laws to keep pace with the terror threats we face today.

This Bill is not likely to, by itself, prevent all future lone actors from successfully launching a terror attack in New Zealand – especially not far-right extremists radicalised online, like the Christchurch attacker.

To give due credit, however, other initiatives outside of counter-terrorism legislation, like the Department of Internal Affairs’ new Digital Violent Extremism team, have been set up to confront these new threats.[21]  That said, the reality is that no one is sure how to best deal with those threats just yet.[22] We can only hope that our government realises too, that in the ongoing struggle to contain terror’s many amorphous threats, we still have more to figure out.

If you encounter potential violent or extremist content online, you should lodge a report with the DIA (https://www.dia.govt.nz/Countering-Violent-Extremism-Online), or call the Police at 111 if you or someone you know is in immediate danger.

The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.

Featured image source: Wikimedia commons

[1] Counter-Terrorism Legislation Bill 2021(29—2), cl 7.

[2] Sarah Robson “LynnMall terrorist's name suppression revoked, but remains secret for now” (4 September 2021) RNZ https://www.rnz.co.nz/news/national/450739/lynnmall-terrorist-s-name-suppression-revoked-but-remains-secret-for-now.

[3] Sam Hurley “Auckland mall terrorist was on bail, faced assault charges for attacking prison officers” (4 September 2021) NZ Herald https://www.nzherald.co.nz/nz/auckland-mall-terrorist-was-on-bail-faced-assault-charges-for-attacking-prison-officers/NS4PTGALACSNGTO7Q3TXL22AD4/.

[4] Royal Commission of Inquiry Ko tō tātou kāinga tēnei - Summary of the report of the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019 (Royal Commission of Inquiry into the terrorist attack on Chrsitchurch mosques on 15 March 2019, 8 December 2020) at 13.

[5] At 13.

[6] At 13.

[7] Counter-Terrorism Legislation Bill 2021, above n 1, cl 9.

[8] Robson, above n 2.

[9] Counter-Terrorism Legislation Bill 2021, above n 1, cl 7.

[10] Chris Wilson “Why late-stage planning of a terror attack should be an offence” (15 September 2021) NZ Herald https://www.nzherald.co.nz/nz/chris-wilson-why-late-stage-planning-of-a-terror-attack-should-be-an-offence/QX6SOTYNNJQ52J4RALL66JNC2M/.

[11] Chris Wilson “Greatest risk of extremist violence in NZ comes from lone actors” (1 July 2021) NZ Herald https://www.nzherald.co.nz/nz/chris-wilson-greatest-risk-of-extremist-violence-in-nz-comes-from-lone-actors/5FNMXLXW6VOSH3N6FV5ILCD4GQ/.

[12] Derek Cheng “Facebook regretful but not sorry over March 15 terrorist attack footage” (24 September 2019) NZ Herald https://www.nzherald.co.nz/nz/facebook-regretful-but-not-sorry-over-march-15-terrorist-attack-footage/F3UVKVCBGZXNDJRQ7MSNICR37I/.

[13] Above n 10.

[14] Wilson, above n 11.

[15] Cynthia Miller-Idriss Hate In the Homeland: The New Global Far Right (Princeton University Press, 2020) at 69.

[16] (29 September 2021) 754 NZPD https://www.parliament.nz/en/pb/hansard-debates/rhr/combined/HansDeb_20210929_20210929_40.

[17] Jo Lines-MacKenzie “Tuhoe community 10 years after the Urewera raids” Stuff NZ (14 October 2017) https://www.stuff.co.nz/national/95416168/tuhoe-community-10-years-after-the-urewera-raids.

[18] Te Ara – The Encylopedia of New Zealand “Kōrero: Terrorism and counter-terrorism” https://teara.govt.nz/mi/terrorism-and-counter-terrorism/page-2.

[19] Ministry of Justice “Strengthening New Zealand’s Counter-Terrorism Legislation” Ministry of Justice  https://www.justice.govt.nz/assets/Documents/Publications/RIA-Terrorism-Suppression-Act-part-2.pdf/

[20] Wilson, above n 10.

[21] Department of Internal Affairs “Countering Violent Extremism Online” Department of Internal Affairs https://www.dia.govt.nz/Countering-Violent-Extremism-Online.

[22] Jeffery C. Connor and Carol Rollie Flynn “What To Do About Lone Wolf Terrorism? Examining Current Trends and Prevention Strategies” Foreign Policy Research Institute (26 November 2018) https://www.fpri.org/article/2018/11/what-to-do-about-lone-wolf-terrorism-examining-current-trends-and-prevention-strategies/.