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Counter-Terrorism Legislation Bill & why we need to get it right

There is a little bit of noise coming from some quarters about whether we should be touching our anti-terrorism / counter terrorism laws with the age-old argument popping up whatever amendments that are made will somehow play into someone’s human rights.

And to be frank, they are correct. With this sort of legislation, whether it be anti-terrorism or counter terrorism there will always be people who believe that somehow their rights might be impacted – such as the regular concerns about potential breaches of freedom of speech, freedom of association, the right to join this group or that group – but to be brutally frank with you its not as if we are talking about the Maori Women’s Welfare League, the local bowling club or the local bike riders group.

We are talking about those who subscribe to terror-based ideology and ideals – we are talking about people that basically, just do not agree with the way our country works, the way we live, work and play – and because of that the truth is we have people amongst us that would wish to inflict harm – even kill. And not just inflict harm on those they perceive as representing the State, Government or Crown – but often they are every day, innocent people just living their lives. Because somehow in their warped minds and futile ideology they believe that the way we live those lives represents those in power.

We saw this here in Aotearoa with the brutality that was the 15th of March 2019 – when a white supremist from Australia murdered innocent men, women, and children because he just didn’t agree with their faith. Then again in September of this year we had another foreign national who came to this country and inflicted terror on innocent shoppers just going about their business at the supermarket. These laws are designed for them – not the do-gooder brigade that would have us tied up in endless hui till the next time this happens waxing lyrical about their rights – its not their rights that are under consideration here – it’s the rights that those that would murder us appear to still have.

So, lets take a close look at what is being proposed here: The Bill amends the Terrorism Suppression Act 2002 and Terrorism Suppression (Control Orders) Act 2019. The proposed changes include:

  • making amendments to clarify the definition of a “terrorist act”;

  • create a new offence to criminalise planning or preparation for a terrorist act;

  • create a new offence to more clearly criminalise terrorist weapons and combat training;

  • create a new offence for international travel to carry out terrorist activities;

  • expand the criminal offence of financing terrorism to include broader forms of material support; and

  • extend the eligibility for a control order to include individuals who have completed a prison sentence for a terrorism-related offence if they continue to present a real risk of engaging in terrorism-related activities.

It’s the second bullet point that has caught our current laws wanting – the fact is the latest terrorist couldn’t be kept away because our current laws did not include “preparation for a terrorist act”. In these amendments that is resolved.

But this is where we need to be careful because of what I call “unintended consequence”. The law of unintended consequences, often cited but rarely defined, is that actions of people—and especially of government—always have effects that are unanticipated or unintended.

And so, to the example of the Tuhoe Raids and the concerns that Maori might have about amendments and changes – the very real fear that an “unintended consequence” of amendments to counter-terrorism laws might lead to activists being caught up – and lets be blunt here Maori have a proud history of activism in relations to our rights and interests. Undue or unnecessary Police surveillance, intelligence gathering and so on are all very real concerns for Maori that need to be alleviated as these amendments traverse the Parliament.

That can be done simply by further clarification in one part of the updated Bill before the Select Committee:

amend the heading to section 6A, to help to make clear that the section covers only credible threats, attempts, and carrying out (because the other way in which new section 5A(1) provides that a terrorist act may be carried out—planning or other preparations to carry out the act—is dealt with in new section 6B inserted by clause 9)

Therefore, that planning, and the definition does not extend to party political acts or the right of tangata whenua to protest. While this could be made clear in policy the risk with policy is not how it is necessarily interpreted in the same way as a law might be by the Courts.

The other aspect of “unintended consequence” is being sure that any amendments don’t unduly impact on other interloping legislation – in other words being certain that they align with the Human Rights Act, Privacy Act and so on. Importantly this is also an opportunity for the Government to address any amendments or work that might need to be done in terms of the Mental Health (Compulsory Assessment and Treatment) Act 1992 and sectioning as well as the Coroners Act 2006.

In relation to the Mental Health (Compulsory Assessment and Treatment) Act 1992 Sections 8B through to 15 should be assessed in relation to assessments and Section 16 should be reviewed in case of any additional interloping arrangements in relation to the review of an assessment by a judge. Part 2, Compulsory Treatment Orders might also need to be reviewed in the advent that new control powers around sectioning to remand a terror suspect in custody would then also need to consider the treatment while on remand was available.

Therefore, it is important that these amendments are made and the Parliament does its job to keep all New Zealanders free from terrorism. The cautionary note will to be ensure that never again will Maori be treated in that same vein for standing up for our rights and aspirations and that the risk of unintended consequence in terms of interloping legislation and potential downstream adverse effects be removed.

Context and history:

The Justice Committee of the New Zealand Parliament has previously called for submissions on the Counter-Terrorism Legislation Bill. This bill seeks to better prevent and respond to terrorism and associated activities through a number of changes, including amendments to the Terrorism Suppression Act 2002, the Search and Surveillance Act 2012, and the Terrorism Suppression (Control Orders) Act 2019.

The bill would create several new offences. It would:

  1. criminalise travel to, from, or via New Zealand with the intention to carry out a specified offence in the Terrorism Suppression Act 2002

  2. criminalise planning or preparation for a terrorist act (and apply warrantless powers of entry, search, and surveillance to that offence)

  3. more clearly criminalise weapons training or combat training for terrorist purposes.

  4. Other changes that the bill seeks to make include:

  5. criminalising wider forms of material support for terrorist activities or organisations

  6. updating the definition of terrorist act to improve clarity

  7. extend the control orders regime so that individuals who have completed a prison sentence for specified offences related to terrorism may be subject to the regime if they continue to present a real risk of engaging in terrorism-related activities

Matthew Tukaki, Chair of the National Maori Authority


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