Changes see Labour fall in behind foreign fighters bill
PM seeks cross party support, and gains it by watering down anti-terror measures.
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UPDATE / Dec 2: The Countering Terrorist Fighters Legislation Bill has returned from Select Committee with several changes, which Labour leader Andrew Little says are enough to win his party's support.
Labour voted for the bill's first reading, but left it open whether it would support the bill's final passage due to concerns over clauses including 48-hour warrent-less surveillance.
The warrantless surveillance provision has now been reduced to 24 hours.
Other changes include a six monthly reporting requirement (originally the SIS had to report on warrantless surveillance every 12 months; the Privacy Commissioner was pushing for every quarter).
A sunset provision had seen the bill expire in 2018; it will now expire in 2017.
Another core criticism of the legislation by the Privacy Commissioner, and others, was that it targetted terror but gave the SIS new powers such as warrantless surveillance across all its activities.
The Select Committee responded by saying it wants warrantless surveillance restricted to "the detection, investigation, or prevention of any actual, potential, or suspected terrorist act, or facilitation of a terrorist act".
The Inspector General of Intelligence also gets more oversight.
Only the Greens voted against the legislation's first reading, but the government put an emphasis on building cross-party support for its return to the House today, with PM John Key saying he wanted Labour to support the legislation.
Labour voted for the first reading in part because new leader Andrew Little received a briefing from SIS director Rebecca Kitteridge that convinced him there was a genuine foreign fighter threat, and a need to move quickly against it (though no doubt Little also had one eye on the opinion of middle NZ, or at least Labour votes whom he thinks strayed to NZ First and even the Conservatives on Sept 18).
Although the party is now completely onboard with the legislation, Little says he remains unhappy about the "appallingly rushed process" used to pass the legislation. The government wants it in place by the time the Cricket World Cup starts in the new year.
Privacy Commissioner wins concessions on foreign fighters bill
Nov 29: After meeting with officials as the bill was being drafted Privacy Commissioner John Edwards has already won concessions on the foreign fighters legislation currently being rushed through Parliament. (Its first reading was Tuesday. Select Committee hearings are underway. It will be back in Parliament Tuesday with the aim government aiming to pass it by Christmas.)
The Countering Terrorist Fighters Legislation Bill's controversial provision for 48 hours' warrantless surveillance was a key area where Edwards and his office were able to influence things after consultation with officials.
A clause was added requiring the director of the SIS to advise the SIS Minister, the Commissioner of Security Warrants and the Inspector General within 12 hours of warrantless surveillance being initiated. At that point, the Minister or the Commissioner can order the spy agency to stop the surveillance, if they judge it's not justified.
In his submission on the bill, Edwards suggests a warrant is also applied for at the 12-hour mark (rather than 48 hours). Since there will already be a process underway after half a day, it makes practical sense to apply for a warrant at that time too, he tells NBR. The Privacy Commissioner sees a search warrant as a fundamental protection, and the bill's provision for warrantless surveillance as more of a "deferral" of the warrant application process that must take place.
Powers aimed at terrorists, but can be used across the board
Another of Edwards main points is that the bill's aim is to counter terror and the foreign fighter threat, but that it gives the SIS sweeping powers, such as the aforementioned warrantless surveillance, across all its activities.
He says he doesn't think the spy agency was making a power grab or the government meaning to get more Big Brother. Rather, he sees the across-the-board nature of the new powers as an expediency to speed the legislation through Parliament. Nevertheless, he wants a tighter focus, and the new powers to apply only to terror.
Visual surveillance is different
He also wants other provisions tightened up full stop. One is visual surveillance.
The bill allows for 12 months' visual surveillance of a suspect. Edwards wants that pegged back to three months (with possible renewal). He says visual surveillance is a special kind of surveillance in that it captures eveyone who comes into shot, even if they are making a completely innocent visit.
More frequent reporting
Another is reporting. The bill already includes the Privacy Commissioner's earlier suggestion for regular reports on the number of authorisations given for warrantless surveillance, the number that were subsequently followed by a warrant application and the number that were subsequently considered not appropriate.
The bill calls for an annual report. Edwards wants one every quarter — though he anticipates he could get push back there from the SIS on that front, with the agency perhaps raising the argument that more frequent reports are more likely to tip-off suspects (he tells NBR he has had one meeting with SIS officials; most of his input into the bill was via the DPMC. He says he want to talk to the agency further but that will almost certainly happen after the legislation has passed. He says those discussions will weigh on his input into the review of the bill scheduled for next year).
The bill's provision to deny a passport for up to three areas is another point of focus of Edwards' submission.
Tighter criteria for denying a passport
Again, he wants the focus to be on countering terror, and not for it to be a broad brush measure for any SIS activity.
He wants the criteria for denying a passport to be “where there is a danger to the security of New Zealand from a terrorist act, the proliferation of weapons of mass destruction or unlawful activity designed or likely to cause devastating or serious economic damage” (the Privacy Commissioner adds passports fall under his office because they are documents of national identity, but that the denial of a passport "isn't really our knitting." His submission's passport recommendation drew on consultation with the Human Rights Commission).
On passports, it's also worth noting the submission from Wellington lawyer Graeme Edgeler, who notes there's already provision to deny a passport for up to three years if the Crown thinks someone is heading to Syria to become a Jihadist; it's just that after 12 months a High Court application is required to extend the suspension. I wonder if there's a degree of politics here. The legal tools are already in place to stop budding foreign fighters leaving the country. Redefining them provides an opportunity to look tough.
Accepts the need for speed, but also next year's review
Mr Edwards says he did not receive a detailed operation briefing from the SIS. Nor was he particularly seeking one. "I'm happy for them to make that case," he says. He'll take the agency and the government at their word their is a threat, and a need to do something about it. His role is not to judge the speed with which the legislation is passed, or the need for its measures, but to ensure the measures are implemented with proper safeguards and oversight. In publishing his submission, and giving various media interviews, he's also played a role in educating the public that It is a significant step to confer these powers like warrantless surveillance and extended visual surveillance on a security intelligence service.
He adds that although he accepts the need for speed, that does mean the bill's review, scheduled for 2015, gains greater importance. He expects his office will have a lot of feedback to give at that time.
Lastly, it's good to see centre right blogger David Farrar making a submission that questions warrantless surveillance and other powers in the bill. ACT should be flying the liberterian banner as we debate how much freedom we need to lose to protect our freedom. But if it's not going to stand up on the issue, it's good to see there's at least a little life in the debate on the right.
RAW DATA:
Selected other submissions:
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Changes see Labour fall in behind foreign fighters bill
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