Countering Terrorist Fighters Legislation Bill

  • enacted

Commentary

Recommendation

The Foreign Affairs, Defence and Trade Committee has examined the Countering Terrorist Fighters Legislation Bill and recommends by majority that it be passed with the amendments shown.

Introduction

The Countering Terrorist Fighters Legislation Bill is an omnibus bill that would amend the Customs and Excise Act 1996, the New Zealand Security Intelligence Service Act 1969, and the Passports Act 1992.

The bill is a response to the rapidly evolving threat of terrorism both locally and internationally. It introduces short-term measures allowing the monitoring and investigation of foreign terrorist fighters and other violent extremists, and the restriction and disruption of their travel. The measures were identified during a recent review of the adequacy of New Zealand’s capability, capacity, and legislation to respond to the threat, and how this country’s safety and security could be increased. The provisions in the bill as introduced would be subject to a sunset clause expiring on 1 April 2018. A more comprehensive intelligence review required under the Intelligence and Security Committee Act 1996 will begin no later than 30 June 2015.

New Zealand’s domestic threat level was recently raised from very low to low, indicating that a terrorist attack is possible but not likely. Government agencies have identified 30 to 40 people of concern, and another 30 to 40 people requiring further investigation. The provisions in the bill reflect in part New Zealand’s international obligation to comply with the recent United Nations Security Council resolution 2178, which includes concern about people travelling to become foreign terrorist fighters, and urges States to restrict their movements.

Monitoring and investigating foreign terrorist fighters

The bill as introduced includes provisions that would allow the New Zealand Security Intelligence Service (NZSIS) to carry out visual surveillance on private properties under warrant, and to conduct surveillance activities for up to 48 hours without a warrant in situations of emergency or urgency, such as where a person not previously identified as a risk is about to travel to a conflict zone. These powers are modelled on those available to the New Zealand Police under the Search and Surveillance Act 2012. Safeguards in the bill include external oversight by the Inspector-General of Intelligence and Security, and annual reporting to Parliament.

The bill would also amend the Customs and Excise Act 1996 to allow the NZSIS and the Police to access Customs information for counter-terrorism investigation purposes.

Restricting and disrupting travel

Existing provisions in the Passports Act 1992 provide for the cancellation of an individual’s travel document for 12 months where the person poses a danger to security. The bill would extend this cancellation period to up to three years to address the small number of people who pose a danger for a longer period. The person concerned would have the right to make submissions to the Minister of Internal Affairs, and to appeal or seek a judicial review of the Minister’s decision, and the Minister would undertake a periodic review every 12 months.

To respond to situations where the NZSIS becomes aware at short notice of a person seeking to travel imminently to take part in a terrorist act, the bill would allow the Minister to suspend a person’s passport or other travel document for up to 10 working days.

Notice would have to be given to a person that their passport or travel document had been cancelled. However, the bill provides that if the Minister is satisfied that providing notice immediately would put an investigation at risk or endanger the safety of any person, the Minister could defer notification for up to 30 days.

This commentary covers the main amendments we recommend to the bill; it does not cover minor or technical amendments.

Sunset clause

We recommend bringing forward the expiry of the sunset clause from 1 April 2018 to 1 April 2017, so that the legislation would expire within the life of the current Parliament. We consider it appropriate that the extensive powers provided for by the legislation should operate for a shorter period, and that the comprehensive intelligence review should be completed in that time.

Passports

We recommend amending clause 4 to include a transitional provision in new section 46. It would provide that when the temporary provisions expire on 1 April 2017 a person may apply for the return of their travel document 12 months after the date it was recalled. The inclusion of this section, which would be repealed on 1 April 2018, would provide certainty for New Zealand citizens about the arrangements for when the temporary provisions expire.

We would like to address two concerns raised by a number of submitters regarding the effect of denial of a passport. The first is that where the passport of a person outside New Zealand is denied or cancelled the person concerned might be stranded with no way home. This is not the case; in this situation the Minister must upon application issue a journey-specific emergency travel document to the person so they could re-enter New Zealand. The second concern is that the denial of a passport would render a person “Stateless”. This is also not the case; denial of a passport affects only a person’s freedom to travel, it does not affect their nationality or citizenship.

Access to Customs information

Clause 7 of the bill would insert new section 280M into the Customs and Excise Act 1996, allowing authorised persons from the NZSIS and the New Zealand Police to access Customs databases to search for information for counter-terrorism investigation purposes.

We recommend the insertion of new subsection 280M(3A) to require the chief executive to consult the Privacy Commissioner before entering into a written agreement with the Director of Security or the Commissioner of Police. This would provide for appropriate consultation on the necessary information-sharing.

We also recommend amending the definition of “information” in new subsection 280M(5)(b)(ii) to read “information Customs is entitled to view under any of sections 38G to 38K”. We also recommend inserting new subsection (c) to exclude information which Customs is not entitled to view under sections 38G to 38K. This would make it clear that the legislation would not expand the existing access of the NZSIS or the Police to passenger name record information, and it would provide for the application of established controls to the accessing of this data.

Increased surveillance powers

Clause 9 of the bill would provide for the NZSIS to undertake visual surveillance, observing activity in private premises, based on similar provisions in the Search and Surveillance Act 2012 that apply to the Police. In line with the counter-terrorism intent of the bill, and to restrict the scope of visual surveillance warrants, we recommend amending subsection 4IB(3) to provide that warrants for visual surveillance must only be granted for the detection, investigation, or prevention of any actual, potential, or suspected terrorist act, or facilitation of a terrorist act.

We consider that given the intrusive nature of the proposed powers there should be more oversight of the issuing and execution of visual surveillance warrants, and our amendments reflect this. We recommend inserting new subsection 4IB(9A) to require the Director, as soon as practicable after a visual surveillance warrant is issued, to provide the Inspector-General with a copy of that warrant.

We also recommend amending subsections 4IB(11) and 4IE(8) to increase the fine for a person who knowingly fails to destroy irrelevant records resulting from visual surveillance under subsections 4IB(10) and 4IE(7) from $1,000 to $10,000. This significant increase reflects the seriousness of the offence.

Warrantless emergency surveillance

We appreciate that the nature of intelligence investigations means that urgent situations can arise where immediate action may be necessary to ensure New Zealand’s safety and security. Our amendments seek to provide appropriate safeguards for the expanded surveillance powers that the bill would confer on the NZSIS.

In line with the counter-terrorism intent of the bill, and to lessen the scope of warrantless surveillance we recommend amending subsection 4ID(1) to provide that authorisations for warrantless surveillance must only be granted for the detection, investigation, or prevention of any actual, potential, or suspected terrorist act, or facilitation of a terrorist act.

We recommend amending new section 4ID(3) to shorten the time for which the NZSIS could conduct surveillance without a warrant in situations of urgency or emergency, from up to 48 hours to up to 24 hours. In view of the many submissions on this matter we consider that a shorter period is appropriate, since it is a significant step to confer warrantless powers on the NZSIS, and this is interim legislation.

Because of the importance of notifying relevant persons as soon as possible of an authorisation for warrantless surveillance, we recommend amending subsection 4IE(1) to require the Director to inform them immediately.

We also recommend inserting new subsection 4IE(3A) to require the Director to refer the matter to the Inspector-General as soon as practicable after the Minister or Commissioner issues a direction under subsection 2 that an authorisation for warrantless surveillance not proceed or be discontinued and information collected be destroyed. We consider this oversight to be important in these situations.

We also recommend amending subsection 4IE(6) to provide that after receiving a report under subsection 4 (where an authorisation has expired and no application has been made for a warrant concerning the same matter) the Minister, or the Minister and Commissioner, must determine whether it was appropriate for the authorisation to have been given, and they must refer the matter to the Inspector-General for investigation. This would allow an examination of each warrantless surveillance case that was not followed by a visual surveillance warrant or an intelligence warrant.

We recommend inserting new subsection 4IE(6A) to provide that if an authorisation for warrantless surveillance is followed by an application for a visual surveillance warrant or an intelligence warrant in relation to the same matter, and that application is refused, the Director must refer the matter to the Inspector-General for investigation.

We recommend inserting new subsection 4IE(7A) to require the Minister, as soon as practicable after having decided to retain records under a warrantless surveillance authorisation where no warrant is subsequently obtained, to refer the matter to the Inspector-General for investigation.

We recommend inserting new subsection 4IE(9)(ba) to require the Director to include in every annual report the length of time, expressed in 12-hour bands, that the authorisations for warrantless surveillance remained in force.

We would like to see more frequent reporting than the annual reporting that is provided for in the bill as introduced. We recommend the insertion of subsection 4IE(10) to require the Director, as soon as practicable after each year ending on 31 December, to provide the Minister with an interim report for the 6-month period from 1 July to 31 December on the detail of the authorisations.

We would like to thank the many individuals and organisations who have provided submissions on this bill at extremely short notice. The urgency under which this bill has been considered has also been very challenging for us. In recommending amendments we have sought to strike a balance between providing for the security of New Zealanders and protecting human rights and individual liberty.

New Zealand Labour Party minority view

Labour set out to achieve an appropriate balance between powers needed by security agencies to keep New Zealanders safe and necessary safeguards to avoid unwarranted intrusion into their privacy and freedoms.

This bill as introduced failed to find this balance. The process that the Government followed was appalling, pushing through legislation with intrusive powers in just over a week with only two days allowed for public submission. For a bill of this significance, this timeframe was unacceptable.

Labour accepts that new emerging forms of terrorism potentially create risks for New Zealand. However, this legislation was hastily introduced and not subject to a full process of public scrutiny. Labour took the view that the legislation should not go further than is absolutely essential to address the issue of any new terrorist threat.

Our views were also borne out by strong submissions from groups such as the Law Society and the Legislation Advisory Committee. They were also supported by a large number of concerned New Zealanders, often making their first submission to a select committee, who felt strongly about the implications of this legislation and the way it was being rushed through.

On the insistence of Labour, the bill was released to key interested groups earlier than had been planned and at least some opportunity was provided for public submissions. Nearly 600 submissions were received within two days but it is likely hundreds of others were deprived of the opportunity because of the short timeframe.

Labour, in a paper to the select committee, pressed for limitations on the increased powers proposed. The government agreed to adopt these changes.

The powers proposed for the Security Intelligence Service (SIS) will be limited:

  • The scope of new visual surveillance powers and warrantless surveillance powers will now be restricted to activities related to terrorism rather than the broad scope of the SIS’s activities.

  • Surveillance without a warrant will now be strictly limited to emergency situations and limited to 24 hours rather than the 48 hours proposed.

  • Every case of warrantless surveillance, whether they proceed to a full warrant or not, will be referred to the Inspector-General of Intelligence and Security for scrutiny.

  • The SIS will be required to report publicly six-monthly, rather than annually and with more detail, on the use of these powers.

Labour recommended in relation to changes to the Customs and Excise Act 1996, that the Privacy Commissioner’s recommendations should be adopted. This will place safeguards on the use of the Custom’s database to which the SIS and police have been given access and will ensure the involvement of the Privacy Commissioner. This has been agreed to.

Labour asked for clarification on the amendment being made to the Passports Act 1992. We sought and gained assurance that New Zealand citizens who have their passports revoked while overseas will be guaranteed the right to return to New Zealand on emergency travel documents.

The government is retaining the increased power to deny an individual a passport for up to three years. We were not convinced that this was necessary when passports can be currently withheld for 12 months and this period extended year by year.

Despite the inadequacies of the process this legislation followed, the provisions of the bill are subject to a sunset clause. The powers it contains will be comprehensively reviewed next year. We pressed for and achieved a reduction in the term of the sunset clause from 1 April 2018 to 1 April 2017. This means the legislation will be replaced within this parliamentary term.

As a result of the evidence we heard, we believe that in the forthcoming review the powers of the Inspector General of Intelligence should be strengthened and made more independent.

Green Party minority view

The Green Party opposes this bill. The primary case for the legislation has not been made, the political foundation for the legislation is weak, and the drafting of the legislation is flawed.

United Nations concern over terrorism is not new. In 1972 the General Assembly invited States to take appropriate measures at the national level for the speedy and final elimination of international terrorism. Concerns over the 2015 Cricket World Cup cannot be higher than those stemming from the Munich Olympics. Yet New Zealand did not overreact to resolution 3034 then. The rise of ISIL in 2014 has raised the threat-level, but the change is not qualitatively different from before and does not justify expansion of state powers. It is important not to overreact to the Security Council resolution 2178 today.

In making the political case for the legislation, the Prime Minister has described how our risk and threat profile is changing due to the “rapid rise of ISIL” which poses an “immediate threat to national security”. But New Zealand’s threat-level has been increased from “Very Low” (highly unlikely) to “Low” (“possible but not expected”). There is cognitive dissonance between the excitable political narrative and the official judgement.

UN Security Council resolution 2178 requires States to ensure that their laws are sufficient to combat the threat, while leaving it to their discretion to judge what those might be “consistent with” international human rights, refugee and humanitarian law. In calibrating its response, the Government is unduly influenced by its Five-Eyes espionage partners, which have attracted higher threat-levels, and has not had sufficient regard for the other 188 member States. The case is not made for new intrusive powers for the SIS in response to 2178.

The day the bill was introduced, the independent Inspector-General for Security and Intelligence released a report with findings on actions by the SIS and the Prime Minister’s Office in 2011. These included disclosure of incomplete, inaccurate and misleading information; significant errors in considering media requests; failure to safeguard political neutrality; lack of trust and confidence with the Leader of the Opposition; and insufficiently rigorous and careful approach in handling security intelligence. Separately, PMO staff had disclosed information supplied by SIS to the media for political purposes. The Report recommended that SIS staff be trained in the release of information and published guidance be developed on their political neutrality obligations. It is in the context of these shortcomings and the need for guidance and training of the SIS that the Prime Minister asks the people of New Zealand to accept an expansion of its powers.

The timing of this bill could not, therefore, be less opportune. There is a need for rectification of these shortcomings, and a consequent restoration of public trust in these institutions, before any such bill could be contemplated, and a sufficient case would still need to be made.

The drafting is flawed. The bill contains no statement of general purpose. The critical concepts are left undefined. There is confusion over, or deliberate blurring of, those concepts. The link from the political narrative to the bill’s content is illogical, with consequent imprecision in terminology. This would never be tolerated in criminal legislation, and should not appear in legislation with constitutional implications.

The essential source of the legislation (UN Security Council resolution 2178) places binding obligations on States to respond to the “growing threat posed by foreign terrorist fighters” (FTFs). The resolution expresses concern that FTFs are being recruited by, and joining, “entities”. The only examples offered of such “entities” are confined to three Islamic terrorist groups: ISIL, ANF and AQ. A “foreign terrorist fighter” is defined in SCR 2178 but not in the NZ legislation, either in the text or even the Explanatory Note.

SCR 2178 seeks also to counter “violent extremism” in order to prevent terrorism. The UN resolution does not define the term. It nonetheless encourages “relevant local communities and non-governmental actors” in each country to develop strategies to counter “the violent extremist narrative that can incite terrorist acts”. The Government is thus utilising the Security Council resolution to expand intrusive powers of warrantless surveillance by the SIS into areas of domestic security. This is unprecedented for New Zealand.

Thus, in legislation designed to combat “foreign terrorist fighters”, the NZSIS will have power to access customs data and covertly plant cameras anywhere in NZ homes, including without warrant. The justification is ISIL terrorism in the Middle East; but those powers extend to “local extremists”, including those suspected of planning environmental or economic damage in New Zealand. This is wrong, and unacceptable.

New Zealand First minority view

New Zealand First reserves its position on the bill.

Appendix

Committee process

The Countering Terrorist Fighters Legislation Bill was referred to the committee on 25 November 2014. The closing date for submissions was 27 November 2014. We received 588 submissions from interested groups and individuals, and heard 63 of these. We received advice from the Department of the Prime Minister and Cabinet, the New Zealand Customs Service, the New Zealand Security Intelligence Service, and the Parliamentary Counsel Office.

Committee membership

Mark Mitchell (Chairperson)

David Bennett

Hon Phil Goff

Dr Kennedy Graham

Dr Shane Reti

Jami-Lee Ross

David Shearer

Fletcher Tabuteau

Lindsay Tisch

Dr Jian Yang