A terror attack that occurred while the Government was watching
This was a terror attack that occurred under the Government's watchful eye. It did not come from nowhere.
A 32-year-old man, who authorities knew was a supporter of Islamic State, walked into a Countdown supermarket in Auckland on Friday afternoon, and took a knife from the shelf to attack shoppers – injuring six people before being shot dead by two police officers.
The officers, already nearby, had been monitoring him 24/7 for “some time”. The man was such a threat that he was already known to Prime Minister Jacinda Ardern, by the intelligence agencies, and to the courts. He was first identified as a threat in 2016.
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Yet, as Ardern said in the hours afterward, the Government believed it had done everything it could to stop this man from committing an attack. He was one of “very few” to have reached such a level of concern.
“The fact that he was in the community will be an illustration of the fact that we haven't succeeded in using the law to the extent we would have liked. That is why he was being closely monitored at all times,” Ardern said.
There had been fair warning about the possibility of an attack. The nation's intelligence agencies have, since the Christchurch mosque terror attack in 2019, warned that among the threats being monitored were “a small number” of Islamist extremists known to the agencies who could commit an unsophisticated attack.
“What happened today was despicable, it was hateful, it was wrong,” Ardern said on Friday.
“It was carried out by an individual, not a faith, not a culture, not an ethnicity but by an individual, a person who was gripped by an ideology that is not supported here by anyone or any community.
“He alone carries the responsibility for this attack. Let that be where the judgement falls.”
This may be true. But the difficulty for the Government is that, after the Christchurch mosque terror attack, it was given a roadmap to improve the counter-terrorism response. And that roadmap included new laws that might have imprisoned the terrorist months ago.
Already there is much known about how this terrorist was handled since 2016. He had been flagged for consuming propaganda from Islamic State of Iraq and Syria (Isis), a designated terrorist organisation, and he had been warned for posting material on the Internet. He had in 2017 been arrested trying to travel abroad “to fight for Isis”.
A hunting knife was found in his home, along with “fundamentalist material”.
He was charged with distributing objectionable material. But the second day after he was bailed, he bought another hunting knife and was again arrested.
Here a glaring deficiency in the Government’s counter-terrorism response became apparent.
In July, the Crown sought to charge him under the Terrorism Suppression Act 2002, saying the purchase of the knife amounted to a “triggering act” showing he was engaging in a terror act. Justice Mathew Downs denied this attempt, saying purchasing a knife did not amount to a terror attack under the law.
He was ultimately sentenced to one year of supervision, returned to the community under conditions such as surrendering his Internet devices for police checks.
The Terrorism Suppression Act 2002, passed hastily in aftermath of the 9/11 terror attack, has proven to be faulty – a problem highlighted in 2008 when the Solicitor-General declined to allow police to lay terrorism charges after the controversial Operation Eight raids, in Te Urewera.
The Royal Commission of Inquiry into the Christchurch mosque terror attack was concerned the law lacked “precursor offences”, meaning police could only seek prosecution for terrorism after a terror attack occurred. A key recommendation of the inquiry was the creation of new laws that would criminalise the preparation or planning of a terrorist attack.
After receiving the commission’s report in December, the Government promised to beef up counter-terrorism laws accordingly. The prospective terrorism laws were released in April, gained the support of all but the Green and Māori parties, and as of a month ago MPs were scrutinising the details in select committee.
It takes severe laws to punish severe crimes, and it takes even more severe laws to prevent crimes. Such laws would be powerful, damaging to individual civil liberties, and need to be carefully written and applied.
But reasonable concern was not the reason for delay. The royal commission detailed almost a decade of warnings from officials that the counter-terrorism laws weren’t sufficient.
National leader Judith Collins, as justice minister in 2013, struck a review of the Terrorism Suppression Act off the Law Commission’s work programme in 2013, saying “there does not appear to be any substantial or urgent concerns arising from the operation of the Act”.
The police raised concerns in 2014 and 2015, and “expressed increasing concern about the possible inadequacy of the legislation over this period”. When Ardern entered Government in 2017, she was briefed that it was unclear whether the law was fit for purpose, and she and Intelligence Agencies Minister Andrew Little sought further advice after another briefing in 2018.
And Downs, the judge who declined to charge the man who would become a terrorist, made a point of sending his judgement to Attorney-General, Solicitor-General and Law Commission – another warning the law was not sufficient.
“The absence of an offence of planning or preparing a terrorist act (falling short of existing inchoate [preparatory] offences) could be an Achilles heel,” he said in the judgement.
“However, it is not open to the court to create an offence ... The issue is for Parliament.”
Ardern, on Friday evening, was insistent that it was “purely speculative to say whether or not any difference in our law ... would have made a difference in this case”.
But it could have given the authorities another tool.