Protecting the Balance: Trust, Confidence, Privacy and Intelligence

Protecting the Balance: Trust, Confidence, Privacy and Intelligence

July 17, 2015

Speech: “Protecting the Balance: Trust, Confidence, Privacy and Intelligence”

NZIP Annual Conference, 15 July 2015

I’d like to look at the theme of this year’s conference in the context of something our country was fighting for in much darker times than today. 

I’d like to take us back to 1942.

73 years ago New Zealand was at war. And it was a war we were losing.

We were losing in Europe, in Africa, in Asia and in the Pacific. 

And yet on New Year’s Day 1942 New Zealand stood alongside our allies and we declared that:

“Complete victory over our enemies is essential to defend, life, liberty, independence and religious freedom, and to preserve human rights and justice in our own lands as well as in other lands.”

 “We are now engaged in a common struggle against savage and brutal forces seeking to subjugate the world.” 

There was not a lot of balancing in that declaration.

Our purpose was clear.  

Our purpose was to defend life, liberty, freedom, independence, human rights and justice everywhere.  

There was no false choice between privacy or security. 

Privacy was one of the human rights that we were defending, so were the human rights of free speech, free association and the idea that one’s home is one’s castle in a much broader way than privacy is conceived in New Zealand today.

These words are found in the Declaration of the United Nations and were made in 1942 at a time when the Allies - who called ourselves the United Nations - were losing almost everywhere.

Later that year in this month in Africa, Kiwi, Australian and Indian troops paid the greatest price at El Alamein but they stopped Hitler’s troops in their tracks.

Allied forces succeeded in stopping Axis forces through their courage, their skill and their intelligence – particularly their signals intelligence. 

In my mind little has changed: 

Technological changes do not change the principles we stand for as a nation.  

Intelligence gathering has always, and will always remain a crucial part of protecting: life, liberty, independence, freedom of belief, human rights and justice.  

It is not about balancing our security and privacy – it is about protecting our rights and freedoms including privacy and security.  

The balance needed is found in the recipe of the United Nations Charter, the United Nations Universal Declaration of Human Rights and subsequent human rights conventions. 

Much of New Zealand’s international human rights reputation is built on the work of the NZ Army whose members have defended human rights and freedoms for decades – often in incredibly difficult situations. 

Anyone working in the intelligence sector needs to have the same understanding of human rights and freedoms as those in the New Zealand Army.

We must match this understanding across all of our domestic surveillance and intelligence gathering activity and in our use of big data.

Our life experiences shape the kinds of people we become.

I have been a student, a protester, a corporate lawyer, a business person, a leader of a number of NGO’s and for the moment I am New Zealand’s Chief Human Rights Commissioner.

My grandfather was a Presbyterian minister in the Irish Free State which was part of the United Kingdom when he was born. 

Like the United States, India and other British colonies it did not gain its freedom through peaceful means alone.

It was not that difficult being Protestant in the Free State in my grandfather or father’s time but much more difficult being Catholic in the North. My father’s home was near Dublin in World War Two when Ireland was neutral but he attended boarding school in the North which was at war.

I knew enough about the history of the island of Ireland to know that the men and women that most people in the Free State and many beyond called freedom fighters were called terrorists by the British and the Unionists of the North.

I knew of the impact of the colonisation of Ireland by the British.  

My family was part of that colonisation. 

My wife’s family were amongst the colonised whose land was taken by laws later copied to confiscate land from Maori in New Zealand.  

One of my pivotal growing up moments was meeting my Uncle William in Belfast in 1985.  

He was the Chief Accident and Emergency Surgeon for 20 years at Belfast’s largest hospital – the Royal Victoria on the Falls Road.  

Uncle William was one of the world’s leading trauma surgeons. He spent a lot of his free time in Belfast trying to build the peace between Catholic and Protestant in Ulster but he was no pacifist. I had a lot of relatives working in that hospital.  

Back in 1985 when I arrived in Belfast for a visit he was driving me home from the airport when I asked him if there were places I shouldn’t go. 

He fixed a steely stare on me and said: 

“David you have more chance of being killed in London by a car or other accident than by a gun, bomb or a knife in Belfast. Don’t let the bastards own you.” 

To make his point Uncle William then drove me into the city’s Catholic heartland. 

As we were driving behind a British patrol’s Land Rover a solider trained his gun on me in the passenger seat.

I asked my uncle why and he just said put your hands where he can see them and he will lower the gun. It worked. 

Later I heard a BBC report of Uncle William attending a Sein Fein “peace commission” and telling Gerry Adams.

“Mr Adams some years ago when you were shot just down the road from my hospital I stood above you with my scalpel and wondered should I save this man. I did. I am here today to ask you to put down the guns and the bombs” 

When asked by the BBC whether Sein Fein listened Uncle William said the IRA had later bombed London again. 

The thing is, my uncle never gave up on hoping and working for freedom and he never gave up on hoping and working for peace.

He also told me that while terrorism caused a lot of harm his colleagues working in Cook County Hospital in Chicago always had a lot tougher job. Nearly four thousand people lost their lives in the troubles between 1967 and 1987 but nearly 200,000 have died of gunshot wounds in the United States since 9/11.

I learnt a lot from that holiday in Belfast with my family.

I learnt that hoping and working for freedom and hoping and working for peace is something to never give up on.  Ever.

As Seamus Heany wrote some day hope and history will rhyme.

I have learnt enough of the history of New Zealand to know we have not always lived up to the ideal of the Treaty of Waitangi or the principles we fought for in World War Two. 

But no nation is perfect and we are working to learn from our mistakes and to never repeat it.

I am proud to be a New Zealander. 

I am proud to know we do want our mountains to ever be freedoms ramparts on the seas.

I am proud to know we do want people of every creed and race to live in peace in this place. 

Maintaining freedom and peace requires us to stand firm on both feet. 

Ensuring freedom and peace also requires us to look to our past and to our future with our eyes wide open.  

It requires us to reassert and defend the values our people fought and died for. To paraphrase A G Grayling: Terrorists aim to scare us into doing their work for them in achieving whatever their brand of political or religious orthodoxy would achieve if they were to impose it.

“To reduce our own liberties in supposed self defence is thus to hand the terrorists a victory at no further cost to them.”

Grayling was right when he said: “We should not wish future men and women who have to fight all over again for liberty to think we gave up the courageous work  of centuries without a fight.”

We owe future generations of New Zealanders this much.

After the war with the sacrifice and genocide fresh in our minds New Zealanders worked hard to create the United Nations, its charter, its Security Council and its Universal Declaration of Human Rights.

The aim of all of this work was to protect human dignity, enhance human development and ensure as peaceful a world as it nation states would collectively allow. We have a long way to go.

Ironically I was in Paris a few weeks after that 1985 visit to Belfast just after the only recent “terrorist” incident in New Zealand history was perpetrated by the French government.  I was reading our Prime Minister saying the French were cooperating but I was close to the reality that that was not the truth on the ground in Paris.  

The fact that one of our allies had attacked us and the lack of support we received from Europe at that time reminded me that the words of the UN Charter and the UN Declaration of Human Rights would only be words if the great powers of the world thought there was one law for them and another for everyone else.

I want to turn now to the how. How do we defend our liberties and defeat terrorism and all other forms of violence and abuse.

I could spend the rest of my time explaining to you the thinking behind our report on surveillance to the Prime Minister that recommended the review of security intelligence underway now or our reports to the United Nations Human Rights Council and the United Nations Human Rights Committee. 

However they are all up there for all of you to see on the web so there is little point in repeating them here. 

I would re-emphasise is the point we made about that it was absolutely critical that people involved in intelligence gathering get human rights training of the sort Kevin Riordan developed for the New Zealand Army.  

Understanding how to apply human rights law to the areas that you deal with is not a trivial learning exercise.  I am not going to pretend to be able to do that in the short time we have today.

Nor do I think that such training should be delivered by someone with an understanding of human rights law but no practical experience of the challenges faced in your work. 

It needs to be delivered by people who understand the law and the context. 

Brave people who for example who  when their political masters want to torture people in breach of international human rights law call out torture for what it is and stop it. 

There is another important area that we have worked on where the human rights of people need careful balancing.  

We have not had anyone killed by a terrorist action in New Zealand since 1985 but we have had three children die in their homes in the last four weeks. On average a child has been killed every five weeks in New Zealand for decades. That is hundreds killed. Beneath them is a pyramid of abused children.  

I welcome the work underway at Ministerial level on these issues. I would expect much more investment in protecting the lives and security of these children than we have seen in the past. Our involvement has been to assist those involved in the balancing of rights in the actions to be taken under the Vulnerable Children’s Action Plan. The core principles that apply there should apply when we think of the use of Big Data or in security intelligence. 

I do want to remind you all that there are three pillars in the United Nations Counterterrorism strategy and the first of those involves working in the community to build peace in exactly the way my Uncle William did. New Zealand is good at this but we should not take it for granted.

I can accept there is a need to increase funding to our security services. I worry though that we will not properly resource the efforts of the community groups and agencies that weave the relationships that will be the most important thing in keeping New Zealand safe. 

Further I do not see the sort of urgency I would expect in responding the Constitutional Review Panels call for better civics education in our schools.  

This sort of work is crucial to defending freedom and peace in New Zealand. I was really struck last weekend by how one of the French agents who killed in New Zealand Alain Mafart described New Zealand when he wrote.

“We did not know that in this country you cannot make a move without being observed, that informing the police is a national duty.” 

One of the most thoughtful contributions to how we might defend our liberties and defeat terrorism is “A Question of Trust” by David Anderson Q.C. who is the United Kingdom’s Independent Reviewer of Terrorism legislation.  

Yesterday the third report in the UK trifecta was made public. It was the report of the Independent Surveillance Review on “A Democratic Licence to Operate”. It endorses key recommendations of the Anderson report.

My aim today is to encourage you to read the Anderson  report and think about the principles and solutions he proposes in the New Zealand context.  

I am not saying that Human Rights Commission agrees with everything David Anderson proposes but we are very seriously considering his report in the context of the review underway now. I think you should too.  

I have decided that the best way to do that is to be David Anderson not David Rutherford for the moment. I think it is more important that you hear his words than mine today and I will now speak using his words not mine. I think we should deeply consider his thinking in our own context. 

Chief Commissioner David Rutherford

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.

Mr Rutherford has a strong history of involvement in sports and has lectured in sports law at Victoria University. He has been a volunteer Board member in rugby union, netball, Paralympics New Zealand, Special Olympics New Zealand, Special Olympics International and for the Attitude Trust. 

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