The Green Party has been supporting the Border Security Bill, as it was called in the earlier stages, although we do have some serious concerns about the implications for civil liberties, particularly in some of the powers granted to customs and immigration in the bill.
The positive aspect of the Border Security Bill is contained in the first part of the bill, now a separate bill called the Customs and Excise Amendment Bill. That bill will enable tighter monitoring of containers that could help with biosecurity, which of course the Greens are very keen on. We have too many unwanted and dangerous bugs and plants coming into New Zealand already.
There has been some debate over which extra costs should be borne by exporters and which should be borne by the State, because there are both private and public benefits of improved security for containers. We are glad that there are some transitional State subsidies for the new arrangement to carry us through to a review on what cost sharing there should be between exporters and the State.
However, I want to spend most of this speech discussing the serious privacy problems associated with the advanced passenger identification system being brought in under this bill. A form of this system, as implemented by the United States, has already caused a conflict with the European countries.
New clause 38E(d) of the bill would give the Customs Service extensive powers to require airlines to hand over personal information on passengers. Under this clause the information required is open-ended, not limited to any particular list, although there is a list that includes, for example, such things as place of birth — something that the airlines were a bit upset about — that could lead to the targeting of people, not just on grounds of their present nationality, which may be a New Zealander, but also the nationality of their parents.
Given that the whole idea of this system is to exchange personal passenger information, particularly with the United States, we could see some New Zealanders, if born say in an Islamic country, having trouble at the US border, or not even being able to get on a plane from New Zealand to go to the US.
The whole idea of this system is to stop people if the Americans are suspicious of them even getting on the plane in the first place. One of the passenger details listed in the bill is special conditions of travel, which the Americans have sometimes interpreted as being including special diets, such as one that might count against passengers going to the United States, if they have a Muslim halal diet, given the paranoia that exists in the United States presently towards migrants or visitors of Islamic origin.
In the legislation airlines are not just required to give out details of one’s impending trip, they are also required to give details of other trips around that time over a 28-day period, including trips without a New Zealand origin or destination, and all without a warrant being necessary. The Customs Service will have the right to search airline records some time after travel takes place. The Immigration Service will be able to check who one’s companions were during the travel. The Passenger Name Records system that the Minister referred to in his speech will enable the Customs Service and the Immigration service to search frequent-flyer records, which detail journeys over a long period of time — years, in fact — and maybe even credit card details will be required later.
This has been a major bone of contention between Europe and America. The US wanted the details and numbers of credit cards used to purchase tickets, and the Europeans could not receive any guarantees that that information would not be spread through different American agencies and misused. The European Parliament has been quite upset about the passenger data exchange deal signed between the European Commission and the US Government. On 31 March this year the European Parliament passed a motion criticising the agreement, and the issue may soon go to the Court of Justice of the European Communities.
There is a whole set of data privacy issues involved. How much personal information is collected and is it excessive? It seems excessive in this legislation. What purpose is the information used for, which relates to what agencies and countries, such as the United States, it is passed on to and how they use it or misuse it. There is no control over this in the legislation. If it is misused, how can we find out about this misuse and have some right of appeal and redress? That is not contained in the legislation. The next question is what right do passengers have to see what is transmitted and to correct any errors?
In the legislation there are four sections of our Privacy Act that are explicitly overridden to prevent one finding out such information. There are not adequate rights of appeal if one has been stopped from getting on a plane because of certain information provided about one by airlines to the Government. The Law Society has expressed concern about this in its submission to the select committee.
The matters relating to appeal rights, or lack of them, is contained in the last part of the old Border Security Bill, now called the Immigration Amendment Bill (No 3). We know from our Immigration Service that over the last little while 34 people have been stopped from getting on planes to New Zealand because of the Advance Passenger Processing system. If they were not New Zealand citizens or permanent residents, under this legislation they would not have had any right to find out why. They have only the right to challenge the decision of the Immigration Service if they can prove that they were confused with someone else who had an identical or similar name, although I do not know how one will actually figure that it was a name mix-up that was the cause of the problem if one is sitting at, say, Los Angeles airport.
Under the legislation immigration officers do not have to give any reasons for their decision and one cannot find out through the Official Information Act, which is specifically excluded from operation by one clause in the legislation. If people are prevented from travelling to the United States, for example, they will not necessarily get much joy from the Customs Service, which may have stopped them from getting on the plane because of information coming through from the United States. The key information could be withheld from them if it would “prejudice the entrusting of information to the Government of New Zealand on the basis of confidence by the Government of another country” — that is, the other country, say the United States, can say that it is a confidential matter and that in itself determines the result in the fact that one cannot have access to that information.
But, on the other hand, ordinary people have to be very open and honest with the Customs Service because under this legislation it can detain them for 12 hours and sometimes more if the officer “is not satisfied that the person has correctly answered the question asked” by the officer.
The airlines are not too happy about this bill and they are in a difficult situation, with different countries bringing in different privacy guidelines. The guidelines at take-off might be different from the guidelines in the country the plane lands in. The new processes are making a lot of extra work for them and potentially getting them in trouble with some passengers, for example, they do not like the question whereby they have to provide the information on the country of birth of the passengers.
There were also problems that were brought out in the submissions made by the Law Society in relation to the increased detention powers of the Customs Service under this legislation. Detention does involve the use of force and the Law Society wanted more accountability and reporting mechanisms for the use of such force than are contained in this bill.
As I said at the beginning, the Green Party was voting for the original bill as a whole, but with the split in the bill we will be voting differently on each bill. We will vote for the Customs and Excise Amendment Bill, which will please Peter Brown, and I am sure that that will enable the bill to get through, because that bill does have some useful security measures that will help with biosecurity — that is, to help overcome the greatest danger to our security, which is the animals and plants that badly affect our ecosystem. We will be voting in favour of that bill with some serious regrets because of, as I have explained, provisions that are detrimental to our privacy and that can lead to injustice.
The Green Party will be voting, contrary to the vote of New Zealand First, against the smaller second bill, the Immigration Amendment Bill (No 3). This is because of all the information on people that is required under the bill from airlines, and the provisions specifically stopping people affected from finding out why they were excluded, under the Official Information Act, and having some right of appeal of that decision.