November 27, 2014 11:00am by David Farrar

My submission on the Countering Terrorist Fighters Legislation Bill

SUBMISSION OF DAVID FARRAR ON THE
COUNTERING TERRORIST FIGHTERS LEGISLATION BILL TO THE FOREIGN AFFAIRS, DFEENCE AND TRADE SELECT COMMITTEE

About the Submitter

This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.

The overall Bill

With one exception I am broadly in support of the Government’s proposed law changes to help counter terrorist fighters. The rise of the Islamic State of Iraq and the Levant (ISIL) poses a significant threat to not just the local populations in the areas it controls, but to countries and people around the world.
I am broadly supportive of the proposed changes to the Passports Act, information sharing with Customs, and allowing the SIS to do electronic visual surveillance under warrant.

Emergency Surveillance by the SIS

I oppose the proposed law changes to allow the SIS to do emergency surveillance for up to 48 hours without a warrant.
I believe it is important for New Zealanders to have confidence and trust in their law enforcement, security and intelligence agencies.
At present the Government can say that no New Zealand citizen is spied on by any state agency unless a warrant is approved by an independent judicial officer such as a Judge, JP or Commissioner of Security Warrants. This is a hugely important check and balance in our system. No New Zealander can be spied on by a state agency without effectively judicial approval.
This proposed law would do away with the status quo. No longer could New Zealanders be told that they can only have their communications intercepted if an independent judicial officer agrees.
For Parliament to do away with this long standing right, they need to be convinced that the consequences of not doing so would be worse than remaining with the status quo. This should be a very high threshold. No matter how temporary the exception may be, the fact is that the law will go from an absolute guarantee of no surveillance without judicial approval to no guarantee. Parliament should be loath to make such a change.
I accept that threats may emerge quickly and it is desirable for intelligence to be gathered quickly. However rather than water down the requirement for prior judicial approval, other alternatives should be considered.
We live in a connected world. The Commissioner of Security Warrants and the Minister for the SIS can probably be contacted close to 24/7. Documents for a warrant can be sent electronically for approval. With planning, one should be able to get a warrant within a couple of hours where haste is necessary.
Other options is for the Commissioner and the Minister to have deputies who must be available in Wellington, when the principals are likely to be difficult to contact.
This law change will make it harder for the security agencies to keep the confidence of New Zealanders that they can only be spied on if prior approval is given by a judicial officer.
There is a massive difference between a system of checks and balances that occurs before surveillance occurs, and one that checks afterwards if it was appropriate.
Changing the law to allow the SIS to do surveillance without prior judicial approval should be the last resort, not the first. I would urge the Committee to delete this section of the Bill.
Possible further safeguards
If the Committee does not agree to remove the sections on emergency surveillance powers, I would ask them to consider some or all of the below as possible further safeguards.
Change the threshold from a warrant being “impractical in the circumstances” to “highly impractical” and change the impact of a delay from “likely to result in a loss of intelligence” to “highly likely to result in a loss of important intelligence”.
Reduce the time period for emergency surveillance from 48 hours to 12 hours. I can’t conceive of a situation where the Commissioner and/or Minister can’t be located within 12 hours. This also syncs it with the requirement to notify the Commissioner, Minister and Inspector-General within 12 hours.
Have any report on use of the power also going to the Inspector-General automatically under S41E(4) so they can investigate on their own initiative, even if not referred by the Minister or Commissioner.