Only hours before the New Lynn terrorist incident last Friday, Justice Minister Kris Faafoi contacted a Select Committee chair to hurry up a new counter-terrorism law.

Both the Prime Minister and the Commissioner of Police wanted to see the legislation speeded up.

That was because they knew faults in the current Terrorism Bill had last year allowed an Isis sympathiser to go free in Auckland.

Though he had been placed under intense, constant surveillance, within hours of Faafoi contacting Justice Committee chair Ginny Anderson, the terrorist had stabbed seven people at a west Auckland supermarket.

The Justice Committee’s report is expected back in the House this week, but there are doubts about how effective its proposals might be

One key proposal to make the planning of a terrorist act illegal was developed specifically in response to the difficulties  Crown had in prosecuting the New Lynn terrorist in 2020.

But in a  submission to the Justice Committee, the Law Society said the proposal was unclear and would be difficult to apply in practice.

The Society said it was not clear how the facts of a failed charge against the New Lynn terrorist last year would have fallen under the new provision.

The Society’s Wellington President, Chris Griggs, said the law would not work and that cases would end up in the High Court and the Supreme Court arguing about it.

A member of the Committee told POLITIK that the clause had now been made clearer, but even the Prime Minister is sceptical that the legislation will be a cure-all.

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“It is purely speculative to say that even that law change would have made a difference for this particular individual. I don’t know,” she said.

The issue is whether a person can be convicted for “planning” a terrorist offence; in effect can they be convicted for planning something that hasn’t happened.

There are strong arguments for it.

The Prime Minister has been faced with heavyweight recommendations that the Government consider making planning a terrorist act an offence; first by Justice Matthew Downs after the charge against the terrorist failed last year and then last December the Royal Commission into the Christchurch Mosque Massacre.

Since 2018, the Government has been grappling with the inadequacies of our terrorism legislation which was passed in a hurry in 2001 after the 9-11 New York Twin Towers bombings.

In late 2018, the Prime Minister and the Minister of Justice directed officials to explore possible improvements to counter-terrorism legislation to ensure the legislation remained clear and effective, given the evolving nature of modern terrorism, with a strong focus on early intervention and prevention.

Cabinet agreed to the first tranche of amendments to improve the current legislation (widening the scope of the terrorist financing offence and a new offence for international travel for terrorist purposes) in November 2019.

But it was clear that wasn’t enough after problems with the existing legislation came to a head last year when the Crown attempted to charge the  New Lynn terrorist and Isis sympathiser, Ahamed Aathil Mohamed Samsudeen, with panning a terrorist act under the Terrorism Suppression Act 2002.  

Police had been taking a close interest in Samsudeen since early 2017 when they learned he was going to attempt to go to the Middle East to join Isis.

Eventually, in August that year, he was arrested at the airport after sending his family to Kuala Lumpur while he had a one-way ticket to Singapore and $4000 in cash.

He was remanded in custody, and the Prime Minister initiated inquiries into his refugee status and deportation options. His new found freedom did not last long.

Police searched his house and on June 29 2018, he pleaded guilty to knowingly distributing restricted publications. He was also granted bail.

But on August 8, he was arrested again and charged with possession of objectionable material and possession of a hunting knife in a public place.

He was sent back to prison on remand and  finally appeared before Justice Matthew Downs in July 2020, facing a charge under the Terrorism Act that  on or about August 9 2018, he “planned or otherwise prepared to cause death or serious bodily injury.” The hunting knife was the critical piece of evidence.

The act sets life imprisonment as the penalty for carrying out a terrorist act which it defines as the planning or other preparations to carry out the act, whether it is actually carried out or not; a credible threat to carry out the act, whether it is actually carried out or not; an attempt to carry out the act or the carrying out of the act.

But Justice Downs said that buying a knife—“even one intended for use in a potentially fatal attack—is not an act intended to cause death or serious bodily injury; stabbing someone with that knife is.”

“Terrorism is a great evil,” he said.

“Lone wolf” terrorist attacks with knives and other makeshift weapons, such as cars or trucks, are far from unheard of.

“Recent events in Christchurch demonstrate New Zealand should not be complacent.

“Some among us are prepared to use lethal violence for ideological, political, or religious causes.’

He said the absence of an offence of planning or preparing a terrorist could be an Achilles heel.

“The United Kingdom has an offence in relation to terrorist planning and preparation. So too, Australia. Each is punishable by life imprisonment.

“However, it is not open to a Court to create an offence, whether in the guise of statutory construction or otherwise.

“The issue is for Parliament.”

So by November last year, the Ministry of Justice had drafted more changes to the Bill which now picked up on Judge Downs’ suggestion and specifically made planning a terrorist act an offence, but unlike the UK or Australia, the penalty in New Zealand would be only seven years in jail rather than the sentence of life imprisonment applicable in those two countries.

In its Regulatory Impact Statement on the Bill, the Ministry says it would create a new offence that criminalised planning or preparation to commit a terrorist act.

“This option would mean that relevant agencies, such as New Zealand Police, would be able to intervene early, i.e. at the planning or preparation stage before those behaviours escalated into a terrorist act,” the statement says.

Under this option, the prosecution would need to prove that a terrorist act was being planned for.

“Linking it to the “terrorist act” definition would mean that the motive, intent, and outcomes elements would still need to be proved,” it said.

“For example, purchasing a gun would not be captured without the relevant motive and intent. “

“The need to prove the above elements should provide reassurance that the scope of this offence is appropriately targeted.”

This subtly differs from the Australian legislation, which provides for life imprisonment for anyone who does any act in preparation for, or planning, a terrorist act —even if a terrorist act does not occur; or the person’s act is not done in preparation for, or planning, a specific terrorist act.

National Leader Judith Collins says her party will support the legislation, but ACT is not so sure proposing some changes, particularly the introduction of “a preparation crime, where a person is guilty of the crime of preparing to commit terrorism, becomes a crime.”

“Rather than rushing, if anything the Government should pause to consider what we’ve learned, we may need to make different changes than we previously thought,” said Leader David Seymour yesterday. 

“The current Bill before the Select Committee should be separated into multiple bills, one to do the simple and immediate changes, if applicable. Another bill should be given an extension of time in Select Committee to consider new information in light of the Lynnmall attack.”

The Prime Minister, however, wants the legislation before the Justice Committee speeded up.

In late August, officials, including the Commissioner of Police, “raised the possibility of expediting the amendments to the counter-terrorism legislation.”

“Within 48 hours of these discussions, the Minister of Justice contacted the chair of the Select Committee with the intention of speeding that law change up,” she said.

“That was yesterday, the same day the attack happened.”

Unfortunately, though it was 14 months after the Judge suggested the law change, it was too late.