On 2 March 2022, the Police moved to clear the occupation of the area around Parliament which began as a protest against vaccine mandates. Following the clearance of protestors from Parliament grounds by Police, eighty-seven people have been arrested for offences such as trespass, possession of restricted weapons, and assaulting police. But could these actions have amounted to a criminal terrorist act?

Police have reported that during clearance of the protest, the occupants used fire extinguishers, paint-filled projectiles, homemade plywood shields, pitchforks and petrol as weapons against Police. The occupants also set up trip-wire, dug bricks out of the pavement to throw at Police, and threw LPG bottles onto the fires.

A ‘terrorist act’ is defined in section 5 of the Terrorism Suppression Act 2002 (TSA). It involves several elements:

• an act intended to cause a ‘particular outcome’;
• that act was carried out for the purpose of advancing an ideological or political cause; and
• an intention to intimidate a population or to coerce or force a government to do or abstain from doing any act.

This definition has never been tested before the courts, with R v Tarrant the only successful prosecution under the legislation that resulted in a guilty plea. Section 2 of the Regulatory Impact Assessment, from the Ministry of Justice, outlines the growing number of terrorist attacks overseas that:

• involved a low degree of sophistication;
• utilised a range of items as weapons, including those that can be lawfully obtained; and
• involved individuals in a loose network arrangement.

So do the events at Parliament contain the three necessary elements to meet the TSA definition of a ‘terrorist act’?

Was there a particular outcome?

A ‘particular outcome’ is defined in section 5(3)(c) as being:

• the death of, or serious bodily injury to, one or more persons;
• a serious risk to the health and safety of a population;
• destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in death or serious risk to health and safety of a population;
• serious interference with, or serious disruption to, critical infrastructure, if likely to endanger human life; or
• introduction or release of a disease-bearing organism, if likely to cause major damage to the national economy of a country.

While no fatalities resulted from the protest or the events of 2 March 2022, New Zealand Police Association President Chris Cahill reported that some officers suffered ‘significant injuries’ requiring hospital treatment, but these were not categorised as ‘serious injuries.’

However, the uncontrolled fires that were lit at the protest pose an inherent risk to the health and safety of a population. Apart from the tents, pallets and playground which were burnt, there were reports of an arson attempt at Victoria Law School opposite Parliament, although this was extinguished before it could threaten health and safety.

There is also an element of destruction or serious damage to property, which applies to the playground that was set alight by individuals present, and when paving stones were pulled up by protestors for the purpose of using the bricks as missiles. But the whole of Parliament forecourt and grounds is a property of great (intrinsic) value and significance. The Prime Minister referred to it as the ‘people’s Parliament’.

The protestors took a range of actions which, taken together, destroyed the grounds. Deliberately lighting fires in the middle of a crowd is certainly a likely risk to those in the vicinity but given that the area was cordoned off and police were already at the scene in large number, any risk was likely to be quickly managed (as it was).

As for serious interference with, or serious disruption to, critical infrastructure, there are three elements to consider:

• The Public Transport System: The obvious disruption to road traffic occurred because of the street blockades, and Metlink closed stops on Lambton Quay because of the protests. On advice from Police, Metlink also closed the railway station on 2 March 2022 and suspended all railway services.
• The Court System: A High Court trial scheduled for one week was adjourned due to the roadblocks from the protestors. The Chief Justice issued a media statement expressing her concern about the disruption to courts caused by the protest, saying that functioning courts are critical to the maintenance of law and expressing concern that the presence of protestors in the precinct might intimidate court users.
• The Education System: As for the introduction of a disease-bearing organism, this appears to anticipate deliberate germ warfare rather than the more remote interpretation of the ‘disease-bearing organism’ being the protest itself where the COVID-19 spreads. This element is therefore also unlikely to be satisfied.

There are many ‘particular outcomes’ which fit within the definition of a terrorist act. The issue will be proving intention and that the individual protestors who threw objects at Police, did so while intending to cause death or serious bodily injury, risk health and safety, or endanger human life.

There is a caveat in section 5(5) which states that the mere fact that a person is engaged in a protest, advocacy or dissent is not, by itself, a sufficient basis for inferring that the person is carrying out an act for the requisite purpose or intention or that they intend to cause that particular outcome. Equally, this caveat is not a ‘get out of jail free card’ to throw LPG canisters onto a burning pile of rubbish.

Ultimately it is not clear whether this could be applied to any of the protestors, but given our analysis above on the actual likelihood that the protestors’ actions could result in death, serious injury etc., it appears more likely that the test for seeking a ‘particular outcome’ would not be satisfied were terrorism charges actually laid.

Were protestors trying to advance an ideological or political cause?

The ideological basis for these protests is less easy to identify than, for example, that of the 1981 Springbok Tour protests. The core set of opinions displayed on Parliament’s lawn, at least at the beginning of the protests, seem to be opposition to the Government’s vaccine rollout and the vaccine mandates. This is easily describable as an ideological or political cause.

However, a difficulty arises when, as described above, merely participating in a protest which has an ideological or political aim is not a terrorist act. Given that the acts of violence described above only occurred once Police took steps to end the protest, it does not necessarily follow that those violent acts had the same purpose as the protests did. It could be said that the violent protestors were directing their actions at the Police, who were attempting to disperse the protest, rather than at the Government, at whom the protest as a whole was directed.

If the connection between the ideological or political purpose of the protests and the violent acts is more remote, then establishing that those acts were done in order to advance an ideological or political cause becomes more difficult.

Intimidating a population or coercing or forcing a government to do or abstain from any act

Under the TSA section 5(2), for an act to amount to terrorism it must also be intended to induce terror in a civilian population or to unduly compel or force a government to do or abstain from doing any act. We anticipate that there would be difficulties in proving this element as well.

Even if it is accepted that the purpose of the protest was to encourage the Government to dispense with the vaccine mandates, it is again unclear whether this purpose can be extended to the violent acts of some protestors during the events at Parliament. As discussed above, it is equally arguable that those individuals reacted violently to the Police clearance operation rather than seeking to use that violence as a tool to coerce the Government into backing down on its COVID-19 response.

Conclusion

The TSA needs to be flexible enough to deal with terrorist threats that are more spontaneous. Section 3(a) of the Act refers to making ‘further provision’ in New Zealand for the suppression of terrorism, as well as the implementation of sanction resolutions for more traditional terrorist groups. This implicitly recognises the need to make provision for the evolving nature of terrorism.

While the events at Parliament were ultimately violent and the street skirmishes between police and protestors left MPs and citizens alike in shock, it is unlikely that they meet the high threshold required for any individual to be charged for terrorist acts as set out in the TSA. The missile throwing, the burning and the complete destruction of Parliament’s grounds are shocking and criminal but it is unlikely they amount to domestic terrorism.