The future of civil liberties in New Zealand: Speech at the AGM of the NZ Council for Civil Liberties

I am pleased to speak to the AGM of the NZ Council for Civil Liberties, and to hear of your plans for campaigning to protect our rights.

It is easy to be pessimistic when talking about the future of civil liberties, because we live in an age where they are being chipped away bit by bit.

Let’s look at the reasons for this.

Firstly, there is the law and order campaign, which both National and Labour have been pushing hard in the ten years I have been in Parliament.

In fact, they have been competing to see who can be the toughest.

National has pushed through some quite bad bills recently, from the one on extended parole supervision orders, to a tightened organized crime bill, to one on gang patches, to the car crushing bill.

The car crushing one really got to me. This is the destruction of a useful object, and an uncivilized and heartless thing to do, and I was sad that Labour’s main objection was that the bill gave judges too much discretion to stop cars being crushed.

The law and order campaign is premised not on compassion and helping offenders back on the right track, but on demonisation and greater punishment.

By and large the media cooperates in the demonisation of offenders.

Shock-horror stories about the evil murderer are seen as a sure fire way of getting more viewers or readers.

This is really undermining our basic empathy for other human beings – as in a recent story where people were questioning whether a jailed amputee should be given a new wooden leg. Such vindictiveness runs right against the Bill of Rights provision that prisoners “shall be treated with humanity and with respect for the inherent dignity of the person.”

This right-wing law and order campaign has been reinforced since September 2001 by the so-called “war on terror”, better described as a war on civil liberties. The end of the Bush era has produced a few positives – such as Obama’s intention to close down the Guantanamo Prison – but the “war on terror” is still unfolding and further undermining civil liberties.

We saw it the other day when university lecturers were asked to spy on their students to see if they were making weapons of mass destruction. Academic freedom and the free flow of ideas were seen as much less important than countering the rather unlikely scenario of students learning how to make nuclear weapons or germ bombs.

We have to argue strongly that levels of security must be related to the real risk involved. At the moment governments are intruding on our rights using far-fetched scenarios, saying that even if these measures might possibly catch just one offender they are still justified.

Just to give you an idea of the scope of the attack on civil liberties, I will summarise the areas our rights have been attacked over the past decade.

Firstly, there is the right to a fair trial or hearing. That was seriously challenged when the government tried to kick out asylum seeker Ahmed Zaoui using the secretive administrative procedure of a Security Risk Certificate. It took several court rulings to get the information out which cleared Mr Zaoui.

However, now we have the Immigration Act, which in some ways makes things worse, enabling 14 government agencies to determine which information on an immigration claimant is to be “classified”, not to be disclosed to the claimant, except sometimes in the form of summarized form.

The Bill of Rights says that those charged do not have to give a statement or be a witness, and it is also generally accepted that people don’t have to self-incriminate. Yet this is contradicted by new requirements in the Search and Surveillance bill for people to produce documents (through Production Orders) and answer questions (through Examination Orders).

It is also hardly fair that prisoners, under the Extended Supervision Orders made at the end of their sentence, can be kept in home detention for up to ten years more.

Habeas Corpus is also denied in the new Immigration Act, whereby an Iranian Christian asylum seeker, when denied refugee status, can be detained for the rest of his or her days if they don’t sign the papers necessary for their deportation. The Act now states that judges cannot take into account the length of time such asylum seekers have been detained when determining bail.

The Bill of Rights also says we should not be subject to torture, yet the we now have a Police force armed with the 50,000 volt stun gun, determined by the UN Committee Against Torture to be a weapon of torture.

Then there is Section 21 of the Bill or Rights, against “unreasonable search and seizure, whether of the person, property, or correspondence or otherwise.” This is being violated all over the place, this year in at least two Bills.

The first is the recently passed bill giving Police rather arbitrary power to take DNA even from someone who has not been charged.

The second is the Search and Surveillance Bill, which I think you all will be worried about.

There are some very strange arguments going on around this Bill. We are told that the bill is only codifying what search powers several agencies already had. But in practice not many Kiwis thought there homes could be invaded under the Reserve Bank Act or the Boxing and Wrestling Act 1981, and we don’t now want this codified in law.

What is particularly disturbing is that several of these several enforcement agencies will now consider that they have the right to seize and search computers, which is a huge invasion of privacy.

Although the Bill says searchers of computers are only supposed to look for what is specified in the warrant, in reality the whole computer hard disk is now routine forensically copied and then scanned according to key words.

We live in a digital age where unless we can seriously limit the use of search and surveillance powers there will be hardly anything individuals can keep private from state.

This is dangerous.

Civil libertarians don’t need to be reminded that in practice the state is not politically neutral.

Sometimes this is quite obvious (such as in the Muldoon period) and sometimes it is more subtle – although the Operation 8 raids (most particularly in the Tuhoe country) were not particularly subtle.

Surveillance powers are extended in the Search and Surveillance Bill.

Operation 8 is very relevant to this, because it involved massive surveillance – using visual surveillance, bugs, and the electronic interception of the communication of thousands of people.

My own communications were almost certainly intercepted, because I was in email communication on peace matters with some of those arrested.

While the warrant system in the bill provides some level of restraint on surveillance, it basically gives a green light to surveillance of all types, not only visual, electronic interception and through tracking bugs, but also what are called “residual warrants” which are “any technique, procedure or activity that may constitute an intrusion into the reasonable expectation of privacy of any person.”  Which could, for example, be secretly entering your house and copying files.

Where is all this going?  I think one of the big battles will be over the internet. So far it has been kept relatively free as place to exchange views but certain states – we only need to look at China – exercise very strong controls.

I think we have to be vigilant about the creeping censorship of the internet, which is occurring in Australia. It can start off sounding reasonable – who could argue with blocking child pornography sites, for example – but next thing you know political sites are being blocked as being a danger to the security of the state.

The danger of a lot of our legislation, including the Terrorism Suppression Act, is that it is through such broad definitions of terror and of dangers to security that legitimate dissenters can get caught in the net.

Freedom of speech and the right to free speech must be jealously guarded. And it is not just left-wing dissenters we have to defend, but those with often quite distasteful or cranky views.

Stopping the erosion of civil liberties is key to ensuring a free and democratic society.


AGM of the NZ Council for Civil Liberties, St Andrews on the Terrace, Wellington