29 November 2014

Cancelling passports: A conundrum

The Countering Terrorist Fighters Bill adds to the government's powers to cancel a person's passport, even if overseas, if there is reason to believe that the person is a danger to the security of New Zealand because the person intends to engage in a terrorist act. So, here's a scenario for you to think about.
Suppose two NZ'ers, Alex and Kim, are planning to travel overseas, ostensibly as tourists. Alex flies to Vienna, but has a visa to enter Ukraine. Kim flies to Moscow.
Alex then travels by land to Ukraine to enlist as an international volunteer with the Right Sector militia. This is an ultra-nationalist militia that is supported by the Ukrainian Interior Ministry and which engages in Ukraine's 'anti-terrorist' campaign in the eastern provinces of Lugansk and Donetsk. These 'anti-terrorist' forces have been fighting separatist rebels for many months now, and the Ukrainian armed forces have been responsible for the deaths of many hundreds of unarmed Ukrainian civilians.
On arriving in Moscow, Kim heads south and crosses the very porous border into Donetsk province to join the pro-Russian rebel forces there. These forces too have been responsible for the deaths of many innocent civilians (including, in all probability, the passengers and crew of MH17).
So, whose passport should be cancelled? Alex's, for joining a neo-fascist militia that kills and terrorises innocent people; or Kim's, for joining an armed uprising that has been labelled 'terrorist' by the same government that supports the neo-fascist Right Sector and that has been killing its own citizens? Or neither? Or both? Is either person 'a danger to the security of New Zealand'?

27 November 2014

The Countering Terrorist Fighters Legislation Bill

In the one day allowed for submissions on this Bill, I managed to submit one on time! It's not very well researched, but the best I could do. So here are the edited highlights of my submission:

The Bill allows for the cancellation of passports on grounds of national security. This includes the provision that the Minister ‘may recall, cancel, or retain possession of a New Zealand passport for a person who is outside New Zealand’. The cancellation of passports is only permitted where, on reasonable grounds, it is believed that the person may be intending to enagage in or facilitate a terrorist act, proliferation of WMDs, or other unlawful acts likely to cause serious damage to New Zealand’s interests, and that the cancellation is necessary and sufficient for the purpose.
It is conceivable that a person could leave New Zealand on an NZ passport for, say, the UK on apparently legitimate grounds, and then seek to undertake further travel to a different location where they might be intending to join a group regarded as ‘terrorist.’
The cancellation of a passport is, in any circumstances, a serious step that denies a person certain fundamental human rights, and hence should only be undertaken for very good reason and on sound information. To cancel a person’s passport while overseas could effectively render a person stateless and unable even to return to their home country. The danger is that this provision could become, in effect, a form of banishment by executive decree.
As the explanatory note informs us that the general criminal law and terrorism offences address the most serious forms of offending relating to FTFs, it would be preferable to find ways to bring suspects back to New Zealand so that they can be put on trial under due process of law. I cannot see how cancellation of the passport aids in bringing the offender to justice.
I recommend that a relevant condition for such a decision may be that the person whose passport is to be cancelled while outside New Zealand was believed, on reasonable grounds, to be planning to travel to a particular location with the intention of joining a group engaged in terrorist acts. Such a decision should not be permitted merely for the purpose of preventing the person from returning to New Zealand. Repatriation of the suspect, potentially to face charges, should be the primary aim of such provisions.

The Bill would amend the NZSIS Act allowing for the exercise of powers that would be available under intelligence warrants or visual surveillance warrants without first obtaining such a warrant for up to 48 hours. While there are conditions, limitations and accountabilities surrounding the use of this measure in the Bill, this is a step towards greater executive powers, without judicial oversight, even if limited in time.
There is insufficient evidence provided in the explanatory notes to justify this increase in surveillance powers. It is hard to understand why such new powers are needed when the Police are able already to respond to threats from armed individuals in the normal course of their duties under present laws.
I recommend that the new section providing for 48-hour warrantless surveillance orders be deleted. It may of course be reintroduced to the House at a later stage, if the government is able to satisfy the public and members of parliament that the 48-hour warrantless surveillance is really necessary.

Further comments:
Like many other New Zealanders, I am dismayed at the rushed process of this Bill. Allowing people only one day to make a submission is not acceptable for such significant powers in a democratic legislature. While I agree that the New Zealand Parliament needs to review and amend the law prudently in order to take account of evolving threats, I am not convinced that the present threat-level justifies the drastically reduced time-frame. It is conceivable that an event similar to the Boston Marathon bombing or the attack at the parliament buildings in Ottawa could happen in New Zealand; and it is believable that some New Zealanders are seeking to join foreign terrorist groups.
There may therefore be some merit in refining or extending some powers. But the potential threats do not warrant the curtailed timeframe for this Bill, especially as the present law provides for sanctions and powers to deal with criminals and terrorists. Even though the present Bill does have a sunset clause, for 2018, by that time the powers may have become normalised within the intelligence services, and a future government will want to retain them in spite of ongoing public concerns. More careful consideration at the present stage is the better approach.
It is important for the credibility of such a law that the New Zealand public is, on balance, satisfied that human rights and security concerns are addressed properly by our parliament.

24 November 2014

Dirty Politics redux

The report of the Inspector General of Intelligence and Security (IGIS) into the deliberate release of an SIS briefing note to an attack blogger does not support every single detail presented in chapter 3 of Nicky Hager's book Dirty Politics. But it does confirm the basic story, and it vindicates Hager's decision to publish, based on public interest.
As the Herald reported it, the attack blogger "requested and published politically damaging material about former Labour Leader Phil Goff from the SIS after being instructed to ask for the material by Prime Minister John Key's staff." This politically motivated leak from the PM's office was requested (after a tip-off) under the Official Information Act; and it was "expedited," according to the attack blogger himself, by a staffer in the PM's office.
Hager's case that the PM must have known about this skullduggery has not yet been supported, however. The PM will deny that he knew. But this will put him in an awkward dilemma. If he knew, then it would imply that he gave permission to release a classified security briefing for political ends, and that would be bad for his credibility, especially as he is about to ask Parliament to increase SIS powers.
But, if he didn't know, then why didn't he know that a breach of conventions of the democratic rule of law was going on in his own offices. Surely, if he were a trustworthy PM, he would have put a stop to it, had he known about it!
His excuse before the election when all of this blew up was that he was on holiday in Hawaii at the time of the briefing. And anyway, he said, "New Zealanders don't care about" the whole affair.
You might ask, "Why should we care? It wasn't anything major." 
The reason why we, the public, should care is that the SIS's former chief executive and the PM's staff had deliberately used normally classified intelligence-service information for a political purpose that had nothing at all to do with national security. That is, they just wanted to embarrass the leader of the Opposition. Now, this particular incident may not have turned out to be very harmful, but it could have set a very dangerous precedent by which the SIS and GCSB get used for spying on and discrediting political opponents. And that, dear readers, signals the beginnings of a Police State. So, yes we must take this incident seriously. And this kind of thing must be stamped out. Hence, if the PM did not know about it, then he ought to have known. And he certainly must exert greater control over his advisers in future.

(NB: Written before the release of the full report).

14 November 2014

So, Maori didn't cede sovereignty in 1840

The Waitangi Tribunal has found that "in February 1840 the rangatira who signed te Tiriti did not cede sovereignty. Rather, they consented to the Crown having power to control Pākehā, while recognising that, in situations where the Māori and Pākehā populations intermingled, questions of relative authority would have to be negotiated case by case."
This is not news. Even in my own text Society and Politics in 2004, I wrote: "The historical evidence suggests that Maori chiefs did not intend to cede sovereignty in 1840. Furthermore, they could not possibly have consented to the policies that were subsequently implemented by settler governments."
The Minister for Treaty Settlements and some iwi spokespeople are already drawing heroic conclusions about what the Tribunal's finding means today and for the future, even though those conclusions relate only to 1840. The Minister says the Queen still reigns; some iwi leaders are talking about separate nations.
Those who argue that the Tribunal's finding implies that iwi are effectively independent nations need to take account that "since 1985, when Maori approach the government for compensation for its unjust actions of the past, they are implicitly recognising the Crown’s present legitimate sovereign powers to govern, to make policies and to distribute public resources – otherwise they wouldn’t even be talking."
If you uphold the Tribunal's authority and findings, you need to recall that the Tribunal was created and empowered by Acts of the New Zealand Parliament (in 1975 and 1985), under the sovereignty of the Queen. You can't have your cake and eat it too. If you recognize the authority of the Waitangi Tribunal, you recognize the sovereignty of the Crown.

01 November 2014

Two Years to Demonstrate Our Independent Status

See my column on Briefing Papers site.