Law’s response to New Zealand’s ‘darkest of days’

Introduction

New Zealand—a small, internationally insignificant island state at the bottom of the South Pacific—has long enjoyed a charmed existence in terms of its security. Even in the post-9/11 era, when various cities around the world suffered attacks linked to transnational terrorist networks, New Zealand seemed to be protected by a combination of remoteness and innocuousness. Small-scale domestic terrorist incidents occurred sporadically, ¹ but mass casualty attacks were unknown. This changed on 15 March 2019, when a 28-year-old Australian living in New Zealand attacked worshippers at the Al Noor and Linwood mosques in Christchurch, killing 51 men, women and children and injuring scores more. What has become known as the 15/3 attack was appropriately described by Prime Minister Jacinda Ardern as New Zealand’s ‘darkest of days’. ²

This article considers the New Zealand legal system’s response to the 15/3 attack. It begins by looking at the decision about what offences to charge the perpetrator with, before outlining the efforts to minimise the propaganda value of the attacker’s deed through a combination of censorship and the softer, collaborative approach of the Christchurch Call, which aims to incentivise responsible conduct from internet platforms. It then discusses the establishment of a Royal Commission to look into the 15/3 attack and reforms to firearms legislation. Finally, the article considers New Zealand’s response to 15/3 through the lens of the academic literature on the policymaking process. Here I argue that New Zealand’s response to date has been modest and cannot be characterised as a knee-jerk reaction—that is, a reflexive and ill-judged policy response often said to follow terrorist attacks.

Prosecuting the Christchurch attacker

The Christchurch attack was a paradigm case of terrorism—an act of politically motivated violence perpetrated against civilians. ³ The attacker’s manifesto (‘The Great Replacement’), released shortly before the attack, reveals a fixation with how European society, defined to include settler states like New Zealand, is under existential threat from non-European Muslim migrants. ⁴ Like other right-wing extremists around the world, he seems to have drawn inspiration, both in this respect and more generally, from Anders Breivik, who killed 77 people in Norway in 2011. ⁵ Indeed, Bar-On describes the idea of a homogeneous White nation under threat from various Others as ‘the master concept for the radical right’. ⁶ Additionally, using a helmet-mounted camera, the attacker live-streamed the attack for 17 minutes on Facebook Live, providing a chilling demonstration of Brian Jenkins’s observation that ‘[t]errorism is theater’. ⁷

Prime Minister Jacinda Ardern’s decisive response to the Christchurch attack has framed the surrounding public discourse in significant ways—from her refusal to name the attacker, to her wearing of a headscarf when meeting members of the Muslim community, to her unequivocal description of the attack as terrorism. ⁸ Her prompt labelling of the attack as terrorism is noteworthy, given the observable reluctance on the part of authorities and media to label political violence committed by White perpetrators as terrorism, particularly in the United States. ⁹

However, how an attack is framed in public and political discourse is one thing; how it is framed in law is another. For example, in the United Kingdom, the perpetrators of various plots widely understood to be terrorist attacks were charged and convicted of conspiracy to commit murder. ¹⁰

Prosecuting ordinary criminal law offences was the only available option, because, even among the United Kingdom’s extensive array of counterterrorism laws, there is no offence of committing a terrorist act. New Zealand, by contrast, has s 6A of the Terrorism Suppression Act 2002 (TSA), which provides that engaging in a terrorist act is an offence punishable by up to life imprisonment. ¹¹ Initially, though, the Christchurch attacker was only charged with ordinary criminal law offences. It was only sometime later, in May 2019, that the decision was made to add a charge under s 6A. ¹² The considerations that likely factored into this delayed decision are worth exploring in more detail.

As a procedural point, any prosecution under the TSA requires the consent of the Attorney General. ¹³ In practice, this decision is handled by the Solicitor General—hence, it was the Solicitor General who, in 2007, declined to pursue charges under the TSA in relation to the Urewera/Operation Eight raids that targeted political activists engaged in apparent paramilitary activity. In making this decision, the Solicitor General criticised the Act as being overly complex, incoherent and difficult to apply. ¹⁴ Since then, there has been a discernible reluctance to employ the TSA, and a reliance instead upon the general criminal law. ¹⁵

In addition to this hesitancy to use the TSA, three interrelated concerns pointed in favour of only charging the Christchurch attacker with ordinary criminal law offences. First, adding a terrorism charge made no difference to the sentencing outcome. The maximum penalty under s 6A is life imprisonment; the presumptive sentence for murder is the same. ¹⁶ Further, the parole legislation sets the default minimum period of imprisonment (or non-parole period) for a life sentence at 10 years. ¹⁷ Accordingly, an individual sentenced to life imprisonment for engaging in a terrorist act would be eligible for parole after 10 years; an individual sentenced to life imprisonment for murder may be subject to a longer minimum period of imprisonment ¹⁸ and indeed must be subject to a 17-year minimum period of imprisonment where the murder involves certain aggravating circumstances—such as conviction for multiple counts of murder, commission as part of a terrorist act as defined by the TSA and calculated or lengthy planning. ¹⁹ Given the unprecedented number of victims, the Christchurch attacker was always facing the prospect of a much longer minimum period of imprisonment, if not a sentence of life without parole, an option added to the sentencing legislation in 2010. ²⁰ In short, prosecuting and convicting the Christchurch attacker of murder already fulfilled the sentencing purposes of incapacitation and retribution. ²¹

Second, ordinary criminal law offences had the benefit of relative familiarity and ease of proof. There had never previously been a prosecution brought under s 6A (or indeed any other TSA provision), whereas prosecutions for murder (and attempted murder) are routine. The elements of murder and attempted murder, which focus on whether the attacker had the intent to kill, are also relatively straightforward to prove, certainly when compared to the offence of engaging in a terrorist act. The s 6A offence requires grappling with the TSA’s byzantine definition of ‘terrorist act’—the most likely permutation would require proof that the attacker’s actions were intended to cause death or serious bodily injury, that his actions were carried out for the purpose of advancing a political or ideological cause and that his actions were intended to induce terror in a civilian population. ²²

The final factor that favoured only charging ordinary criminal offences was that the accused had initially indicated that he intended to represent himself in court. ²³ This gave rise to the possibility that, like Anders Breivik, he might try and turn his trial into a propaganda vehicle. Given the public nature of criminal trials, ²⁴ this possibility existed regardless of the charges. But the elements of the offence of engaging in a terrorist act—particularly those relating to the attacker’s purposes and motivations—are more susceptible to being appropriated for propagandistic purposes. ²⁵

While these narrow litigation-focused concerns pointed in favour of only charging ordinary criminal law offences, broader countervailing concerns pointed in favour of the subsequent addition of the s 6A charge and justified the potential complications this entailed. First, there is the intuitive point about proper labelling. ²⁶ New Zealand authorities described 15/3 as a terrorist attack; the attack aligned with general understandings about what terrorism is and also appeared to satisfy the legal definition of a terrorist act. ²⁷ Given that the New Zealand Parliament in 2007 had seen fit to add a specific offence of engaging in a terrorist act, charging only ordinary criminal law offences in these circumstances would have been incongruous ²⁸ and might have given rise to a perception that counterterrorism law is selectively applied. Including the s 6A offence headed off any argument about a double standard in how right-wing extremism is treated. ²⁹

There is a further and even more compelling argument for charging the s 6A offence in addition to ordinary criminal law offences. As noted earlier, various academic accounts of terrorism note that terrorism involves a communicative or symbolic dimension, whereby the violence is a form of expression intended for a wider audience. In this case that audience most obviously included the Muslim community in New Zealand. Charging the attacker with engaging in a terrorist act was therefore a way of properly recognising the harm caused to the wider Muslim community.

In my view, while ensuring the most efficient and low-key path to a successful prosecution pointed to only prosecuting murder and attempted murder, the imperatives of properly labelling and denouncing the attacker’s actions pointed towards including the terrorism charge. Given the unprecedented nature of the 15/3 attack, this trade-off was a necessary one. In any case, in March 2020, the Christchurch attacker unexpectedly backtracked and pled guilty to 51 charges of murder, 40 charges of attempted murder and 1 charge of engaging in a terrorist act, ³⁰ thus rendering concerns about his trial largely moot. On 27 August 2020, he was sentenced to life without parole. ³¹

Minimising the propaganda value of the attacker’s deed

The internet provides new opportunities for terrorists and corresponding challenges for government and internet platforms. For example, as Hamm and Spaaij observe, the internet allows lone actors access to a community of like-minded supporters: ³²

The Internet and social media make it possible for an individual to become radicalized in the solitude of his or her bedroom through linking and interacting with virtual ‘friends,’ electronically exchanging militant propaganda, and even acquiring technical know-how for committing acts of terrorism through online manuals.

The other disruptive aspect of the internet, namely how it allows the propagandistic goal of terrorism to be achieved on a global scale without the need for traditional news media, ³⁶ is amply illustrated by the viral spread of the attacker’s livestream. The livestream was initially viewed by about 200 Facebook users and subsequently many more. Facebook stated that it took down 300,000 copies of the livestream in the space of a day and prevented more than a million copies from being uploaded. ³⁷ Nonetheless, the livestream spread to other platforms—with uploads to YouTube, for example, occurring at the rate of 1 per second over the first 24 hours. ³⁸ No doubt the livestream can still be found by those who wish to find it.

The Royal Commission

The Royal Commission of Inquiry into the Attack on Christchurch Mosques on 15 March 2019 was established by order in council on 8 April 2019. ⁶⁸ The Royal Commission, headed by Supreme Court judge William Young and former diplomat Jacqueline Caine, was assigned a formidable task. As per its terms of reference, the matters the Royal Commission is examining include what authorities knew about the Christchurch attacker’s plans, what actions were taken, whether the attack could have been prevented, whether there was a failure in information sharing and whether there was a failure to anticipate the attack because of a focus of attention and resources on other terrorism threats. The Royal Commission was also asked to make appropriate recommendations regarding measures to prevent similar attacks in future, which may include legislative reform. ⁶⁹

The establishment of a Royal Commission was entirely appropriate given the circumstances. It is important that the government and the public at large understand how the 15/3 attack transpired, whether it could have been prevented and whether changes to institutional practices or legislation are needed. The work of the intelligence services has no doubt been a focal point of the inquiry—in particular, whether institutional priorities and resource allocation contributed to warning signs of the attack being missed. The absence of any mention of right-wing extremism in a decade’s worth of annual reports and ministerial briefings from the intelligence services is suggestive of an institutional blindspot, ⁷⁰ much like the systemic underappreciation of the threat of right-wing terrorism by the US government. ⁷¹ But there is also evidence that the New Zealand intelligence community was alive to the threat of right-wing extremism and that there was ‘no obvious double standard’ in how it was dealt with. ⁷² Moreover, the fact that the 15/3 attack occurred does not in itself show that there was an intelligence failure or a disproportionate focus on Islamic fundamentalist terrorism. Given the imperfect nature of intelligence, attacks can still succeed even if intelligence agencies are alive to a particular threat. ⁷³ This is especially so where the attacks are carried out by lone individuals. ⁷⁴

Several issues have arisen with the Royal Commission. The first was the unrealistically tight time frame for it to complete its work and report back before the original December 2019 deadline. That deadline has since been extended several times, most recently to November 2020 as a result of the coronavirus pandemic. Second, there was a perceived lack of consultation with the Muslim community, particularly in relation to the drafting of the terms of reference. However, some consultation subsequently took place, primarily through meetings with the Muslim Community Reference Group established by the Commission to assist with its work. ⁷⁵ Third, much of the Commission’s work has been done in private, which is something that is contemplated by the terms of reference and the legislation governing inquiries. ⁷⁶ The veil of secrecy was said to be necessary to preserve the confidentiality of classified information (such as the operational details of New Zealand’s intelligence agencies) and also to ensure that the attacker’s fair trial rights were not prejudiced. The latter concern arose because the Royal Commission’s remit includes examining the attacker’s conduct prior to the attack, including his international travel, his acquisition of a gun license and weaponry and his internet activity—all matters that, but for the attacker’s subsequent guilty plea, would likely have been relevant at trial. ⁷⁷ But on the other side of the ledger, the Royal Commission conducting itself out of public view comes at the expense of transparency. This increases the risk of regulatory capture ⁷⁸ and may undermine the Royal Commission’s efforts to hold intelligence agencies accountable and ascertain whether there was an intelligence failure in relation to 15/3.

Reforms to firearms legislation

The Christchurch attacker held a standard A-category gun licence and lawfully purchased an array of firearms. He had six firearms with him on March 15, including two AR-15 semi-automatic rifles fitted with large capacity magazines. ⁷⁹

The ease with which the regulatory framework could be circumvented—that is, a semi-automatic weapon obtainable under the most basic firearms licence could be readily converted into a military-style semi-automatic weapon (MSSA)—was a known problem. ⁸⁰ Unsurprisingly then, one of the government’s first steps after the attack was to pass an urgent amendment to the Arms Act 1983. ⁸¹ The amendment, which was enacted in approximately 2 weeks with near-universal support, ⁸² banned high-powered semi-automatic shotguns and rifles with magazines above a certain capacity, including MSSAs, as well as large capacity magazines and gun parts that allow weapons to be operated semi-automatically or automatically. ⁸³ Operating in conjunction with this legislative amendment was a government buy-back scheme for the banned weapons, which was allocated a budget of over NZ$200 million. ⁸⁴

Further reform eventuated with the enactment of the Arms Legislation Act in June 2020. Key provisions in this Act tighten the rules on acquiring firearms licences and establish a registry linking individual weapons to a particular licence holder. ⁸⁵ This Act is a much more substantial overhaul of the existing regulatory regime than the 2019 amendment, and bipartisan political support had evaporated in the time since the attack. ⁸⁶ Opposition coalesced, in particular, around the establishment of the firearms registry on account of its cost, burden on gun owners and potential ineffectiveness. ⁸⁷

There is, however, substantial evidence in the academic literature that the government’s key reforms—the banning and buying back of the most lethal firearms and the establishment of an arms registry—are effective from the perspective of public safety. Banning and buying back semi-automatic firearms reduces the supply of these dangerous weapons. A case in point is Australia’s banning and buyback of semi-automatic weapons after the 1996 Port Arthur massacre as part of the National Firearms Agreement (NFA), ⁸⁸ which is ‘closely associated with the reductions in mass shootings and firearm deaths’. ⁸⁹ The establishment of a firearms registry constitutes a marked shift from the existing regime, where there is no record of all the firearms owned by a license holder. ⁹⁰ Creating a registry therefore yields significant informational benefits, such as providing a richer picture about gun ownership and facilitating the tracing of stolen weapons or weapons used in a crime. ⁹¹ Another benefit of a registry, which was emphasised by the 1997 Thorp Report, is that it incentivises responsible gun ownership practices by making the individual ‘responsible and accountable for those firearms listed on his or her licence’. ⁹² Australia’s experience again provides support for this: gun thefts dropped by more than 50% following the mandatory registration of guns as part of the NFA. ⁹³

Moreover, guns are the weapon of choice for terrorists on account of their lethality, reliability, ease of use and safety for their operator. ⁹⁴ Guns are also the weapon most frequently used by lone terrorists, ⁹⁵ especially in the United States because of the ease of access to firearms there. ⁹⁶ Consistent with this, semiautomatic weapons, being an especially efficient means of killing people, are favoured by mass killers. ⁹⁷ Accordingly, in addition to their general public safety benefit, gun control initiatives that reduce the availability of firearms, particularly the most lethal firearms, make sense as a preventive counterterrorism measure as well.

New Zealand’s reforms post-15/3: A knee-jerk reaction?

Legislative responses to terrorism are prone to be influenced by the ‘politics of the last atrocity’, ⁹⁸ resulting in hasty and ill-considered changes to the law. Although the mere fact that a terrorist attack has occurred does not in itself establish a need for new laws, the temptation is often hard to resist. Something must be done, ⁹⁹ and legislation—a relatively uncostly and visible means of response—is often that thing. ¹⁰⁰ Indeed, some commentators suggest that unthinking and reflexive knee-jerk legislation is an inevitable response to terrorist attacks. ¹⁰¹

The literature on the policymaking process, and agenda setting in particular, offers a useful explanatory frame. Agenda setting refers to ‘the process by which some issues gain and others lose attention among policy-makers and the public’. ¹⁰² It is premised on the assumption that the attention, time and resources available to political decision makers is finite, even scarce. ¹⁰³ Focusing events—exogenous shocks like natural disasters or terrorist attacks—lead to increased attention being paid to certain issues. As Birkland observes, ‘[a] focusing event shifts the presumption away from the status quo and toward the proposition that policy change is necessary’. ¹⁰⁴ This is particularly so in the case of a major terrorist attack such as 9/11, where the very occurrence of the event is advanced as evidence of the failure of existing policies. ¹⁰⁵ This creates a window of opportunity for rapid and substantial policy change, as Jann and Wegrich explain: ¹⁰⁶

The policy window opens when three usually separate and independent streams—the policy stream (solutions), the politics stream (public sentiments, change in governments, and the like), and the problem stream (problem perception)—intersect.

This literature usefully frames New Zealand’s response to 15/3. The Christchurch attack is a paradigmatic focusing event that has drawn political and public attention to terrorism and right-wing terrorism in particular. It has likely altered both elite and lay perceptions about the risk of terrorism in New Zealand. The window of opportunity for policy change is open, and in New Zealand—a small unitary state with a unicameral legislature—policy changes can be swiftly enacted into law.

The government has seized the initiative with respect to the reform of New Zealand’s firearms legislation. The banning of most semi-automatic weapons immediately after March 15 was the first significant reform of the Arms Act since 1992. While there had been various reforms proposed since then, any proposal that went beyond tweaks to the existing regulatory regime had foundered in the face of political sclerosis and the efforts of the gun lobby. ¹¹² The exogenous shock in the form of the 15/3 attack disrupted the status quo, creating a presumption that change was necessary. The ban on semi-automatic weapons and the Arms Legislation Act’s establishment of a firearms registry also illustrate the combining of existing gun control proposals with New Zealand’s newly focused appreciation of the threat of domestic terrorism. The banning and buying back of MSSAs was a recommendation made in the Thorp report. ¹¹³ Similarly, requiring the registration of individual firearms is not a new idea. It was the law prior to 1983. ¹¹⁴ It was also a recommendation of the Thorp Report, ¹¹⁵ which a previous government had attempted to implement without success. ¹¹⁶

Overall, however, attempts to utilise the window of opportunity have been sparing. Notably, there has been no attempt to introduce new counterterrorism or security powers in response to 15/3—with the possible exception of the enactment of the control order legislation in December 2019. ¹¹⁷ This lack of activity accords with Keith’s observation that ‘New Zealand has…tended towards a comparatively narrow and incremental approach in adopting and using counterterrorism related legislation’. ¹¹⁸ In addition to New Zealand’s limited experience with terrorism, Keith proposes the following contextual factors by way of explanation: an accepted practice of developing security-related legislation in a bipartisan manner; the tendency of New Zealand’s mixed-member proportional electoral system to create minority or coalition governments that require the support of other parties; past controversies regarding the use of counterterrorism and security measures, including most notably the 2007 Operation Eight raids discussed earlier; New Zealand’s commitment to its domestic and international human rights obligations; and strengthened oversight that has led to greater transparency and scrutiny over matters of national security. ¹¹⁹

At this juncture, we come to the question of whether New Zealand’s response can fairly be described as a knee-jerk reaction to the events of 15/3. To meaningfully address this question, a fuller definition of this ostensibly ubiquitous phenomenon is needed. Labelling a response as knee-jerk, in keeping with the reflexive aspect suggested by the metaphor, implies that it is ‘an unconscious and emotional ad-hoc policy response to some external stimulus’. ¹²⁰ Knee-jerk reform also has the connotation of being rushed through with little to no external input, ¹²¹ with the result being legislation that is poorly thought-through and likely ineffective. ¹²²

I further suggest that there are two heuristics—temporal proximity and relational proximity—that help identify knee-jerk legislation. The first obviously relates to time: was the legislative reform enacted shortly after the focusing event under a compressed time frame? If so, then it could be knee-jerk legislation. But this is not in itself sufficient—the reform could conceivably be a prompt and timely legislative fix. ¹²³ The detail of the reform that was enacted in haste matters as well ¹²⁴ —more specifically, its degree of relational proximity to the issue at hand. Likewise, the fact that the reform might derive from proposals that existed before the focusing event is not per se problematic. The key question is whether the reform addresses some demonstrable gap in the existing law or whether it really is just a reflexive response. ¹²⁵

The narrowness or breadth of the law should also be considered. Counterterrorism legislation enacted in the wake of terrorist attacks often takes the form of broad, omnibus legislation that is so stuffed full of provisions as to make meaningful legislative scrutiny impossible. ¹²⁶ While some provisions might plausibly be defended as necessary reforms that respond to the situation at hand, others cannot. For example, Walker notes that many provisions in the United Kingdom’s Anti-terrorism, Crime and Security Act 2001 were ‘opportunistic changes’ that took advantage of the legislative environment that existed immediately after 9/11. ¹²⁷

The only possible candidate for the pejorative descriptor of knee-jerk legislation, given its temporal proximity to 15/3, is the ban on semi-automatic weapons. But, at the same time, this reform was relationally proximate in that it was narrow and directly targeted at a known shortcoming in the existing law. That is, had the reform been in place prior to 15/3, it would have been more difficult for the Christchurch attacker to assemble as lethal an arsenal of weapons as he did because he would not have been able to lawfully obtain weapons readily convertible into military-grade killing devices. Thus, on my account, the ban on semi-automatic weapons does not qualify as knee-jerk legislation.

Accordingly then, New Zealand’s post-15/3 response stands as an exception to the rule of thumb that knee-jerk legislation is an inevitable response to terrorist attacks. The establishment of the Royal Commission and the Christchurch Call nudge things in the direction of change by establishing a framework or process for reform, but defer the harder questions of detail to the future. Both initiatives are in keeping with the modest, incremental approach identified by Keith. Overall, given the gravity of what transpired on 15 March, relatively little in the way of concrete reform has occurred—indeed, it may be less than what the government hoped for. But the Royal Commission’s report has been repeatedly delayed, and coalition partners have had to be placated. ¹²⁸ And, of course, pandemic response has understandably been the government’s focus in 2020.

Conclusion

The 15/3 attack is an epochal event for New Zealand. It has led to some overdue reform of New Zealand’s firearms legislation. Changes to counterterrorism law and enhancements to the powers of the intelligence agencies might also happen, especially if the Royal Commission concludes that there was an intelligence failure in relation to the attack. But the reason for the failure matters. A gap in surveillance authority or other legal impediment suggests the need for legal reform; a lack of attention and resources does not, particularly given the extensive powers that the intelligence agencies have already been granted in the post-9/11 era. ¹²⁹ At this stage, however, these changes are just possibilities, to be implemented (or not) after proper deliberation and public input.

Of course, none of this is to say that New Zealand is somehow immune from enacting unwise legal reforms in response to 15/3. Parliament could, for example, decide to enact a law authorising intrusive domestic surveillance with only limited independent oversight. But the problem here, I suggest, would not be one of knee-jerk legislation, but rather a different problem endemic to legislating in the realm of security and counterterrorism—a world characterised by secrecy, risk and imperfect information. And this is that, ultimately, no legislator is impervious to the political cost of being perceived as responsible for another attack because they denied the security agencies the tools they needed to keep the public safe. ¹³⁰