13. The Terrorism Suppression Act 2002 and the pre-criminal space

13.1 Overview

1

Acts of terrorism involve criminal offences. They attract liability under the general criminal law. So, an act of terrorism resulting in death can result in a prosecution for murder. As well, the Terrorism Suppression Act 2002 creates several offences that are specific to terrorism.

2

The ways in which New Zealand’s general criminal law and the Terrorism Suppression Act operate have left a pre-criminal space in which potential terrorists can plan and prepare acts of terrorism without committing criminal offences. This space is larger than members of the public might expect, and its broad scope has significant implications for the counter-terrorism agencies.

3

In this chapter we discuss the ways in which issues associated with this pre-criminal space could be addressed through the creation of precursor terrorism and travelling offences and administrative mechanisms for reducing risks.

4

At this point brief explanations may be of assistance:

1. Precursor terrorism offences are offences that criminalise behaviour that is preliminary to acts of terrorism. Other jurisdictions have such offences. For example, in Australia there are offences of planning or preparing for a terrorist act, providing or receiving training connected with terrorist acts, possessing things in preparation for terrorist acts and collecting or making documents connected with preparation for terrorist acts. There are similar offences in the United Kingdom.
2. Travelling offences are a subset of precursor terrorism offences. They criminalise travel (and attempts to travel) internationally for terrorist purposes. Such offences address the behaviours of those who aspire to be foreign terrorist fighters. New Zealand has not created specific travelling offences.
3. Administrative mechanisms can mitigate risk. New Zealand has two mechanisms – withdrawal of travel documentation and control orders. Both focus on foreign terrorist fighters.

5

Our primary but not exclusive focus in this chapter is on precursor terrorism offences. In this chapter we:

1. outline the legislative history of the Terrorism Suppression Act;
2. discuss precursor terrorism offences, travelling offences and administrative mechanisms for reducing risk;
3. review the legislative stewardship of the Terrorism Suppression Act; and
4. examine whether there should be precursor terrorism offences.

13.2 Legislative history

6

Before 2002, terrorism was referred to in several statutes but the overall legislative approach was piecemeal.¹⁷² Terrorism was not addressed systematically until the enactment of the Terrorism Suppression Act. This Act was passed to give effect to international conventions and United Nations Security Council resolutions, including Resolution 1373.¹⁷³ It was enacted with speed following the attacks of 11 September 2001.¹⁷⁴

7

The Act has been amended on a few occasions, most significantly by the Terrorism Suppression Amendment Acts of 2003, 2005 and 2007. These Amendment Acts were introduced to ensure that New Zealand complied with international obligations and to keep up to date with international developments. The Act was recently supplemented by the Terrorism Suppression (Control Orders) Act 2019 (see 13.5 Administrative mechanisms for reducing risk).

8

The Act has never been subject to a comprehensive review of whether it is fit for purpose.

13.3 Precursor terrorism offences

International obligations

9

Resolution 1373 of the United Nations Security Council directed countries to:

Ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and ensure that, in addition to any other measures against them, such terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.

10

In 2016, the Counter-Terrorism Committee of the United Nations published the Global survey of the implementation of Security Council resolution 1373 (2001) by Member States,¹⁷⁵ which assessed countries’ compliance with Resolution 1373. In commenting on a group of countries that included New Zealand, the survey provided the following observations under the heading “Planning and preparation”:

All States have established in national legislation specific provisions that criminalize terrorist acts of planning, preparation, facilitation, support, including financial support, for terrorist acts, or conspiracy to commit terrorist acts, or are able to prosecute such conduct on the basis of general criminal provisions of aiding or similar notions of assistance.¹⁷⁶

11

New Zealand is thus required to criminalise acts of planning and preparation for terrorism. This criminalisation can be brought about either by New Zealand’s general criminal law or through specific precursor terrorism offences.

Planning and preparation offence under New Zealand’s general law

12

If planning and preparation activity is closely associated in time with the intended offence (for instance, a robber lying in wait for a potential victim) the offender can be prosecuted for an attempt to commit the offence. Close proximity to the intended crime is required. And if two or more people are involved in planning and preparation for an offence, they can be prosecuted for conspiracy. But under the general criminal law of New Zealand, it is not a discrete offence to plan or prepare to commit another offence. So it is not an offence to plan or prepare to murder someone, or to rob a bank.

13

This means that New Zealand cannot claim to be in compliance with its obligations under Resolution 1373 on the basis of our general criminal law.

Relevant provisions of the Terrorism Suppression Act

14

A key feature of the Act is the definition of a “terrorist act” in section 5:

15

When first passed, the Act did not create an offence of engaging in a terrorist act. This deficiency was addressed in 2007 with the insertion of section 6A. It provides:

16

There are a number of other terrorism offences created by the Act. These include financing of terrorism (section 8), providing property or financial or related services to a designated terrorist entity (section 10), recruiting members of terrorist groups (section 12) and participating in terrorist groups (section 13). With the exception of those offences, there is nothing explicit in the Act to criminalise activities that are preliminary to acts of terrorism. And those offences only apply to terrorist activity in which two or more people are involved (for example, the recruitment offence requires both a recruiter and a potential recruitee, while the financing offence requires a fundraiser as well as a donor). They do not apply to the activities of lone actor terrorists. There are thus no explicit offences that catch the activity of a lone actor terrorist that is preliminary to a terrorist act.

Is there nonetheless a planning and preparation offence?

17

For a number of years, the counter-terrorism agencies acted on the understanding that preparing or planning acts of terrorism are not offences. Recently, however, the Deputy Solicitor-General consented to a prosecution based on the view that the Act does create such offences.

18

In the prosecution that followed, the Crown relied on section 25(1), which provides:

19

The prosecution argued that the section 25(1) definition of “carrying out a terrorist act” meant that engaging in a terrorist act under section 6A included “planning or other preparation for such an act”.

20

The High Court found that this argument was not correct and that planning and preparation for a terrorist act are not, in themselves, offences.

21

We regard the result arrived at by the High Court as correct and, more importantly, as settling the law. For this reason we do not engage with the intricate issues of statutory interpretation that the case raised.

Where New Zealand stands with its international obligations

22

As New Zealand does not have precursor terrorism offences and our general criminal law does not criminalise planning and preparation to commit an offence, New Zealand is in breach of its international obligations under Resolution 1373 of the United Nations Security Council.

Practical implications

23

There were differing views, at least within New Zealand Police, as to whether section 25(1) meant that there were planning and preparation offences. Despite this, New Zealand Police and the New Zealand Security Intelligence Service generally have operated on the assumption – now shown to be correct – that there are no such offences. This has limited their ability to bring particular investigations to a conclusion.

24

We have seen case studies that indicate that if there had been planning and preparation terrorism offences, some counter-terrorism targets could have been prosecuted under them. The ability to bring a prosecution would have been assisted by a wider range of precursor terrorism offences including, say, travelling offences. Whether such prosecution would necessarily have been appropriate – for instance where planning was in its very early stages – is perhaps another matter. But the availability of such offences would have provided a point of intervention, for example, by warning the target that they could be prosecuted if they did not agree to participate in community countering violent extremism measures. As well, the absence of such offences hinders the ability of New Zealand Police to obtain warrants under the Search and Surveillance Act 2012.

25

We can illustrate the practical difficulties associated with the absence of planning and preparation offences by reference to what would have happened if the counter-terrorism agencies had become aware that the individual was planning a terrorist attack.

26

Had this happened, it would have been open to New Zealand Police to cancel his firearms licence and seize his firearms. Such action would not have prevented the individual acquiring firearms on the black market or adjusting his proposed mode of attack to involve, say, a motor vehicle. It may also have been possible to require him to return to Australia, an option that of course would not have been available if he was a New Zealand citizen.

27

Depending on the way the individual stored his semi-automatic rifles and large capacity magazines, it might have been possible to prosecute him under the Arms Act 1983 (see Part 4: The terrorist). But although such a prosecution would have been a completely inadequate response to his conduct, the alternative – waiting until he got sufficiently close to the intended terrorist attack to prosecute him for attempted murder or attempting to engage in a terrorist act – would not have been a very palatable option.

28

It would have been a fine judgement call as to the point at which the individual’s preparation would have been sufficiently proximate to the intended crime to result in criminal liability for an attempt. To be reasonably confident of conviction, New Zealand Police would probably have had to wait until the morning of 15 March 2019 when the individual departed Dunedin for Christchurch. Keeping the individual under surveillance for a protracted period would have put New Zealand Police and the New Zealand Security Intelligence Service under extraordinary pressure and would not have been a fail-safe way of preventing an attack.

29

Internationally there is a well-recognised and longstanding healthy tension between law enforcement and intelligence and security agencies about when to transition from an intelligence investigation to executive action, such as arrest. The tension arises because the drivers for each agency are different. The imperative for an intelligence and security agency is to discover all threats to national security. An operation may yield greater intelligence gains if action is not taken at the first opportunity. Law enforcement agencies may wish to act more quickly on intelligence, particularly where public safety may be at risk. Interestingly, we have seen no evidence of such a tension between the New Zealand counter-terrorism agencies – something we see as a likely consequence of the absence of precursor terrorism offences.

13.4 Travelling offences

30

United Nations Security Council Resolution 2178 of 2014 requires states to:

…ensure that their domestic laws and regulations establish serious criminal offenses sufficient to provide the ability to prosecute and to penalize in a manner duly reflecting the seriousness of the offense:

their nationals who travel or attempt to travel to a State other than their States of residence or nationality, and other individuals who travel or attempt to travel from their territories to a State other than their States of residence or nationality, for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts, or the providing or receiving of terrorist training; … .

31

New Zealand has not yet enacted laws that create the offences called for by the Resolution. Proposals to create such offences are currently under consideration.

13.5 Administrative mechanisms for reducing risk

32

The two mechanisms identified at the beginning of the chapter (withdrawing travel documents and control orders) have been provided for in respect of foreign terrorist fighters. The withdrawal of travel documents is designed to prevent travel out of New Zealand by prospective foreign terrorist fighters. The control orders regime is intended to mitigate the risks posed by returning foreign terrorist fighters.

33

Sections 27GA–‍27GF of the Passports Act 1992 provide for refusals to issue, and suspension and cancellation of, New Zealand travel documents. These mechanisms were first introduced in 2014 and enable disruption of attempts to travel overseas for terrorist purposes. This is not a fail-safe system (for instance, in respect of people who have more than one passport) but, as we have noted, New Zealand has not yet criminalised preparation for such travel.

34

The offence of participation in terrorist groups created by section 13 has effect outside New Zealand. So a New Zealander who has participated in a terrorist group overseas and returns to New Zealand can be prosecuted under section 13.

35

The Terrorism Suppression (Control Orders) Act 2019 provides for control orders in respect of people who have returned from overseas and who, by reason of their actions in a foreign country, pose real risks of “engaging in terrorism-related activities”. Once made, these control orders impose prohibitions or restrictions on the activities of such people in New Zealand.

36

The narrow scope of this regime means that it is not an appropriate substitute for the creation of precursor terrorism offences.

13.6 Legislative stewardship

37

Departmental chief executives are responsible for maintaining the currency of any legislation administered by their departments.¹⁷⁷ This means those chief executives should be providing free and frank advice regarding whether that legislation is fit for purpose.

38

The Terrorism Suppression Act is jointly administered by the Ministry of Foreign Affairs and Trade and the Ministry of Justice. Section 70 of the Act required a one-off review of certain provisions of the Act, which was completed in 2005. Amendments were made to the Act in 2005 and 2007. These provided further offences (partly in response to international obligations) and made changes to the designation of terrorist entities. But the Act’s content and workability have never been the subject of a fitness for purpose review.

39

The workability of the Terrorism Suppression Act was called into question in 2008 after the then Solicitor-General declined to give permission to lay charges under the Act following Operation Eight (see Part 8, chapter 2). He said that the relevant provisions were “unnecessarily complex, incoherent and as a result it is almost impossible to apply [in the circumstances of that case]”.

40

The Terrorism Suppression Act was referred to the Law Commission for review but the review was not progressed. It was initially put on hold pending the trial of the remaining Operation Eight defendants, and then in 2012 was removed from the Law Commission’s work programme by Hon Judith Collins, then Minister of Justice. The Law Commission later listed “Criminal Offences in the Terrorism Suppression Act” as part of its programme for 2013-2014 but the then Minister again removed it. Hon Judith Collins said that “the initial concerns arising from the Urewera case have been addressed by the passage of the Search and Surveillance Act 2012, and there does not appear to be any substantial or urgent concerns arising from the operation of the Act”.¹⁷⁸

41

In 2014, New Zealand Police drew attention to gaps in the legislative framework. While New Zealand Police did not consider that these gaps affected their ability to manage a particular risk presenting at that time, they considered that the gaps might become problematic if the situation evolved. A 2015 Cabinet paper noted potential areas for legislative review and reform, but none of this work was progressed at that time. New Zealand Police expressed increasing concern about the possible inadequacy of the legislation over this period. The New Zealand Security Intelligence Service shared these concerns.

42

In November 2017, the Department of the Prime Minister and Cabinet advised the Prime Minister, Rt Hon Jacinda Ardern, that it was unclear if New Zealand’s counter-terrorism legislation was fit for purpose and that it intended to discuss these issues with the relevant Public sector agencies. In May 2018, the Director-General of Security and the Commissioner of Police briefed the Prime Minister, Rt Hon Jacinda Ardern, and the Minister Responsible for the New Zealand Security Intelligence Service, Hon Andrew Little, on the evolving terrorism threatscape and related counter-terrorism legislative challenges. At that time, Ministers sought advice on the counter-terrorism legislative settings. Advice from the Department of the Prime Minister and Cabinet and the Ministry of Justice was provided to Rt Hon Jacinda Ardern, Minister for National Security and Intelligence and Hon Andrew Little, Minister of Justice, in August 2018.

43

The two Ministers subsequently directed the Department of the Prime Minister and Cabinet and the Ministry of Justice to undertake further policy work on:

1. the workability of the Terrorism Suppression Act;
2. new offences that might facilitate earlier intervention by law enforcement;
3. consideration of criminalising travel by foreign terrorist fighters; and
4. consideration of control orders for people who pose a terrorism risk.

44

Ministers noted that this did not necessarily mean that any resulting policy proposals would be accepted by government and emphasised that they wanted to “proceed with caution”.

45

As at 15 March 2019, officials were considering the issues but no advice had been provided to Ministers. Advice on priorities was subsequently provided to Hon Andrew Little, Minister of Justice, which led to some counter-terrorism policy work on, for example, control orders and financing of terrorism, being expedited at the expense of other policy projects on, for example, organised crime.

46

Since that time, the government has passed the Terrorism Suppression (Control Orders) Act 2019, creating a civil control order regime that applies to individuals who have engaged in terrorist activity overseas. Work is continuing on possible new terrorism related offences and the workability of the definition of “terrorism” in the Terrorism Suppression Act. A separate but related piece of work will respond to the Law Commission’s report on the use of national security information in court proceedings.¹⁷⁹

47

As this discussion illustrates, the issues discussed in this chapter have been recognised for some time but the 2014 amendments to the Passports Act and the creation of a limited control orders regime in 2019 have been the only tangible progress.

13.7 Should there be precursor terrorism offences?

48

The creation of precursor terrorism offences would require analysis of policy issues. These are explored in a recent article in the Criminal Law Review, which criticises the ways in which precursor terrorist offences have been defined and prosecuted in England and Wales.¹⁸⁰ The precursor offences primarily discussed are preparing acts of terrorism, disseminating terrorist publications and collecting information that is likely to be useful to a terrorist. They are “among the most frequently prosecuted terrorism offences”.¹⁸¹ There are issues with the preparation offence. It can catch a person’s preliminary behaviour (for example, research into possible methods and targets) even if their intention to engage in acts of terrorism was only conditional (for instance, as depending on future circumstances) and thus not necessarily very likely to be carried out.

49

For these and other reasons reviewed in the article, there is at least a debate to be had before simply expressed precursor terrorism offences (including planning and preparation offences) are created. This is not to seek to pre-empt the result of such a debate, as simply expressed preparation offences exist both in Australia and also in the United Kingdom. Also material to such debate are New Zealand’s international obligations.

50

We see much less scope for debate on the appropriateness of criminalising conduct that is connected to the intended act of terrorism, for instance acquiring weapons, terrorist training or preparation in relation to an identifiable potential target (such as hostile reconnaissance or specific internet research).

13.8 Concluding comments

51

There has been no complete review of whether the Terrorism Suppression Act and its amendments are fit for purpose.

52

Extending the reach of the criminal law (such as by creating precursor terrorism offences, which would criminalise planning and preparation for terrorism and perhaps other activities) would be controversial. So too are preventative measures that do not depend upon conviction for a criminal offence (such as withdrawing travel documents or imposing control orders). We discuss this further in Part 10: Recommendations.

53

Our primary concern is with the absence of precursor terrorism offences. We accept that there is scope for legitimate concerns about the risks of over-criminalisation and discrimination against Muslim communities and other potential target communities. The concerns can be mitigated by careful drafting. As well, there are what we see as countervailing factors, particularly our current non-compliance with international obligations and the broader context of the practical difficulties of dealing with potential terrorists and the associated risks to public safety.

_{172. See for example the Aviation Crimes Act 1972, Crimes (Internationally Protected Persons and United Nations and Associated Personnel, and Hostages) Act 1980, International Terrorism (Emergency Powers) Act 1987 and Maritime Crimes Act 1999.}

_{173. See Terrorism (Bombings and Financing) Suppression Bill 2002 (121-2) (select committee report) at page 1.}

_{174. For the background, see Matthew Palmer “Counter-Terrorism law” (2002) New Zealand Law Journal 456.}

_{175. United Nations Security Council Counter-Terrorism Committee Executive Directorate Global survey of the implementation of Security Council resolution 1373 (2001) by Member States (October 2016).}

_{176. United Nations Security Council Counter-Terrorism Committee Executive Directorate, footnote 175 above at page 101.}

_{177. Public Service Act 2020, section 52(1)(d)(ii).}

_{178. Adam Dudding “Review of terror laws stopped” Sunday Star Times (New Zealand, 15 September 2013) http://www.stuff.co.nz/national/politics/9166763/Review-of-terror-laws-stopped.}

_{179. New Zealand Law Commission The Crown in Court: A Review of the Crown Proceedings Act and National Security Information in Proceedings Report 135 (Wellington, December 2015).}

_{180. Andrew Conford “Terrorist Precursor Offences: Evaluating the Law in Practice” (2020) Criminal Law Review at page 663.}

_{181. Andrew Conford, footnote 180 above at page 664.}