Another terror attack, another promise of rushed legislation. Already since Labour and National promised to rush through a law against preparing terrorism, it’s become clear the real problem was with the immigration laws around deportation. Today the Government will make an alert level decision for New Zealand, excluding Auckland. If the level doesn’t go to 2, the Government has no confidence in its own tracing and testing scheme. Aucklanders will have to wait another week to have their fate considered on Monday 13.
Terror and the Law
Since Friday’s terror attack, ACT has been asking, how was this guy at large? How could the entire might of the New Zealand Government, that can make you apply for permission to build a patio, be reduced to having half the police force following him to the supermarket?
There are two sub questions. One, why he was in New Zealand. That is, he was not deported? Two why was he not in jail? Each of these have a cause rooted deep in law. It’s worth delving into the basic timeline.
The terrorist arrived in New Zealand on a student visa in 2011, applied for refugee status in 2012, was knocked back and got it on application to the Immigration Protection Tribunal in 2013. He first came to the attention of police for ISIS-inspired Facebook posts in 2016, and later that year travelled to Samoa.
In 2017 he tried to fly to Malaysia, and was arrested at the airport on suspicion he was trying to join ISIS in Syria. A hunting knife and various terrorism-linked materials were found in his apartment, and he was imprisoned on remand.
By July 2021 he was convicted and sentenced but, having served three years on remand, he was free to go. The answer to the second question is that he was not in prison because there was nothing left to hold him on after three years’ imprisonment.
The solution might be to make it illegal to plan terrorism, as it is in Australia and Britain. Had he been convicted of such a crime, for having a hunting knife and videos of people being beheaded, along with his Facebook posts, he might have been held longer.
A ‘preparation’ offence is not a perfect answer to the problem, though, for two reasons. For one thing, it’s not guaranteed he would have been convicted, let alone sentenced indefinitely. For another, it is a major step to start locking people up for things they’ve thought of doing. Under our law, you can only be punished for things you’ve actually done. We should be careful about rushing such a change, even if it seems urgent after a gruesome attack.
Perhaps a bigger question is why he was not deported. A refugee can be deported. If they have been convicted of a ‘particularly serious crime’ and they are a threat to national security, then the Refugee Convention and New Zealand law (Immigration Act Section 164) allow it.
The bigger problem with deporting him is that he was also considered, by Crown Law at least, likely to be a Protected Person. Protected, that is, from torture. Section 164 of the Immigration Act says a person can be deported despite being a refugee, but they cannot be deported if they are a protected person.
That’s why he was not deported. ACT has said this needs to change. It’s understandable that the law would want to protect people from being tortured. The problem is the Immigration Act is so busy protecting them, it forgets to protect the rest of New Zealand from any threat they themselves might pose. Section 164 should be changed, so that a Protected Person has rights, but those rights must be balanced against the safety of New Zealanders.
The second change ACT recommends is being able to give dangerous people who cannot be deported the option of being locked up while they think about leaving. Otherwise, a person can be a threat, unable to be deported, and unable to be controlled within New Zealand.
We think those would be sensible changes, but we’re not suggesting they be rushed through Parliament this month. Only Jacinda Ardern would think that the solution to bad laws is bad law making, and rushed law making is almost always bad.
The Nats have joined her on the bandwagon of historical amnesia. Only two-and-a-half years ago, there was a terrorist attack followed by rushed law making. It was so unsuccessful that now, for the first time in our history, gun crime is so bad that the majority of cops want to carry them too.
The original 2002 Terrorism Suppression Bill was itself rushed in the wake of 9/11.
If anything, there should be a pause on terror law making, while we absorb the lessons of Friday’s events. Then, there should be a full, sober, law making process to solve the problems caused by past hysterical, rushed law making. Unfortunately, we are set for another adrenaline fuelled rush of political theatrics masquerading as problem solving.
And that is why this country needs a party of cool heads and strong principle, especially at times like this.