Countering Terrorist Fighters – why the rush?

The government will be introducing the Countering Terrorist Fighters Legislation Bill into Parliament today. This bill is ostensibly in response to resolution 2178 from the UN Security Council which, among other things, urges states to restrict the movements of FTFs – foreign terrorist fighters.

The Bill makes the following changes to NZ law, all of which expire on 1st April 2018:

• Gives the Security Intelligence Service the ability to perform visual surveillance under a warrant.
• Gives the Security Intelligence Service the ability to do "emergency" surveillance without a warrant for up to 48 hours, subject to various processes before and after the fact.
• Provides for Customs sharing counter-terrorism information with the NZ Police and SIS.
• Allows the Minister of Internal Affairs to suspend passports and travel documents of people who are believed to be going overseas to fight as terrorists.
• Tweaks the Passport Act to allow use of secret evidence in judicial reviews as well as trials and appeals.

Changes to SIS powers

There is no obvious significant connection between the stated aim of the law changes (to stop FTFs) and the need for the SIS to expand their surveillance powers to include video surveillance and emergency warrantless surveillance.

One can see the gap in the example given to justify emergency warrantless surveillance in the Explanatory Note which says "information may come to light that a person not previously identified as a risk is about to travel to a conflict zone."

This is the serious and urgent threat to NZ security that necessitates allowing warrantless surveillance by the SIS? Rather this looks like another case of "well, we're passing a law, let's tack on some more powers for the security agencies while we're at it".

The bill notes that these new powers match those granted to the Police in the Search & Surveillance Act. However, one key difference is that the SIS is less accountable than the Police, not least because they're collecting intelligence rather than evidence that has to stand up in court.

We fail to see why these non-urgent changes couldn't have been considered as part of the promised review of the intelligence services scheduled to start in 2015.

Customs information sharing

We do not have any significant issues with Customs sharing appropriate data concerning terrorists with the NZ Police and SIS, assuming that appropriate safeguards are in place. The new procedures seem to have some appropriate limits including audit trails.

What is more interesting is the explanatory note that this change is seen as necessary because the current arrangements are not allowed in the current Customs and Excise Act.

The Switched on Gardener case in 2011-2013 showed that Customs were already abusing their search powers in order to do espionage for the Police. At that time we also obtained a copy of the Information Exchange and Data Access Annexe to the 2006 Memorandum of Understanding between Police and Customs. In it, Customs will:

…on request or at their own behest provide to the NZ Police information and intelligence held by the NZ Customs service on all matters connected to the enforcement and maintenance of law for which the NZ Police has a statutory investigative or intelligence interest.

NZ Police personnel, … who, as an appropriate part of their duties require direct personal access to information held on CusMod [the Customs computer systems] shall be allowed such access.

It seems that this completely open and unrestricted access is probably unlawful. Will there be any repercussions for the people who set it up and used it?

Secret evidence

This Bill does not introduce the idea of the government presenting classified evidence in secret, it merely extends it to judicial review of those decisions.

However we think that it is impossible to have a fair trial when evidence can be presented in court that the accused and their representatives cannot even see, let alone challenge. This is contrary to the minimal standards for criminal procedure in section 25 of the New Zealand Bill of Rights Act and should not be allowed.

Sunset clause

The use of a sunset clause so that the provisions in the Bill will expire on 1st April 2018 seems odd. If the government believes that these law changes are necessary and a good idea, why let them expire? A sunset clause seems to imply that they aren't really convinced that these changes are worthwhile and appropriate.

Urgency

Finally, there is the issue of urgency. Prime Minister John Key has said he intends to have the law passed by Christmas in order to… what? There does not seem to be any particular requirement for urgency, other than to reduce the time for scrutiny and/or opposition.

At a time when the political neutrality of the SIS has been found to be lacking, it seems inappropriate for the government to rush in new laws giving them even more power.

Conclusion

This Bill seems like another rush job to give more powers to New Zealand's security agencies for reasons that aren't clear.

We believe that the government needs to make a better case for both the law changes and the urgency with which they wish to pass them.