Keith Locke on the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No 3) – Third Reading

That lack of knowledge of the upsides and downsides of SIS work is a major problem



The Green Party believes that the New Zealand Security Intelligence Service Amendment Bill and the Crimes Amendment Bill (No. 3) are inappropriate and unnecessary legislation. The legislation is inappropriate because we should not be giving more surveillance powers to such an unaccountable Government agency with a history of using these powers to spy on critics of the Government. It is unnecessary because there is a review of the whole New Zealand Security Intelligence Service Act due next year, according to the papers that accompanied this amendment legislation. This review should be similar to other reviews of Government agencies. That is, the review should encompass not just the technicalities of legislation but what the Security Intelligence Service is actually achieving, if anything; what overlaps there are in its functions with those of the police; what functions can be dispensed with; and whether the service should continue as a separate organisation.

In discussing or reviewing the SIS let us first look at its security functions as outlined in the New Zealand Security Intelligence Service Act. The SIS is supposed to protect, as shown by the definition of “security” in section 2(1) “New Zealand from acts of espionage, sabotage, and subversion…”. “Espionage” is defined as the communication of information to foreigners with an intent to prejudice the security of New Zealand. The reality is that no New Zealander would admit to that intent. New Zealanders are constantly conveying information to foreigners—we are a pretty open society with few real secrets, and we do not actually have any nations who are our enemies. The WikiLeaks documents show that Bruce Ferguson, who was chief of our Defence Force, met with US embassy officials expressing concern that New Zealand’s anti-nuclear policy was affecting relations with the United States. This probably prejudiced the security of New Zealand, as the Greens would look at it, but there was no intent to commit espionage. We hardly need an agency separate from the police to deal with espionage in this country. Sabotage also requires an intent, as defined, to prejudice the security of New Zealand, which may be hard to prove in court. In any case, sabotage, whatever its motivation, is surely a police matter rather than one for the SIS. In addition to espionage and sabotage, the Act refers to subversion and provides a two-part definition.

The first part of this definition related to people attempting to overthrow the New Zealand government, or encouraging this. This is hardly a problem we have in our stable democracy. Nobody is organising a coup d’état these days.

The second part of the definition of “subversion” in section 2 of the Act is “the undermining by unlawful means of the authority of the State in New Zealand:” This definition has been used to justify spying on protestors, such as during the anti-Apartheid Springbok Tour protests in 1981, when thousands of New Zealanders engaged in civil disobedience. Of course, the actions they engaged in at that time, which were technically unlawful according to the wording in the Act, are now hailed by most New Zealanders as a patriotic deed.

The Act also allows the SIS to spy on foreign influenced activities that, under the definition of “security” in section 2(c)(ii), “are clandestine or deceptive,” and that (iii) “impact adversely on New Zealand’s international well-being or economic well-being:”. Which activities impact adversely is generally a matter of political debate. There is no clear right answer, although the Government’s view of what impacts adversely is generally the one that the SIS goes by. The Greens would argue, for example, that the Government’s negotiations for a free-trade and investment deal with the United States of America, which are being made somewhat clandestinely, thus fit the Act’s definition and are “adversely affecting New Zealand’s international and economic well-being.” It is well-known that the SIS, in line with the Government’s definition of this type of negotiation, looks in the other direction, as in the 1996 raid on the home of anti – free trade and investment activist, Aziz Choudry.

The targets of SIS spying are never the Government or active supporters of its policies, but always its critics. That is what is so dangerous about the SIS. As members know, I have obtained a large SIS file on my political activities over the years, which were legal activities that politically challenged successive New Zealand Governments.

The final function of the SIS in protecting “security”, as defined in the New Zealand Security Intelligence Service Act, is to prevent terrorism but, again, surely that is dominantly a police function. Other Government departments, including the police, are subject to performance measures to work out whether we, as taxpayers, are getting value for money. Should we not ask what the SIS has achieved against what could be its performance measures? Has it detected any spies, saboteurs, terrorists, etc.? If it has not—and it appears that it has not—is there a strong case for either slimming down the SIS, as is happening at the moment to other Government departments where staffing levels are deemed excessive to needs, or perhaps getting rid of the SIS altogether and relying on the police to deal with all politically motivated crime? We know that the police, not the SIS, was the agency that tracked down the French terrorists who bombed the Rainbow Warrior, and it was the police who tracked down the Mossad agents who were obtaining fraudulent New Zealand passports. The SIS has no similar successes to its name.

We could also apply performance measures to the thousands of security vets the SIS has done on civil servants. How much have these actually enhanced New Zealand’s security, or is there a greater downside? Could we find out how many civil servants have missed promotion simply because they have been deemed by the SIS to be too active against Government policy? We just do not know.

That lack of knowledge of the upsides and downsides of SIS work is a major problem. The agency has such limited accountability mechanisms. There is only a part-time Inspector-General of Intelligence and Security, and Parliament’s Intelligence and Security Committee—a statutory committee, not a select committee—has not met very much to scrutinise SIS activities. It did, to its credit, spend a little bit of time on this bill, even if it did decide to hear the public’s submissions in secret—quite wrongly—and to its credit it actually came up with a few amendments.

The Greens support the committee adding a human rights clause to this legislation, as recommended by the Human Rights Commission, but we wonder whether the SIS will actually take much notice of the clause. Then there is the problem of the SIS’s subordination to overseas intelligence agencies, which has been a problem from Day one in 1956, when the agency was set up primarily to assist British intelligence. Nowadays it probably takes most of its lead from US agencies. The WikiLeaks documents talk about the way in which the SIS has recently integrated its threats database with that of the American Government. There are obvious dangers there, because the US administration has a very broad definition of its dangerous people, and it can extend that definition to its political opponents. That SIS subordination to foreign intelligence services was stark in the Ahmed Zaoui case, where a democratic critic of the Algerian Government was threatened with expulsion because, as the SIS admitted in its documentation, like-minded countries would be upset if he were allowed to settle there. In that, the intelligence agencies of France, which supported the Algerian dictatorship, were influencing the New Zealand Government. That was not unusual. We now know from the Arab peoples’ uprisings of 2011 that the French, British, and American Governments have supported Arab dictatorships up to the last, really, because only when the Tunisian and Egyptian people were on the verge of victory did the Western powers change sides and give those people some support. Even now, the United States supports the ruthless Bahraini regime against the big people’s movement, and of course the factor there being the US Fifth Fleet being based in Bahrain. The American Government’s view of the world reflected in its intelligence service is not one that our intelligence service should be adopting, but it seems to be doing so.

The extra surveillance powers that the SIS has been granted in this bill, particularly the electronic interception powers, will to a significant degree be used to implement an agenda determined not by New Zealanders but by American intelligence agencies. The SIS’s partner agency, the GCSB, is running a satellite spy station at Waihopai, mainly in the interests of the US national security agency. The SIS was set up as a Cold War instrument, with one power bloc facing off against another, but now since the Cold War that we do not have any enemy countries, there is not such a rationale for such a spy agency to continue to exist. We should leave security to the police. Thank you.