7Objective of Bureau - Environment and Conservation ... and S… · Web viewIt would be helpful if we could easily download and annotate a word ... such as the debate about the

ENVIRONMENT AND CONSERVATION ORGANISATIONS OF NZ INC.

Level 2, 126 Vivian St, Wellington, New Zealand. PO Box 11-057, Wellington

Email:[email protected] Website:www.eco.org.nz Phone/Fax 64-4-385-7545

14 August 2015

Independent ReviewersC/o Ministry of Justice

Independent Review of Intelligence and Security Legislative Framework

Submission from the Environment and Conservation Organisations of NZ

Part A

A1 Information about our submission

1. What is your name?

2. What organisation do you belong to (if any)?

3. Are you a New Zealand citizen or permanent resident? Yes

4. What country do you currently live in?

5. Are you willing to be contacted by the independent reviewers or their support team at the Ministry of Justice to discuss your submission if they have questions? Yes

Catherine Wallace, vice-chair of, and for the Environment and Conservation Organisations of NZ Inc.

ECO is incorporated in NZ, comprises NZ organisations, exec members are mostly NZers.

This should ask whether this is on behalf of an organization, not which we belong to. Cath Wallace belongs to a range of organisations, and we can’t understand why such an intrusive question would be asked. None of these is seditious or violent.

http://www.eco.org.nz/

mailto:[email protected]

INTELLIGENCE AND SECURITY REVIEW – ECO SUBMISSION FINAL

ENVIRONMENT AND CONSERVATION ORGANISATIONS OF NZ

August 14, 2015

6. If you are willing to be contacted, please provide your email address, phone number or postal address:

A1 Preliminay Comments on making it easier for submitters to submit.

A 2 First some comments on the document from the point of view of submitters:

a Need for word versions and websites that work.

It would be helpful if we could easily download and annotate a word file copy of the proposals to assist our responses. We wasted hours wrestling with the Justice website which kept bouncing our attempts to access the documents from the Justice site. The Review paper and the submission form were in pdf format, yet both needed to available to be copied for submission purposes.

The submission form was unresponsive to this user on a modern Macpro laptop, yet the instruction was simply to “fill in this form” – with no indication that it was not capable of being filled in electronically. We tried and it allowed us to enter a name but nothing else. Direct entry on the web was not an option for us since there was no indication of whether we could save drafts and forward these to others in our organisation for input and review.

Only on the last day after much mucking around and finally asking Justice to send a word version, did we get to see the full version of the Terms of Reference, because the Justice website bounced us (more than once) with a message to the effect that we cannot attend to you now. We suspect others also tried and failed, but may not have perservered and hence did not make submissions. The pdf of the paper and the submision form both refused to behave for us – and testing by Justice in house is not sufficient, since systems differ.

Please make it a matter of policy that if a document is available for public comment, it be put up not only in pdf format but also in Word (compatible version) so that text can be cut and pasted and edited for inclusion in submissions.

Response forms should also be available on a (working) website in word, so that we do not have to wrestle with pdfs.

Even trying to get a word copy was fraught. A direct phone number – or even the main phone number for the relevant team or for Justice would have helped. When we used the Justice number from the web, we went from one recorded message to another, got a person who promised to put us through, then got bounced back to the original recorded message, then had several waits as people tried different numbers.

ECO’s phone number is 04-385-7545, email is [email protected]; Cath Wallace is 021-891-994 or [email protected] [confidential information not to be published or used for any purpose but for this submission].

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Rachel Crawley, when eventually we got to speak to her was very helpful, but inclusion of a phone number for trouble shooting would have saved all that wasted time and increased frustration on top of the frustration of uncooperative websites and documents.

Please attend to these problems for the future and please report back to us as to how Justice has decided to deal with those.

A.1.b Links to laws and a glossary of key terms and sections of the ActsIt would make it much easier for submitters to engage with the discussion paper if there was a glossary and or an appendix with key terms and sections of the relevant Acts, and with links to sections that were relevant to the questions.

A.1.c The misalignment of the questions with the ToR and the lack of critical questionsThe lack of alignment between the questions and the ToR and the laws themselves, worry us. We hope the Reviewers will carefully note that the questions on the submission form may have deflected the public’s attention to the issues in the ToR.

A.1.d Our use of blue text but not the ranking.In this submission we have put our submissions in blue text for ease of distinguishing our comments. We have not used your scaling of 1-5 since these are too blunt an instrument for the submissions we want to make.

A. 2 Introduction to ECO

The Environment and Conservation Organisations of NZ (ECO) is the national alliance of about 55 groups with a concern for the environment and conservation. Not all are environmental organisations but many are. As a national organization of organisations, we attend to “meta issues” such as open government, a free and open society, the rights of civil society and due process and democracy. These things matter to our members, and to the quality of New Zealand life and society. We have a standing Open Government and Society working group.

We have an active interest in environmental law and management, and in conservation, the roles and responsibilities of government, and freedoms of speech and association and the rights and environment for a robust civil society.

We have made submissions on a series of SIS and GCSB related laws and remain very concerned at a number of features of these and related laws, and very concerned too about

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the misuse of these powers by the present government and by future governments, and of course by past governments.

This submission was circulated for input to members of the ECO Executive Committee and of our Working Group on Open Government and Society. This submission is in line with ECO Policy that has been developed in consultation with ECO member bodies and endorsed by our AGMs.

A.3.1 The Scope of the Terms of Reference and the Scope of the Submission form, and our responses to these.

We are concerned about the lack of alignment between the questions on the submission form and both the terms of reference, and the some of the issues that need to be considered, such as the institutional arrangements.

For this reason, we make comments here first on both the short statement of the Terms of Reference and then the longer version.

A.3. 2 The Terms of Reference (Short version) – from the Review paper

1. Whether the legislative frameworks of the intelligence and security agencies (GCSB

and NZSIS) are well placed to protect New Zealand’s current and future national

security, while protecting individual rights;

2 Whether the current oversight arrangements provide sufficient safeguards at an

operational, judicial and political level to ensure the GCSB and NZSIS act lawfully

and maintain public confidence.

We consider each in turn:

1 Whether the legislative frameworks of the intelligence and security agencies (GCSB

and NZSIS) are well placed to protect New Zealand’s current and future national security,

while protecting individual rights;

a) TOR Short 1 Regarding ToR 1, we consider these ToR are far too limited. There

are many rights that should apply to organisations, not just individuals, and there are

responsibilities of government to respect the roles and freedoms of these. The Aarhus

convention relates to open government and to civil society, but there is no reference to this

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or to other similar international law that applies here or should apply (we know New

Zealand has not ratified that Convention but we believe it should.

b) We presume you mean by “legislative framework” the laws that establish and govern

the SIS and the GCSB? Or do you mean other laws as well? Institutional arrangements?

What about the detail of the laws? We think these are crucial and so comment on detail as

well.

c) The Review submission questions do not address institutional questions including the

separation of powers and roles between the SIS, the GCSB and the Police. We think it

should. We wonder if a decision has already been made to merge the SIS and the GCSB

since there is no distinction in the questions. If so, that should have been stated. If not,

then the question should probe that issue.

In ECO’s view the functions of the SIS should focus on terrorist acts, as defined in the Foreign

Fighters Act, and the avoidance of violence. These should be transferred to the Police and

throughout the arrangements for the SIS functions, there should be a separation of the

policy functions from the operative functions, as there is with the Police. A separate agency

could deal with cyber security, or this too could be located as a branch of the Police.

2 Whether the current oversight arrangements provide sufficient safeguards at an

operational, judicial and political level to ensure the GCSB and NZSIS act lawfully

and maintain public confidence.

With respect to ToR 2, ECO does not believe that there is public confidence in the GCSB or

the SIS, nor is there confidence that the government or future governments will behave

lawfully or coply with the principles the SIS and GCSB are supposed to operate by.

Solutions to this include:

a) that covert agencies have the same institutional arrangements as the Police, so that

their operational activities are not subject to Ministerial control.

b) that they are answerable to a committee that includes the relevant minister and at

least the heads of two opposition parties.

c) that senior appointments have to be approved by the committee in b above.

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A.3.3 Terms of Reference for the review – Long version, Appendix 1

We comment on these individually and in some cases copy this material and make other comments in the answers to the questions on the submission form.

The purpose of the review, taking into account that subsequent reviews must occur every 5 – 7 years, is to determine:

1. whether the legislative frameworks of the intelligence and security agencies (GCSB and NZSIS) are well placed to protect New Zealand’s current and future national security, while protecting individual rights;

a) Our Short answer is no, and that our rights to privacy and free speech are being over ridden. Abuses by the government in serving partisan ends have been revealed, and illegal behaviour by the agencies has been legalised, albeit subject to a few more controls.

b) We are surprised that this is only about national security while protecting individual rights.

i) National security is one of three of the functions of the GCSB, yet many of the questions in the submission form relate instead to the second and third functions.

ii) We do not consider that 7(c) is a legitimate function for either the SIS or the GCSB, and

iii) we have concerns about the definition of the international relations and well being of NZ.

In the GCSB’s Act, the function of the Bureau is this:

7 Objective of BureauThe objective of the Bureau, in performing its functions, is to contribute to—

(a)the national security of New Zealand; and(b)the international relations and well-being of New Zealand; and(c)the economic well-being of New Zealand.

This language suggests that 7a is in scope but 7 b) and c) are not.

it is not clear that this is the case, given the SIS Act’s s2.1.c.iii. Clarity is required.

In the SIS Act, the definition of “security” is this:

New Zealand Security Intelligence Service Act 1969

S 2 Interpretation1) security means—

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(a)the protection of New Zealand from acts of espionage, sabotage, and subversion, whether or not they are directed from or intended to be committed within New Zealand:(b)the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being or economic well-being:(c)the protection of New Zealand from activities within or relating to New Zealand that—

(i)are influenced by any foreign organisation or any foreign person; and(ii)are clandestine or deceptive, or threaten the safety of any person; and(iii)impact adversely on New Zealand's international well-being or economic well-being:

(d)the prevention of any terrorist act and of any activity relating to the carrying out or facilitating of any terrorist act

Terrorism Suppression Act:

We consider that the covert agencies, and or the Police, should focus on the prevention of terrorist acts, as defined in the Terrorism Suppression Act, and the protection of cyber security, but that the terms “economic well being” and “interests” are too narrow, too vague and too contested to be used as a basis for action by covert agencies.

S 5 Terrorist Suppression Act defined

(1)An act is a terrorist act for the purposes of this Act if—

(a)the act falls within subsection (2); or(b)the act is an act against a specified terrorism convention (as defined in section 4(1)); or(c)the act is a terrorist act in armed conflict (as defined in section 4(1)).

(2)An act falls within this subsection if it is intended to cause, in any 1 or more countries, 1 or more of the outcomes specified in subsection (3), and is carried out for the purpose of advancing an ideological, political, or religious cause, and with the following intention:

(a)to induce terror in a civilian population; or(b)to unduly compel or to force a government or an international organisation to do or abstain from doing any act.

(3)The outcomes referred to in subsection (2) are—(a)the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act):(b)a serious risk to the health or safety of a population:(c)destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d):

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(d)serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:(e)introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.

(4)However, an act does not fall within subsection (2) if it occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict.

(5)To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—

(a)is carrying out an act for a purpose, or with an intention, specified in subsection (2); or(b)intends to cause an outcome specified in subsection (3).

2. whether the current oversight arrangements provide sufficient safeguards at an operational, judicial and political level to ensure the GCSB and NZSIS act lawfully and maintain public confidence.

2. a) We hope that the arrangements have improved what we had, but we are not convinced that these are adequate.

2.b) No, we do not consider that the safeguards are sufficient.

i) we consider that the definitions need tightening up to limit the reasons for the actions of the agencies to security from terrorist acts and cyber attacks, not to “interests”. Hence we recommend the deletion of the reference to New Zealand’s interests and to economic well being. We recognise that Ministers and others who regard economic goals (by which they usually mean market values) are the only ones that matter will be resistant to this, but we think it is too contested, and too conflicted to be a sound basis for covert activity.

ii) The senior appointments under the Acts should have to include the agreement of the Minister and at least two Opposition political parties

iii) The Committee should have the Minister and the leaders of two Opposition parties on it.

iv) The operations of the covert agencies should not be directed by or interfered with by the Minister.

iii) Section 4.1.iii of the SIS Act which permits the Director of the SIS to notify anyone whom that director considers should be informed, should have a specific requirement that a record of such notifications and who was notified be kept and provided to both

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the Minister and the leaders of the other parties, so that such notifications can be overseen.

The review will have particular regard to the following matters:

3. whether the legislative provisions arising from the Countering Foreign Terrorist Fighters legislation, which expire on 31 March 2017, should be extended or modified;

a) It would have been helpful to us if the link to this legislation was provided so we did not have to hunt for it.

b) no, w e do not think that there is any clear argument for continuing or expanding these powers. It is probably unhelpful and counter productive as well as deeply problematic to cancel passports, id documents and so on, especially if the person concerned is already overseas. Creating stateless people is ruthless and may simply further alienate them and give them no way to reform.

4. whether the definition of “private communication” in the legislation governing the GCSB is satisfactory;

a) Again, a link to this would be useful. We recalled the discussion of this at the time of the amendment Bill but not which section it was in.

b) The definition is:

private communication—(a) means a communication between 2 or more parties made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but(b) does not include a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so

We consider that this is a particularly pernicious definition, in that (b) means that the agencies can argue that anyone they spy on should know that, by virtue of the existence of the legislation, the very wide functions and purposes and so on, they should not expect privacy.

We recommend that (b) be deleted from this definition.

c) Someone writing notes for themselves or in other respects recording or speaking aloud to themselves, can by this definition be spied on. Thus someone documenting matters, writing a diary – which may be very personal – or recording themselves, or keeping research

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notes could be regarded as fair game. We see no reason for the minimum of two people in subsection a) of this definition. People communicate with their inner selves and their future selves and expect privacy.

5. any additional matters that arise during the review as agreed by the Acting Attorney General and notified in writing in the NZ Gazette.

We saw no reference to such additional matters. It is unreasonable to expect people to ferret around in the NZ Gazette. Any such should be noted on the consultation website and document.

When determining how to conduct the review, the reviewers will take into account:

6. the need to ensure that a wide range of members of the public have the opportunity to express their views on issues relating to the review;

a) There were many difficulties of an IT and technical nature in contributing to this review. Many people will have given up.

b) The alignment of the questions is not clearly matched to the ToR.

c) We welcome the intent of this ToR but doubt that it has been achieved.

7. the need for the law to provide clear and easily understandable parameters of operation;

a) There are some very unclear elements of the legislation. The definition in the SIS Act of “foreign” and what this means for people and organisations is outstandingly obscure:

foreign,—(a) in relation to capabilities, intentions, or activities, means controlled, entertained, or undertaken by 1 or more foreign organisations or foreign persons:(b) in relation to intelligence, means intelligence relating to 1 or more foreign organisations or foreign persons

So, if someone is educated abroad and thus has capabilities from a foreign university, are they then foreign? This is as clear as mud and urgently needs clarifying or it could be used to justify almost anything.

b) This definition and that of foreign organisation should also be amended so that non-violent organisations, such as Greenpeace, Oxfam, or other organisations with foreign links

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are off limits to spying. Just because they want to challenge the status quo, they should not be spied on, even if there are short term economic consequences for a corporation, such as adverse publicity for polluting behaviour influencing consumers, or an oil rig halted.

c) As in our previous discussion, we think the terms “interests” and “economic well being” are contested, conflicted, and could lead to excessively wide surveillance and the use of power for economic interests at the expense of citizens and civil society rights, and for the suppression of environmental protection and challenges to the power elite and their friends.

8. the Law Commission’s work on whether current court processes are sufficient for dealing with classified and security sensitive information;

Don’t know

9. previous relevant reviews and progress towards implementing their recommendations;

We were glad of the Kitteridege Report but concerned at the euphemistic discussion of “compliance issues” rather than “illegal behaviour”.

10. relevant overseas reviews to identify best practice in areas relevant to this review, including oversight arrangements;

It has been beyond our capacity to research these.

11. that traditionally, signals and human intelligence have been carried out separately and the Government does not intend to consider merging those functions within a single agency.

So why are the questions phrased so as to not separate these functions and agencies?

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B.1: Section 2: ECO’s submissions in respect of your questions

You can email your completed submission to [email protected] or post it to IRIS Support Team, Ministry of Justice, Level 3 – Justice Centre, 19 Aitken Street, Wellington, DX SX10088.

Submissions close at 5pm on Friday 14 August 2015.

General questions

Your questions are inadequate, with all due respect, and thus do not allow a proper consideration of the issues.

7. On a scale of 1 (not important) to 5 (critical), how important do you think it is for the government to do the following:

Asking about what the government should do glosses over the issues of a) should any agency of government do it, and b) whether a covert agency should, and c) Which agency, if any, should do so.

Prevent terrorist acts from occurring in New Zealand.

Important, but not at any price.

You do not provide a glossary of definitions which is needed, given that they may have a special meaning. The definition of “terrorist acts” is crucial.

As we understand it, the meaning in the two main acts under consideration is as in the Terrorism Suppression Act:

S 5 Terrorist act defined

(1)An act is a terrorist act for the purposes of this Act if—

(a) the act falls within subsection (2); or(b) the act is an act against a specified terrorism convention (as defined in section 4(1)); or(c) the act is a terrorist act in armed conflict (as defined in section 4(1)).

(2)An act falls within this subsection if it is intended to cause, in any 1 or more countries, 1 or more of the outcomes specified in subsection (3), and is carried out for the purpose of advancing an ideological, political, or religious cause, and with the following intention:

(a) to induce terror in a civilian population; or

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(b) to unduly compel or to force a government or an international organisation to do or abstain from doing any act.

(3) The outcomes referred to in subsection (2) are—(a) the death of, or other serious bodily injury to, 1 or more persons (other than a person carrying out the act):(b) a serious risk to the health or safety of a population:(c) destruction of, or serious damage to, property of great value or importance, or major economic loss, or major environmental damage, if likely to result in 1 or more outcomes specified in paragraphs (a), (b), and (d):(d) serious interference with, or serious disruption to, an infrastructure facility, if likely to endanger human life:(e) introduction or release of a disease-bearing organism, if likely to devastate the national economy of a country.

(4) However, an act does not fall within subsection (2) if it occurs in a situation of armed conflict and is, at the time and in the place that it occurs, in accordance with rules of international law applicable to the conflict.

(5) To avoid doubt, the fact that a person engages in any protest, advocacy, or dissent, or engages in any strike, lockout, or other industrial action, is not, by itself, a sufficient basis for inferring that the person—

(a)is carrying out an act for a purpose, or with an intention, specified in subsection (2); or(b)intends to cause an outcome specified in subsection (3).

Protect New Zealand’s economic interests

a) One person’s economic interests may be at the expense of the environment, of other people’s liberties or economic interests, so we regard this provision as funadamentally unsound. It allows the interests, say, of Fonterra or other companies to trump other important aspects of New Zealanders’ rights and well being and that of civil society organisations – such as unions and environmental NGOS.

There is considerable contest over ideas like well being and interests, such as the debate about the TPP, which many citizens consider are contrary to New Zealand’s interests on grounds of sovereignty, on grounds of environmental controls, health provision, democratic accountability and process, and so on. These slippery concepts should not be a basis for covert activity. One could argue that the Trade Minister Tim Groser is promoting some particular economic interests rather than NZ’s interests, so does that mean that we should allow agencies to spy on him? It would be a marvellous irony if it did, but hardly sound, just as unsound as his own willingness to withhold texts of the TPP from the public.

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b) It is anyway unclear why economic intersts should be defended by covert agencies rather than, say, the Police.

Protect the government and organisations from cyber attacks

Important, yes, but not sufficient to override privacy and a free and open society that allows freedom of association and human rights, including privacy.

As in our earlier section A, on the ToR, we consider that cyber security should be a separate agency’s role, and should not be the role of covert agencies.

Protect New Zealand’s international relations

Not if this means that pleasing China, Russia, India or the USA at the expense of New Zealanders’ democracy. E.g., we do not agree that it is reasonable to spy on someone wanting to protect the environment or so on because such activity might annoy these governments.

In particular, the NZ participation in the Five Eyes alliance, is unwelcome if that means that this forms a basis for spying on peace activists, researchers and journalists, environmental groups and individuals, , or those who campaign for greenhouse gas reductions.

Arguably, certain Ministers are jeopardising NZ’s international relations because of the very laggardly and grudging Nz actions on Greenhouse gas emissions reductions. Does that constitute a basis for the spy agencies to spy on Ministers? Probably in law it does, but from a democratic view point, they should not spy on ministers, MPs or others, not-withstanding our concerns at the positions taken by some ministers.

Protect New Zealand against adverse foreign influences

It is unclear what you mean by “adverse influences”. Such as climate change? Yes, much more than NZ government does. Such as loss of reputation due to disapproval by other countries of NZ’s poor record on aid or climate change? Yes, but by improving our stances, not by the use of covert agencies and methods.

From ISIS – yes, but that would also require changes of NZ’s foreign policy.

8. How much do you know about the purpose of the New Zealand Security Intelligence Service (NZSIS) and Government Communications Security Bureau (GCSB) and what they do?

A lot A littleA fair amount ? Nothing

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We have read and submitted on the Acts and Bills, read the Kitteridge report , Law Commission and other submissions on previous Bills etc, etc.

But we have also followed with great dismay the news that covert agencies supplied information to bloggers aligned with the National Party.

Secrecy means we can not be fully informed.

Chinks in the secrecy with respect to the GCSB and the 5 Eyes coalition and the supply of data and metadata to foreign countries and others suggests that there are many purposes of which we are left ignorant and may be of more benefit to other countries than to New Zealand.

9. In your opinion, do the NZSIS and GCSB act in the best interests of New Zealand and New Zealanders?

Yes Not always.Mostly Don’t know

Sometimes, sometimes not, but secrecy prevents us knowing the full story. Rebecca Kitteridge refers to their “compliance issues” (AKA illegal behaviour) and we know of their apparently politically inspired leaks and other biased behaviour. They have shaken civil society’s faith in them to the core. That diminishes trust in the agencies, trust in government, trust in the then Minister, and it sends a chill over democracy. That is not consistent with good government, nor is it consistent with New Zealand’s well being. That is doubly so when the government’s response is not to sanction the illegal activity but to change the law to make the previously illegal leagal.

We do value the provisions for care and political neutrality, as for example in the GCSB Act, but some aspects seem to leave grey areas and “outs”.

The relevant section from the GCSB Act says:

8D Principles underpinning performance of Bureau's functions(1) In performing its functions under this Act, the Bureau acts—

(a)in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment:(b)in the discharge of its operational functions, independently and impartially:(c)with integrity and professionalism:(d)in a manner that facilitates effective democratic oversight.

(2)Subsection (1) does not impose particular duties on, or give particular powers to, the Bureau, the Director, or any employee of the Bureau.

(3)The Director must take all reasonable steps to ensure that—

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(a)the activities of the Bureau are limited to those that are relevant to the discharge of its functions:(b)the Bureau is kept free from any influence or consideration that is not relevant to its functions:(c)the Bureau does not take any action for the purpose of furthering or harming the interests of any political party in New Zealand.

(4)The Director must consult regularly with the Leader of the Opposition for the purpose of keeping him or her informed about matters relating to the Bureau's functions under sections 8A to 8C.

We consider that this should include consultation with at least two Opposition party leaders and that there should be a requirement that they be kept informed of certain classes of information. Consultation without provision of information will be vaccuous.

10. In which circumstances do you think the GCSB or NZSIS should be able to access information about the following people:

Comment on the questions: These questions are unhelpful and do not allow for thoughtful responses. They combine the two agencies together, and do not allow for any discussion of the differences in their roles, or for the actual wordings of the Acts, or any prioritising of the limits, extent or such.

a) New Zealand citizens or permanent residents

In any circumstances NO

Where the information may assist in identifying threats to New Zealand or its interests

This depends, and it depends on the violation of rights, the hugely flawed definition of NZ’s interests, of wellbeing, etc. We reject “economic wellbeing” since this fails to allow for any consideration of the whole array of contributors to well-being, to the time period over which such is to be judged – eg, 6 months or over generations, whose well being exactly and so on.

Only in respect of terrorist Acts and only by the Police or a reformed SIS.

Where the individual is associated with others who are a threat to New Zealand or its interests.

No, even though this would include some in the Cabinet.

This would violate freedom of association and also violates the principle of innocent until proven guilty.

Only where the individual personally poses a threat to New Zealand or its interests

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As above, we are unconvinced that the definition of New Zealand’s interests is sound so we cannot accept this as a whole. The test should be whether there is a risk of a terrorist act, not a test of “a threat to New Zealand or its interests”.


b) New Zealand companies and organisations

In any circumstances No

Where the information may assist in identifying threats New Zealand or its interests.As above, we are unconvinced that the definition of New Zealand’s interests is sound so we cannot accept this as a whole. The test should be whether there is a risk of a terrorist act, not a test of “a threat to New Zealand or its interests”.


Where the organisation is associated with groups that threaten New Zealand or its interests.As above, we are unconvinced that the definition of New Zealand’s interests is sound so we

cannot accept this as a whole. The test should be whether there is a risk of a terrorist act, not a test of “a threat to New Zealand or its interests”.

Only where the organisation itself poses a threat to New Zealand or its interests


Don’t knowOur comments above about this being the wrong test, wrongly defined apply here.

c) Foreign people

In any circumstances NOWhere the information may assist in identifying threats to New Zealand or its interestsAs above, we are unconvinced that the definition of New Zealand’s interests is sound so we cannot accept this as a whole. The test should be whether there is a risk of a terrorist act, not a test of “a threat to New Zealand or its interests”.

Where the individual is associated with others who are a threat to New Zealand or its interests


Only where the individual personally poses a threat to New Zealand or its interests

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Never

Don’t know

d) Foreign companies and organisations

Our comments on these apply as in the above sections.

In any circumstances NoWhere the information may assist in identifying threats to New Zealand or its interests

Where the organisation is associated with groups that threaten New Zealand or its interests

Only where the organisation is itself a threat to New Zealand or its interests

Don’t know

Only if they are violent. The definition of “foreign” needs to be made clear and limited.

11. How comfortable are you with the GCSB or NZSIS having access to the following types of information, assuming it will assist them to identify threats to New Zealand or its interests?

We do not consider that New Zealand interests etc justify such invasiveness unless there is violence, so we agree with none of those below. This is much more than being “not comfortable”. We oppose these mass surveillance methods. They will stifle public discussion, stifle trust in fellow citizens, stifle freedom of expression and association, lead to a “cure” far worse than the disease.

a) The time and date of an email, text message or phone call and the parties to it

Comfortable Not comfortable Neutral Don’t know

We oppose these mass surveillance methods.

b) The locations or IP addresses where emails, phone calls or text messages are sent/made or received

Comfortable Not comfortableNeutral Don’t know


c) The content of emails, text messages or phone calls

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August 14, 2015

Comfortable Not acceptable. Not comfortable

Neutral Don’t knowWe oppose these mass surveillance methods.

d) Internet browsing history



e) Social media posts



12. How comfortable are you with private companies such as Facebook and Google collecting your personal data (for example, the websites you visit or products you look at)?


Dislike intensely

13. Are you more comfortable with your personal data being available to private companies or the GCSB?

More comfortable with private companiesMore comfortable with the GCSBComfortable with bothNot comfortable with either Oppose bothDon’t know

In the case of the GCSB, this is available for abuse of power by those in government with coercive powers, and so is worse.

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Questions about topics in the terms of reference

Legislative frameworks of the intelligence and security agencies

13. Do you think the functions and powers the GCSB and NZSIS have under their governing legislation strike the right balance between allowing the agencies to effectively protect New Zealand’s interests and ensuring people’s rights are respected?

YesNoDon’t know

Please describe what you see as the strengths and weaknesses with the current system in terms of striking this balance, and how you would suggest any weaknesses could be addressed.

14. Do you think the legislation contains adequate checks and balances on how the agencies exercise their powers and functions?

YesNo √Don’t know

If you answered no, what other checks and balances do you think should be in place?See our comments above on the relevant sectionof the ToR, Section A.3.3.2 of this submissionand Section A.3.3.4 and A.3.3.7

No. See our comments in our section A.3.3.1 and A.3.3.4

These agencies have powers that override our rights, severely chill civil society, destroy privacy and are designed to protect economic interests narrowly defined. They should be confined to protection of NZ and NZers from terrorist acts only.

The misuse of their powers has already been demonstrated. The lack of control has been partly addressed but at the same time their powers of intrusion have widened.

They have acted for destructive partisan purposes and have destroyed trust in these agencies. It is clear that governments will continue to abuse such powers.

The definition of “foreign” is totally opaque. Foreign organisations with peaceful purposes, such as Amnesty International, Greenpeace, Oxfam etc, should be exempt from these provisions.

For solutions, see our responses on the relevant ToR.

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The government should ratify and implement the Aarhus Convention, limit the definitions of NZ interests and of security, require greater involvement by a bigger range of Parliamentary leaders in the appointment of senior officials in these agencies. Remove section b of the definition of private communication.

Covert agencies, like the Police, should have a separation of the policy role from the operational role. Ministers should have no role on the operations.

15. Do you think the legislation has kept up with changes in technology and the nature of national security risks?

Yes MostlyNoDon’t know

It is clear that technological change is being used as an excuse to become more intrusive.

ISIS is vile but that is not an excuse for mass surveillance or the erosion of privacy, human rights, and the freedom of association and expression of views.

If you answered no, please explain why and whether there any amendments you would suggest to respond to these changes.

See our suggestions above

16. Do you have any other comments about the legislative frameworks the GCSB and NZSIS operate within?

As above in 16: “Legislative frameworks” is an opaque term, the more so when there are other laws not referred to that have a bearing on the definitions and permitted activities.

Relevant also are the policies which are driving these, such as the Five Eyes coalition, the engagement in Afghanistan, the disdain of human rights by this government, the willingness to short cut due process and to dodge democratic rules, norms and due process.

Seen in the context of these abuses and disregard, coupled with the willingness to favour economic interests, political friends and disreputable bloggers over decent, due process, such loose provisions and definitions are a major risk to New Zealand civil society and freedoms.

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We consider that the task of cyber security could be cut off as a separate agency under the same sort of arrangement as the Police. Similarly, most of the SIS role in relation to Terrorist Act is probably best covered by the Police, and subject to policy control and accountability but not to operational direction by Ministers.

A number of definitions including that of “security” need to be changed, to eliminate the references to “economic interests”, to restrict the covert agencies to the control of “terrorist acts” and to insert protections for civil liberties.

2.b) No, we do not consider that the safeguards are sufficient.

i) we consider that the definitions need tightening up to limit the reasons for the actions of the agencies to security from terrorist acts and cyber attacks, not to “interests”. Hence we recommend the deletion of the reference to New Zealand’s interests and to economic well being. We recognise that Ministers and others who regard economic goals (by which they usually mean market values) are the only ones that matter will be resistant to this, but we think it is too contested, and too conflicted to be a sound basis for covert activity.

ii) The senior appointments under the Acts should have to include the agreement of the Minister and at least two Opposition political parties

iii) The Committee should have the Minister and the leaders of two Opposition parties on it.

iv) The operations of the covert agencies should not be directed by or interfered with by the Minister.

iii) Section 4.1.iii of the SIS Act which permits the Director of the SIS to notify anyone whom that director considers should be informed, should have a specific requirement that a record of such notifications and who was notified be kept and provided to both the Minister and the leaders of the other parties, so that such notifications can be overseen.

Oversight of the intelligence and security agencies

17. Do you think the current oversight arrangements are sufficient to ensure that the GCSB and NZSIS operate within the law and act appropriately?

YesNoDon’t know

If you answered no, please explain why.

See our comments in earlier sections in relation to the ToR, in our section A.3.3.2b.

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18. Do you think the current oversight arrangements give members of the public confidence that the activities of the GCSB and NZSIS are adequately scrutinised?

YesNoDon’t know

If you answered no, please explain why.

19. Are there any improvements you think could be made to the oversight arrangements?

Please explain how any suggested improvements would help ensure the agencies act lawfully and/or ensure members of the public can have confidence in them.

Countering Foreign Terrorist Fighters Legislation

20. Do you think some or all of the current provisions should continue in their present form beyond 31 March 2017?

YesNoDon’t know

The evidence is of misuse and abuse of powers. The Minister has operational control; incentives to misuse the powers; the ability to do so; a toothless committee, and a remit that allows mass surveillance.

There is no obligation of disclosure to the committee, only requirements to consult, not to disclose.

Separate policy control from operational control, Allow the Committee to require disclosure of information;Remove the protection from liability of employees and agents;Remove powers of mass surveillance;Follow our recommendations in A.3.3.2b.Protect organisations and individuals;At the very least remove s b of the definition of private communication;Remove the “two or more” people limit from the definition in section a of the definition of private communication;Improve definitions such as that of “foreign”

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If yes, which provisions?

Why do you think the provisions should continue (or not)?

21. Do you think some or all of the current provisions should be continued beyond 31 March 2017 but in a modified form?

YesNoDon’t know

If yes, which provisions? What changes would you recommend?

Definition of “private communication” in the GCSB Act 2003

22. What type of information do you think should be covered by the definition of “private communication” (and therefore protected under section 14)? For example, should only the content of communications be protected, or metadata (eg, the date and time of an email) as well?

Because they are counterproductive and will further alienate people, and because they violate human rights.

Section a) of the definition should also include individuals’ private recordings, writing, research, diaries etc.

Section b) of the definition of private communication should be removed.

Content, parties involved, metadata should all be protected by private communication.

Protection of organisations with non-violent intent should also be covered.

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23. Do you have any other comments about the definition of “private communication” (for example, any problems with the current definition or suggestions for improvement)?

If you have any other comments to make, please do so below.

Conclusion

Thank you for the opportunity to submit on this matter which is of great importance to the nature of NZ Society and to civil society.

We know there is a fair amount of repetition in this submission, but that is because we wanted to address the ToR specifically, and because we did not know how the submissions would be analysed.

We did not use your ranking or grading system because we felt the need to discuss the issues.

We look forward to your report, and also to consideration of our submissions on the accessibility of the documents and operability of the web site.

We note that the independent reviewers will provide their report to the Intelligence and Security Committee of Parliament by 29 February 2016. Following this, the report will be tabled in Parliament and the government will consider its response.

As in our awnser to Q 22 and in discussion earlier:

Section b of the definition of private communication should be removed.

section a) of the definition should also include individuals’ private recordings, writing, research, diaries etc.

Protection of organisations with non-violent commitment should also be covered.

It would have been much more effective if :a) relevant definitions and sections of the Acts were provided directly in the

document and in links;b) It is unclear from the paper whether submissions are open to

organisations as well as individuals. We think individuals and organisations should be able to make submissions.

c) The views here are presented for ECO but also align with the views of the lead author, Catherine Wallace, but have had input from other members of the ECO executive committee.

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Documents

7Objective of Bureau - Environment and Conservation ... and S… · Web viewIt would be helpful if we could easily download and annotate a word ... such as the debate about the