David Rutherford: Terrorists win if our privacy is lost

David Rutherford: Terrorists win if our privacy is lost

February 24, 2016

The Independent Review of Intelligence and Security Services is due to deliver its recommendations to the Government on Monday 29 February. 

The questions Sir Michael Cullen and Dame Patsy Reddy have been tasked with reviewing sit at the heart of the Human Rights Commission’s remit so we await the review’s findings and the government’s response with immense interest.

In the frame is whether the Government Communications Security Bureau (GCSB) and the Security Intelligence Services (SIS) are well-placed to protect New Zealand’s national security needs, while protecting individual rights, and whether the current oversight arrangements are sufficiently robust to ensure that they act within the law.

In particular, the Reviewers must consider whether the powers conferred by the anti-terrorism legislation brought in on 12 December 2014 as part of the UN-coordinated reply to the ISIS threat should be extended beyond their expiry date of 1 April 2017. They include:

·         allowing the SIS to conduct emergency surveillance for up to 24 hours without a warrant

·         allowing the SIS to undertake visual surveillance in a private setting or that would involve trespass onto private property

·         increasing from one year to three years the period for which passports can be cancelled for reasons of national security

·         empowering the Minister to suspend a passport or travel document for up to ten working days where urgent action is required but there’s no time to prepare the paperwork needed for a full cancellation.

Also up for review is the definition of “private communication” in the 2013 GCSB Amendment Act which permits the GCSB to access the content of New Zealanders’ private communications for cyber-security purposes (previously the GCSB had no mandate to spy on New Zealand citizens or permanent residents).

We would have liked the information collecting and surveillance functions of the Police to have been included in the inquiry but note that this gap may now be filled as Justice Minister Amy Adams has asked the Law Commission to examine the Search and Surveillance Act 2012, including the impact of modern technology on the ability of the police and other authorities to prevent and investigate crime.

The Commission’s central recommendation to the Cullen/Reddy Review is that a stand-alone right to privacy be included in the New Zealand Bill of Rights.  Beyond that, we have emphasised the importance in system design of clarity, transparency, human rights compliance and limitation of agency powers to the maintenance of public trust and confidence in the role and operations of the intelligence and security framework.

Intelligence gathering has always and will always be crucial to protecting life, liberty, independence, freedom of belief, human rights and justice. We do not live in a safe world and it would be dangerous to assume we did. 

But the response must be proportionate. 

Maintaining freedom and peace requires us to stand firm on both feet.  It requires us to reassert the values our people have fought and died for in two World Wars. We let the terrorists win if in the interests of supposed self-defence, we abandon our rights to privacy and the importance our small, open and democratic society assigns to freedom of speech and freedom of association.

As Lord Hoffman put it in the UK House of Lords in rejecting the Blair Government’s argument that internment without trial of non-national terror suspects was a necessary precaution in the post 9/11 environment:

“Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.… The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these.  That is the true measure of what terrorism may achieve.  It is for Parliament to decide whether to give the terrorists such a victory.”

New Zealand is now committed to reviewing its surveillance network at least every five to seven years. This is a positive initiative which will enable us to continuously monitor the complex relationship between national and personal safety and security and individual rights of privacy and of free association and expression. 

Dig Deeper:

In November 2014, the Human Rights Commission presented a paper to the Department of Prime Minister and Cabinet explaining its position on the Countering Terrorist Fighters Legislation Bill. Learn more here.  

David Rutherford, Chief Human Rights Commissioner

David Rutherford was appointed Chief Human Rights Commissioner on September 2011. Prior to his appointment, he was the managing director of Special Olympics Asia Pacific and based in Singapore.

He has held senior executive roles in building materials and agribusiness businesses operating in New Zealand and Australia, has been chief executive of the New Zealand Rugby Union and has worked as a corporate, securities and commercial lawyer in New Zealand and Canada.

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