Border Security Bill – First Reading

The Border Security Bill causes the Greens serious concern, but we will be supporting it to the select committee stage.

For a start, we should be up front about why this bill is before us. It is because the United States has demanded we pass such legislation. The United States Customs and Border Protection Commissioner, Robert Bonner, was in New Zealand recently, and was quoted in the June issue of the New Zealand Customs Service magazine Contraband as saying that progress on security arrangements with the US in the customs area relied on two things: “Part is contingent on legislation-the Border Security Bill-and part is making sure that there is participation on a whole of Government basis.”

The problem that New Zealand and other countries are facing is that the United States is so powerful, as a trading partner and politically, that countries are being blackmailed into abiding by American-dictated freight security and immigration systems. For example, the measures laid down in this bill are dictated by the US Container Security Initiative launched in January 2002 as a response to September 11. The Container Security Initiative allows for US Customs personnel to be stationed in foreign ports to ensure compliance with US dictates.

The US-driven container monitoring measures in this bill do have certain advantages in terms of monitoring for safety purposes, including monitoring for biosecurity internationally. The Greens are very keen on biosecurity, and we would have to follow up, as a nation, that better monitoring system by searching containers arriving here that are identified as presenting a biosecurity threat.

In the freight area, there is also a potential human rights problem with the bill’s provisions for security checks of people working in packing containers, trucking them, and loading them on to ships. It would be worrying if that led to subtle discrimination in a way that would be hard to prove. For example, employers in companies subject to security checks may start acting on the safe side when hiring people, so that people from, say, Islamic countries, do not get the top of the queue.

The greatest concern for the Greens is in the area of the civil liberties implications of the immigration provisions in the bill. Stopping potential terrorists getting on and off planes in and out of New Zealand can all sound very nice, but how many people will be caught up and preventing from travelling without any right of appeal. The fact is that the United States, whose databases will be used to identify many of the people to be stopped, has a very broad definition of who constitutes a risk. After September 11, for example, the United States detained up to 2,000 people and held them for long periods on the basis that they may have something to do with terrorism. In fact, virtually none of them did, and one court case only has ensued.

It is in the spirit of international human rights conventions for the right of travel to be governed by the rule of law, but that is undermined by the provisions in this bill. There is no effective legal redress if a person is prevented from getting on to a plane. Under the provisions of the bill, people will be notified about a decision against their travel, but that notification can be “in any form he or she [that is, the Immigration Service] thinks appropriate”. There is no requirement to give a reason, nor is there any right of appeal to “any court, the tribunal, the Minister, or any other body or person” if the Immigration Service prevents anyone from hopping on a plane to New Zealand.

Of course, there is the added practical barrier to trying to address one’s effective exclusion from New Zealand if one is sitting in an airport thousands of miles away from New Zealand, or vice versa, if you are a New Zealander waiting in a New Zealand airport after being stopped from getting on a plane to the United States.

Make no mistake about it, the international systems being set up here and elsewhere under US auspices will affect New Zealanders. If one was, say, in Los Angeles, and phoned up a lawyer in New Zealand and told him or her to get to the bottom of one’s exclusion from the plane, that lawyer would be handicapped by a provision in clause 8 that the evidence can be kept secret by Immigration under broad provisions such as that it might “prejudice the security and defence of New Zealand.” Evidence from agencies overseas, like the Central Intelligence Agency, will almost always be kept confidential because of a clause allowing those agencies to determine its confidentiality. Under clause 8, the information is secret if the overseas agency “will not consent to the disclosure”.

Evidence from such overseas agencies is the very information the Greens would be most suspicious about, on two grounds. One is accuracy, and we know clearly from the current debate on the failure to discover weapons of mass destruction in Iraq that we cannot rely on the information provided by US intelligence agencies. It is often inaccurate and manipulated by politicians. The second, and associated, reason for being suspicious is that American intelligence and police agencies are often serving agendas that are different to ours here in New Zealand. The US agencies would be prejudiced against anti-nuclear, anti-war, anti-genetic engineering, or anti-corporate globalisation activists travelling in and out of the United States, or moving around the world in general. US agencies could be inclined to provide damaging information on such individuals to New Zealand immigration or customs services under the exchange arrangements. It is a very easy way for such agencies to harass such political activists. If the activists have a tight travel schedule, then stopping them from getting on to a plane for a day or two can make a speaking trip or a trip to an anti-globalisation protest unviable-and we are not talking hypothetically here, I have an example from my own family:

My late mother Elsie Locke was travelling as the official New Zealand representative to a children’s literature conference in Vancouver, and was hauled off the plane in Honolulu by US authorities, and was not allowed to continue with the plane to Vancouver, purely and simply because they disliked her radical activist political background. In that case, she did eventually get to the conference, but she was not able to come back to New Zealand from Vancouver on her scheduled route via Honolulu.

The Greens also have considerable privacy concerns about the information airlines are supposed to give customs and immigration, the information customs and immigration will share with agencies overseas, and the possible misuse of that information. Under the bill, virtually anything can be asked for. The non-exclusive list of information to be given to customs includes such things as one’s email address, and the information can include all sorts of details about one’s travel history. There has been a debate in Europe over the details European-based airlines are providing the US authorities with, which include credit card numbers if the ticket is purchased with a credit card, particularly as there are inadequate privacy protections in American law about the subsequent use of credit card numbers by the US agencies.

We do know that under the homeland security system being built up by the Bush administration information is freely shared across Government agencies, and there has been considerable public outrage about intrusions on privacy. For example, American librarians are currently up in arms about requirements that they hand over to the police the borrowing records of their library users. There are very few real controls on information New Zealand immigration and customs services might provide to homeland security agencies in the United States. There is provision in this bill for written agreements between New Zealand and overseas agencies about the information we give them, but there is also a provision for customs to provide information without a written agreement, as long as a record is kept of the information that is being passed on.

Finally, New Zealand customs services’ power to detain is expanded in this bill, with little legal constraint on the abuse of this provision. For example, in clause 16 customs “may continue to detain a person” if the customs officer “is not satisfied that the person has correctly answered a question asked”. That is a pretty arbitrary and open-ended power to give.

Of course, the Green party does want customs and immigration to have the ability to detect serious criminals, and to stop the smuggling of arms through New Zealand. We are in favour of improving systems to achieve that, but we are far from satisfied that the bill as it is now really controls the possible abuses of power, and that it does not catch up innocent parties both by customs and immigration services in New Zealand and by overseas agencies that we may share information with.