Chris Wilson: Why late-stage planning of a terror attack should be an offence
Consider a hypothetical scenario. A man, sympathetic to white nationalist and far right ideology, downloads the manifestos of several previous terrorists, legally purchases weapons and writes on 4chan of his desire to attack the place of worship of a minority.
Security officials become aware of the man and his activities. Over several weeks, his plan solidifies to include the community of a particular area and he identifies a building. He begins writing his own manifesto, explaining his action and his hope that his attack will inspire further "nationalists".
He hopes that the government will ultimately be forced to reduce the levels of immigration into New Zealand. The man is preparing to launch a terrorist attack against a minority community in Aotearoa.
Our security agencies will of course prevent this attack. But the man currently cannot be charged and convicted for terrorism-related offences under the Terrorism Suppression Act 2002. In fact, he may have broken no laws and will be allowed to remain in society after being warned by authorities. Various agencies will now almost certainly monitor him, but he will be subject to no control order or restrictions on his movement or activities.
The inability to prosecute the man is because of the lack of any "precursor" offences for individual actors within the Terrorism Suppression Act. Precursor offences apply to groups of two or more individuals, for example participating in terrorist groups or recruiting or arranging financing for them. But the Terrorism Suppression Act does not have precursor offences related to individuals. This is increasingly problematic because attacks by lone actors, unaffiliated with any extremist organisation, are now the most common type of deadly terrorism. This is particularly the case with white nationalist extremism, as shown by recent attacks in Christchurch, El Paso, Poway, Hanau, Pittsburgh and many others.
The Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques found that the absence of such offences hinders the ability of the police to obtain warrants under the Search and Surveillance Act 2012. The report also stated that were such offences present it would allow the police to cancel a prospective terrorist's firearms license or to require the individual to undergo deradicalisation programmes for example.
The report also pointed out that by not having planning and preparation offences means New Zealand is in breach of United Nations Security Council Resolution 1373, signed in September 2001. The commission stated that it had "seen case studies that indicate that if there had been planning and preparation terrorism offences, some counter-terrorism targets could have been prosecuted".
This gap in New Zealand's anti-terrorism legislation was shown most clearly in the recent terror attack in the Countdown supermarket in New Lynn mall. In 2020, the perpetrator was brought to trial for possessing weapons and Isis-related propaganda. The prosecutor claimed that buying a knife meant that the man had committed a terrorist act through "planning or otherwise preparing to cause the death of, or serious bodily injury to one or more persons," something also indicated by other surrounding evidence such as the possession of extremist material and online statements regarding martyrdom and a desire to engage in violence. Yet the judge stated that although the absence of an offence of planning or preparing a terrorist act could be an "Achilles heel" it was not the court's job to create such an offence. As a result, he dismissed the application to add a charge under the Terrorism Suppression Act.
The absence of offences related to preparing and planning a terrorist act has indeed proved itself to be an Achilles heel in our defences against violent extremism. There are likely to be other individuals in the community with the potential to commit extremist violence: Newshub Nation recently reported that the Department of Corrections stated that in February it was "managing" 216 people with extremist views, of which 140 are classified as related to Identity-Motivated Violent Extremism. Of this total, 135 are in the community, the rest in prison. There are likely to be additional individuals of concern who have not interacted with Corrections. There is therefore good reason to support the Government's proposed amendments to the Terrorism Suppression Act introduced in April and now likely to be fast-tracked after the New Lynn attack.
However, I do have some reservations about the amendments as they are currently written and suggest certain changes to ensure a high bar is met for prosecution. The amendment should not only more clearly define what activities constitute planning and preparation but should focus on late-stage planning of terrorism. The benefits of criminalising early-stage planning are minimal when held against the associated impingements on our rights. It is now well accepted that only a tiny proportion of those who hold extremist views go on to commit violence. Early-stage discussion of or preparation for an attack may therefore be closer to a form of fantasy, bravado or desire for attention than real intent.
Depriving someone of their liberty for actions with little proximity to an attack will have a substantial effect on society and democracy and will disproportionately affect minority communities which receive the greatest attention from security agencies. Research into the pathways to extremist violence indicates that the acquisition of weapons, the identification of a particular target and timing of the attack, and weapons training are among the late-stage steps of attack planning and indicate an attack is imminent. Requiring stronger evidence that an individual is preparing to commit a terrorist attack will both assist in keeping society safer while avoiding unnecessary restrictions on our rights.
Chris Wilson is the programme director of the Master of Conflict and Terrorism Studies at Auckland University.