Audrey Young: Questions need to be asked despite Ardern's assurances on LynnMall terrorist

OPINION

It is not often that Australian laws on deportation look attractive to New Zealanders.

But comparing Australia's hardline law with the legal obstacle course in New Zealand that kept the LynnMall terrorist from being deported back to Sri Lanka, it is time to take a hard look at whether New Zealand has gone too soft.

A review needs to take place which should test the assurance by Prime Minister Jacinda Ardern that absolutely every that could have been done was done before Aathil Samsudeen stabbed five shoppers on Friday, inspired by IS.

That assumes that there was no opportunity for discretionary judgments along the way.

In fact, at various points, choices were taken by Immigration, the courts, the Police and politicians.

For example, according to the Prime Minister's timeline, Immigration chose not to put Samsudeen in custody pending appeal of his deportation because Crown Law thought he would eventually be declared a protected person and be allowed to stay.

That sounds like failing to act because someone had second-guessed what a legal outcome would be.

There are other questions to be answered such as whether the original granting of refugee status was robust enough given parts of it were later found to be fraudulent, whether more could have been done for the offender's psychiatric problems, why he was given supervision instead of intense supervision by the court in July, what law changes could have been made earlier.

There is already a welcome sense of political bipartisanship from National on the issue.

It has agreed to expedite a bill before select committee which clarifies that planning and preparing for a terrorist act is a criminal offence.

National leader Judith Collins has been quick to offer bipartisan support to law changes. Photo / Mark Mitchell

But you need to see the objections in submissions from the legal fraternity to see that legal principle often impedes attempts to deal with dangerous reality.

The legal purists would argue that two men buying nails, one for a roof and one for a bomb, should be treated equally, and that neither has committed a crime.

The public would expect the powers of the state to know about the planned bomb before it goes off and to have the tools to prevent it before the bomb is even built.

The existing law already says that planning and preparations to carry out a terrorist act amounts to an act of terrorism, whether or not it is carried out.

But when police tried to use it last year citing a knife purchased by Samsudeen for a knife attack, a High Court judge said it required too much conjecture as to what sort of knife attack might be planned. He said it was not unequivocally clear what Parliament intended.

Act leader David Seymour has cautioned against a knee-jerk reaction. Photo / Mark Mitchell

And that is about to be made crystal clear to the judiciary in the bill which will be passed by the end of the month.

Bipartisanship on the review is crucial. Lack of it prevented earlier attention to elements of the existing law, the Terrorism Suppression Act 2002.

Judith Collins was Justice Minister when it was taken off the Law Commission's review.

That was because it would have faced a backlash from Labour which was already fomenting opposition to much-needed remediation of the GCSB legislation.

National would also have been viewed with suspicion by its Maori Party partners at the time after the Tuhoe raids of 2007 which used flawed parts of the law.

Collins has been quick and unconditional in pledging National's support for changes this time, perhaps compensating for her appalling week last week over the politics of Covid.

Act's David Seymour is right to caution against a knee-jerk response by Parliament.

The review into the Samsudeen case should be undertaken by someone who knows the law and the public sector and can act swiftly - over months not years.

It need not be a witch hunt. The primary aim of an inquiry, besides revealing what happened, should be to identify what extra powers should be given to which part of the system to ensure that the safety of New Zealanders is put ahead of the freedom to offend.