Author: Webb, Sheridan
Published in National Security Journal, 09 April 2021
The bill was introduced on April 17 2001,59 received no public submissions, and notwithstanding one issue raised by the Regulations Review Committee, only minor stylistic changes were requested ahead of its second reading in August.60
The 9/11 terrorist attacks drastically pivoted the international approach to terrorism. New Zealand’s initial response was to take stock, with the Select Committee officially deferring the Terrorism (Bombings and Finance) Bill on 13 September 2001.61 On 26 September, MFAT advised that it was “very appropriate and highly desirable for New Zealand itself to proceed quickly with enactment of the Bill in order to underline our own strong condemnation of international terrorism and commitment to the framework of international anti-terrorist conventions” and that early action “would not preclude further long-term initiatives.”62 The adoption of UNSC Resolution 1373 on 28 September resulted in a wider range of legislative options being considered, particularly those that were achievable within Resolution 1373’s 90 day reporting timeframe. “Because the requirements of this resolution were within the scope of the original Bill, the Select Committee at the request of the Government agreed to incorporate them in the legislation,” transforming the Bombings and Financing Bill into the Terrorism Suppression Act (TSA) 2002.63 New Zealand’s first, and only, genuine attempt at defining terrorism is found in Section 5. While Select Committee received 144 public submissions on proposed amendments,64 the TSA passed on 8 October 2002 with a majority of 97 votes.65
The development of the TSA is the clearest example of New Zealand’s legislation reacting to proximate events and being driven by international obligations. There are five points from the TSA drafting process to highlight: Firstly, in the 25 October 2001 draft, PCO had expressly included “planning” within the definition of “a terrorist act”. Clause 5(5) would have read;
there is some carrying out of an act for the purposes of subsection 2(b) if any 1 or more of the following occurs: (a) planning or other preparations to carry out the act: (b) a threat to carry out the act: (c) an attempt to carry out the act: (d) the carrying out of the act.66
However, this clause was removed in the next available version, dated the 6 November 2001.67 Secondly, the TSA was considered an “urgent preliminary measure,” where further “supplementing”68 legislation would be required “to give full effect” to the UN resolution.69 The TSA had been drafted with international obligations in mind, however the Ministry of Justice (Justice) characterised the subsequent 2003 Counter Terrorism (CT) Bill amendments as being the “result of a wide-ranging review by government agencies of offence and penalty provisions and investigative powers that was conducted in the months following 11 September, to identify potential gaps that might be exploited by terrorists.”70