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

There is now an agreement, and I welcome it, by the Attorney-General and the Solicitor-General to review the Terrorism Suppression Act. … I am glad that at last we are having a review of that unjust Act.

A result of the Urewera raids was legal and bi-partisan political recognition that the TSA required further amendment, particularly with respect to domestic terrorism. De­spite this, the TSAA passed with 108 votes to 13 on 13 November 2007 and the Law Commission’s review of the TSA was deferred until the Operation-Eight judicial pro­ceedings had been completed92 There is no further evidence of CT reform efforts in the remaining period of the Labour’s term, which was diverted by the Global Financial Crisis (GFC). The TSA remains essentially unchanged today.

Ultimately, critique on the TSA is mixed, but for the most part critical although reasons for the criticism vary. The creation of a separate regime to the general criminal law has been fiercely criticised as “unjustified” from a legal perspective.93 Matthew Palmer submitted that motive, a key component of New Zealand’s definition on terrorism, “is not a factor that justifies the creation of a separate offence; instead, it is a factor rele­vant to sentence”.94 This is a criticism in common with lawyers internationally, with the previous United Kingdom (UK) Independent Reviewer of Terrorism Legislation, Max Hill QC, stating “in an ideal world we wouldn’t have specific terror offences.”95 In a piece published the same month as the Christchurch attack, Elana and Andrew Geddis described the TSA as having “virtually no practical effect” other than to provide for an expanding list of terrorist designations, as “its wording has been found seriously want­ing.”96 They consider the general criminal law has proved “flexible enough to capture and respond” to examples of terrorist offending.97 In 2003 John Smith produced a rare positive review, concluding that the TSA “effectively balances international demands, national needs, and individual rights.”98 However, John Battersby, Rhys Ball and Nick Nelson disagree asserting that “controversy has haunted this Act; its definition, design, tautology and application have all been problematic.”99 Battersby argues further, that in failing to act after Operation-Eight, the New Zealand Government squandered “an opportunity and a mandate to address our clear legislative shortcomings and to develop a political understanding of what constitutes terrorism.”100 In practice, the few examples of possible terrorist offending prior to the Christchurch attack have been exclusively addressed through the application of general criminal law provisions. Hesitation by police to test the application of the TSA on less conclusive or possible inchoate terrorist offending has contributed to this reality.

2008 – 2017: Prevention of foreign terrorist fighters

The first term of the John Key National Government largely lacked engagement on terrorism-related matters. Only one significant contribution occurred when Cabinet “refined” the process for “advancing requests to designate non-UN listed terrorist enti­ties,” which became operational on 10 February 2010.101 National Party Members had