The Council submitted the following to Aotearoa New Zealand’s first National Security Strategy.

The Universal Declaration of Human Rights (UDHR), to which New Zealand is a signatory, begins:

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world

The Council agrees that human rights are the foundation of peace, and therefore of security.

The overwhelming majority of activities undertaken in the name of our security are both inappropriate and ineffective. 

The goal of National Security must be to secure our human rights. That primary goal can not be met by sacrificing those rights for tactical advantage toward secondary goals. The Council believes that basically everyone involved in Aotearoa New Zealand’s National Security makes the simultaneous errors of elevating secondary goals, like awareness, above human rights and believing that the ends justify the means.

More resilient society

Our security is literally Maslov’s Hierarchy of Needs.  Our primary security needs are having sufficient, nutritious food for our families and having secure tenancy in a warm, dry home.  Given that we know that we fail to meet those needs for so many people, our investment in security should be focused there.

In DPMC’s own words from your September 19 webinar on this consultation, “almost all” of the people we are concerned with for extremist violence have untreated mental health issues. The Council again recommends substantive increases in funding for mental health.  The Council further notes that insecure nutrition and housing are significant triggers of mental health crises.

Another better investment for nation security funding is building better community relationships and expertise in identifying and working to resolve discontent, whether through promotion of democratic options or community improvement. Cross agency measures should be part of the plan for better and safer community wellbeing.

Once those physical needs are met, our remaining security needs are providing for the human rights of ourselves domestically, and everyone globally. Just as deprivation motivates unrest, peace is built on taking care of people’s needs.

Royal Commission of Inquiry
into the terrorist attack on Christchurch masjidain on 15 March 2019

The Council has mixed views on the Royal Commission.  Its terms of reference should have been better, it did not conduct itself in the ways which we thought it should, and we have concerns about its recommendations.

The Council again calls for the recommendations of the Royal Commission to be enacted without delay.  The correct time for us to debate these recommendations was years ago, but that debate has yet to begin as there is no response to consider.

Discussion and Education

Section 3.3(c) of the constitution of the NZCCL is to “encourage and support debate and dialogue within Aotearoa New Zealand on civil liberties and human rights”  This is in direct alignment with the Royal Commission’s recommendation 37 for “regular public conversations”, which we therefore wholeheartedly endorse.

Section 3.3(d) of the constitution of the NZCCL is to “educate people on issues and events arising from treaties and legislation on human rights and civil liberties.”  This is in direct alignment with the Royal Commission’s recommendation 36 “for young New Zealanders to learn”, which we therefore also wholeheartedly endorse.

The Council volunteers to assist with co-design of programmes to implement recommendations 36 and 37.

Surveillance

“It is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

Lord Hewart

National Security measures need to be designed to both make people safe and make people feel safe.

Aotearoa New Zealand has a history of using state violence to oppress people.  Indeed the Council was founded in direct response to our government’s use of violence during the Waterfront Lockout of 1951.  While the worst excesses of our past have passed, many people in our community continue to experience our government primarily as their oppressor.

Given that combat is the guiding metaphor of the agencies with surveillance powers, kindness is absent from their surveillance practices.  It should come as no surprise to DPMC that many people see surveillance as a tool of our oppression. 

Not only are [surveillance] technologies incapable of preventing our worst nightmares, their presence is actively moving us toward a dystopian one. If society were to deploy every surveillance and analytical tool available, [society] would be hardened to a point where even the most anodyne signs of resistance or nonconformity on the part of young people would be flagged as potentially dangerous—surely an ongoing disaster for the physical, social, and emotional well-being of children, for whom testing boundaries is an essential element of figuring out both themselves and the world they live in.

Chris Gillard, Wired Magazine, Jun 30, 2022

The burden of that oppression falls primarily upon the most disadvantaged.  The Council believes that the over-representation of Māori and Pasifika people in our justice system is caused by the excessive surveillance (“over-policing”) of their communities.  Benefit sanctions are another source of surveillance driven harm in our communities. How could a child or young person not resent government measures that starve them? Research shows benefit sanctions contribute to a rise in crime by those suffering the impacts.

In addition to making us feel unsafe, surveillance continually fails to make us physically safe. Like Hans Christian Andersen’s The Emperor’s New Clothes, someone in government keeps falling for the fallacy that the solution to the failure of surveillance is more surveillance.

Surveillance continues to expand and now significantly impacts on the liberties of most New Zealanders.  

The Council again calls for a moratorium on involuntary biometric surveillance, especially facial recognition.  The Council notes that one of the many simultaneous consultations currently underway is on biometric surveillance.  We’ve made this point in more detail there.  We urge DPMC to familiarise themselves with the results of that consultation.

The Council calls on DPMC to significantly reduce all funding for surveillance.

Transparency

The knowledge that our government spies on us, but will tell us nothing about when, why, or how it does so sensibly leads to distrust.  Conspiracies and extremist movements need this distrust in order to thrive.  Anything that we can do to increase transparency will improve our security, even in the unlikely case that the transparency significantly diminishes the tactical effectiveness of that surveillance.

There is a complete absence of transparency for the intelligence services.   The public can have meaningful discussions of the costs and benefits of specific policies at Corrections, Police, and even Defence Force. But given the complete lack of information, it’s impossible to defend the intelligence services against even the wildest of accusations.

The evidence that the intelligence services have made mistakes is correctly widely circulated.  Time has come for the intelligence services to routinely share specifics of their operations to prove that they help too.

The Intelligence Services are “above” far too many laws. The Council strongly approves of the Royal Commission’s recommendation 5 to mandate the Auditor General to review the finances of the Intelligence Services.  The Council further recommends that all of the other government review processes, from the Archivist to WorkSafe ought to be equipped and authorised to perform their functions on the Intelligence Services. 

Earlier this month the Council recommended strengthening of Parliamentary Committees to the Standing Orders Committee.  The Council fully endorses the Royal Commission’s recommendation 6 to strengthen the Intelligence and Security Committee.  

The Council endorses the Royal Commission’s recommendation 17 for the Minister to publish an annual report.  This is the least that should be required of any Minister.  The Council recommends that this report be made quarterly, and that every Minister involved in national security should be required to report on their agencies in the same way. 

The Council is perhaps the last group inside or outside of government to have any faith left in Aotearoa New Zealand’s badly flawed Open Government Partnership (OGP) process.  As such we welcome the Royal Commission’s recommendation 38 about the IAP2 Public Participation Spectrum.  We will note that this recommendation has a much higher chance of success if it is not coupled to the OGP.

Oversight

The Council believes that failures of oversight in national security start at the top.  The Council believes that none of the Ministers charged with overseeing any of the agencies involved in national security in the past decade have put in effort proportional to the degree of improvements required.  Negligible improvement reflects minimal effort from Ministers.

The Council notes that we are still waiting for a reply to our December 2018 letter to the Minister for National Security and Intelligence about the IGIS report of that same month.

Inspector General of Intelligence Services (IGIS)

The Council believes that the Inspector General of Intelligence Services (IGIS) is ill equipped to perform the duties assigned to it.  The Council has considerable knowledge of IGIS, having watched the intelligence services for decades and taken part in formal proceedings like the IGIS Reference Group.  The Council notes that IGIS has no powers other than to make recommendations to ministers.  Not surprisingly, the Council notes that IGIS appears to have frequent difficulty in getting the intelligence services to treat it with respect.  We make the following recommendations:

The Inspector General themselves should be someone who has made a career outside of government.  Civil society leaders, journalists, or as a last resort, judges should lead IGIS.

IGIS should have the power to suspend and prosecute anyone working for any of the agencies it oversees.

IGIS should have the power to rewrite policies of any of the agencies it oversees.

IGIS should publish monthly reports of its activities, including the number of investigations started and completed in the period and the number of investigations underway at the end of the period.

IGIS should publish a report for public consumption on each investigation it undertakes.

As bad as the situation with IGIS is, the oversight of surveillance outside the intelligence services is generally worse.  There is a patchwork of oversight for the 15 central government agencies and all local government agencies who are empowered to act under the Search and Surveillance Act 2012.  The surveillance activities of some of those agencies, for example the Ministry of Health, have no oversight whatsoever.

The Council draws DPMC’s attention to the failure of almost all of the central government agencies to report as required under s171 of the Search and Surveillance Act 2012.

The Council recommends renaming IGIS to the Surveillance Commission and putting any surveillance by all government agencies under its jurisdiction.