Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021
and lacks even express personal endorsement of the Prime Minister121 While there has been a legislative review of the TSA since 2019, it has been internally done (rather than by the Law Commission), it has not surfaced publicly, makes up one part of a wider work programme, and it’s scope is unclear.122 When considering that New Zealand is on the cusp of a recession on the back of the largest health crisis in living memory, the developments undertaken by the Ardern Government since March 2019, which are quantifiably more than any other government since 2007, could be considered enough in terms of satisfying public expectations, and protecting against reputational damage.
Thirdly, New Zealand governments have successively lacked an appetite to proactively address terrorist issues. This is exemplified by developments in 2003, 2005, and 2007, where select committees and officials were careful not to relitigate issues from previous legislative processes unless there was a clear policy inconsistency. There are also multiple periods where terrorism has fallen off the agenda entirely. There are no Archive New Zealand files between 1990 and 1997 from the Bolger National Government, notwithstanding restricted Defence and MFAT reporting. There is another ‘cool’ period during the Key National Government, between 2007 and the emergence of ISIL in 2014. Lengthy periods of inactivity reinforce feelings held by practitioners, that enormous effort is required to spark domestic change in a low-threat environment.123 The cancellation of the 2012 review also indicates a lack of commitment from the Key National-led government to engage on events that occurred before their term. This lack of consistent engagement opens New Zealand up to significant risk. It begs the question as to whether we have appropriate measures in place to ensure that New Zealand is not only maintaining compliance with international obligations, but that our approach is fit for purpose and flexible enough to cover a dynamic terrorist threat.
Fourthly, there is also an emerging trend where CT legislation is being developed separately to the TSA. Despite enormous change in international context, the past two governments have largely avoided the TSA during the development of the CTFL and Control Orders Bills. It is unclear whether the pursuit of such separate and specific legislation has been to enable this disengagement. A consequence of this widening framework is that a review on CT legislation can no longer be limited to merely the TSA, as the Government has to be assured that all legislation is sufficiently linked up. This study has shown that review provisions are a legislative tool that forces proactive action. Following in the footsteps of the UK and Australia and establishing an independent reviewer of terrorism legislation may be a more appropriate method to drive consistent engagement with this expanding framework. During the Control Orders Bill, the Privacy Commissioner noted that the independent reviewers of terrorist legislation provided “important insight and commentary on the legal regime.”124 The RCOI report recommended the establishment of a national intelligence and security agency “to deliver a more systematic approach” to addressing and responding to violent