Parliament passes counter-terrorism laws, criminalising terror planning and expanding warrantless search powers

Parliament has passed into law counter-terrorism powers which criminalise the planning of terror attacks and expand the ability for police to conduct warrantless searches.

The counter-terror laws, which the Government promised to pass this month in the aftermath of the Auckland supermarket terror attack on September 3, overhaul the Terrorism Suppression Act, which has for years been found wanting by authorities seeking to prosecute alleged terrorists.

The 2007 Tūhoe raids, in which an attempted prosecution of activists for alleged paramilitary training under existing terror laws spectacularly failed, was raised repeatedly in Parliament during the final debate on the bill, as minority parties from across the political spectrum stood opposed to the new powers.

“The nature of terrorist attacks is changing internationally, and has obviously, unfortunately, reared its ugly head here in New Zealand,” Justice Minister Kris Faafoi said, late on Tuesday evening as MPs debated the bill.

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“This piece of legislation is being put in place to give the authorities more powers to prevent those kinds of attacks happening. We hope that they use those wisely, but that they are effective at preventing those attacks happening again.”

Faafoi said there had been some concerns raised about the laws “given some of the past experiences of some groups here in New Zealand”. But he said the new powers were “unfortunately necessary pieces of legislation”.

The bill passed its third reading on Thursday morning, meaning it would soon become law. Labour and National voted for the bill, and the Green, ACT, and Māori parties voted against.

Green Party intelligence agencies spokesman Teanau Tuiono said before the Government gave the authorities new tools, “we have to make sure that they’re using the one that they’ve got already properly”.

Tuiono said he was among the activists whose homes were raided in 2007.

“There were 300 police who raided houses all over Aotearoa New Zealand … my house was one of the houses that was raided in Palmerston North. When they come for us, they come for us at dawn. Sometimes they knock on the door; sometimes they just barge on through.

“The aftermath of that, it had a very chilling effect on my community. It had a very chilling effect right across Aotearoa New Zealand.”

Māori Party co-leader Rawiri Waititi said Māori knew “without a shadow of a doubt” that the new laws would be used for the “surveillance and criminalisation of tangata whenua and minorities”.

“One of our strongest concerns with this bill is the new planning and preparation offence, which is intended to be used to prosecute would-be terrorists before they’ve even committed any violence,” Waititi said.

“It is quite likely that, if this proposed legislation was on the books in 2007, particularly this offence, the state would have had legal power to convict my Tūhoe whanaunga.”

ACT Party justice spokeswoman Nicole McKee said her party was concerned at the Government’s haste in passing the laws and the “disruption to civil liberties”.

“We have that with the increase in the ability to use the search and surveillance laws–surveillance we see, quite often, of people just going about their normal everyday business.”

The new laws tweak the definition of what is considered terrorist activity, describing it as carried out for “one or more purposes” that advance an ideological, political, or religious cause, to “intimidate” a population or “coerce” a government or international organisation to do or abstain from something.

This definition was considered more in line with comparable definitions in Canada, the United Kingdom, and Australia.

The new laws will criminalise terror attack planning, preparation, weapons and combat training. It will create a new offence for travelling overseas to engage in terrorism, and expand the ability to crackdown on people supporting terror.

The maximum punishment for the new offence of planning or preparing would be no more than seven years in prison.

Terrorism “control orders”, introduced in 2019 for the possibility of Islamic State fighters returning to New Zealand, have also been expanded to cover convicted terrorists in New Zealand who complete their prison sentence, but authorities want to retain scrutiny of them.

The Government has also changed the Search and Surveillance Act to permit police officers to conduct warrantless searches of people, vehicles, and properties for terror planning and preparation offences which have a maximum sentence of seven years imprisonment.

The warrantless entry of a property would be limited to circumstances where the police officer considered that evidence might be destroyed or concealed if a search was delayed to obtain a warrant.

The new powers have concerned the Human Rights Commission and the Privacy Commissioner, among others, for the risk posed to civil liberties. The Government has insisted sufficient safeguards existed within the law.

Privacy Commissioner John Edwards said it did not appear that Parliament responded to his concerns about the “exceptional powers” it was bringing into law.

“I hope that those are only used in exceptional cases, and that they’re only used appropriately. But powers like this, and particularly the warrantless search for a very sort of vaguely defined offense, can be subject to abuse.

“So we need to rely on the integrity of the agencies and officers who are given those powers to use them in a way that is intended.”

Government’s terror law haste

The Government promised to boost counter-terrorism laws after the release of the Royal Commission of Inquiry into the Christchurch mosque terror attacks, which highlighted a possible need for “precursor crimes”, or criminal offences for terrorism planning that could be used to disrupt attacks.

Such a provision did not exist under the existing Terrorism Suppression Act. Under this law, police had tried to charge the terrorist behind the Auckland supermarket attack, Ahamed Aathill Mohamed Samsudeen, with terror planning in 2020, but this was denied by a judge.

On September 3, Samsudeen, a known supporter of the extremist Islamic State of Iraq and Syria (Isis), walked into the New Lynn Countdown and injured seven people in a stabbing attack.

He was promptly shot dead by police, who had been surveilling him 24/7 since he had been released from custody 53 days prior.

Crown lawyers had in July 2020 tried to prosecute Samsudeen under the Terrorism Suppression Act, claiming his online posting and purchase of a hunting knife amounted to planning of a terror attack.

But terror planning was not a criminal offence under the law. The Government had, after the Royal Commission of Inquiry into the Christchurch mosque attacks in December 2020, promised to make it a criminal offence.

The Government introduced its proposed bill in April.

Ardern said that, amid concern among officials that threat Samsudeen posed to the community, the Government moved prior to the attack to expedite the bill at the suggestion of the police commissioner.

Justice Minister Kris Faafoi called Labour MP Ginny Andersen, chair of the Justice Select Committee considering the bill, to ask that its progress be hastened. This phone call came on the morning of the attack.