Counter-Terrorism Legislation Bill

Members, we come first to the Counter-Terrorism Legislation Bill, Part 1. This is the debate on clauses 3 to 26, Schedules 1 and 2 amendments to the Terrorism Suppression Act 2002. The question is that Part 1 stand part.

I thought I might start proceedings this afternoon—begin with what we usually do in thanking the Justice Committee for its thoughts and amendments and work on the Counter-Terrorism Legislation Bill. I also want to acknowledge that this took place in the shadow—towards the end of that process—of the attack at LynnMall, and, along with many other members of the House this afternoon, I acknowledge the victims and communities involved and wish them a speedy recovery.

A lot of the measures contained in Part 1 are designed to ensure that in terms of terror attacks of this type—because the nature of terror is changing—the authorities have the ability to prevent and stop those types of offences happening. Again, reports back from the select committee are that all parties around the table worked well. I understand from reading the minority views of both the ACT Party and the Green Party that there were some differences of opinion around the process in terms of timing, and I’ll come to that, but I do want to thank the select committee for unanimously coming to the point where we could make an amendment to the definition of terrorism around intimidation. I do think it’s useful that all parties came to that threshold unanimously around the table.

Just around some of the criticism by both the ACT Party and the Green Party in terms of process, my understanding is that this piece of legislation within the select committee was fully and well considered, and any suggestion that it was rushed through hastily doesn’t necessarily pass muster. I understand that there was a small amount of time still available to the select committee which would have allowed the Parliamentary Counsel Office to undertake its normal drafting and then the select committee would have reported back. I also would point out that the Government is trying to make sure it strikes the balance of making sure it does have the proper scrutiny of a select committee, which we believe it did, and also working to make sure that we do give the tools to the authorities, which are contained in this bill, in order to address some of the challenges that they are meeting on a daily basis.

To some of the issues that were raised in the minority views, acknowledging some concern around the planning and preparation offence within the bill by the Green Party. I understand that the select committee essentially unanimously, I think, or with the support of the select committee, agreed to remove the “planning to plan” offence, which was in the first iteration of the bill. I understand there was plenty of discussion around that, and to avoid confusion that offence has been removed.

I do want to allow questions to be asked, but this piece of legislation has been progressed out of the recommendations of the royal commission on the mosque attacks in Christchurch in 2019. It also responds to, as I said in my beginning remarks, the nature of terrorism changing. Our current Terrorism Suppression Act was passed when terrorism was more likely to be the actions of an organised entity or an organised group, and, as we’ve seen more recently, acts of terror are being undertaken by individuals or small groups using things that might be considered everyday actions but are used to bring about harm to people in the name of their own ideology. So, again, I want to thank the select committee for its adjudication over this piece of legislation and I welcome any questions that members, who were on the committee or not, may have around Part 1.

Thank you, Mr Chair. Thank you, Minister. I’d also like to take this opportunity to thank the work of the Ministry of Justice. They did an outstanding job, I thought in my short time here, with their departmental report actually thoroughly going through and answering a number of questions. So I’d just like to acknowledge the work that the Ministry of Justice did for us there.

My question to the Minister is: could the Minister inform us where, in this part—or parts; we’re taking them both—could you answer please, if there’s any part of these sections in here that would have actually made a difference to the LynnMall terror attack or the terrorist being able to attack members of the public?

Can I thank the member for pointing out my error in also acknowledging the officials of the Ministry of Justice for their hard work, especially under some of the time frames we suggested that they work to.

That is a very difficult question to answer; legislation alone cannot prevent attacks happening. But the legislation that we are implementing through the House will give the authorities—the likes of police—more powers, as we say, to intervene if they find serious evidence of motivation and intent and purpose, and also the bringing together of a number of actions where an individual or a group may be planning to undertake a terrorist attack.

The answer to the question around the particular incident is, in terms of control orders, this person wasn’t necessarily convicted of a terrorism act. But if we are looking forward, it’s hard to define precisely a case, because it depends on the facts of the case.

What I do think is that we are giving the likes of the police more tools, certainly. In planning and preparation, I think the members of the select committee were, no doubt, made aware of a High Court case where the judge, in that particular instance, gave a signal that a planning and preparation offence didn’t exist, so in that instance he could not make a judgment on the planning and preparation of a particular circumstance that was before him.

So it will depend on the facts of each case, but I do think, again, because of the changing nature of, unfortunately, some of the events that we’ve seen take place over the last two or three years, the provisions within this bill will give authorities the ability to take more pre-emptive action. To pre-empt a criticism on that that I think might come during the debate: that is with the necessary safety precautions in there around taking a prosecution under this piece of legislation, for example, having the Attorney-General green-light any prosecution that may go to the court.

Kia ora. Thank you, Mr Chair, and Minister, I acknowledge you for being in the Chamber this afternoon. When this matter was last before the House, Minister Little was here in the capacity, as I understand, as Minister who was in charge of the commission of inquiry. So my question to you, Minister, as the responsible Minister for the passage of the Counter-Terrorism Legislation Bill into law: it’s well known that there was a commission of inquiry and that commission of inquiry, having been appointed and commencing its work in April of 2019 after the Christchurch mosque murder incidents—that the findings of the commission of inquiry were presented to the Governor-General in November 2019. So, Minister, this bill is not specifically addressing the recommendations under the commission of inquiry per se.

But my question to you, Minister, because this is a counter-terrorism bill, the commission of inquiry—one of its recommendations, in fact recommendation No. 18, was to look at this legislation. That has been done. In your capacity, Minister with that of Minister Little’s, what is being done in relation to a specialist agency being appointed when it’s well known that the National Party has appointed a spokesperson to lead that? That segues into the application of the counter-terrorism bill. And I come back to Part 1—I’m mindful that the Chair may be pulling me back to the bill, and I do that accordingly.

So my question, Minister, is: what is the relevance of Part 1 in the totality of the counter-terrorism bill for the appointment and designation of an agency to lead this work?

Can I thank the member for the inquiry. Certainly around recommendation 18 of the royal commission of inquiry, the changes within this piece of legislation, especially the ones around planning and preparation of terrorism offences, go directly to one of the strong recommendations within recommendation 18 of the royal commission—something explicitly that they pointed out there to change within the context of our terror laws.

I think, also, the member may have been talking around a contribution by Minister Little in the second reading speeches that were undertaken a couple of weeks ago or last week. I think it’s fair to say that as a Minister responsible for the overall response to the recommendations within the Christchurch commission of inquiry, he said he was working through all the recommendations and was open to the suggestion, I think, around the point that the member raised. I think what you have seen through the prioritisation of this piece of legislation, getting some of the powers to the agencies and responding to the recommendations of the commission of inquiry have been the priority to date, and that’s why we hope to get this legislation passed as soon as possible to give the likes of police and other agencies the ability to prevent other attacks happening in the future.

Thank you, Minister. Of course, I join with everybody else in terms of thinking of our communities up there in New Lynn as well, but then also our communities that were impacted in Christchurch as well.

Thank you for reminding us about the changes in terms of the planning and preparing of terrorism. Some of the conversations that we’ve been having is that there’s a lot of concern around that and around how agencies might be enacting that, given the history of agencies in the past in terms of targeting, in particular, tangata whenua but also peoples of colour as well. As we know, in the case of Christchurch, the agencies were looking everywhere except for the right place, and they were primarily targeting peoples of colour.

So my question is—questions—given cases like Zaoui v Attorney-General are a part of Aotearoa’s history, is the Minister certain that new preparatory offences under the Act won’t be used to indefinitely detain, arbitrarily prosecute, or search or surveil people without warrant and with insufficient evidence of preparation of any wrongdoing? A follow-up to that is: how will the Minister prevent preparatory powers being disproportionately used against people of colour and tangata whenua, given the royal commission on the Christchurch mosque attacks found that public agencies have been overly focused on the threat of Islamic extremism and that Māori and Pasifika are also overrepresented in our justice system because of racial bias?

I think it was plain to see through the findings of the royal commission that it was a wake-up call for a number of the agencies that the member has suggested. When we do acknowledge the past history of the actions of some of those agencies around the predecessor to this bill, there are a number of protections which give me confidence that any misuse of the powers within this legislation will be there to ensure that they are not misused.

I’ve already mentioned one before, around the Attorney-General having the final sign-off on any prosecution that may come about from any investigation under this legislation, and I’d also point out—and the member will know this, but for those who may be interested at home—that the three legs of motivation, intent, and purpose all have to be met in order for a terrorist charge to be brought. One of the aspects that is new in this bill and that will be developed over case law around planning and preparation, I think, is if you tick all those three boxes, then a court will rule in terms of a series of events that an individual or an entity may undertake which will meet the threshold of planning and preparation. So I think all eyes will be on that.

I think the other concern that I believe was raised in the Green Party minority view in the report back from the select committee was around the right to protest. There are protections within the legislation to ensure that lawful protest is not impeded and that people still have the right to undertake and express their views through lawful protest. I guess I would go back to my first point, which was that all three arms of that terrorist definition have to be met. It’s a high threshold, and, again, we believe there are the protections to ensure that only those cases that meet that threshold and that are in the public interest will get taken to a prosecution.

Thank you for that answer. Just in terms of the timing aspect as well, because you talked a little bit about that, and, of course, the pressure that particular groups feel—particularly social justice activists and environmentalists, who also often get picked up as well. I’m just mindful that there was, for example, spying done on Greenpeace and for the House to remember that, actually, Greenpeace suffered one of the horrific terrorist attacks in our history, as well, with the bombing of the Rainbow Warrior, that there is a lack of trust amongst certain communities with the agencies, and having that time to actually unpack some of that with our communities would actually help to sort of really walk this legislation through.

I guess my question is: given one of the bills that we passed earlier was to actually have the opportunity to grill, this year, the SIS and the GCSB and to really find out actually what happened down in Christchurch, why they were so obsessed with the wrong people and the sorts of things that that inquiry will throw up; why the speed of this particular legislation, given that there could be a lot of other things that we could be missing out on and that many of our communities are quite concerned about that, and also people who often get caught up as political dissenters or protestors or whatever you want to call it?

I kind of go back to some earlier comments about trying to ensure that we strike a balance between ensuring we have given our agencies the tools to counter some of the national security threats that they are constantly facing in terms of monitoring other individuals or groups.

Again—and I want to acknowledge some of the contributions at the second reading of this legislation—the consideration at the Justice Committee was thorough, it was considered, and I also believe that the select committee members came to agreements on a lot of the substantive amendments and those things that stayed the same within the bill. There has been some criticism around the timing of the announcement of getting this piece of legislation through the House before September, but, again, I would acknowledge that there was, essentially, a small piece of administration needed from the Parliamentary Counsel Office (PCO) in order to get the changes made, and I want to acknowledge both Justice officials and the PCO for getting this piece of legislation to where it is now. It did have full consideration. Again, I think, the events of the 3rd of September are a reminder that the threats remain real. Ensuring that the authorities have the powers to make sure they can do everything they can to prevent further attacks was the balance that the Government has sought to strike.

Thank you, Mr Chair. Minister, you’re aware that we had quite a robust discussion within the Justice Committee about the use of the word “fear”, and removing “terror” in response to having “fear”. Then we, of course, removed that and went to “intimidate”. And that change of word “intimidate” was something that was agreed amongst all of the select committee, although there have been concerns that “intimidate” is still lowering the threshold. So Minister, for clarity, really, for the viewers at home, in order for them to understand why we have removed the word “terror” or “terrorist” and replaced it with “intimidation”, is the Minister able to give us examples of where “intimidate” would or could be used by officials in prosecutions, and what difference there is between inciting terror as opposed to intimidation?

Mr Chair, thank you for that. One of the anomalies with the definition of terror, as it currently stands within the legislation, is that it includes the word “terror”. So there was a circular argument to be had about the definition of terror there. I do understand that along with officials, the members of the select committee did have a robust debate around where the threshold should be. I also understand that officials outlined that countries similar to us—the likes of the UK and Australia—use “intimidate” as a threshold. It’s slowly becoming the international norm to have intimidation as the threshold within other pieces of legislation.

The proposed change from “terror” to “fear” was an issue that attracted most submissions. The issue was taken to Cabinet post the select committee’s departmental report and the revision-tracked version being delivered by the select committee. I think it’s difficult to give a number of scenarios around what intimidation would be. It is probably, for those who studiously watch these pieces of legislation, a slight lowering of the threshold, but I will note and I understand that it was unanimous amongst the committee, and the Government—given some of the reasoning that the committee made—decided to agree with it.

Yeah, thank you for that, I was wondering—in terms of some of the communities watching from home—if you could walk us through how this could capture, like, the offender from Christchurch? I think I can see how it might catch the guy from New Lynn, but how could this capture someone who flies under the radar? I’m talking about white supremacy, I’m talking about Nazis, I’m talking about those sorts of people that people from the communities that I come from are concerned about. So could you walk us through those two different scenarios about how this would actually do that?

Thank you, Mr Chair. As I mentioned before, all those three legs of motivation, intent, and purpose need to be met. The change in this piece of legislation, I believe, if the individual concerned obviously had an ideological bent, and if the police were able to monitor him and believe that he did have the motivation, intent, and purpose to carry out such an attack, and—I guess in a hypothetical world, because I don’t want to give too much attention to the individual—they saw him meeting those three tests and making moves to plan and prepare to carry out an attack, they would have, as the High Court judge mentioned, the offence within this piece of legislation to bring about a prosecution. That hasn’t been available until this piece of legislation has passed, and regardless of the motivation or ideology of the individual or entity concerned, the ability to prevent an attack happening—which was in, I think, clause 8 of the bill, I may stand to be corrected there—is one of the key changes in this piece of legislation.

So, not only to some of those communities who may have some focus around disappointment of past actions, but to all communities who are concerned that this piece of legislation may see it being misused: we believe there are safeguards within it to ensure that it won’t. I think, as I mentioned at the very outset, the nature of some of the activities is changing, and in order to give the authorities the ability to pre-empt and take action before either infrastructure, individuals, or groups are attacked, is one of the key pieces of this legislation.

Thank you for that answer. I guess one of the concerns that still remains with me is the speed of it, and also the way that this bill seems to be changing tack quite a bit as well. I know that a few people share those concerns—in some of the communities—that I do as well.

In terms of its original intention—and perhaps you could enlighten me here, Minister—when you brought in this regime, it only applied to foreign fighters returning home, and you said that the control over the regime was necessary as you weren’t able to gain sufficient legal evidence, from places like Syria, to charge them with a criminal offence. How can you justify expanding this now to include people convicted in New Zealand? The initial bill required a review of the regime, but this has been pushed out for another two years, so if you could answer—for myself and the people at home as well—those two questions, that would be good.

The control orders regime makes changes to a piece of legislation that was passed in 2019, which does allow, currently, anyone who’s convicted of a terrorism offence that occurred overseas to be monitored by the authorities or be put under conditions by the authorities. The gap in the law, which is seen to be changed here in this legislation, is that, I think, certainly in the last two or three years, we’ve seen that there are domestic threats, and if anyone were to be convicted of a terrorism-related offence in the future and there were still ongoing concerns about their motivations to carry out further attacks, or to carry out an attack, then a control order would be able to be used as one of the amendments to the regime in this piece of legislation.

Again, that’s a higher threshold. I believe only one individual has been convicted of a terrorism offence in New Zealand. Anyone who undergoes a control orders regime will have to be found guilty of a terrorism offence, and I think in order to prepare for the future—I would hope we never have to use that regime that’s within this piece of legislation, but, again, because of the changing nature of the terror threat, or national security threats in New Zealand, ensuring that power is there, to have a control order for those who have offended in New Zealand, was seen as the right thing to do, given the changing nature of threat.

Thank you. Just to follow up on that: if someone is subject to the control orders regime after they have already been punished for a period of imprisonment, will the further limits on their rights from the control orders result in that person receiving rehabilitation or are imprisonment and control orders likely to result in further alienation and, ultimately, further radicalisation and extremism? So I kind of want to know about how this will intersect with other parts of legislation or policy to make sure that we can sort of take more of a holistic approach.

Rehabilitation is certainly one of the options that could be undertaken as part of a control order in the future under the regime. I would also point out that at the end of the day, it will be a judge who will make a judgment as to what is appropriate in terms of the conditions of a control order. So if a judge believes that some of the aspects of a proposed control order that is being sought don’t meet the risk that an individual or individuals may pose, then it’s the judge’s decision as to whether or not that condition is imposed.

So I think a check of the judiciary in that respect is important to make sure that any constraints upon the individual meet the risk that the individual might meet. But just to reiterate the question from the member: rehabilitation could definitely be one of the options available as part of a control order regime over an individual.

Thank you, Mr Chair. I just want to make a small number of remarks and then ask the Minister a question. I just would agree with the Minister—indeed, something I said at the second reading. It was a thorough process at select committee. I don’t accept the criticism we see from parties to my left about that. It wasn’t rushed and much of what happened in the committee process was in fact unanimous. And so it does—and I’m not seeking to be overly political here, but it does seem strange that there’s now opposition to this bill. Certainly National isn’t opposing it. We support it fulsomely. We did at first reading, we did at the committee process; indeed, we sought to strengthen it and I think we’ve achieved that in some regards. That’s because we take, like the Government of the day, the obligation to keep New Zealanders safe—the first obligation really of any Government—very seriously.

I just want to note that the Hon Mark Mitchell, MP for Whangaparāoa, is now our spokesperson on counter-terrorism measures. He has deep expertise and experience in this area, actually in the field, and he would have liked to have been here today speaking, asking questions—

💬 Hon Member: A very good member.

—a very good member—but he is in Auckland and, of course, with COVID restrictions, that’s not possible or appropriate.

My question for the Minister is, I hope, actually a very simple one, with no tricks to it, as it were. I simply want to have a sense from the Minister that he believes that the High Court decision of Justice Downs from what was a year or so ago, involving the perpetrator of the LynnMall supermarket attack—has the gap that he believed was present in the law, and I haven’t got the case in front of me, around planning and preparation—that we’ve now as a Parliament in this law comprehensively addressed that, really, and we now feel confident as a Parliament, the Government feels confident, and therefore, you know, given that Government and Parliament feels confident, New Zealanders can feel confident that we’ve comprehensively addressed that. I wouldn’t say that that would mean that we will never see the like of an attack such as we saw at the supermarket—and we all regret, and we thank those involved in keeping people safe there, the police and so on. I’m not saying we’ll never see that again, but does he feel that with the law it does comprehensively address Justice Downs’ gaps, as written to the Attorney-General and so on, and that this should keep, on that basis, more New Zealanders safe and make something like the supermarket attacks less likely in the future?

Can I thank the Hon Simon Bridges for his contribution and for his reinforcement of his comments in the second reading speech, especially around the select committee process.

To the question that the member posed: obviously, the gap was identified in the case that was before the High Court judge last year, and I think that sent a pretty clear signal to Parliament that the offence the judge had before him—or the attempt to bring about a conviction for the case before him—did not exist in legislation. So, in plain English, there was no offence around planning or preparation. I would echo the comments of the member: nothing can ever guarantee something not happening, when we legislate. But we must, as a Parliament—and we do take very seriously our responsibility as Government to make sure that we can do everything we can to prevent attacks of this nature occurring. Again, “of this nature” is an important phrase, because, over the last 10, 20 years, we have seen the nature of these kinds of terrorist attacks, which are ideologically motivated, change in their nature, and we have seen, both here and overseas, horrific incidents where everyday items end up being used in terrorist-motivated attacks.

I do believe, to answer the member’s question, that we’ve done everything we can within this piece of legislation to fill the legislative gap. It was highlighted both by the royal commission and by the judge in the ruling that was made last year.

Thank you for that. I have a question specifically around Māori, around land protectors as well, folks that occupy their ancestral lands, which is fairly common in Te Ao Māori—Ihumātao, Pūtiki—and trying to ensure that they don’t get caught up in the broadening of the definition of this. Does the Minister believe that this bill takes into account Te Tiriti o Waitangi and the right to tino rangatiratanga, given the broad powers available to the Crown under control orders? And has the Government carried out adequate and fair consultation with tangata whenua to establish this?

Important in the safeguards which exist, and will continue to exist when this piece of legislation is passed, is the right to protest. Again, I go back to the three tests of a terrorist act that need to be met, and in no way would I see a lawful protest of people around land rights getting anywhere close to being a prosecution within this piece of legislation. I will note some of the concerns raised at the select committee stage by Māori and iwi submitters. The nature of counter-terrorism legislation means that we can undertake very limited consultation ahead of legislation being proposed and tabled in the House. So we acknowledge some of the frustrations that have come about by that, but, by their very nature, undertaking consultation early can give opportunity for gaps in the proposed system to be taken advantage of. And, again, that’s a balance of making sure the national security interests and the consultation with stakeholders is balanced, and we did believe that the select committee was the right place, and acknowledge that there were submissions made around these concerns. It was the right place to ensure that the views of many, including Māori stakeholders—was the right place for those views and concerns to be aired.

Minister, I draw your attention to—taking my mask off first!—Part 1, purpose of the bill, section 4, where there is an amendment proposed for the insertion of Resolution 2178. Minister, are you able to give clarity as to why there has been priority in recognising and addressing Resolution 2178 under this bill and not addressing recommendations 1 and 2 of the commission of inquiry, which deals with important aspects of addressing counter-terrorism under this bill?

For those who may be watching at home, Resolution 2178 is a United Nations resolution and the inclusion of that within this piece of legislation makes sure that we fulfil our international commitments to that resolution. It’s something that can be done relatively easily within this piece of legislation. In terms of the member’s juxtaposition of that, two recommendations, 1 and 2, I believe she mentioned around the royal commission of inquiry, I’d also note that there is a large amount of work to make sure that all of the recommendations of the royal commission are worked through and acted. That is obviously being led by the Minister responsible for that, the Hon Andrew Little. I wouldn’t necessarily say it’s a matter of prioritisation. It’s just that when we are passing this piece of counter-terrorism legislation, it’s an opportunity for us to make sure that we fully meet our international obligations underneath that, under that resolution of the United Nations.

Thank you. Minister, following on from that, you’ve clarified for the benefit of the public, Resolution 2178 from the United Nations Security Council in 2014. Again, coming in under the purposes of this bill, it is specific to addressing the recommendations within that resolution. My question, Minister, is: why is it that the drafting of this legislation, and you as the Minister leading the bill, did not see fit as a priority the recommendations from the royal commission of inquiry, giving it the same regard and positioning as Resolution 2178, which is specific to dealing with how best to address counter-terrorism in New Zealand?

My understanding is that making sure that we include the United Nations Resolution 2178 within this piece of legislation means that we give full effect to it. It is connected to some new aspects within this legislation around international travel to or through New Zealand or its waters with the intent to undertake a terrorist act. I think the member will note that that resolution has been around since 2014, as it says in the clause that she mentioned, and the Government has seen fit to make sure that it comes fully into effect and this piece of legislation is the vehicle in which we can do that.

With respect, Minister, that doesn’t answer the question I put to you. My question is—the purpose of this bill is identified with specifically addressing Resolution 2178, and you’ve talked about the elements under that resolution. My question, Minister, is that you leading this proposed legislation in addressing counter-terrorism to the best effect in New Zealand—why was recommendation 1 under the commission of inquiry, which is “Ensure a Minister is given responsibility and accountability to lead and coordinate the counter-terrorism effort” and recommendation 2, to “Establish a new national intelligence and security agency”—those recommendations, Minister, are very specific and would clearly fit within the purpose of this legislation in dealing with and defeating counter-terrorism in New Zealand. Why has that not been included? Or more so, Minister, why have you overlooked that being addressed within this counter-terrorism legislation?

I thank the member for the question. The priority in this instance, and for this piece of legislation, was to ensure that another recommendation of the royal commission of inquiry—around the likes of planning and preparation, control orders, etc.—was prioritised to give the authorities the tools in order to prevent another offence of that ilk occurring again, something which we all will agree with. I think Mr Little outlined, in his second reading contribution, that the issues around recommendations 1 and 2 that the member has referred to, are issues that the Government continues to work on. I would not want the work on that to hold up the work that is contained in this legislation, which will go a long way to give the tools to our authorities to prevent terrorist attacks occurring again.