From Hijackings to Right-Wing Extremism: The Drivers of New Zealand’s Counter-terrorism Legislation 1977 – 2020

Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021

It was also vague; as explained in a concluding draft remark, that was later omitted;

we have not expressed any concluded view on whether specific provisions in the Act should be retained, repealed or amended. This reflects, in part, the fact that none of these provisions have been used.81

Consequently, the Review was criticised by Dr. Alex Conte, Treasa Dunworth and the New Zealand Human Rights Commission (HRC) for not being sufficiently “substan­tive.”82

The definition of terrorism was also outside the scope of the 2005 Review; it was only included as an “other issue.”83 While Select Committee requested advice from officials on the appropriateness of the definition, their analysis was peripheral to the Review.84 Officials did warn that if the UN’s Comprehensive Convention on International Terrorism was adopted, despite it remaining deadlocked since 1996, amendments to New Zealand’s definition of terrorism would be required ahead of its ratification. This was because the TSA’s definition was “slightly more restrictive” than the international narrative in that it requires “an additional element to be satisfied i.e. that it is also carried out for the purpose of advancing an ideological, political or religious cause.”85 Further, this additional element,

potentially limits New Zealand’s compliance with a Convention that we are already party to. … It is possible that New Zealand would be unable to prosecute an offender under the TSA for financing an act that fulfilled the Financing Convention offence provision but where it was not possible to prove that it was “carried out for the purpose of advancing an ideologi­cal, political or religious cause.”86

This issue partly arose in the Review’s subsequent legislation, the Terrorism Suppres­sion Amendment Bill (TSAA) 2007. Officials relied on the UK Independent Reviewer of Terrorism Law’s assessment of the issue and similarly did not recommend Select Committee remove the additional mens rea requirement.87

Like the No. 2 Act, the TSAA was also required to maintain compliance with international obligations, where it implemented an amended designation process. However, the Operation-Eight raids on 15 October 2007, greatly changed the narrative of the Bill. In Operation-Eight, Police raided and arrested a group of left-wing and Māori activists who were conducting armed military-style training and indicated they wished to prosecute perpetrators under the TSA. On 8 November, the Solicitor-General (SG) denied permission and communicated that the TSA was inadequate;