Below is my submission on John Key's Countering Terrorist Fighters Legislation Bill. Hopefully some of you made your own as well.
- I oppose the Countering Terrorist Fighters Legislation Bill and ask that it not be passed.
- I also oppose the abuse of the Parliamentary process seen in the passage of this bill - and in particular the short select committee stage. It is a matter of some irony that a bill which will permit the SIS to spy without warrant for 48 hours without any submission to the Minister does not give the public even that length of time in which to make submissions. The short period for submissions is an express denial of our democratic rights, which brings Parliament into further disrepute. And when combined with the similar abuse done in the name of the GCSB Act, suggests that on matters of spying, the government and spy agencies do not want our voices to be heard.
Amendments to Passports Act 1992
- I oppose the amendments to Passports Act 1992 contained in the schedule to the bill.
- I particularly oppose the power in new sections 1(6) and 2(6) extending the length of passport refusal / revocation from one to three years. At present, the Minister can cancel passports for a year, and can extend this for a further year on application to the High Court. The government has made no case that this period is inadequate and has presented no evidence that the current process of judicial extension is not working. The effect of these clauses (and the similar clauses applying to certificates of identity, refugee travel documents etc) is to remove judicial oversight of such decisions. This is something that should not be accepted in a free and democratic society.
- I oppose the avoidance of doubt clause in new section 1(3), 2(3) etc that the government can refuse or cancel a passport to someone outside New Zealand. This seems to interfere with the fundamental right of citizens to re-enter New Zealand, and to turn passport refusal/revocation into a Ministerial-imposed sentence of exile without trial. While emergency one-use travel documents are in theory available under s23(30 Passports Act 1992, "in theory" is not sufficient. In practice, any refusal or cancellation of a passport or travel document of someone who is offshore should result in the immediate issue of documents to enable the victim to return to New Zealand, to ensure that they are not effectively exiled.
- I oppose the new clause in s1(5)(b), 2(5)(b) etc that "notice [of a passport cancellation/revocation etc] is to be treated as given if the Minister has taken all practicable steps to provide it." Sections 1(7)(a), 2(7)(a) etc limit direct appeals to the Minister to within 30 days of notice. The combination of these two clauses is to effectively rob those whom the Minister decides it is impractical to notify of any right of appeal. This is inconsistent with the Right to Justice affirmed in section 27 of the Bill of Rights Act.
- I oppose the power in new section 7 to temporarily suspend a travel document for 10 days. The power requires no evidence or even suspicion of wrongdoing. Instead it merely requires that a report be being prepared. It is hard to see how such an arbitrary suspension of an individual's freedom of movement accords with the right to justice affirmed in section 27 of the Bill of Rights Act, or how it could be considered to be the least intrusive measure.
- I oppose the extension of sections 29AA to 29AC (permitting the government to use secret evidence which is not disclosed to the other party in cases involving "national security") to cases involving passport refusal / revocation etc. The use of secret evidence in court cases is absolutely inconsistent with the right to justice affirmed in s27 of the Bill of Rights Act, and its use has been found to impair similar rights overseas.1 As Lord Kerr noted in Al Rawi and Others v. The Security Service and Others  UKSC 34, "Evidence which has been insulated from challenge may positively mislead. It is precisely because of this that the right to know the case that one’s opponent makes and to have the opportunity to challenge it occupies such a central place in the concept of a fair trial". Absent such an opportunity, both the justice and the public credibility of a judgement is irreversibly compromised.
- I oppose the limitation of crown liability in new section 9. It serves no purpose except to insulate the government from the legal consequences of poor decision-making. As I value good decision-making where human rights are concerned, I would prefer that the government had every incentive to get it right, rather than enjoying impunity.
Amendments to Customs and Excise Act 1996
- I oppose new section 280M, which provides for police and SIS to have direct access to Customs' data for counter-terrorism purposes.
- As the bill's RIS and BORA-vet makes clear, this section is required because significant doubts have arisen about the legality of Customs' current information exchanges with police and SIS. Current practice is that police are able to directly enter targets into the Customs' database, specifying who they want stopped and what they want to search for.2 Customs then provides them with the results of any warrantless search at the border conducted under s151 Customs and Excise Act. Presumably there are similar arrangements with SIS. These powers are specifically used to conduct warrantless searches of digital devices such as laptops and cellphones.3. But as the Minister of Justice notes in her BORA-vet, "comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion".
- The result of section 280M therefore is to effectively bypass the protections of the Search and Surveillance Act 2012 and New Zealand Security Intelligence Service Act 1969 to enable both agencies to conduct warrantless searches of anyone entering the country, potentially gaining access (via their cellphones, stored emails, browser histories and files) to every detail of their lives. These protections exist for good reason: the oversight of the courts (or, in the case of the SIS, of Ministers and the Commissioner of Security Warrants) prevents abuses of power. This clause would throw away any oversight, and grant these agencies arbitrary search powers. This is inconsistent with the right to be free from unreasonable search and seizure affirmed in s21 of the BORA.
- As a further note, because it is not a "search power" in terms of the Search and Surveillance Act 2012, border searches conducted by Customs under s151 have no protections for journalistic privilege, or for attorney-client privilege. They therefore raise the prospect of Police and SIS colluding with customs to violate the rights of journalists, and the fair-trial rights of people whose lawyers travel to and from New Zealand.
Amendments to New Zealand Security Intelligence Service Act 1969
- I oppose new sections 4IA to 4IC governing the use of visual surveillance warrants. The power to film a person in their own home, with their family, is extremely intrusive. It needs to be subjected to the strictest safeguards. Sadly, those covering SIS surveillance are insufficient. Such warrants should only be authorised by judges, not by Ministers. And they should be subjected to full judicial oversight, not hidden behind a wall of secrecy.
- The justification for such warrants is "security". In the past, the SIS has shown extremely poor judgement of what constitutes a threat to "security", and the existing oversight procedures have provided no protection. They have spied on politicians and even children. The abuses which could result from allowing them to do so with video cameras ought to be obvious.
- I oppose the emergency surveillance powers of new sections 4ID to 4IF. These allow the SIS to exercise its surveillance powers (including the new visual surveillance powers, but also existing powers to e.g. break into people's homes) for up to 48 hours without a warrant where obtaining one would be "impractical" and a delay "is likely to result in a loss of intelligence".
- In terms or practicality, it is difficult to see why in this age of cellphones it would be impractical to gain Ministerial authorization. If the concern is that the Minister may be out of the country, then an arrangement similar to s19A Government Communications Security Bureau Act 2003 (which allows other Ministers to authorise interceptions when the Minister is unavailable) would be a more appropriate solution. If the concern is that oversight by the Commissioner of Security Warrants is a delay, then this is effectively an attack on the entire oversight system which needs to be resisted.
- In terms of "loss of intelligence", to spies any delay may result in such a loss. The clause effectively serves to circumvent the entire warrant oversight system.
- The "safeguards" around this are non-existent. Quite apart from any doubts about whether the Minister would refuse to confirm such a warrant, if a warrant is not granted, the information collected must be destroyed - except for any "relevant to the detection of activities prejudicial to security [or to] the gathering of foreign intelligence information that is essential to security". Effectively this is saying that the SIS can keep the poison fruit of breaking the law. The fine for failing to destroy information is derisory (and as any offence will be secret, there is no prospect of prosecution). These are not proper checks and balances.
- A comparison with existing police powers for emergency warrantless search and surveillance shows that the bar to such powers in a free and democratic society is high. Under the Search and Surveillance Act 2012 the police may conduct emergency searches without warrant to prevent the destruction of evidence of serious crime (sections 8 and 15), or where there is a risk to the life or safety of any individual (s14). They may also conduct emergency surveillance using a surveillance device for up to 48 hours in similar circumstances. Note the threshold: serious crime (punishable by 14 years or more imprisonment, or specified offences involving firearms) or a real threat to life and safety. A vague and unsubstantiated "risk to security" simply does not meet this threshold (and in the cases where it does, the SIS should be turning the case immediately over to police, so that they can exercise their powers and prosecute the offender).
- While both the visual surveillance and emergency surveillance powers have been compared to existing police powers, it is important to remember that the SIS are not the police. The SIS's goal is to gather intelligence, while the police's is to gather evidence. The former is secret, while the latter must ultimately be revealed in court and withstand judicial scrutiny. This public and judicial oversight provides a further check and balance on the police and gives them a strong incentive to act within the law. As their intelligence is kept secret and used privately, there is no similar incentive on the SIS, and the results can be seen in the dismal history of the service.
- The provisions of this bill have a "sunset" clause and expire on 1 April 2018. While I welcome the sunset clause, the duration seems far too long. The SIS is supposed to be reviewed next year, and I would expect Parliament to treat the outcome of that review as a matter of some urgency (though not the unconstitutional level of urgency displayed in the passaged of this bill). A 2016 expiry seems more suitable.
- I do not wish to make an oral submission to the Select Committee.
2. See OIA response to TechLiberty and the police-customs MOU annex on data access.
3. As an example, police asked Customs to stop the wife of a suspected drug-dealer at the border so they could download the contents of her cellphone.