Shane Te Pou: Changes to terror laws need careful consideration

Armed police guard the scene after yesterday's terror attack in a Countdown Supermarket in the Auckland suburb of New Lynn. Photo / Hayden Woodward

Opinion

OPINION:

Part of becoming a grownup is learning not to make consequential or life-altering decisions in a blur of anger or heartbreak or heightened emotions of any kind.

Working in human resources, I regularly encounter people wrestling with this impulse.

"Look," I'll tell a colleague coming off a bad day, "why don't you send your boss that email in the morning, after you've slept on it?" In all my years, I've never had anyone regret following such advice – but more than a few who wish they had.

If we accept as common wisdom that, in our personal and working lives, making big calls in the grip of emotion is liable to produce bad outcomes, why do we tend to reward politicians for doing exactly that?

Remember the waves of local and international admiration after Jacinda Ardern announced stringent new gun laws so soon after the Christchurch mosque shooting?

The New York Times' smash-hit podcast The Daily released a breathless episode entitled "How New Zealand Banned Assault Rifles in Six Days", no doubt prompting some among its audience of frustrated progressively to speculatively Google "New Zealand" and "Immigration" for the first time.

After the law had been passed, the Washington Post chimed in: "Fifty victims. Twenty-six days. That — along with common-sense leadership from government officials — is what it took for New Zealand to pass a law that bans most semi-automatic weapons in the country."

Now don't get me wrong. I supported the ban then, and support it today.

But this was a case when circumstances were extreme, and the existing law was hopelessly out of date. What's more, the assault weapons ban didn't allow for much interpretation on the part of police, gun owners or courts. Whatever your position on the law changes, there was very little room for confusion as to what you were supporting or opposing.

The proposed changes to our terror laws are another kettle of fish entirely.

Among other things, the legislation before Parliament amends the Terrorism Suppression Act 2002 and Search and Surveillance Act 2012 to empower police to consider the planning or training for an attack as a terrorist activity, and provide warrantless search and entry powers to do so.

The bill sits with the Justice Select Committee, but the Prime Minister has said she wants it passed into law by the month's end.

This renewed urgency understandably arises from a widely held view that the absence of such provisions was the "gap" in our laws that stopped police from preventing the recent terror attack in New Lynn.

This may be true, but as more details come to light about this particular case, I find myself less persuaded it was anywhere near that straightforward. The treatment of this particular terrorist, legally and otherwise, most certainly exposed "gaps", but by no means only in our terror laws.

Police at the LynnMall countdown following a terrorist attack in which a number of people were stabbed. Photo / Alex Burton

If we let shock and sorrow from a particular event blind us to the risks of poorly conceived laws that increase the state's coercive powers, we will live to regret it. This is especially true when you consider the political reality that it's far harder for politicians to roll back such laws than it is to impose them in the first place.

America's post-9/11 Patriot Act still stands after two decades, despite its well-documented abuse at the hands of intelligence and law enforcement officials in the years since. It should be seen as a cautionary tale.

Among its provisions, the Patriot Act grants police almost unfettered search-and-seize powers when it comes to suspected terrorism.

But in practice, only 1 per cent of the cases where police use these powers relate to terrorism at all. According to the US Government's own data, 75 per cent of these so-called "sneak and peek" searches are used in drug cases.

I'm worried that vague wording in the amendments before our Parliament could likewise give rise to unintended consequences.

Who gets to say what constitutes a terror act, let alone its planning and preparation? Isn't it in the eye of the beholder? And doesn't such a subjective standard make it unduly prone to racial profiling?

Concerns like these are why I support two changes proposed to the law by Auckland Law Professor John Ip.

First, Ip proposes the act provides greater specificity, as well as useful guidance for courts, by defining planning and preparation in terms of specified acts — acquiring weapons, explosives, chemical precursor substances, etc.

Secondly, he suggests establishing the equivalent of the United Kingdom's independent reviewer of terrorism legislation or Australia's independent national security legislation monitor.

These changes would reduce the risk of abuse without undermining the police's ability to pursue and prosecute terrorism.

I have no doubt that supporters of the bill have good and noble intentions, and that our current police leadership would endeavour to use these powers judiciously and with restraint.

But times move on and governments change, even if laws do not.

We each assess these things in our own way, but whenever the state seeks to claim more power for itself, even with the purest intentions, I ask myself: "What would Muldoon have done with this?"

This is one instance where I don't much like the answer.

The Tūhoe in me says tūpato, be cautious.

"Hē tākē ānō mō ngā mea kātoa." Everything happens for a reason. Trust the process. Trust the timing.

• Shane Te Pou (Ngāi Tūhoe) is a company director at Mega Ltd, a commentator and blogger and a former Labour Party activist