The brutal stabbing of six people, by an Islamic State supporter in an Auckland mall, has spurred efforts to update New Zealand’s counter-terrorism laws. This is driven by concerns that the tragedy might have been prevented if there had been a specific criminal offence for plotting a terrorist attack.
New Zealand authorities had been dealing with the perpetrator, Ahamed Aathil Mohamed Samsudeen, for several years. He had expressed enthusiasm for Islamic State, and posted online statements approving their terrorist attacks, since 2016.
In May 2017 he was prevented from boarding a plane, after having told someone he was planning to fly to Syria to join Islamic State. He faced multiple charges for possessing a knife, extremist material, and refusing to cooperate with authorities. In August 2018 he was arrested again for similar offences while on bail. On 19 September 2018 he was sentenced to supervision for the first set of charges, but remained in prison while awaiting trial for the second set of charges.
In July 2020, prosecutors went to the High Court to see if he could be charged under section 6a of the Terrorism Suppression Act 2002 for having “planned or otherwise prepared to cause death or serious bodily injury.” However, on 16 July 2020 the judge ruled that the charge could not go ahead, as no such offence existed under the Act.
In July 2021, he was sentenced for several crimes and released from prison while awaiting trial for the remaining charges. After this, counter-terrorism authorities had little option but to monitor him in case he sought to act on his violent statements.
It was fortunate that they watched him closely. On 3 September 2021 he entered LynnMall shopping centre and perpetrated his attack. A police Special Tactics Group was on standby and quickly intervened, fatally shooting him before he caused more carnage.
It will never be known if the tragedy would have been prevented had New Zealand had a specific law against preparing or planning (colloquially, plotting) acts of terrorisms. After all, even if the offence existed the evidence may have been insufficient for conviction. But the attack has brought attention to this legislative gap, and it was not the first to do so.
This absence in New Zealand’s counter-terrorism laws had been raised in the final report of the Royal Commission of Inquiry into the terrorist attack on Christchurch. The Commission noted (pages 558-559) that if counter-terrorism authorities had discovered the Christchurch terrorist’s plan, they probably would not have been able to charge him over it.
The Commission declared forthrightly (page 557) that “New Zealand is in breach of its international obligations under Resolution 1373 of the United Nations Security Council.” This was the resolution passed shortly after the 9/11 attacks, which called on all Member States to “take necessary steps to prevent the commission of terrorist acts” and to “ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in support of terrorist acts is brought to justice.”
Looking at this situation from the Australian context, with its vast body of counter-terrorism legislation criminalising a wide range of activities, the legislative gap in New Zealand might appear extremely odd. There are at least three reasons why New Zealand had not criminalised the preparation and planning of a terrorist attack.
First, the Commission noted (pages 554-554) that the Terrorism Suppression Act 2002 was somewhat ambiguously worded, so counter-terrorism authorities may have believed that such activity was already criminalised until the 16 July 2020 court ruling clarified that it was not.
Second, terrorist activity in New Zealand was relatively rare (though far from absent) until the Christchurch massacre. This lower threat would have worked against a sense of urgency.
Third, counter-terrorism was not a popular political issue. The Commission stated (pages 419-422,612-614) that, following several controversies involving the security and intelligence agencies, counter-terrorism had become a “sufficiently toxic” issue that New Zealand’s leaders were unwilling to take “political ownership” of.
This contrasts dramatically to Australia, where governments regularly manage to make political capital out of counter-terrorism. Preparation and planning offences were among the earliest and least controversial counter-terrorism laws passed after 9/11. In the past two decades, 92 separate pieces of counter-terrorism legislation have passed through federal parliament, a frequency that has been described as “hyper-legislation”.
The Australian approach should not be assumed to be superior. There is certainly much to commend in Australia’s approach to counter-terrorism, which has saved many lives by foiling a large number of plots often in extremely difficult circumstances (where police officers themselves have been among the most common targets). Yet there is also plenty to critique.
Alongside the successes, Australia’s approach to counter-terrorism has also involved excesses and injustices; recent examples include the wrongful charging of Mohamed Nizamdeen and the mistreatment of Eathan Cruse, along with the tendency to treat Australian Islamic State supporters (and their families) in Syria as someone else’s problem. Moreover, several laws go too far and even for those that are justified in principle there remains legitimate debate about their scope.
It should not be forgotten that New Zealand’s slower, and more deliberative and inclusive, approach to counter-terrorism has helped the country to avoid some of the excesses and injustices seen in Australian counter-terrorism.
Similarly, it is promising that the post-attack debate in New Zealand focuses not only on new laws but also on rehabilitation. While the Ardern government has promised to pass new counter-terrorism laws before the end of the month, there remains a healthy debate about whether the new legislation is being sufficiently scrutinised, suggesting that this latest attack is not likely to shift New Zealand to “tough on terrorism” politics.
Nonetheless, the attack has brought overdue attention to the failure to criminalise preparations and planning for terrorism, twenty years after 9/11 and two years after the Christchurch massacre. It is hard to see how New Zealand’s police could continue to be expected to prevent terrorist attacks without a law against plotting terrorist attacks.
The stabbings in LynnMall, by someone the police had sought to prosecute for plotting a terrorist attack but lacked the legal power to, suggest that New Zealand can learn from Australia’s counter-terrorism experiences. This includes some of legislation used in Australia, as well as from Australia’s operational experience in disrupting terrorist plots. But there have also been many benefits to New Zealand’s cautious and inclusive approach, so Australia can likewise learn from New Zealand.