Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021
“I have concluded the legislation is unnecessarily complex, incoherent,
and as a result, impossible to apply to the domestic circumstances….
I am of the view that at this stage there is insufficient evidence to establish
the very high standard required that a group or entity was planning
or preparing to commit a terrorist act as that term is defined in the
legislation. ”88
The central issue with New Zealand’s definition is that, effectively, for ‘a terrorist act’ to have occurred, it must physically be carried out.89 It is unlikely that planning or threatening to carry out a terrorist act could evidentially satisfy the standards of the Act, and as a consequence, using general criminal law for the prosecution of lesser offences has provided greater certainty to law enforcement and justice agencies.90 Further, in this New Zealand appears to be in breach of international obligations, as Article 2(d) and (e) of UNSC resolution 1373 requires the prevention, enforcement and prosecution of inchoate terrorist offending.
On the same day that SG David Collins delivered his pointed comments, the TSAA began its third reading. The following four excerpts from ensuing debate revealed awareness of problems with the TSA:91 (1) Winston Peters, the Minister of Foreign Affairs, acknowledged that the Act “will obviously need further improvement” while moving the Bill to be read. (2) National MP John Hayes prioritised New Zealand’s compliance with international law;
In an ideal world I would say that the smart thing to do is to put this legislation on ice while we go back and study the SG’s report … [however] the reality is that we are up against a deadline. We have to pass this legislation … because if we do not, we will be the only country out of about 196 countries that has signed up to this legislation [convention] through the UN, but has not put it into effect.
(3) National MP Murray McCully criticised the Government’s contributions, despite supporting the Bill generally;
The SG has used the word “incoherent” to describe some provisions of the Act, and at least implied that if Parliament was attempting to legislate against domestic terrorism then it failed. … If the threat of domestic terrorism was not on Parliament’s mind back in 2002, the question that now arises is whether recent events should cause this Parliament to have such a threat on its mind today.
(4) Green MP Keith Locke, who voted against the Bill, referred to expected Law Commission Review;