Terrorist attack – Law changes may not have helped deal

Written By: - Date published: 9:19 am, September 7th, 2021 - 15 comments
Categories: crime, human rights, immigration, International, police - Tags:

The person who attacked and injured seven people in Lynn Mall this week and who was then killed has been named.

I have added his name to the banned list of words.  Just as with the Christchurch mosque terrorist I think it best not to personalise the actions of a terrorist.

I appreciate the desire to change the law to make sure that something like what happened in New Lynn or for that matter at the Christchurch Mosque never happens again.

But can I express some caution, that laws do not provide complete protection against all threats.  And the need to provide individual rights as well as a robust justice system means that the system is not waterproof.  If we had a permanent system were everyone was restricted to their homes or locked up without trial if they committed an offence or required a licence to possess a knife then the crime rate and the harm caused would plummet, putting aside domestic violence which would spike.  But I am not sure many of us would want to live in those conditions.

The Government has released a considerable amount of information which has helpfully shaped the debate and made sure that it is informed.

It seems clear that there has been a concerted effort to keep him detained and remove him from the country.

Immigration NZ had cancelled his refugee status would be cancelled on the basis of the provision of fraudulent documents.  He had appealed this decision. It was still outstanding at the time of his death.  The Tribunal had agreed to delay consideration of the appeal until after his trial although given the issues at stake arguably it did not have to do so.

The Government is proposing to have the Counter Terrorism Legislation Bill advanced as a matter of urgency.  Leading up to the attack steps were being taken to advance the bill.

There are a number of proposed changes to existing law contained in the bill.    These include creation of three new offences:

  • criminalising travel to, from, or via New Zealand with the intention to carry out a specified offence in the Terrorism Suppression Act 2002:
  • criminalising planning or preparation for a terrorist act (and apply warrantless powers of entry, search, and surveillance to that offence):
  • clarifying the prohibition of weapons training or combat training for terrorist purposes.

The second proposal has been the subject of most attention.  The wording of the original bill has attracted comment and I suspect the original version of the bill will be changed.  The maximum penalty would be seven years in jail.

Would this have affected the result of the recently concluded trial?  I don’t think so.  As noted by Andrew Geddis the terrorist had been convicted of an offence punishable by 10 years jail, a period greater than the proposed maximum sentence for the new offence.

And he had spent three years in jail on remand.  When you consider that maximum sentences should only be reserved for the worst of cases I don’t think the presiding Judge would have decided things any differently if the extra charge was there.

And Geddis has urged caution about the proposed change:

It would be saying you are guilty for thinking about doing something not actually going out and starting to do it, but even just thinking about doing it will be an offence for which you could go to jail for up to seven years.”

It also would not have allowed the police to prevent the New Lynn attack.  From all reports so far the attack appears to have been opportunistic, not planned.

The other aspect that has received recent attention is why the Minister of Immigration did not declare the terrorist was a threat or risk to security and then use the Immigration Act power to deport him.  National released a press release about it.  I am sure they were relying on this interview with lawyer Stewart Dalley who raised the possibility yesterday morning.

It does need to be considered why this process was not instituted at the time that it was clear he presented a threat.

The timeline in this Radio New Zealand article suggests the following events of interest:

  • April and May 2016: The Terrorist was formally warned by police about posting objectionable material on the internet. It included videos and pictures of graphic violence, comments advocating violent extremism, and expressions of support for Islamic State terrorist attacks. Despite the warnings, the Terrorist did not stop and used aliases to continue posting similar material. The Terrorist was also on the radar of the Security Intelligence Service.
  • May 2017: the Terrorist was arrested at Auckland Airport. Two days earlier, he had purchased a one-way ticket to Malaysia. He had previously told a worshipper at an Auckland mosque that he wanted to go to Syria to fight for Islamic State. When police searched his apartment they found a large hunting knife under a mattress on the floor. They also found secure digital cards containing fundamentalist material including propaganda videos, photographs of him posing with a firearms, and bookmarks to sales of firearms, crossbows, binoculars, military boots and a vest. He was charged and remanded in custody. These are the first set of charges.
  • August 2017: The Refugee Status Unit in Immigration New Zealand began a review of the Terrorist’s refugee status based on information received that he may be a threat to security.
  • May 2018: Prime Minister Jacinda Ardern makes inquiries about the Terrorist’s refugee status and deportation options.

And who was the Minister of Immigration at the relevant time, that is from April 2016 to August 2017?

Michael Woodhouse.

Of course this process is not simple and there are International relations and Human Rights considerations to be weighed up.  But National should be careful in handing out blame.  It appears that Jacinda Ardern has actively managed as far as the law permitted the threat posed by the terrorist.

15 comments on “Terrorist attack – Law changes may not have helped deal ”

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  1. Gezza 1
    7 September 2021 at 10:54 am

    Re why the Minister of Immigration didn't declare him a terrorist & deport him, pretty sure I've seen somewhere earlier this morning that this was considered but also wasn't possible because, even though INZ had cancelled his refugee status (as fraudulently obtained), Crown Law advice was that he still came within the definition of a "protected person" & it would breach a UN convention NZ are signatories to to deport him as such.

    I've so many blimmin bookmarked long articles & analyses now that finding a little detail like that's getting to be a major research challenge. Will see if I can find it.

  2. Gezza 2
    7 September 2021 at 11:13 am

    Subsequently, Crown Law provided advice that INZ could not exercise its powers of arrest and detention pending the making of a deportation order, as the individual could not be detained for the purpose of deportation when that was not a realistic prospect."

    A designation as a 'protected person' under international law gives the bearer a stronger right than a refugee to not be deported.

    "National security does not override obligations preventing deportation of a protected person," the statement from Kris Faafoi's office said.

    It was this article I was thinking of:

    https://www.rnz.co.nz/news/national/450892/opportunity-to-deport-lynnmall-terrorist-missed-if-considered-security-threat-lawyer

    • Jenny how to get there 2.1
      7 September 2021 at 12:46 pm

      Gezza

      7 September 2021 at 10:54 am

      Re why the Minister of Immigration didn't declare him a terrorist & deport him……

      In cases like this, is deportation the best option?

      I would argue it isn't.

      Wouldn't that just be inflicting this person on other innocent people, in some other country?

      Are their lives worth less than ours?

      More needs to be done to protect ourselves, (and others), certainly, but just deporting him somewhere else to inflict his harm on others is not a moral solution.

      • Gezza 2.1.1
        7 September 2021 at 1:04 pm

        Well presumably the only place he could be deported to is Sri Lanka anyway. Given his history here & the Islamic extremist bombings over there shortly after the Christchurch shooter attack, I suspect it was a reasonable prospect that he might be detained & incarcerated on arrival there, depending what their anti-terrorism laws are like.

        This is the problem, isn’t it? Which country has the best prospect of preventing an extremist from harming the local population. Our laws & processes weren’t up to it.

        • Ghostwhowalksnz 2.1.1.1
          7 September 2021 at 3:17 pm

          His family are back in Sri lanka and they and that cultural environment are better than staying here and hating all 'unbelievers'.

          Actually the best oppotunity was lost when he went to the airport and was stopped from leaving for Syria.

          As he wasnt a NZ citizen he should have been allowed to go.

  3. RosieLee 3
    7 September 2021 at 11:28 am

    If he got in on a dodgy student visa in 2011, then gave up his course after a month, he should have been sent home straight away. We are too soft.
    And a student visa should not become residency as of right. Too many are using this pathway to residency and we do not need them – we are being used.

    • Ghostwhowalksnz 3.1
      7 September 2021 at 3:12 pm

      He then applied as a refugee which was later granted. However it was later found on his laptop that he might have faked certain family documents and well as a medical report was altered to match some injuries.

      That is why the refugee visa was cancelled which was under appeal at the time the event happened.

      he never had any 'residency'

  4. roblogic 4
    7 September 2021 at 12:31 pm

    I thought the guys name was banned on TS? lol oops Micky

  5. coreyjhumm 5
    7 September 2021 at 1:41 pm

    No law can ever make the world safe from lunatics, you can't legislate that but you can legislate laws to get people once identified off the streets.

    International law is pretty much a guide line and most countries even NZ pick and choose which ones we follow.

    New Zealand is a sovereign country we can make our own laws, many counties including our neighbors and allies do, if a person who has come into this country and it is known that person is a danger or a threat, regardless of the status of their residency here be it student,worker, visitor, immigrant, refugee or protected worker , they should be deported.

    New Zealanders won't accept anything less than this, New Zealanders are a pretty pragmatic and accepting country unlike most Western nations we haven't turned on our immigrant/refugee policy because 99.999% settle in well and contribute to our country, but right now kiwis want assurances that once identified, people who were as openly as much of a threat as this person are imprisoned or deported swiftly.

    Noone expects the govt to become psychics but the fact this guy was known for years by the pm and police and was unable to be imprisoned or deported because of international law simply won't do and risks people turning against settling refugee out of fear that this could happen again and govt won't be able to do anything and there are a lot of politicians who would love to feed that fear.

    The govt has a majority and the support of the opposition, a law change that allows govts to deport or imprison people planning and admitting planning terrorist attacks shouldn't be hard to pass and indeed will be passed by the end of the month.

    It won't stop lone gunmen or knife men who go under the radar, nothing can, but the idea that the govts hands should be tied when known threats are in their cross hairs will be unacceptable to New Zealanders.

    I agree it shouldn't be rushed into though and they should take longer than the end of the month to get the law right

  6. mac1 6
    7 September 2021 at 3:57 pm

    This matter is a subject of an urgent debate in the House at the moment called for by Judith Collins. James Shaw speaking at the moment after Opposition Leader Collins and Justice Minister Little.

    it’ll be available on line as usual.

    • Gezza 6.1
      7 September 2021 at 5:18 pm

      There was also a Ministerial Statement by Andrew Little prior to Question Time.

      He traverses the history in some detail and responds to some commentaries. Posted for anyone interested.

      Other parties commented in response to this, & the videos are also available on the Parliament website.

  7. Lucy 7
    8 September 2021 at 8:28 am

    Must admit my reaction is we can disarm a white guy with guns but need to kill a brown guy with a knife – there seems to be a disparity in policing in NZ.

    I understand that he did not want to be helped, but there are times when help to given wanted or not. NZ failed this man and we may need to own up to the fact that refugees need more than a home, they need to be healed from trauma. We expect gratitude – from people who have lost everything – and get annoyed when we don't get it.

  8. Leighton 8
    8 September 2021 at 12:52 pm

    Judith has gone off the deep end with the "he should have been deported and it is Jacinda's fault" line today without any apparent consideration to the legal difference between a refugee and a protected person. Check out National's Facebook page. Like most of her attack lines over the past few weeks I suspect she is going to be publicly called out within 24 hours for her obvious misrepresentation of the position and will end up politically worse off than when she started. If I was a National supporter I would be despondent by this repeated bungling.

    • Gezza 8.1
      8 September 2021 at 1:41 pm

      My jury is still out on whether Collins is being dishonest or if she's actually just thick. I know she's a former lawyer but not what she specialised in & they're far from all being brilliant.

      I mean, I actually want to see a good opposition & leader. I was a bit dubious about her but prepared to see how she performed.

      At times she seems to me to be a classic airhead. Even allowing for the Ardern-friendly journos making a habit of trying to upset her, some of her fixed-grin burbling in reply to their questions & interruptions is just awkward, or meaningless. She's smugly convinced she's put them in their place when she often actually just makes herself look like she has no idea what she's talking about.

      David Seymour took the same line in the House yesterday. He was citing sections 163 & 164 of the Immigration Act. When I got time later I checked them out. And I checked out EVERY linked subsection that was relevant to considering whether refugees or protected persons could be deported. Protected persons are covered by a UN Convention on Torture.

      There were dozens of links, & of course many of those are cross-linked to other sections & subsections. I'm reasonably familiar with the previous Immigration Act & I gave up in the end because this matter is SO complex. No wonder Crown Law's opinion was sought.

      I wouldn't think Seymour or Collins have any idea what the legal situation really is.

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