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An armed police guard at Countdown LynnMall on the morning of September 4 (Photo: Fiona Goodall/Getty Images)
An armed police guard at Countdown LynnMall on the morning of September 4 (Photo: Fiona Goodall/Getty Images)

SocietySeptember 4, 2021

Would harsher terrorism laws have prevented the mall attack?

An armed police guard at Countdown LynnMall on the morning of September 4 (Photo: Fiona Goodall/Getty Images)
An armed police guard at Countdown LynnMall on the morning of September 4 (Photo: Fiona Goodall/Getty Images)

Our existing law possessed the tools to hold the perpetrator of yesterday’s knife attack accountable for his actions, writes Otago University law professor Andrew Geddis, who says legislation shouldn’t be rushed through in response to it.

In the wake of the Lynn Mall knife attack, there’s been a bit of an outcry about why our parliament hadn’t done more to prevent it. Driving this is a High Court decision from last year that held the man responsible could not be prosecuted under the Terrorism Suppression Act 2002, despite strong evidence that he was preparing to carry out just this sort of attack. Surely if better law had been put in place, this event could have been forestalled? And, if that is the case, surely we need to act with all speed to get such law onto our books?

Well, maybe. But before coming to that conclusion, we need to be clear about exactly what happened in relation to this particular offender (likely terrorist) and also what our parliament currently is doing in relation to the law.

Let’s begin with the particular offender. The Herald’s Jared Savage has a good summary of his past, taking into account the existence of soon-to-be-removed suppression orders that necessarily limit discussion of some aspects of his case. We can pick up the story in 2018 when (after being on the terrorism watch list for at least two years) he went out and bought a hunting knife. A search of his home then turned up the knife and some Isis-related propaganda material. 

Based on these discoveries, he was charged with possessing the knife, knowingly possessing “objectionable material” (the Isis propaganda), and failing to help the police access his electronic devices. The Crown also sought to charge him with engaging in a “terrorist act” under the Terrorism Suppression Act 2002. That last charge was thrown out by the High Court, on the basis that the offender’s actions were only preparatory to carrying out such an act and so not covered by the existing legislation.

A lot has then been made of Justice Downs’ comments in this decision, that “the absence of an offence of planning or preparing a terrorist act (falling short of existing inchoate offences) could be an Achilles heel”. Indeed, he felt this so strongly that he ordered a copy of his judgment be forwarded to the attorney general, solicitor general and Law Commission. We’ll come back to these comments and what response they might demand of us in a moment.

However, before then, is it the case that this legislative gap allowed the offender to escape the law’s grasp? Well, no. He subsequently went on trial for the other offences: possessing the knife; the Isis propaganda; and failing to help unlock his electronic devices. And a jury then convicted him of two counts of knowingly possessing objectionable material and failing to assist a police officer exercise a search power.

These charges have been described in some reports as “lesser offences”. But that’s not necessarily the case. Knowingly possessing objectionable material carries a potential jail term of up to 10 years. Another individual in possession of Isis propaganda material has been sentenced to five years’ imprisonment. And, it should be noted, the government’s proposed new offence of planning or preparing to carry out a terrorist act (more on this in a moment) would only carry a maximum jail term of 10 years’ imprisonment.

The point being, our existing law still possessed the tools to hold this offender accountable for his actions; indeed, to potentially punish him even more heavily than the proposed new terrorist offence would. A judge then had to decide what sentence should actually be given to the offender. Because he already had spent three years in prison while on remand, that judge chose not to impose any more jail time but rather a year-long sentence of supervision. This put the offender back into the community under quite tight conditions, with the aim of breaking him from his extremist path. Things didn’t turn out that way, but it’s only with the benefit of 20-20 hindsight that we might now say the judge “got this wrong”.  

Now, would the sentence have been different if we’d had an offence of planning or preparing to carry out a terrorist act on the books at the time the offender bought his knife? Perhaps it would, in that a judge may have felt the combination of the various offences required a jail sentence be imposed. But, equally, it may not have been; the judge may have felt that as this offender already had effectively served three years’ imprisonment and is going to have to be released at some point, it is better to try and get them on a rehabilitative path as soon as possible. We simply don’t know.

And, of course, we also need to recognise that for any offence of planning or preparing to carry out a terrorist act to apply to this offender, it would have to have been enacted prior to his arrest in 2018. Criminal law, and sentences for actions, do not operate retrospectively. 

Let’s, however, look beyond this particular offender. Because it is true, as Justice Downs found, that planning or preparing to carry out a terrorist act isn’t an offence in and of itself. And there may be some situations where that gap might have practical implications – where there aren’t other criminal law provisions that may catch individuals planning to carry out some heinous actions. What should we do about that?

As Newsroom’s Sam Sachdeva covers, parliament already has been considering this matter in the form of the Counter-Terrorism Legislation Bill. Among other things, that legislation would create a new offence of planning or preparing to carry out a terrorist act. Such an offence provision is a pretty thorny issue, in that there clearly are dangerous individuals in our community that need to be combatted. However, extending the criminal law’s reach into people thinking about/talking about/making plans to do something is fraught. We don’t usually punish people for what they are planning to do, rather than for what they actually do (or, at least, set about attempting to do). The royal commission into the terrorist attack on Christchurch mosques reflected this ambivalence in its report. And submissions to the justice committee’s inquiry into the bill also echo it.

Unfortunately, it seems likely – indeed, almost politically certain – that this attack is going to override such ambivalence and lead to the bill being put on the legislative fast track. Which is a shame. As Massey’s John Battersby notes, New Zealand is “definitely a reluctant legislator when it comes to terrorism”. But if we are going to legislate here, it would be better to do it with due consideration and deliberation, rather than in the shadow of one particular event.

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There it is. Photo: Getty
There it is. Photo: Getty

SocietySeptember 4, 2021

Mapping order in the chaos: a view from the pale blue dot

There it is. Photo: Getty
There it is. Photo: Getty

Awe is everywhere. Amid a pandemic and surrounded by uncertainty, how can we turn it to our advantage, asks former public health worker Richard Simpson.

The SARS-CoV-2 virus is awe-inspiring in a literal sense. So how do we use that to our advantage?

We watch the relentless march of the global case numbers as supply chains falter and break. We are just getting our head around a delta lockdown but the news has already moved on to the Mu variant. As I completed this article the news began to report a terrorist attack in Auckland, yet another event facing us that simply defies explanation. It becomes easy to think Nietzsche’s abyss is not just looking back at us, it is trying to kill us. 

Awe is the experience of something beyond simple comprehension. Lying and staring at the night sky we get a feeling of how insignificant we are, and we reach for some thread of sense. In the past we would try to draw heavenly spheres, or map order onto the chaos by charting constellations. Nowadays many people turn to science, sorting and dividing universal forces and categories of stars until that wobbly, dizzy feeling starts to recede. 

A University of California study defined this sense of awe as “emotional response to perceptually vast stimuli that overwhelm current mental structures, yet facilitate attempts at accommodation”, referencing a University of Virginia paper that defines the need for accommodation as the inability to assimilate an experience into current mental structures. 

So how does that help us deal with an evolving Covid-19 crisis, one that insinuates itself into every part of our lives? 

The gut reaction in an emergency is often to throw ourselves either into overwork and burnout, or apathy and retreat. That is why the first step is always to focus on life’s essentials by taking care of ourselves and each other. As our Covid-19 months turn to years, we also need to take on the other rungs of Maslow’s hierarchy. 

One route is to borrow from the emergency management toolkit. These are the Coordinated Incident Management System (CIMS) principles where everyone has clear roles and joint plans. This is vital whether your fast-moving situation is deploying units to a factory fire or juggling kids and a home office. 

Have clear boundaries between work and home, even if it’s between or within rooms. Establish mental Standard Operating Procedures, simple routines that help control your lockdown cortisol. Like a quick, self-check mantra whenever you leave the house. My grandfather used to call that “spectacles, testicles, wallet and watch”, but a PC, Covid-era version should have something to do with masks and sanitiser.

Keep up your pandemic exercises and training. It is easy to think you don’t need them since we are so often in the real thing, but exercises are a safe space to prod at gaps and test to failure. Have a roster to decide who will tune in to Jacinda and Ashley at 1pm and email around crib notes. Give your logistics person a chance to support the intelligence role. Try your usual communications person in operations. People will often relish the chance to try something new, and it will strengthen both them and the organisation. 

Another route to mapping order in the chaos is to borrow from project management. Large technology or construction projects have a motley crew of experts banding together for a united cause. Like emergency management, the whole is greater than the sum of their parts, but the difference is often that the project is less hierarchical, and more structured toward a single goal.

Have a system at home to tag in or tag out of the adulting, whether it is who will breach your household boundary to go to the supermarket, or trying to distract bored kids so they don’t storm your Zoom call with a phallic carrot.

Government sites like Unite Against Covid-19 are great, but usually unwieldy since they need to be all things to all people. Define both the map and the territory at work by finding out what information people gravitate towards and how they tend to behave under pressure. Treat this as a feature, not a bug, by building it into your response planning – whether it is how you will escalate to another lockdown, or how you structure your internal communications. Your Covid-19 star chart could be anything from some checklists on the fridge, a collection of bookmarks on the computer, or a curated intranet. Whatever it is, make sure it has a “Start Here” section. Map some constellations. Sort and divide in a way that makes sense to your own family or organisation. 

Or you could find some order in all this chaos by building and gamifying your personal skills tree. It depends how far you want to take it. You could Marie Kondo the hell out of all the cupboards, take advantage of free training through the Targeted Trades and Apprenticeship Fund, or Wim Hof breathe through your Duolingo streak like Edmond Dantès in the Count of Monte Cristo. Yes, often pandemic self-care needs to be about the essentials, but as we all surf up and down Maslow’s hierarchy, we need more to strive towards than adult Oodies and Level 3 burgers. 

Whether you are facing a tower of Covid-19 clickbait, a new IPCC report, or a Jurassic Park dinosaur, awe is known to lead to “behavioural freezing”. But the second feature of awe is that it facilitates attempts at accommodation. 

In a Covid-19 world, “awe walks” are becoming more popular, turning normal lockdown walkies into a chance for the sublime. Schedule that downtime like you schedule your videoconferences, and give yourself space.

We are wired to detect patterns in the noise. Albert Camus writes of the myth of Sisyphus, destined to push the boulder to the top of the hill before watching it roll back down. But Camus says “one can imagine Sisyphus happy”, not for the fact that he is cursed, but because it is human to find purpose in the absurd.

Because that is the flipside of awe, to gaze not just at the abyss but also at ourselves. Astronauts talk of the “overview effect” of looking down at the whole Earth, a single view of the source of everything and everyone who ever lived. It is a view that leads to a new mindset.

Like Carl Sagan’s pale blue dot, the SARS-CoV-2 virus itself is awe-inspiring. But it is also an opportunity to be awed by what is happening to us. Of the epic efforts of our health workers, of the scientific leaps to come up with a vaccine so quickly, regardless of your opinion about the rollout. And about how we are all coping in our own way. Not just keeping on keeping on but growing and changing as individuals and as a society. Not easily and not without hiccups along the way, but overall, and on average, for the better. 

And that in itself is awe inspiring.