A New Zealand ISIS fighter's alleged offences may not be captured under the Terrorism Suppression Act because there's uncertainty over what activities, or crimes, he's actually participated in.
Law professor Andrew Geddis spoke about the case of "bumbling jihadi" Mark Taylor, who is being held in captivity at a Syrian prison. But his captivity has been thrown into doubt following the withdrawl of US troops and Turkey invading the area.
If he's released to New Zealand, though, Prime Minister Jacinda Ardern has earlier said Taylor would face the full force of the law.
But Mr Geddis told TVNZ1's Breakfast this morning prosecutors would be limited on what he could potentially be charged with for his acts committed in Syria, especially with uncertainty about what he's even been involved with in the terrorist group.
He also said the Terrorism Suppression Act "wasn't really written for someone like Mark Taylor".
"What we know publicly of Mr Taylor is that he didn't commit any actual terrorist offenses. He looks like he was just kind of a guard around fuel dumps and so on, and so whether any provisions of the Terrorism Suppression Act will actually catch him is just questionable."
The Government is reviewing the act, but Mr Geddis said there were several problems with it.
"For Mr Taylor, again the problem is he's been involved with a really nasty organisation that has carried out terrorist acts, but whether he has actually participated in any of those acts, or has aided the group in carrying out those acts, we just don't know. It doesn't look like he has.
"Actually being a member of terrorist organisation is not an offense, and doing things that help the terrorist organisation is not in itself an offence unless you're doing it for the purpose of aiding a terrorist act."
When asked what changes could be made to the act, Mr Geddis said he thinks it needs to go back to a first principals review of what New Zealanders think are so wrong criminal law should punish them for being involved.
"I would think going and joining an organisation like Islamic State with all that it did falls on that line, and actually being an active member in it should attract the criminal sanction," he said.
"Given what Islamic State wants - and, you know, I think we could use the word 'evil' against it quite easily here - having New Zealanders go and be active members of such organisations and play a role in trying to help them succeed, and then be able to come back to New Zealand and sort of walk away legally scot-free, it doesn't make us very good international citizens," he said. "And I suspect that's what the Government's going to be most worried about."
Mr Geddis said authorities would be scrambling around looking at what they could charge him with if he returns. He also expected intelligence agencies to keep an eye on him.