About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.

Introduction

2. The Council neither supports nor opposes the primary aims of the bill.  However, the Council has concerns about the details.

Affirmation of Rights

3. R v Matthews¹ established that the New Zealand Bill of Rights Act 1990 (NZBORA)  does not automatically apply extraterritorially. As this bill makes no affirmation, this bill would deny the rights granted under NZBORA.  As a matter of principle, the Council believes that this bill should be amended to affirm that the rights granted under NZBORA will be respected extraterritorially in respect to this bill.
   
4. The bill is unclear on whether the Human Rights Act 1993 (HRA) applies. The HRA does not state that it has extraterritorial effect. The HRA only mentions actions outside of New Zealand in section 26, where it excludes itself.  As a matter of principle, the Council believes that this bill should be amended to affirm that rights under the HRA will be respected extraterritorially in respect to this bill.
   
5. The Council is disappointed that this bill, which claims in section 3(b) to have “uphold[ing] … international human rights law” as a primary objective, has been written in a way to deny the human rights of those affected by the bill. The bill only has extraterritorial effect but does not extend extraterritorial effect to our human rights legislation.
   
6. The Council is further disappointed that this bill, which claims in section 3(b) to have “uphold[ing] New Zealand’s rights and obligations under international law” as its other primary objective, fails to comply with our obligations as signatories of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.  In order to comply with our obligations under international law, this bill needs to grant extraterritorial effect to our human rights legislation.

Warrantless Search

7. The Council opposes warrantless search as a matter of principle.
   
8. NZBORA section 21 provides for freedom from unreasonable search and seizure. R v Grayson & Taylor² established that warrantless search is only ever reasonable if the search needed to be performed before a warrant could be obtained.
   
9. There will always be time to obtain a warrant for searches authorized by this bill. Travel by boat from New Zealand takes days or weeks.  It would be quite suspicious for a vessel of the crown to be close enough to not require days of travel to intercept another vessel on the high seas.  Even if days were not spent enacting the intercept, days would pass between the intercept and the target vessel reaching a foreign port.  Therefore the Council submits that all searches conducted under this bill would be unreasonable.

Compensation

10. The Council supports, as a matter of principle, compensation for people who have been wronged.
    
11. Section 40 of this bill denies compensation for reasonable costs of complying with this bill.  The Council believes that reasonable costs should be compensated, especially when the offence, if any, is not proportional to those costs.
    
12. The Council is concerned that section 40 will be used by the crown to deny responsibility for damages caused by the crown when acting as directed by this bill.

Recommendation

13. The Council recommends that section 9 be amended to state that NZBORA and HRA apply extraterritorially to actions authorised by this bill.
    
14. The Council further recommends that section 16 (4) be reversed to indicate that warrants are always required, and proscribing the approach for obtaining the warrant.
    
15. Finally, the Council recommends that section 40 be reversed to state that the crown will pay for reasonable expenses and damages.

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[1] 1994 11 CRNZ p.564

[2] 1997 NZLR 399 p.408