The Counter-Terrorism Legislation Act 2021 that came into force on October 5 makes several amendments to existing offences and powers, increasing the scope of control orders that Police can apply for and making provision for warrantless search and surveillance.
Police says situations where the new powers would be needed are likely to be “rare”, but, if used, would also be likely to be heavily scrutinised.
The process of amending the act started in 2018, before the March 15 terror attacks in Christchurch in 2019, but a subsequent Royal Commission of Inquiry also identified some gaps in the law.
Justice Minister Kris Faafoi flagged the changes as necessary in light of how terrorism has evolved in recent years. “The aim is to prevent and respond to terrorism and provide law enforcement agencies with a clear level of authority to disrupt terrorism-related activity.”
That meant providing police with more tools to monitor activity and to take action if necessary, he said.
Following the LynnMall attack in Auckland on September 4, when an ISIS-inspired “lone wolf” who was under police surveillance stabbed seven people at a supermarket, the legislation was fast-tracked through Parliament.
Although, as Police Association president Chris Cahill has noted, it’s unlikely the amendments would have prevented that incident.
The changes include three new criminal offences: planning or making other preparations to carry out a terrorism act, whether it is carried out or not; weapons and combat training; and travel for terrorist purposes.
Approval can now be sought for control orders for a person who has been convicted of a terrorism-related offence in New Zealand.
The criteria for financing of terrorism has been extended to criminalise any material support for terrorist activities or organisations, excluding humanitarian support for basic needs.
The definition of a terrorist act has been amended to provide clarity around “purpose and intention”, including that the act must be intended to “intimidate a population” rather than cause “terror” in a population.
The control order regime has been extended to include individuals who have completed a jail term (if convicted on or after October 5, 2021) in New Zealand for offences related to terrorism if they present a risk of engaging in further terrorism-related activities.
A section of the Search and Surveillance Act 2012 has been amended to cover warrantless searches for the planning of, or other preparation to carry out, a terrorist act.
Minister Faafoi said it was important that authorities had the ability to be “nimble and, importantly, the ability to act”.
Of the “planning and other preparation” offence, a Police document issued to staff last month notes: “Parliament has demonstrated a high level of trust in Police when proving such a wide-ranging offence. The last few years have, sadly, demonstrated that terrorist attacks can occur in New Zealand, and it is vital that we take early opportunities to prevent them, whether through preventative or enforcement efforts.”
Police emphasised that while the new powers would enhance the ability to keep communities safe in the “rare, but critical situations when we have the opportunity to prevent a terrorist incident”, that would come with substantial scrutiny. Police “must act with fairness, balance, and only when demanded by the seriousness of the situation”.
The Police Association supports the amendments in the act, in particular those relating to preparation and planning and search and surveillance, because the amendments capture offences that, due to the length of their maximum sentences, would otherwise have been “off limits” for such police work.