The foreign fighters proposed law

John Key has released the draft legislation that will go to the House on Tuesday. It will got to select committee very briefly, and then come back to the House to be passed before Christmas.

The four main measures are:

  1. Extending the period the Minister of Internal Affairs can cancel a passport to up to three years from the existing law’s 12 months
  2. Giving the Minister of Internal Affairs the power to temporarily suspend passports for up to 10 working days in urgent cases
  3. Allowing the NZ Security Intelligence Service (NZSIS) to carry out video surveillance on private properties for the purpose of observing activities of security concern, modelled on the Police’s powers in the Search and Surveillance Act
  4. Allowing the NZSIS to conduct emergency surveillance for up to 48 hours prior to the issue of a warrant, with the approval of its Director and subject to the oversight of the Inspector General of Intelligence and Security.

The first two proposals do not seem a big issue to me. They are just an extension to an existing power.

The third proposal is long overdue arguably, and just brings the powers  in line with the Police.

It is the 4th proposal that I have problems with, and frankly I don’t think the case for it has been made to justify it.

The justification in the bill is that information may come to light that someone not previously identified as a risk is about to travel to a conflict zone, and in the hours it takes to get a warrant, intelligence may be lost and they leave NZ.

I don’t think that is justification enough. Even if someone does leave to go to a conflict zone, that isn’t the end of the world. I’d rather they didn’t, but this isn’t enough of a threat to justify emergency surveillance without a warrant.

I also think there is a danger in trying to cover off every sort of theoretical possibility. You can justify almost anything with hypothetical justifications. You can justify torture if it is to discover the location of a nuclear bomb that will kill 100,000 people. But how likely is it? The question I would ask the SIS is whether there has ever been a situation where something bad happened because they had to wait six to 12 hours to get a warrant? Not a hypothetical situation, but an actual situation?

The danger of emergency powers is that can become a lazy norm. Why bother getting a warrant, if we can take a quick look for 48 hours, and then see if we learn enough to justify a warrant application? Now I have considerable respect for the current SIS Director, but the law should not be about the person in charge, but the institution.

So at this stage I’m unconvinced the fourth part of the law is justified, and if an MP would vote to remove it, unless I got better justification for it.

However it is worth noting there are some safeguards proposed for the emergency surveillance power. They are:

  • Only the Director can authorise
  • A maximum of 48 hours
  • Only when a delay is likely to lead to a loss of intelligence
  • The Commissioner of Security Warrants (CSW) must be notified within 12 hours
  • The CSW or the Minister can order the emergency surveillance to halt, once notified, if they do not think it meets the threshold
  • The Inspector-General of Security and Intelligence must be notified asap and can investigate if an emergency authorisation was appropriate
  • The SIS annual report must report how often an emergency surveillance was done
  • Law change is temporary, until 2018

These are good safeguards, but again I don’t think the case has been made for the power. If I was an MP I’d want details of actual harm caused in the past by not having this power.

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