Privacy Commissioner gains concessions on foreign fighters bill

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).

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. 

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 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. The Privacy Commissioner tells NBR he 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.

Another of Edwards main points is that the bill's aim is to counter terror and the foreign fighter, 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 across the board. Rather, he sees the across-the-board nature of the new powers symptom of the speed with which the legislation has been put together. Nevertheless, he wants a tighter focus, and the new powers only focussed on activities to counter terror.

And he 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.

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.

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).

Labour supported the first reading of the Countering Terrorist Fighters Legislation Bill, 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 need to move quickly against it.

Mr Edwards says he received detailed operation briefing from the SIS. or 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.