2. Recommendations to improve New Zealand's counter-terrorism effort

2.1 Overview

1

This chapter makes a number of recommendations to improve New Zealand’s counter-terrorism effort and prevent terrorist attacks in the future. They focus on two broad priorities for action:

1. Ensuring that there is better leadership of, and support for, intelligence and security in New Zealand.
2. Increasing awareness and providing opportunities for meaningful engagement of all New Zealanders in relation to extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism.

2.2 Strong government leadership and direction are required

Clarifying leadership and creating a new agency for intelligence and security

2

The counter-terrorism effort must be cohesive, collaborative and trusted.¹ It also needs to be integrated, agile, effective and accountable, with directive leadership and accountability.

3

We have concluded that the counter-terrorism effort had been slow to understand the threat of extreme right-wing domestic terrorism (Part 8, chapter 15). We have identified a number of areas where the counter-terrorism effort needs improving. Responding to the question “Could such a terrorist attack be prevented in the future?” we consider that the counter-terrorism effort should be better designed to provide assurances that New Zealand is as safe as it can be. Improved strategic leadership and greater accountability are required.

4

Our Recommendations 1, 2 and 3 should enable:

1. well-informed ministers (with thorough understanding of the immediate, medium-term and longer-term terrorism risks and threats);
2. capability to develop effective and comprehensive strategic policy advice on extremism and terrorism, together with integrated advice based on both intelligence assessments and risk management frameworks;
3. a governance body to set system performance standards and accepted best practice in the New Zealand context, against which to monitor performance and measure effectiveness and compliance with human rights obligations (Recommendation 3);
4. effective leadership of the security and intelligence side of the national security system with clear accountabilities and responsibilities (Recommendation 2);
5. transparent purpose and direction setting, set out in a counter-terrorism strategy, with well-defined accountability for the development, implementation and monitoring of that strategy (Recommendation 4);
6. regular reviews of the authorising environment, including the legislative framework for countering-terrorism and violent extremism; and
7. enhanced social licence as a result of the consequences just outlined along with high levels of engagement with communities, civil society, local government and the private sector.

5

The current cross-agency governance and leadership arrangements are not working (Part 8, chapter 3). There is no minister responsible and accountable for the counter-terrorism effort. We recommend there should be.

6

To support the minister we recommend the establishment of a new national intelligence and security agency with its roles and functions set out in new legislation. This will deliver a more systematic approach to addressing extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism, especially if it is tasked with developing effective and comprehensive strategic policy advice. The chief executive of the new agency will be the national adviser on intelligence and security, with the agency having the advantage of focusing solely on the threats and intelligence issues currently addressed by the Security and Intelligence Board. This is a shift from what the Department of the Prime Minister and Cabinet currently does, operating across the spectrum of national security and all-of-government issues (Part 8, chapter 3). Such a change would provide for the Department of the Prime Minister and Cabinet to focus on providing second opinion advice through its Policy Advisory Group, with the chief executive remaining the chair of the Officials' Committee for Domestic and External Security Coordination.

7

The new well-resourced national intelligence and security agency will:

1. Be the sector lead for intelligence and security.
2. Develop a public facing strategy that addresses extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism (Recommendation 4) and require other Public sector chief executives to align their planning and resources to it.
3. Be the steward of relevant national security legislation (including the Intelligence and Security Act 2017 and Terrorism Suppression Act 2002) and be responsible for relevant intelligence and security strategic and responsive policy advice. In doing so, it will assume functions currently undertaken by the Ministry of Justice and the Department of the Prime Minister and Cabinet.
4. Assume responsibility for the independent intelligence assessment functions currently performed by the Combined Threat Assessment Group and the National Assessments Bureau. This will be underpinned by high quality horizon scanning and deep assessment expertise.
5. Be responsible for the design of the performance management framework and monitoring progress against it.
6. Lead engagement with communities, civil society, local government and the private sector on strategic intelligence and security issues.
7. Ensure the counter-terrorism effort conforms to New Zealand's domestic and international human rights obligations.

Other functions are discussed in Recommendations 8, 9, 14 and 16. 

8

New legislation will be required to implement these recommendations including clarifying roles and responsibilities and reconciling how the new agency will work with the intelligence and security and law enforcement agencies.

9

The Security and Intelligence Board is essentially a voluntary collaboration mechanism for intelligence and security matters, including the counter-terrorism effort (Part 8, chapter 3). This is not working effectively.

10

We recommend the government investigate using the provisions in the Public Service Act 2020 to establish an interdepartmental executive board to replace the Security and Intelligence Board. Section 25 of the Public Service Act sets out the purposes of interdepartmental executive boards:

11

Putting in place an interdepartmental executive board would be best worked through by Te Kawa Mataaho Public Service Commission in conjunction with the relevant Public service agencies. We do not therefore offer a prescriptive recommendation.

12

We acknowledge that while our focus has been on the counter-terrorism effort our Recommendations 1- 3 relate to all intelligence and security matters currently addressed by the Security and Intelligence Board. It is impractical to carve out counter-terrorism responsibilities. We have not identified any detriments if the minister, new agency and potential new governance body were to be given responsibility for all intelligence and security matters currently within the mandate of the Security and Intelligence Board.

13

The new agency will need to work with the National Emergency Management Agency and local government. It would be inefficient for the new agency to establish structures at the local and regional level that duplicate existing emergency management structures.

14

In relation to Recommendations 1–3, we examined several options. We considered simply changing the Security and Intelligence Board into an interdepartmental executive board, leaving other aspects of the system unchanged. We decided that this option would not address our assessment that an agency solely focussed on strategic intelligence and security issues is required. We also considered establishing an entirely new “uber” agency that would incorporate both strategic and all operational functions currently performed by the Department of the Prime Minister and Cabinet, the Government Communications Security Bureau and the New Zealand Security Intelligence Service, and some functions of New Zealand Police. But the significant disruption this would cause would outweigh the potential benefits. Implementation of our Recommendations 1–3 should achieve the necessary outcomes and accountability, without requiring such a complex and lengthy machinery of government change.

15

Another option we considered was whether the Government Communications Security Bureau and the New Zealand Security Intelligence Service should be amalgamated. We expect this will be considered as part of the forthcoming review of the Intelligence and Security Act.

An integrated preventing and countering extremism, violent extremism and terrorism strategy

16

In early 2020, the Department of the Prime Minister and Cabinet released a Countering terrorism and violent extremism national strategy overview (Part 8, chapter 3).² It is not the strategy we envisage. Although it discusses the importance of connecting with communities to reduce and mitigate the risks of terrorism and violent extremism, it was produced without any substantive involvement by communities, civil society, local government and the private sector.

17

There needs to be a more effective system-wide, public-facing strategy to address extremism and prevent, detect and respond to current and emerging threats of extremism, violent extremism and terrorism. The strategy should be developed in collaboration with communities, civil society, local government, the private sector and the Advisory Group on Counter-terrorism (Recommendation 7).

18

We can do much to reduce New Zealand’s risk through both a risk management approach that builds on the Māori-Crown relationship and social cohesion activities.

19

This strategy will need to:

1. set out and explain objectives and priorities and the contributions that communities, civil society, local government and private sector can make to national security;
2. be supported by an action plan that aligns the efforts of all those involved; and
3. be reviewed within three years of its publication in collaboration with communities, civil society, local government, the private sector and the Advisory Group on Counter-Terrorism (Recommendation 7).

20

Each Public sector agency will require its own action plan. Each action plan will focus on how that agency will contribute to the outcomes of the national strategy. Performance measures will be included. The new national intelligence and security agency (Recommendation 2) will lead the coordination of these individual action plans to ensure they are cohesive and that there are no gaps in Public sector agency efforts. The new agency will monitor Public sector agency performance and report on it to the responsible minister.

21

Through our inquiry we have seen the importance of the role of communities, civil society, local government and the private sector in the counter-terrorism effort (Part 8, chapter 15). It is critical that all New Zealand's communities, civil society, local government, the private sector and the Advisory Group on Counter-Terrorism are engaged in a collaborative manner in developing the overarching strategy for New Zealand. There should be clarity as to their ongoing contributions to improve public understanding and knowledge and foster cooperation and trust.

2.3 Engaged and accountable government decision-making

Strengthened Parliamentary oversight of agencies

22

Improved oversight of the counter-terrorism effort will lead to better performance outcomes. Those who provide that oversight by monitoring and scrutinising the Public sector agencies involved in the counter-terrorism effort need access to relevant information.

23

We recommend the Auditor-General’s functions be expanded to undertake performance audits across the intelligence and security agencies (Recommendation 5).

24

More debate on, and cross-party support for, national security issues, including the counter-terrorism effort, will help give these issues the attention they require. Strengthening the role of the Parliamentary Intelligence and Security Committee will provide a forum for that debate. Importantly, the Intelligence and Security Committee is currently unable to inquire into the activity of an intelligence and security agency or into any matter that is operationally sensitive. That means that its role is far more limited than that of its counterpart parliamentary committee in the United Kingdom. The equivalent United Kingdom parliamentary committee has access to highly classified information and has produced a number of reports that address the operational activities of intelligence and security agencies in the United Kingdom.

25

The Parliamentary Intelligence and Security Committee should receive public submissions on the annual statement on extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism (Recommendation 17), adding to the public debate of counter-terrorism issues alongside Recommendations 4, 15 and 16.

A new role for communities, civil society, local government and the private sector

26

All New Zealand sectors and communities are affected by the threat of terrorism. We have concluded communities, civil society, local government and the private sector should be involved in an advisory forum with its functions set out in legislation. The legislation would provide that the advice from an Advisory Group on Counter-terrorism must be taken into account by the chief executive and the Security and Intelligence Board or its replacement (Recommendation 3). The focus of the Advisory Group on Counter-terrorism would be to:

1. test ideas and provide advice to the new national intelligence and security agency, and Public sector agencies involved in the wider counter-terrorism effort on approaches to stop people engaging in extremism, violent extremism and terrorism;
2. provide advice on the threatscape and National Security and Intelligence Priorities; and
3. provide advice on engaging with communities, civil society, local government and the private sector.

27

We recommend the chief executive of the national security and intelligence agency ensure an Advisory Group on Counter-terrorism includes representative membership from communities, civil society, local government and the private sector. The make-up of the Advisory Group on Counter-terrorism should include a gender balance, ethnic and religious diversity, a range of ages (youth, adults and elders) and geographical spread. What constitutes ‘representative’ will evolve as society, and the nature of threats, changes over time. The chief executive should consider whether there is a necessity for members of the Advisory Group on Counter-terrorism to be security cleared to an appropriate level. The Advisory Group on Counter-terrorism should regularly connect with other advisory groups that are set-up by Public sector agencies involved in the counter-terrorism effort.

28

We considered recommending that the Advisory Group on Counter-terrorism provide an annual report to Parliament. However, we decided this would place an unnecessary administrative burden on the group. Instead we recommend that the annual statement to Parliament on extremism and preventing, detecting and responding to current and emerging threats of extremism, violent extremism and terrorism priorities (Recommendation 17) should include a summary of the advice that has been provided by the Advisory Group on Counter-terrorism to the new national intelligence and security agency and other relevant Public sector agencies and the actions that have been taken in response to that advice.

Public sector agencies can and should share information more widely

29

Information sharing between Public sector agencies is critical to the effectiveness of the counter-terrorism effort (Part 8, chapter 9). A shift in Public sector agencies’ approach to highly classified information, in particular ensuring that information is classified correctly and seeing the need to know principle as enabling rather than restricting, will allow more information to be shared easily between Public sector agencies. We are not the first to form this view. In a 2018 Review of the New Zealand Security Classification System, the Inspector-General of Intelligence and Security made a number of recommendations to improve the classification system. These recommendations have not been implemented, but remain relevant today.

30

The new national intelligence and security agency (Recommendation 2) will take a lead role in overseeing information sharing in a whole-of-system way to address the issues set out above. In the interim, the Department of the Prime Minister and Cabinet should (within the next six months) oversee the implementation of some of the recommendations of the Inspector-General of Intelligence and Security’s A Review of the New Zealand Security Classification System in 2018. These relate to the following aspects of security classification:

1. expanding the classification system principles to provide that no information may remain classified indefinitely and that where there is doubt as to the classification level, information is classified at the lower level;
2. revising and strengthening Public sector agency guidance and developing training;
3. adopting a topic-based approach to systematic declassification of historic records; and
4. developing indicators of function and performance of the classification system.

31

Public sector agencies have not been fully using legislation to share information as systematically and widely as they might. This is particularly the case for the intelligence and security agencies, with only some direct access agreements having been entered into under the Intelligence and Security Act (Part 8, chapter 9). Public sector agencies holding information should prioritise entering into such agreements to ensure a well-functioning intelligence and security system.

32

Public sector agencies involved in the counter-terrorism effort should consider whether they need more staff who have security clearance to access highly classified information. Agencies should ensure that their security cleared staff are able to easily access facilities and information management and technology systems to be able to review relevant highly classified information as required. This, however, should not be undertaken in place of shifting the Public sector mindset to see the need to know principle as enabling. Rather, it should be undertaken in conjunction with that shift in mindset to ensure that information is able to be shared and accessed more effectively. Special attention should also be given to the need to know principle as it applies to local government including the emergency management structures at the local and regional level.

Making it easy for people to provide information, and to identify those who may need help

33

A key reason for holding regular public conversations about extremism and preventing, detecting and responding to current and emerging threats of terrorism and violent extremism (Recommendation 15) is to ensure that everyone understands their role in the counter-terrorism effort. This includes knowing what to look out for and how to contribute, including reporting concerning behaviours or incidents. Success will require public knowledge of current risks and threats and a simple pathway to allow people to report concerning behaviours or incidents to a single point within the Public sector that is promoted and visible. From there, the information would be passed on to the relevant agency (or agencies) whether it is a Public sector agency or non-government agency for assistance. Examples of such behaviours could be:

1. showing signs of stress and discussing participation in, or admiration for, extremist groups; or
2. undertaking surveillance or taking pictures of places of worship, airports, community halls, shared community spaces or transport hubs; or
3. asking unusually detailed questions about operations or design of buildings or systems; or
4. making jokes about committing crimes or harmful acts.

34

The purposes of reporting may include seeking support for the person or persons who may be vulnerable to radicalisation.

35

This reporting system should be implemented in the next 12 months. We would expect that the government would publish annual reports on the extent of public reporting and how the reported information was used.

36

People will be confident about reporting potentially harmful behaviours if they know what to look for. We consider that New Zealanders could benefit from having access to reporting guidelines similar to those produced in the United States of America (see Part 7, chapter 2). Of course they would need to be designed to resonate with New Zealanders, and with New Zealand values and cultural norms.

37

Success will also require a public conversation about the value of diversity in society (Recommendation 36 and 37). These conversations will reduce the likelihood that the biases that are sometimes held by people distort their perspectives of suspicious activity. 

Better evidence-based solutions to prevent and counter extremism, violent extremism and terrorism

38

New Zealand needs to develop its own evidence-based solutions to prevent and counter extremism, violent extremism and terrorism, built on lessons from global experience. We conclude that it would be beneficial to foster a capability in New Zealand to conduct research and collaboration into these matters in New Zealand. If this happens, we would expect that over time, these researchers would establish a network that could collaborate with overseas counterparts. The Canadian Network for Research on Terrorism, Security and Society³ is an example of an established organisation that provides research grants on issues related to counter-terrorism. The funding for this Network has diverse sources, including the Canadian government.

39

We considered recommending the establishment of a new government research institute to undertake New Zealand-specific research and collaboration. However, we decided that this would be both expensive and perhaps ineffective. Such an agency would take time to establish and build capacity. It is likely to be more effective to draw on existing researchers who may have an interest in counter-terrorism issues. Consequently, we recommend that the government establish a mechanism to provide contestable research grants to New Zealand academics and researchers. We recommend that the new national intelligence and security agency (Recommendation 2) should be the fund holder for the contestable research grants, with research priorities decided by a panel comprising officials from that new agency and the Advisory Group on Counter-terrorism (Recommendation 7), with the Advisory Group representatives holding a majority membership of that selection panel.

2.4 We all have a role in making New Zealand safe and inclusive

40

There is insufficient public discussion of and awareness about New Zealand’s National Security and Intelligence Priorities. There is also limited discussion about extremism and preventing, detecting and responding to current and emerging threats of violent extremism and terrorism in New Zealand. New Zealanders have important roles and contributions to make but this is neither clear nor publicly discussed.

41

Public conversations about New Zealand’s National Security and Intelligence Priorities and countering extremism and terrorism will not only increase awareness and knowledge about the threats and risks facing New Zealand, but will also enhance some of our other recommendations (including development of a national counter-terrorism strategy, Recommendation 4).

42

We see the first of these conversations (Recommendation 15) initiating what will become a cycle of information sharing, public engagement and scrutiny. It will enhance transparency. This initial public conversation (Recommendation 15) should commence in 2021 to inform the subsequent annual hui (Recommendation 16), the annual threatscape report and the National Security and Intelligence Priorities discussion (Recommendation 17).

43

The conversations will address the balance to be struck between the privacy of individuals and the safety of individuals and communities. It should increase the social licence of Public sector agencies to address extremism. The conversations will also reinforce how diversity and inclusiveness contribute to social cohesion and wellbeing.

2.5 Fit for purpose laws and policies

44

The Terrorism Suppression Act has never been subject to a comprehensive review of whether it is fit for purpose. A regular review of the Act, say every five years, should be provided for in the legislation. This will de-politicise any such review and enable any changes to the threatscape to be carefully considered regularly.

45

What has also been missing to date is an holistic assessment of the nature of the risk associated with the pre-criminal space in which potential terrorists operate. New Zealand does not have precursor terrorism offences, which means that it is not an offence to be planning or preparing a terrorist attack (Part 8, chapter 13). An informed debate is necessary about whether the Terrorism Suppression Act strikes the appropriate balance between:

1. providing the counter-terrorism agencies with the means to disrupt planning and preparation for terrorist attacks; and
2. the risk of over-criminalisation.

46

To enable such a debate, the Terrorism Suppression Act should be reviewed as soon as possible to ensure it is fit for purpose, with a particular focus on the lack of precursor terrorism offences.

47

There are a number of issues with the Intelligence and Security Act, some of which limit the activities of the intelligence and security agencies. These should be prioritised in the scheduled legislative review. There should be a particular focus on whether any associated limits on the intelligence and security agencies are justified in light of their objective to contribute to the protection of New Zealand’s national security.

48

For the most part, the issues we have identified with the Intelligence and Security Act (Part 8, chapter 14) can be resolved during the scheduled legislative review. The exception is section 19 of the Intelligence and Security Act, which we consider requires urgent legislative attention for reasons explained in chapter 14 of Part 8.

49

We also recommend that other legislation relating to counter-terrorism be reviewed and updated. For example, relevant legislation should be reviewed and amended to enable New Zealand to accede to and implement the Budapest Convention on Cybercrime.

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_{1. In accordance with Outcome 3 of the Department of the Prime Minister and Cabinet Strategic Intentions 2020/21-2023/24.} 

_{2. Department of the Prime Minister and Cabinet Countering terrorism and violent extremism national strategy overview (undated) https://dpmc.govt.nz/sites/default/files/2020-02/2019-20%20CT%20Strategy-all-final.pdf.}

^{3. The Canadian Network for Research on Terrorism, Security and Society was founded in 2012. It supports research, and the dissemination of research, related to the threat of terrorism, security responses to terrorism, and the impact of both terrorism and securitisation on Canadian society. The organisation has three primary objectives: (1) to foster communication and collaboration between academic researchers in multiple disciplines on these topics; (2) to facilitate the interaction and collaboration of researchers and policy officials; and (3) to help cultivate a new and larger generation of scholars interested in these fields of study.}