I've been busy lately, and have been unable to prepare the submission on the Countering Terrorist Fighters Legislation Bill that I would have liked. I also have a half-written blog post fact-checking claims made before the bill was released by the Prime Minister and the Defence Minister on what the bill would do (mostly, they fact check each other, making contradictory statements). I'm pretty sure I will never finish it.
I have however, put together a short, rather incomplete submission on the bill, or at least a couple of the minor more technical aspects I assume won't get much airplay elsewhere. I copy my submission below for those interested, but to be honest, I encourage you to read other submissions that address the principle and detail in a way I have not. In the time available for submissions, and indeed, the time available for Parliament to pass this bill there simply is not time to have a proper discussion of it, and whether (or to what extent) it is needed. That on its own is enough to reject the bill.
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The Foreign Affairs, Defence and Trade Committee
Countering Terrorist Fighters Legislation Bill
Submission of Graeme Edgeler
Introduction
1. My name is Graeme Edgeler. I am a Wellington barrister with a strong interest in law reform.
2. I thank the Committee for the opportunity to present a written submission on the Countering Terrorist Fighters Legislation Bill. I regret that given the shortened time period and other commitments, I will be unable to present in person.
3. Regrettably, this submission is much shorter than I would like it to be. I hope that the Committee will have received submissions raising the other concerns I would like to have raised. I invite the Committee to include in its report concerns about the time in which it has been required to undertake its consideration of this bill.
4. In general, I do not think that the case for the changes proposed by the Bill has been made. For example, passports can already be suspended for three years, it is just that after 12 months, this suspension must be approved by the High Court. Having 12 months in which authorities can prepare an application to the High Court to further suspend a person’s passport seems sufficient. I invite the Committee to seek advice on the number of times an application to the Court has been made under the sections that currently apply. I anticipate that it is few, but either way, it will be instructive.
5. I cannot address all of the concerns I have with this Bill. In the brief amount of time I have, I hope to focus on matters that it is perhaps less likely others as raised. They are probably not the most important issues that can be raised, but I hope the few random issues I raise will be of assistance to the Committee in its consideration.
Customs Searches (Clause 7)
6. Searches by Customs of people entering New Zealand are warrantless searches where the various protections of the Search and Surveillance Act do not apply. Permitting the police and the NZSIS to obtain information through these searches is a measure that will allow the Police and NZSIS to avoid the ordinary requirement to obtain a warrant.
7. Given that Parliament has required the Police and the NZSIS to obtain warrants before they can undertake searches, it should not also create a power whereby they can avoid the other safeguards it has put in place simply by getting Customs to do the work for them.
Serious Economic Damage (Various Clauses)
8. In various news sections proposed, the Bill allows powers to be exercised if there is the possibility of “serious economic damage”. I am unsure what is meant by this, but note that both the Terrorism Suppression Act (s 5(3)(c), s 7(b)(ii)), the Crimes Act (s 298B and s 307A), as well as the International Convention for the Suppression of Terrorist Bombings, and United Nations Security Council Resolutions relating to terrorism invoke the concept of “Major economic loss”.
9. The drafters of this legislation may have good reason for adopting the different formulation. It is not clear to me what the difference would be, but Courts will often approach questions of interpretation from the position that if Parliament uses different words, it means different things. I am not even sure which of “serious economic damage” or “major economic loss” is the more restrictive test (“major” sounds narrower that “serious”, but “loss” sounds broader than “damage”), but the Committee should consider whether it is appropriate to align the language in this bill with the similar language present elsewhere.
Offences relating to failure to destroy improperly obtained evidence (clause 9)
10. Proposed new sections 8IB(11) and 4IE(8) of the New Zealand Security Intelligence Service Act 1969 create offences arising out of circumstances where members of the NZSIS have conducted surveillance where they should not have (for example, by exercising a warrantless power, where it is later determined that it was improper to use a warrantless power).
11. If that happens, the NZSIS is required to delete the evidence it has obtained. Proposed new sections 8IB(11) and 4IE(8) create offences of knowingly failing to comply with that obligation to delete improperly obtained material. The maximum penalty is a fine of $1000.
12. This penalty is far too low. The actions involved in surveilling people in the way that the NZSIS does are actions that are criminal (for example, prohibited by section 216B of the Crimes Act: Prohibition on use of interception devices).
13. Where the NZSIS is acting in accordance with the law, its employees have defences that mean they cannot be convicted. This is entirely appropriate. However, if the surveillance is found to have been improper, then what would ordinarily be criminal activity has occurred, in a situation where the law says it shouldn’t have. It would be unfair to punish those involved for undertaking what they thought was lawful at the time, but if they then knowingly fail to comply with the remedy the law provides to fix the wrong that has been done (ie by failing to delete the material improperly obtained), the harm is identical to that which would have occurred if they were acting outside the law throughout – someone’s privacy has been unjustifiably invaded, and private video or audio has been illegal retained by the person who did it.
14. If someone knowingly fails to delete improperly obtained material that they know was improperly obtained, and they know the law requires them to delete it, the same maximum penalty (two years imprisonment) that is provided in section 216B of the Crimes Act should apply.
Conclusion
15. I encourage the Committee to enquire into the rationale for the various changes proposed in this Bill. In many respects, the possibility that less severe measures might be sufficient to obtain the desired policy outcomes does not appear to have been considered. For at least some of the changes proposed, it seems likely that alternatives could be crafted that would get the desired outcome but also better protect New Zealander’s rights than the proposals contained in the Bill.
