Intelligence and Security Bill: Submission by ECO

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 Tel: 04 385 7545

Committee Secretariat Foreign Affairs, Defence and Trade Parliament Buildings Wellington

6 October 2016

A Introduction to ECO

The Environment and Conservation Organisations of NZ (ECO) is the national alliance of about 50 groups with a concern for the environment and conservation. Not all are environmental organisations but many are.

ECO wishes to be heard in support of this submission. Please contact ECO’s Executive officer on 04- 385-7545 and [email protected] for further information.

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 an active interest in environmental law and management, and in conservation, the roles and responsibilities of government, and freedoms of speech and association.

ECO has policies on due process, the operating environment for civil society and an Open Society and to this end, worked for open government, the OIA, and we have sought policies and practices of public agencies and governments to protect the freedoms of civil society and civil rights. We made submissions on a series of security and intelligence law in the past. This submission has been prepared by members of ECO Executive and is in line with ECO Policy.

This submission has been prepared by members of the ECO Executive Committee on the basis of our policies, Executive Committee discussion, and it is authoured

1 by our subcommittee on Open government and Democracy . This submission is in line with ECO Policy that has been developed in consultation with ECO member bodies and endorsed by our AGMs. The Bill ECO welcomes some aspects of this Bill and is grateful for the work of the Independent Review. We are pleased to see some improved oversight, and greater clarity of powers.

1 We disagree with the extension of powers of spying on New Zealanders and civil society.

3 Privacy is a human right and is inadequately protected, and it applies to all, not just to New Zealanders.

4 The functions of civil society will be damaged by a range of other provisions in this Bill. The losses of freedom and trust in each other that will result from the provisions for fake identities, organisations and histories is obnoxious. These provisions will severely erode trust between individuals and organisations in New Zealand. That is too high a price to pay for the sought-after benefits to the security services and their efforts. We urge that these provisions be withdrawn.

5 The provisions of the Bill that exempt the Security agencies from compliance with New Zealand laws are also unacceptable and will further and dangerously erode trust in government. The legislation goes way beyond issues that were canvassed in the Review. Legalising activities, which were, for very good reason illegal is to compound injustice and to create a series of moral dilemmas.

6 Rights of impersonation by state actors are exceptionally damaging. There can be fewer ways of creating a climate of distrust and fear across society than this. It becomes very problematic when such people are presumably permitted to use all of the other aspects of state provision, - the tax system, the benefits system, driver’s licencing and so on from their assumed persona in order to maintain a credible front and opens the opportunity for misuse of these services.

We have met people who are still, years later, deeply psychologically scarred by police impersonators who formed relationships with dissidents in the environment movement. One woman who lived with someone who turned out to be a Police agent, and had a trusting relationship (she thought) with him, and had a child with him, remains deeply damaged by the experience. This practice of impersonation is breathtakingly awful and smacks of the Stazi, not 21st Century New Zealand. We entirely reject these provisions and plead with members of the committee and with political parties not to allow impersonations, no matter that they could be a convenient means to the end of security.

2 7 The definition of national security and purpose of the Bill both need significant changes. Neither should be accepted without amendment.

The measures for national security should be constrained by the need to maintain and free and open democratic society, they should not be styled as a means to such.

Protest and opinion and advocacy for environmental protection at the cost of short term economic gains while huge and irreversible environmental harms are being caused can be caught within the rubric of harming “New Zealand’s economic wellbeing”.

Retaining the right to regard impacting on New Zealand’s economic well being as within the ambit of the legislation and definition is to put everyone’s civil rights in danger – including people who object to the damage to people and the environment by particular industries, and also, potentially, people in competing industries. It is a wrong criterion for determining what lies within and without the legislation. It would put creators of synthetic milk, those who expose poor environmental practice and opponents of genetic modification within the scope of the security definition.

8 The selection processes for appointments are too limited and need to be jointly agreed by several senior Parliamentarians, not simply the Prime Minister.

9 Where other legislation has named other activism as terrorism, these provisions open up legitimate protest for anti-terrorism measures. The changes to the EEZ& Continental Shelf Act that prohibit protests at sea within a range of drilling ships, and the Maritime Safety Act amendments, mean that peaceful protest can be treated as terrorism.

10 The decision to retain the provisions that allow for head of foreign owned entities to be regarded as agents of a foreign power is unreasonable. The comment has been made that this would apply to the head of Greenpeace but it would presumably apply to the NZ head of Deutcshe Bank, Microsoft or Toyota.

11 Given that it appears to be in the nature of the security services to push the boundaries on what is legal and beyond, it seems particularly foolish to simply legalise previously illegal activities without due consideration of the wider impacts on New Zealand’s democracy and reputation. For example if it is true that Tim Groser’s fellow candidates for head of he World Trade Organisation were spied on, and indeed if the New Zealand security agencies were not acting under instruction, as was alleged by the then Minister, this is a dangerous departure as well as one that runs quite counter to New Zealand’s diplomatic interests when it was revealed in a

3 leak.

12 In the US, the impact of the Snowden revelations has been for that government to make clear some of the inclusions and exclusions in the spying apparatus to ensure that a viable platform of civil liberties is maintained. This legislation does not allow for that to take place in New Zealand.

13 Section 100 et seq allows for any personal or private information to be sought from any agency public or private on request of the director. This power appears to stand outside the warrantable conditions. Instead they specify only that they are required for the work of the security services. This is quite clearly an extreme measure could be an open invitation to corruption and unaccountable performance.

14 ECO opposes the measures in the Bill that would impose heavy criminal penalties on those who leak Sensitive or classified material.

Clause by Clause commentary and proposed amendments

In this submission, red text in bold represents our proposed insertions of text, and that text that we suggest should be deleted is show in strikethrough thus.

Some of the changes that we suggest include:

3 Purpose

The purpose of this Act is to protect New Zealand as a free, open, and democratic society and only as consistent with this goal to by—

. (a) establishing intelligence and security agencies that will effectively contribute to —

. (i) the protection of New Zealand’s national security; and

. (ii) the international relations and well-being of New Zealand; and

. (iii) the economic well-being of New Zealand; and

. (b) giveing the intelligence and security agencies adequate and appropriate functions, powers, and duties to the extent that these are consistent with maintaining New Zealand as a free, open and democratic society ; and

4 ensuring that the functions of the intelligence and security agencies and those who assist them are performed—

. (i) in accordance with New Zealand law and all human rights obligations recognised by New Zealand law; and

. (ii) with integrity and professionalism; and

. (iii) in a manner that facilitates effective democratic oversight; and

. (vi) is non partisan; and

. (v) their activities do not engender distrust within New Zealand society including within civil society.

e) ensuring that the powers of the intelligence and security agencies are subject to institutional oversight and appropriate safeguards.

Commentary and Reasons: Maintaining New Zealand as a free, open and democratic society should be the Purpose of the law, and that this must be the test by which the actions and functions must be judged. Privacy and Human Rights should also be protected.

We know that the right to privacy is not fully protected in New Zealand law, but in our view these rights should be and Human Rights are a matter of international law and New Zealand should not omit them from domestic law.

The rights of civil society have been affirmed in a variety of agreements which New Zealand has signed and ratified, so in our view these rights too should be included in this law. The Open Government Partnership is a case in point.

4 Interpretation: ECO would like to see some changes to some of the definitions and interpretations.

Consistent with our position above, too, we consider that Human Rights apply to all natural persons and that nationality should not be a test as to whether people are spied on or not.

foreign organisation means—

. (a) a Government of any jurisdiction other than New Zealand:

. (b) an entity controlled by the Government of any jurisdiction other than New

5 Zealand:

. (c) a body corporate that is incorporated outside New Zealand, or any com-pany within the meaning of the Companies Act 1993 that is, for the purposes of the Companies Act 1993, a subsidiary of any body corporate incorporated outside New Zealand but does not include any civil society organization with peaceful purposes.

. (d) an unincorporated body of persons—

. (i) that is not a body 50% or more of whose members are New Zea- land citizens or permanent residents of New Zealand; and

. (ii) that carries on activities wholly or in part outside New Zealand:

. but does not include any civil society organisations with peaceful purposes.

. (e) an international organization with violent intent or the intent to cause harm to New Zealanders or to National Security.

foreign person means a person who is not—

. (a) a New Zealand citizen; or

. (b) a permanent resident of New Zealand

We request that mirroring changes be made to the definition of a New Zealand person, and that in particular, that the exclusions from the definition of New Zealand person in b) be revised.

We do not accept for instance, that our colleagues who work for environmental organisations such as Pew, Greenpeace or WWF should be the object of surveillance.

5 Meaning of national security

In this Act, national security means the protection against—

(a) threats, or potential threats, to New Zealand’s status as a free and democratic society from unlawful acts or foreign interference:

(b) imminent threats to the life and safety of New Zealanders overseas:

6 (c) threats, or potential threats, that may cause serious harm to the safety or quality of life of the New Zealand population:

(d) unlawful acts, or acts of foreign interference, that may cause serious damage to New Zealand’s environment and the health of its inhabitants economic security or international relations:

(e) threats, or potential threats, to the integrity of information or infrastructure of critical importance to New Zealand:

(f) threats, or potential threats, that may cause serious harm to the safety ofa population of another country as a result of unlawful acts by a New Zealander that are ideologically, religiously, or politically motivated:

(g) threats, or potential threats, to international security.

Rationale: In our view, health and the environment are more important than economic security and international relations.

As discussed in our key points section, too many things that could come into the latter two are really a matter of which interests and time frames you have in mind. We acknowledge the harm done by the businessman who threatened Fonterra in regard to 1080, but that blackmail is already a crime, so there is no need to use these intelligence agencies for the purpose of dealing with such crimes.

Similarly, those of us who disagreed with nuclear weapons and ships, or with refusing to allow the Chinese or American authorities to hear criticisms of their human rights records, could be regarded as suspect under this definition. The reference to “economic wellbeing” is unacceptable, particularly because this is a matter of opinion in the sense that what makes New Zealand “rich” in the short run may very well be at the expense of the future. We reject this as a basis of surveillance or other intelligence and security agency activity.

The economic wellbeing/ economic security section of the Purpose and the definitions, makes people and organisations of certain kinds, including those who are members of organisations such as Greenpeace, AVAAZ, the Antarctic and Southern Ocean Coalition, with global membership, who disagree with some forms of economic activity, open to the activities of the security and intelligence agencies. Those with foreign counterparts within the organization are also caught simply by virtue of membership not action or intent. This is contrary to a free and open society.

It is not reasonable that some people’s or company’s pursuit of economic

7 activity should be the basis for action by the security and intelligence agenceis Private pursuit of economic activity will often be to the detriment of other aspects of well being and/or to long term ecosystem, environmental or social health and hence longer term resilience of the economy.

6 Meaning of sensitive information

The Bill contains this definition of “sensitive information”:

. (1) In this Act, unless the context otherwise requires, sensitive information means information of a kind specified in subsection (2) that, if disclosed, would be likely to -

. (a) prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or

. (b) prejudice the entrusting of information to the Government of New Zea- land on a basis of confidence by—

1 (i) the Government of any other country or any agency of such a Government; or

2 (ii) any international organisation; or

. (c) prejudice the maintenance of the law, including the prevention, investigation, and detection of offences and the right to a fair trial; or

. (d) endanger the safety of any person.

. (2) The kinds of information are as follows:

. (a) information that might lead to the identification of, or provide details of,—

1 (i) sources of information available to an intelligence and security agency; or

2 (ii) other assistance or operational methods available to an intelligence and security agency; and

. (b) information about particular operations that have been undertaken, or are being or are proposed to be undertaken, in carrying out of any of the functions of an intelligence and security agency; and

. (c) information that has been provided to an intelligence and security agency by

8 another department or agency of the Government of New Zealandand is information that cannot be disclosed by the intelligence and security agency without the consent of the department or agency of the Government of New Zealand by which that information has been provided; and

. (d) information that has been provided to an intelligence and security agency by the Government of any other country or by an agency of such a Government and is information that cannot be disclosed by the intelligence and security agency without the consent of the Government or agency by which that information has been provided.

Comment: In general we welcome the provision of clarity as to what is meant by sensitive information, but as with other definitions, we consider that this goes too far.

We disagree with the scope of the definition of the security of New Zealand and we also disagree that the international relations of the government of New Zealand are sacrosanct and deserve absolute protection. Graft , subsidies to Saudi Princes, dubious trade deals, fishing industry lobbying for access to fish, deals done to support violations of international laws, and other such should not be shielded from exposure or those who disclose them open to the attentions of the covert agencies.

We consider that there is also a massive double standard here in that the Bill itself exempts the security agencies from compliance with much of the law, yet here is a definition that holds that disclosure of information that conflicts with the maintenance of the law is grounds for action. The double standard is glaring and unacceptable.

11 Objectives of intelligence and security agencies

The Bill contains the following text which we have edited to show how we think it should be amended. Our reasons are canvassed in the text above.

11 Objectives of intelligence and security agencies

The principal objectives of the intelligence and security agencies are to contribute to —

. (a) the protection of New Zealand’s national security; and

. (b) the international relations and well-being of New Zealand; and

9 . (c) the economic well-being of New Zealand.

Comment:  We consider that the definition of national security should be limited in scope as discussed above.  We would like to see some limits on the scope of the protection of the protection of international relations.  Subsection( c ) is redundant in the light of (b) but is also unwarranted. If any specifics are to be included, then we consider these should be “New Zealand’s environment and the health of New Zealanders”.

12 Principles underpinning performance of functions

. (1) When performing its functions, an intelligence and security agency must act— (a) in accordance with New Zealand law and all human rights obligations recognised by New Zealand law;

. and (b) in the performance of its operational functions, independently and impartially;

. and (c) with integrity and professionalism;

. and (d) in a manner that facilitates effective democratic oversight.

. (e) in a politically non-partisan way.

. (2) Subsection (1) does not impose particular duties on, or give particular powers to, —

. (a) an intelligence and security agency; or

. (b) the Director-General of an intelligence and security agency; or

. (c) an employee of an intelligence and security agency.

. (3) Despite subsection (2)(b), the Director-General of an intelligence and security agency must ensure take all reasonable steps to ensure that any co-operation with foreign jurisdictions and international organisations in the performance of any function is consistent with subsection (1)(a).

Rationale:

10 The New Zealand law does not include a right to privacy but that is a human right and should, like all human rights, be observed, hence our deletion of the phrase in the chapeau of 1.

13 Intelligence collection and analysis

. (1) It is a function of an intelligence and security agency to—

. (a) collect and analyse intelligence in accordance with the Government’s priorities of the Intelligence and Security Committee; and

. (b) provide any intelligence collected and any analysis of that intelligence to1 or more of the following:

1 (i) the Minister and to the leader of the Opposition:

2 (ii) the chief executive of the Department of the Prime Minister and Cabinet:

3 (iii) any person or class of persons (whether in New Zealand or over-seas) authorised by the Minister in accordance with subsection 30 (3) to receive the intelligence.

. (2) In performing the function referred to in subsection (1)(a), an intelligence and security agency may co-operate with, and provide advice and assistance to,—

. (a) any public authority (whether in New Zealand or overseas); and

. (b) any other entity authorised by the Minister for the purposes of this subsection

. (3) Before authorising, under subsection (1)(b)(iii), the provision of intelligence to any overseas person or class of persons, the Minister must be satisfied that the intelligence and security agency will be acting in accordance with section 12(1)(a) when providing that intelligence.

. (4) In this section, Minister means the Minister responsible for the intelligence and security agency.

Rationale for our proposed edits:

Working to the priorities of the I & S Committee and reporting to the Leader of the Opposition will both protect against the covert agencies being misused. Just as our

11 international relations are supposed to be non-partisan, so too should protection of national security – with the more limited definition that we propose.

We do not agree that foreign organisations should receive New Zealand intelligence – though if there leaders of the three biggest parties in Parliament were to agree, then we would have somewhat less objection to this.

Clause 17 – We regard these provisions and restrictions as reasonable and welcome the clarity that this and some of the following clauses provide.

Clauses 21, 22, re political neutrality and political protest rights ECO welcomes these important protections, but we consider this should also apply to organisations.

Clause 23 We welcome the obligation of the D-G of intelligence to consult with the Leader of the Opposition, but we consider that the D-G should report to the Intelligence and Security Committee which should be a multi-party committee.

That Committee should not be chaired by the Minister of the agencies involved.

Part 3 – subpart 1.Assumed identities; subpart 2 Corporate entitites. For the reasons of undermining trust in government and within society, we oppose the provisions of Subpart 1 of Part 3 and ask that these be withdrawn. That includes s 31 about non-compliance with law and also the section on providing corporate entities with fake credentials and their non-compliance with law

********************************* ECO has further comments and clause by clause analysis and will endeavour to provide these as supplementary submissions at or before the time of the oral hearings.

We urge that this Bill be revised to ensure that privacy, trust in society, and peaceful liberties not be impinged upon in the way that this Bill would. As Parliamentarians we ask you to protect civil society and individuals in this regard and not to use threats of terrorism and “shroud waving” as an excuse for such a large degree of restrictions on liberty and freedom of organization, protest and dissent and the imposition of primacy of economic goals.