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

expressed “profound concern” at the previous process during the drafting of the TSAA in 2007;

Given our geographical proximity and relatively open borders, it is simply not credible in our eyes that New Zealand could have made no UN 1373 designations over a period when Australia has designated 88. … Clearly, CT initiatives are being pursued with significantly differing degrees of force and diligence as between this country and Australia. We are forced to the conclusion that New Zealand has been seriously negli­gent in this respect.102

While not a legislative change per se, this designation process for terrorist entities has been the primary function of the TSA until 2019. It is also a rare example of proactive change driven by ongoing engagement with terrorism issues.

The Key Government’s second term could be characterised as avoidant. In 2012, the Operation-Eight trials came to a close, however the Law Commission’s review of the TSA was dropped from their work programme.103 Justice Minister Judith Collins ex­plained the review was unnecessary given that,

the initial concerns arising from the Urewera case have been addressed by the passage of the Search and Surveillance Act 2011, and there does not appear to be any substantial or urgent concerns arising from the operation of the Act.104

Collins’ comments ultimately miss the point that the SG had refused to charge offenders under the TSA due to clear problems with its wording, which the Search and Surveillance Act did not alleviate. This is of substantial concern as the judiciary was unable to comment on the TSA’s inadequacies in the same way it could critique search and surveillance powers. Further, the ‘operation’ of the TSA could hardly have illuminated any urgent concerns given it had, to date, never been used.

Terrorism became re-prioritised in 2014 with the rise of ISIL and the raising of New Zealand’s national threat level from very low to low.105 A number of notable events oc­curred in quick succession; (1) The 20 September 2014 election saw the National Party win 60 out of 121 seats106 (2) On 24 September, UNSC Resolution 2178 required states to “prevent and suppress the recruiting, organising, transporting or equipping of indi­viduals” who travel to another state for the purpose of terrorism and/or their financ­ing.107 (3) Shortly after the election, Cabinet requested a review on the interim measures that were needed to address this raised risk ahead of the statutory review on intelligence capabilities.108 (4) The Countering Terrorist Fighters Legislation omnibus Bill (CTFL) passed with 94 votes to 24, gaining royal assent only 17 days after being introduced on November 25.109 (5) New Zealand began its term as a non-permanent member of the UNSC in January 2015.