This report was first published on August 16, 2021.
An Islamic State sympathiser who allegedly planned a "lone wolf" knife attack in Auckland couldn't be charged as a terrorist because of a longstanding gap in New Zealand's counterterrorism laws, it can be revealed.
The Crown sought to prosecute a 32-year-old man — known only as "S" for legal reasons — under the Terrorism Suppression Act 2002, but a High Court judge ruled that preparing a terrorist attack was not in itself an offence under the legislation.
S was instead prosecuted on lesser charges. On May 26, he was found guilty by a jury of possessing propaganda-style material supportive of Islamic State. He was acquitted on other charges of possessing a graphic video depicting a prisoner being decapitated and possession of an offensive weapon.
According to a report prepared for his sentencing in July, S has "the means and motivation to commit violence in the community". Despite the police concerns about the threat to public safety, S was sentenced to one year of supervision, a community-based sentence designed to rehabilitate low-level offenders.
The case illustrates a flaw in New Zealand's counterterrorism powers that police and security agencies have long argued constrains their ability to keep the public safe from violent extremists — but which successive governments failed to resolve.
In a July 2020 ruling before S stood trial, which could not be reported until now, Justice Mathew Downs acknowledged there was a serious threat to public safety from "lone wolf" attackers, especially after the Christchurch shootings that killed 51 people and injured 40.
The judge described the absence of an offence of planning a terrorist attack as an "Achilles' heel" hindering the authorities' ability to stop such would-be attackers. But he dismissed the Crown's application to charge S under the anti-terror law, saying it was for Parliament, not the courts, to create an offence of planning an attack.
In a rare move, Justice Downs ordered that a copy of his judgment be sent to the Attorney-General, Solicitor-General and Law Commission.
Since then, the Labour government has proposed new anti-terror powers. The judgment was cited by government officials as one of the key events leading to the introduction of new anti-terror powers in April. The judge's concerns were echoed by the Royal Commission of Inquiry into the Christchurch attacks when it presented its findings in November.
Labour's new Counter-Terrorism Legislation Bill, which passed its first reading in May, would make it a criminal offence to plan or prepare for a terrorist attack.
The government says the legislation will enhance public safety and bring New Zealand's counterterrorism powers in line with those of countries like Australia and the UK, where stiff prison sentences can be imposed even if a planned attack isn't carried out.
The new powers are long overdue, according to one security expert.
"Our legislation has been so unworkable, it's actually been pointless," Dr John Battersby, a teaching Fellow in the Centre for Defence and Security Studies at Massey University, told the Herald.
"We have to have someone drop dead in the street before we can use that law ... it's been far too long and New Zealand has been far too complacent, including our parliamentarians."
S came to the attention of New Zealand police in 2016 after he posted "staunchly anti-Western and violent" material on the internet, according to Downs' judgment. That included explicit images of war violence and comments supporting an Islamic State attack in Brussels.
S was given a formal warning by police but continued posting violent material, including a comment saying: "One day I will go back to my country and I will find kiwi scums in my country ... and I will show them ... what will happen when you mess with S while I'm in their country. If you're tough in your country ... we are tougher in our country scums #payback".
According to police, S told a fellow worshipper at a mosque that he planned to join Isis in Syria. In May 2017, he was detained at Auckland International Airport after booking a one-way ticket to Singapore. A search of S' apartment in Auckland found material that glorified violence, including images of him posing with an air rifle, and a hunting knife hidden under his mattress.
S was held in custody, denied bail for more than a year, and eventually pleaded guilty to charges of distributing restricted material. Because of the length of time S had already spent in custody, he was sentenced by a High Court judge to supervision.
S did not abandon his extremist views. The day after he was released — August 7, 2018 — he purchased another hunting knife. Counterterrorism police, who had continued surveillance on S, arrested him again.
Another search of his apartment found a large amount of violent material, including an Islamic State video about how to kill "non-believers" in which a masked man cut a prisoner's throat and wrists. This time, prosecutors sought to charge S under the Terrorism Suppression Act.
In his ruling, Justice Downs said: "Terrorism is a great evil. 'Lone wolf' terrorist attacks with knives and other makeshift weapons, such as cars or trucks, are far from unheard of. Recent events in Christchurch demonstrate New Zealand should not be complacent.
"Some among us are prepared to use lethal violence for ideological, political or religious causes. The absence of an offence of planning or preparing a terrorist act ... could be an Achilles' heel."
However, the judge added: "It is not open to a Court to create an offence, whether in the guise of statutory construction or otherwise. The issue is for Parliament."
The Terrorism Suppression Act was introduced in 2002, in a hasty attempt to strengthen New Zealand's counterterrorism powers in the aftermath of the 9/11 attacks by Al-Qaeda in New York. Since it was introduced only one person has successfully been prosecuted under the legislation: Brenton Tarrant, the white nationalist who carried out the March 15 attacks.
Over the years, problems with the law were flagged at the highest levels.
In 2007, after the controversial Operation Eight raids on Tuhoe, the Solicitor-General David Collins refused to lay charges under the terror law, saying the relevant provisions were "unnecessarily complex, incoherent and as a result it is almost impossible to apply" in the circumstances.
The Terrorism Suppression Act was twice placed in the Law Commission's queue of legislation to be reviewed as "fit and proper", but each time it was bumped down the priority list by the National-led government.
In May 2018, Prime Minister Jacinda Ardern and then-Justice Minister Andrew Little were briefed on the issues and directed officials to do more policy work. No advice had been provided by the time of the Christchurch attacks.
Pressure on the government to change the law increased when the Royal Commission of Inquiry into the Christchurch terror attacks, led by Supreme Court judge Sir William Young, identified the legal hole as a "pre-criminal space" in which someone can plan or prepare an act of terrorism without committing a criminal offence.
This failure meant New Zealand was in breach of international obligations to the UN Security Council, the Royal Commission said.
The Royal Commission identified the lack of a planning offence as one of numerous weaknesses in New Zealand's counterterrorism structures in the run-up to the shootings, along with understaffing in the Security Intelligence Service (SIS) and an excessive focus on Islamist extremists at the expense of monitoring other potential threats.
The Royal Commission recommended a review of the Terrorism Suppression Act, although it stopped short of proposing the introduction of a new law making planning an attack a terrorist offence. It noted that such a change would be controversial, because there are "legitimate concerns about the risk of over-criminalisation and discrimination against Muslim communities and other potential target communities".
Some experts believe new powers are unnecessary and won't make the public safer.
Dr Paul Buchanan, an intelligence analyst, said the existing criminal laws are "enough to deal with terrorism-related crimes" and deprive the would-be attackers of the satisfaction and attention that would come with a formal terrorism charge.
Buchanan said police should persist with their current strategy of monitoring suspects and prosecuting them for lesser crimes.
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