Since 9/11 laws have been passed which increase state surveillance; which remove the age-old maxim of innocent until proven guilty; which can cancel passports and other travel documents; which are deemed to be inconsistent with our Bill of Rights. Like its traditional allies, New Zealand has significantly increased the powers of law enforcement and national security agencies. In addition they have increased the powers of search and seizure together with an increase in the type of data that can be accessed. To some leading lights in the international privacy community, it seems as if the mere threat of terrorism has changed political discourse.
First, what's been happening here is not unique. Our allies - the UK, Australia, Canada, and not forgetting the US, have all been doing similar things. Many of the key elements of post 9/11 surveillance laws are so similar, that you almost feel the presence of an invisible hand from well within Washington’s State Department. It recalls days of Empire, when the laws for the British colonies were all drafted in Whitehall.
'Amnesty International’s' 2004 Annual Report describes the trend well. 'In the name of the "war on terror", governments are eroding human rights principles, standards and values…. Since 11 September 2001, many have adopted draconian new "anti-terrorism" measures…. Some governments have introduced measures that break with their best judicial traditions….'
New Zealand was obligated to implement UN Security Council Resolutions agreed to within a few days of 9/11, but key aspects of our response can be seen as disproportionately severe.
Leading lights in the international privacy community have expressed deep reservations about a number of the post 9/11 legislative developments. In 2004, England's Information Commissioner, Richard Thomas, (the equivalent of our Privacy Commissioner), warned that his country might be 'sleep walking' towards 'an East German-style surveillance society'.
Way back in 1991 - after the Rainbow Warrior bombing - our Law Commission got right to the nub of the problem. '… The danger is that States will over-react…. It is possible to imagine government officials doing more to destroy democracy in the name of counter-terrorism than is presently likely to be achieved by the terrorists themselves.'
Too true. Have our parliamentarians - with a few honourable exceptions - over-reacted to the perceived threat to our national interests? Did they end up enacting draconian laws which erode our internationally respected human rights principles, standards and values?The Coalition of Fear…
In the balmy days before 9/11, the Terrorism (Bombings and Financing) Bill was introduced into Parliament in April 2001 - and attracted little public attention. Despite an invitation, no public submissions were received. So much for public interest in fighting terrorism then. But after 9/11,
major proposed amendments were introduced. Following public pressure, submissions were invited and over 140 were received.
Most opposed the proposed changes. The potential impact on fundamental human rights was a major concern. Instead of protecting New Zealanders from terrorist threats or attacks, it was argued that the proposed law might undermine the country's democratic processes and erode its fundamental rights and freedoms.
The bill was seen by some as having a major chilling effect on dissent, or, even more troubling, as being one giant step towards a police state. Despite the concerns, the bill became law with few significant changes to it.
The Terrorism Suppression Act is primarily concerned with criminalising a number of acts relating to terrorism. It makes it easier to designate individuals as terrorists. In the area of surveillance, it gives additional responsibilities to intelligence agencies and to the Police. There are also new surveillance obligations on banks, financial organisations and lawyers. Amendments to the Terrorism Suppression Act 2002 were enacted in 2003 and 2005.
And that was only part of what was caught in the post 9/11 net. The Telecommunications (Interception Capability) Act 2004 does what its title says. It makes telecommunications capable of interception by surveillance agencies. New obligations are placed on telecommunications network operators (the Telcos). This includes Internet Service Providers (ISPs) and phone companies. They must ensure that their services and networks have interception capabilities.
The SIS and the Government Communications Security Bureau - whose role is to collect and analyse foreign signals intelligence - are subject to oversight. It comes from the Inspector-General of Intelligence and Security, and Parliament's Intelligence and Security Committee. Despite the existence of these accountability mechanisms, many doubt their real effectiveness.
The revelation that the parliamentary committee had met for less than two hours during the past year does not help inspire confidence. ‘Tracking, ’ intercepts - and police access to computers
The focus of the Terrorism Suppression Act 2002 was terrorist bombing and financing. The Counter-Terrorism Bill, introduced in 2003, had a broader mandate. The object was said to be to ensure that there were comprehensive measures in place to deal with the whole spectrum of terrorist offending. The Bill was introduced following a whole of government review by key agencies to identify potential gaps in both investigative powers and offence provisions that might be exploited by terrorists.
In the area of enhanced surveillance and its potential impact on individual privacy, the Counter-Terrorism Bill aimed to do three key things.
* To expand considerably police powers to 'lawfully intercept' private communications (where terrorist offences were suspected).
* To greatly extend the 'lawful use' of tracking devices (which had formerly been limited to certain serious drug offences).
* Finally, to create a legal duty on individuals to assist the police (when they have a warrant), to access computer data.
Previously, while it had been an offence to obstruct the police in the execution of a search warrant, no person was under a positive legal obligation to assist the police. The assistance required by the police had to be both reasonable and necessary - assistance meant access only. A person could not be required to locate particular material for the police, or provide it in a particular form.
There are some safeguards - the judicial authorisation needed for a tracking warrant was seen as an important safeguard. A judge is specifically required to consider privacy when considering a warrant application.
Only 24 submissions were received on the bill, most hostile to key aspects of it. Submitters worried about the impact on fundamental rights and freedoms. In response, the officials relied on advice from Crown Law that there was nothing in the bill that was 'inconsistent with the Bill of Rights'. Even the proposed tracking regime was seen as a 'justified limit' on the right 'to be secure from unreasonable search and seizure'.
Opponents begged to differ. To them it was misleading and anti-democratic to use the Counter-Terrorism Bill as a 'vehicle for general criminal law amendments'. Of major concern to many submitters was the likely impact of the new provisions on the right to protest.
Officials considered that concern to be without merit. There was they said, no new restriction on 'the right to protest lawfully'. People engaging in 'any protest, advocacy, or dissent', or in 'any strike, lock out, or other industrial action' were expressly protected. However, 'industrial or other protest action' going to 'extreme lengths' (that is, 'danger to human life, serious risk to the health and safety of a population, or devastation of the national economy') was not.
Many remain unconvinced. The chilling effect of these new provisions, when added to the plethora of existing laws already limiting the exercise of our fundamental rights and freedoms, should not be under-estimated.
Despite the concerns, the Counter-Terrorism Bill passed into law. Not that you will find it on the statute books under that title. Instead, it became law as amendments to existing laws including the Crimes Act and the Summary Proceedings Act - together with changes to the law covering the SIS and the Terrorism Suppression Act of 2002.
2003 was a boon year for the merchants of fear. It saw the culmination of work which begun 1999 when a package of amendments to the Crimes Act 1961 was introduced to Parliament. Then, much of it was uncontroversial. However, in November 2000, cabinet minister, Paul Swain, dropped a bombshell. He introduced into Parliament, Supplementary Order Paper No 85.
It was promptly dubbed the ‘cyber snooping bill’, by critics. Why? Because, in their view at least, the SOP significantly increased state surveillance powers. It exempted state agencies like the police, the SIS and the GCSB from the new 'computer hacking' offences contained in the 1999 Bill.
Despite the opposition in some quarters to the state agency exemptions, the Crimes Amendment Act 2003 was passed - with the exemptions largely intact.
Again in 2003, the Border Security Bill was introduced. Commercial carriers were to be required to carry out sophisticated pre-boarding checks on anyone intending to travel to New Zealand. These checks could trigger an electronic alert.
The Bill's supporters emphasised that the terrorist threat was very real; that there was a need for the earliest possible access to information regarding people who may pose a threat. As well, the new bill aimed to reduce the incidence of identity fraud, an increasingly serious problem.
Of particular concern though, was the lack of 'effective legal redress if a person was prevented from getting on a plane. There was no obligation on the authorities 'to give a reason, nor (was) there any right of appeal to any court, tribunal, the Minister of Immigration, or any other body or person'.
One of the key aspects of the Bill was the provision for the ‘progressive adoption of current proposed technology’ (what is known as the Advanced Passenger Processing System). In future, new technologies performing the same function were to be possible - without legislative amendment ( that is any parliamentary scrutiny). This worried a number of the 21 organisations and individuals who bothered to make submissions on the Bill.
Yet again, the submitters’ concerns were largely ignored. Important aspects of the Border Security Bill 2003 were enacted, albeit in amended form, in the Immigration Amendment Act 2004. The Act may have its virtues, but the removal of legal redress is not among them. No pause for a cuppa
By December 2003, then Minister of Justice, Phil Goff, announced that the passage of all the above laws would mean that New Zealand was now in full compliance with all twelve United Nations Conventions on Terrorism. Yet more laws continued to be introduced in 2004. Others have been foreshadowed for likely unveiling.
One, the Identity (Citizenship and Travel Documents) Bill 2004 raised serious concerns. The bill's proponents argued for the legislation to implement international Conventions relating to the suppression of terrorism and people smuggling.
However, critics argued that aspects of the Bill went way beyond this justification. A key concern was the new power given to the Minister of Immigration to cancel a passport, or other official travel documents, on national security grounds. While there would be a right of appeal to the courts, appellants would bear the onus of proof. This reverses the legal standard of being innocent until proven guilty.
Even more troubling, the cancellation could have been made on the basis of classified information (for example from foreign intelligence sources). Appellants could be denied access to this information. Instead, they would be limited to a summary only, which did not disclose sensitive information. Will there be more cases like the famously detained Algerian refugee, Ahmed Zaoui?
Human rights groups wanted to be sure that until information gathered by our intelligence service was sufficient and appropriate, it should not be used as the basis for revoking or cancelling a passport.' The Ministry of Justice disagreed. While acknowledging that there were 'prima facie issues of inconsistency with the Bill of Rights', it argued that the proposed measures were 'a justified limitation'. The Identity Bill took effect in 2005.A ‘disproportionately severe response’.
In their desire to insulate New Zealand from the threat of terrorism - real or imagined - our lawmakers appear to have given only passing consideration to the importance of individual privacy as a value underpinning human dignity, and other key values such as freedom of association and freedom of speech. Those who wish to diminish what little remains of the individual's fundamental human right to privacy should be required to come up with a compelling justification for doing so. They bear the burden of proof.
In retrospect, key aspects of New Zealand's post-9/11 legislative outpouring can now be seen as a disproportionately severe response.