Keith Locke on the New Zealand Security Intelligence Service Amendment Bill – second reading



The major reason the Greens are not supporting this bill is that we do not want to give more powers to such an unaccountable organisation as the Security Intelligence Service. The manner in which this bill came before the House, and its treatment by the Intelligence and Security Committee reinforces our position. Firstly, it is unclear why there needed to be such an amendment bill this year. The regulatory impact statement the Government produced on the bill proclaims “that a parallel policy review should be undertaken, aiming to achieve new security legislation by the end of 2012.”

Is it not wasting this Parliament’s time to have one bill this year and then another, presumably more substantial bill next year? The Government trots out the Rugby World Cup as a reason for putting this particular bill through Parliament when the regulatory impact statement actually says there is “a low probability” of any serious security breach during the world cup games. In any case the police are preparing for all eventualities and it is hard to argue a need to rush through more powers for the SIS.

Maybe, as is common with security institutions, the SIS would simply like more explicit surveillance powers. Perhaps, and this is a bit scary, the SIS is presently breaking the law in the manner in which it conducts some surveillance, such as the use of tracking devices and needs this legislation to make legal what it is currently doing illegally. It is hard to be definitive about this but some passages in the regulatory impact statement could imply that this is the case. For example, the regulatory impact statement says: “The current framework does not specifically provide for the use of electronic tracking devices.” Has the SIS been using tracking devices when the law does not provide for it to use them? Then there are the problems with the Intelligence and Security Committee’s consideration of the bill.

The Prime Minister pronounced that all public submissions on the bill, including the Green Party one from me, would be held in private. Actually the whole process was so secret that it was hard for the public to even find out how and when to make submissions. People were phoning me to find out because there was nothing about it on the parliamentary website, partly because the Intelligence and Security Committee is not a true select committee of this House and does not have a slot on the website. It is a statutory committee made up of appointees of the Prime Minister and the Labour leader and runs by different rules and more secretly. So MPs like me and the media missed out on exchanges between other submitters and the committee because the doors were closed on us unnecessarily. The exclusion of the media probably resulted in the bill being given less of a public hearing than it deserves. The committee was rightly under some fire for the secrecy around the public submissions, because there was no logical reason for it. Submitters like me were not going to disclose any classified SIS information, partly because we do not have any, and Phil Goff confirmed that none came out during the hearings. Under public pressure the committee did relent a bit. Initially it said that even the written copies of submissions would be kept secret, but it later reversed this decision and released copies.

Something positive come out of the submission process: the Human Rights Commission had proposed that “given the legitimate concerns about the breadth of the amendments and their possible impact, the commission recommends including an explicit reference to human rights principles in the bill”. The Intelligence and Security Committee agreed in clause 5 to add to section 4 of the original Security and Intelligence Act some “principles underpinning performance of functions”. The first of these, which will be section 4AAA(1)(a) of the amended Act, is for the SIS to contribute to “keeping New Zealand society secure, independent, and free and democratic;”. It is a very good aim. It will be a change if the SIS actually does this because it actually seems to be going in the opposite direction. For example, in relation to independence it seems to be integrating more and more of its operations with US intelligence, including more reliance on the US intelligence database to determine which political activists to watch. In the past the SIS has not particularly promoted a “free and democratic” NZ, otherwise why would it have kept a file on law-abiding people like me, whose only crime has been to criticise the policies of New Zealand Governments of the day. The existence of such files on dissenters has inhibited New Zealanders, particularly those working for the Public Service from criticising Government policy for fear that they will be disadvantaged in the promotion stakes if the SIS is asked to vet them before promotion.

In practice, the SIS’s role over the years has been, rather than promote a free and democratic New Zealand, to make it easier for the Government to implement its own policies against domestic opposition. The SIS is aided in this by an existing clause in the New Zealand Security and Intelligence Service Act whereby it is tasked to combat influences detrimental to “New Zealand’s international well-being or economic well-being”. I doubt that this means in practice that the SIS would be putting the US embassy under surveillance for trying to subvert New Zealand’s cost-saving, drug-buying agency Pharmac, which it is currently trying to do, thereby detrimentally affecting New Zealand’s economic well-being. Rather the opposite: the SIS’s track record proved by the SIS files that have been released, is that it targets the very people who are protesting against free trade and investment agreements like the planned agreement with the US, which threatens our treasured Pharmac.

The second part of the committee’s good amendment to the bill, which is in clause 5 adding section 4AAA(1)(c)(i) requires the SIS to act “in accordance with New Zealand law and all human rights standards recognised by New Zealand law, expect to the extent that they are, in relation to national security, modified by an enactment;”. This is a step forward, particularly in that our New Zealand Bill of Rights Act protects us, in section 21, from “unreasonable search and seizure, whether of the person, property, or correspondence, or otherwise.” Abiding by that has not always been the SIS’s practice. Unfortunately, however, we still have some provisions in our legislation that protect the SIS when it offends natural justice. For example section 25 of the Human Rights Act allows the SIS to discriminate in employment on the grounds of politics, religion, disability, family status, or national origin.

When citizens appeal to the Ombudsman for the SIS to release material, they will come up against the general exception from the Official Information Act on matters of national security. The SIS is a pretty opaque organisation. Over the years virtually all questions I have asked of the Ministers in charge of the SIS, either John Key or Helen Clark, have been met with: “We don’t comment on matters of security.” Perhaps this will all change now we have a new section 4AAA(1)(c)(iv), which is being added so that the SIS will act “in a manner that facilitates effective democratic oversight.” But I would not bank on it. MPs like myself have been able to find out almost nothing about what the SIS does, so it is very hard for us to conduct any democratic oversight at parliamentary level. The SIS itself was not too keen on human rights principles being added to the Act, as they now have been. In its report, responding to public submissions to the bill, the SIS expressed concern that “to simply introduce a reference to human rights principles without considering a comprehensive set of principles for the SIS Act, might have unintended consequences.” What these unintended consequences could be were not spelt out. Why should the SIS be different from the police and other Government agencies that do have some more explicit requirements to abide by national and international human rights standards? If there is to be a review of the SIS legislation next year, perhaps—


: I am sorry to interrupt the honourable member, but his time has expired.