Broadening the scope of our anti-terrorism law won’t make us safer – what we need is a security service that’s aware of its own biases and which focuses on genuine threats.
A couple of weeks ago the government announced an update to New Zealand’s counter-terrorism legislation. The accompanying press release tied the changes back to a recommendation included in the report of the Royal Commission of Inquiry into the Terrorist Attack on Christchurch Masjidain. This recommendation asked the government to:
Review all legislation related to the counter-terrorism effort … to ensure it is current and enables Public sector agencies to operate effectively, prioritising consideration of the creation of precursor terrorism offences in the Terrorism Suppression Act… and acceding to and implementing the Budapest Convention.
As a result, the proposed bill widens the definition of terrorism to include planning for a terrorist act, as well as criminalising combat and weapons training, material support and international travel for terrorist acts.
On the face of it, planning for a criminal act is also criminal activity and if the legislation brings us in line with international conventions, then it shouldn’t be a problem. Unfortunately, the way legislation is applied is in a context of discrimination and marginalisation.
That can most clearly be seen in Clause 5 of the bill, which amends definitions of sanctioned organisations using the United Nations Security Council’s designated sanctions list of terrorist entities. The problem is that the UN list does not include a single white supremacist, white nationalist, alt-right or neo-Nazi organisation.
Even though there have been so many mass shootings by these groups, the definitions of terrorism used by the UN means that these organisations can often continue to elude authorities. This is symptomatic of an international bias that also impacts us here in Aotearoa.
The Royal Commission report found that, prior to May 2018, our security services inappropriately concentrated their resources “on the threat of Islamist extremist terrorism”, at the expense of threats associated with other ideologies. One of the reasons was that our intelligence partners did not provide intelligence on white supremacist terrorist activity within their own borders. Why? They were simply not looking.
Now countries such as Canada and Australia have included neo-Nazi organisations – including the Proud Boys (involved in the attacks on the US Capitol on 6 January 2021), Combat 18, Blood & Honour, and Sonnenkrieg Division – on their lists of terrorist organisations. I don’t understand why our bill doesn’t add any international neo-Nazi groups to Clause 5. Failure to do so perpetuates an already unfair bias.
We know that marginalised communities unfairly bear the brunt of state power. Aotearoa has already witnessed an unfair use of terrorism laws with Operation 8, the 2007 “anti-terror” operation that led to a finding by the Independent Police Conduct Authority that the police had acted unlawfully in raiding houses and setting up roadblocks. The police formally apologised for their actions on that day.
The proposed legislation broadens the definition of terrorism. Instead of defining it as the inducement of “terror in a civilian population” it is now simply “fear in a population”, a less stringent definition which lowers the mens rea, the intention of committing a crime. Where before the definition of a terrorist act was one done “to unduly compel” a government or organisation to carry out (or abstain from) an action, now it just “to coerce”. This broadens the definition of terrorism, giving wider power to the state. It’s difficult to see the justification for doing so.
These new powers would not have helped to prevent the Christchurch mosque attacks. The issue wasn’t that the laws weren’t broad enough to prosecute the terrorist prior to the atrocities he committed. The problem was that our national security system didn’t recognise him as a threat – even when he came to the attention of state agencies, even when he travelled in and out of the country and even when he applied for a gun licence. The killer wasn’t ever on the radar.
Over the years we have seen ever-increasing powers awarded to the state with each change to counter-terrorism laws. I have yet to see evidence that these changes have made us safer. What will make us safer is a national security system that is not biased, that picks up on of global emerging trends, and that is responsive to reports from targeted communities. When the systems are poor, greater legislative powers lead to the risk of greater harm.
When the state grants itself greater powers, it must also give the public greater protection from the misuse of those powers. Adding specific human rights checks would be a start, as well as legislative requirements to monitor and address unfair bias.
We all want to be safe and feel safe from a terrorist attack. We want to know that those who wish to cause harm and terror will be prevented from doing so. Overly broad definitions will not make us safer, and neither will targeting communities unfairly.