Complicated terrorism act lacks firepower
September 11 was just six years old. The terrorist bombings in London, Madrid and Bali were still fresh in memory. New Zealand in 2007 had not been significantly touched by terrorism, but it was in the air.
So when a group of Tuhoe agitators, environmental activists and various socialist and leftist types were found practising with weapons and performing other "disturbing activities" in the Urewera Ranges, police were ready with a handy new piece of legislation - the Terrorism Suppression Act.
What followed was one of the most protracted, messy, acrimonious legal cases the country has seen.
Seventeen people were arrested in nationwide raids but Solicitor-General David Collins rejected prosecution under the new legislation. He called the act "unnecessarily complex, incoherent, and as a result almost impossible to apply to the domestic circumstances observed by the police in this case".
However, Dr Collins praised police, saying they stopped some "very disturbing activities" which they were entitled to investigate under the act. He recommended the legislation be referred to the Law Commission for review.
Those "very disturbing activities" have now been aired in court, with the jury unable to agree on a verdict on whether the defendants were an organised criminal group. But the question remains: if calling yourself a "revolutionary army", attending camps in balaclavas and camouflage, and practising with guns and molotov cocktails is not covered by the Terrorism Suppression Act, what is?
At the time, Dr Collins said the legislation focused on a "terrorist entity" but, if the group was developing towards being that entity, it was not actually the entity yet. A terrorist group did not have to have committed a terrorist act but had "to be very well down the track."
Otago University law professor Kevin Dawkins agreed that the act was "incoherent" but said the root problem was the definition of a "terrorist act", which was a necessary element for the charge of "participation in a terrorist group".
The legislation requires proof of three separate mental elements: an intention to cause a prohibited outcome, such as death or destruction of property; the objective of advancing an ideological, political or religious cause; and the aim of either inducing terror in a civilian population or compelling a government to do (or not do) something.
It is proving all these elements that presents such a challenge.
So what has changed? If police found another identical group tomorrow, could they be charged as terrorists? The short answer is, no, not much has changed.
The Law Commission's review of the act did not take place.
Law Commissioner Warren Young said the commission took a brief provisional view that Dr Collins had interpreted the act correctly but, after that, the government took the Terrorism Suppression Act off their roster of work.
A spokeswoman from Justice Minister Judith Collins' office said the commission was asked in early 2008 to do a review of "public safety and security" as maintained by the Crimes Act, the Arms Act, and the Terrorism Suppression Act. However, "the review was put on hold pending the outcome of the trial of those who were charged as a result of Operation 8".
Four years later, the legislation remains. None of several amendments to the act, including inserting the offence "engaging in a terrorist act", deal with the definition of a terrorist act.
The Terrorism Suppression Act began life six months before September 11 as the Terrorism (Bombing and Financing) Bill, mainly to satisfy obligations under international conventions on terrorist bombings and funding terrorism.
September 11 changed all that and the law was fast-tracked with amendments that made it a criminal offence to take part in a terrorist movement.
Only the Green Party dissented and now, in the light of the Ureweras case, the party's loudest opposing voice, Keith Locke, has not changed his opinion.
Mr Locke said any crime the act covered was already covered by the Crimes Act. "There's absolutely no reason for all this dancing around trying to define terrorism. What's the difference between politically motivated crime and any other crime?"
Mr Locke said the Urewera situation was "not looked at objectively". "We were letting the side down if we didn't find any terrorists. They had to show the Aussies and Americans and Brits they had a scalp."
With terrorism hysteria fading, Mr Locke said it had been realised that the legislation had "fish-hooks".
One aspect of the Urewera case that would be different now is the gathering of evidence.
Police evidence, gathered mainly by covert cameras placed on private land, was fought over in the courts for years.
Police obtained search warrants, but placing cameras was not a search, it was surveillance, and they had trespassed to do so. Phone conversations intercepted between the accused were never used either.
The Supreme Court finally allowed some of the video evidence in, ruling that, although illegally obtained, the seriousness of the crimes outweighed the violation. Nevertheless, charges against 13 of the group were dropped.
The current Government leapt into action and introduced the Search and Surveillance Bill which, when passed, will allow police to install cameras on private property when they think a crime could be committed there.
A source close to the Crown case said the new bill might not have worked for the Urewera case as the idea of putting up surveillance cameras in large, outdoor areas, such as the forested private land in the Urewera case, is not contemplated by the bill.
If the Urewera situation arose again, the Terrorism Suppression Act may not be used, but prosecuting it under the Crimes Act could be just as tough.