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John Minto: Dark Shadow Of The State Creeps On...

The dark shadow of the state creeps on...

Column - By John Minto.

In a blog earlier this week I said I'd give more details of the laws passed since 2001 which extend state power over New Zealanders' lives and threaten our civil liberties. I prepared the summary below at the time of the 2007 Urewera raids and the police boasting they had uncovered a "terrorist plot" (see previous blog) It was the first attempt by state agencies to use and justify their new powers and vastly increased resources.

Some of the law changes related to UN obligations but for the most part our state agencies, the police and SIS in particular, have used the so-called "war on terror" as a cover to extend their powers and resources. The focus of their attention has been New Zealand political activists.

2002 Terrorism Suppression Act

    · Originally introduced into Parliament as the Terrorism (Bombing and Financing) Bill in April 2001 (pre 9/11) but subsequently changed through a supplementary order paper.

    · Criminalises a number of acts relating to terrorism

    · Facilitates designation of individuals as terrorists

    · Additional obligations and powers to SIS, GCSB, and police

    · Surveillance obligations on banks, financial institutions and lawyers

2003 Government Communications Security Bureau Act

    · GCSB finally placed on a statutory basis after existing in limbo since the mid 1950s (founded under different name) (GCSB's primary role is the collection of foreign signals intelligence through the Waihopai satellite spybase in Marlborough and the Tangimoana base near Palmerston North. Information is fed directly to the National Security Agency in the US)

    · GCSB's key functions are all, more or less, associated directly with surveillance - that is, deciphering, translating, examining and analysing foreign communications - given broad powers to spy on foreigners (ie, 'foreign communications' emanating from a 'foreign organisation')

    · Not permitted to spy on NZers. However able to intercept the communications of international organisations in which New Zealanders may be involved.

    · GSCB subject to oversight by both the Inspector-General of Intelligence and Security, and Parliament's Intelligence and Security Committee

2003 Telecommunications (Interception Capability) Act

    · Makes all telecommunications (personal or otherwise) capable of interception by state surveillance agencies (Police, GCSB and SIS)

    · New obligations placed on telecommunications companies, internet service providers and phone companies to ensure their services and networks (phone, email, fax) have interception capabilities

2003 Crimes Amendment Act

    · Originally introduced into Parliament as the Crimes Amendment Bill (No6) 1999 - with proposed changes being largely non-controversial. (pre 9/11) However, in November 2000, Supplementary Order Paper No 85 to the bill was introduced - and dubbed the "cyber snooping bill"

    · Significantly increases state surveillance powers, by exempting major state agencies from the new 'computer hacking' provisions in the 1999 Bill

    · The bill supposedly 'strengthened privacy protection' (eg by creating new computer hacking offences) but now exempted the police, the SIS, and the GCSB) although provided supposed "safeguards" requiring specific authorisation

    · New law does strengthen the level of privacy protection in some areas (eg, the unauthorised interception of communications by third parties now applies to any form of 'interception device', not just 'listening devices')

2003 Counter-Terrorism Act

Enacted as amendments to the Crimes Act; the Summary Proceedings Act; the NZSIS Act among others.

Does three things -

    (1) Dramatically expands police powers to 'lawfully intercept' private communications where terrorist offences are suspected

    (2) Greatly extends the 'lawful use' of tracking devices (which formerly had been limited to serious drug offences)

    (3) Creates a legal duty on individuals to assist the police (when they have a warrant) to access computer data

2003 Border Security Act

    · Enacted as amendments to the Customs & Excise Act and the Immigration Act

    · Intended to 'enhance border security' provides for sophisticated pre-boarding checks on anyone intending to travel to NZ

    · Law also intended to 'reduce identity fraud', an increasingly serious problem

2004 Telecommunications (Interception Capability) Act

    · Makes telecommunications capable of interception by State surveillance agencies (police, SIS and GCSB)

    · New obligations are placed on TELCOs; internet service providers (ISPs) and phone companies who must ensure that their services and networks have interception capabilities

2004 Maritime Security Act

    · Establishes a framework that 'will reduce the risk of security incidents affecting merchant ships or port facilities'

    · Law also enables NZ to fulfil its obligations under a post-'9/11' international agreement for maritime security -detection of alleged 'security incidents' involves greater surveillance (eg, of "Greenpeace' vessels involved in protest action)

2004 Identity (Citizenship and Travel Documents) Act

    · Enacted as amendments to the Citizenship Act and the Passports Act. Government claimed it was needed to have appropriate legislation to implement international Conventions relating to suppression of terrorism and people smuggling

    · New powers given to Minister of Immigration to cancel a passport, or other official travel document, on national security grounds

    · This could be done on the basis of classified information (eg, from foreign and domestic intelligence sources)

    · People appealing against a cancellation are denied access to this information. They would be limited to a summary only, which did not disclose sensitive information. (These were the procedures which were so abused during the legal challenges mounted by detained Algerian refugee, Ahmed Zaoui)

2006 Aviation Security Amendment Act

    · Provides aviation security officers with the power to search for and seize items prohibited or restricted from being taken on aircraft;

    · Enables the screening and searching of airport workers;

    · Provides a power for aviation security officers to search passengers' outer garments and undertake pat-down searches and requires airlines to deny carriage to passengers who refuse to be searched;

    · Enable foreign in-flight security officers to enter and depart New Zealand and enable New Zealand to deploy in-flight security officers, should the Government decide to do so in the future

    · Provide a general regulation making power to ensure that the law is able to respond to new aviation security matters in a timely fashion.

2007 Terrorism Suppression Amendment Act

This bill provided four major changes -

    (1) The definition of a terrorist was widened to include someone who, for political reasons, causes "serious disruption to an infrastructure facility, if likely to endanger human life."

    Effect: There are many examples of protest activity and civil disobedience from past events such as the 1981 Springbok tour, which could now be classified as terrorist. A better definition would be the UN definition of "criminal acts, including those against civilians, committed with the intent to cause death or serious bodily injury, or taking of hostages, with the purpose to provoke a state of terror in the general public."

    (2) New Zealand now automatically adopts the UN list of terrorists and terrorist organisations.

    (While this list currently is restricted to groups such as Taleban and Al Qaeda this will inevitably expand. It is the US which dominates the compilation of such lists)

    Effect: New Zealanders working to support liberation struggles, democracy and human rights overseas can now be charged with supporting terrorist organisations.

    Under the new law it would have been illegal to provide support for the African National Congress in the fight against apartheid or for campaigns to have Nelson Mandela released from jail. This new law can easily be used against New Zealanders supporting Palestinian groups such as Hamas despite Hamas being democratically elected to power in the occupied territory of Palestine. Previous legislation allowed support and assistance to organisations provided it was "for the purpose of advocating democratic government or the protection of human rights". This safeguard has been removed.

    (3) New Zealand has given up its right to make its own independent assessments of terrorists and terrorist designations.

    Effect: Without the ability to make our own independent assessments we become captive to shonky, prejudiced, politically motivated overseas assessments such as those relating to Ahmed Zaoui. (Previously New Zealand adopted UN designations "in the absence of evidence to the contrary". This safeguard has been removed)

    (4) The courts have been removed from considering designations of terrorist or terrorist organisations. Previously if the Prime Minister designated a terrorist organisation then this was reviewable by the High court after three years.

    Effect: Independent scrutiny of cases is no longer available. The PM is judge and jury. The US wants arrangements such as these because governments are then more open to direct US pressure. All it takes is a phone call from the US embassy to the PM's beehive office.At least with the courts there would be some semblance of independent scrutiny.

This assumption of power by politicians over court processes is demonstrated most clearly by the US with its treatment of Guantanemo Bay detainees and the CIA's "rendition" programme whereby suspected terrorists have been clandestinely transferred around the world for torture. In both cases the courts have been sidelined.

Two further laws are in the pipeline and being considered by parliament now:

2011 Security Intelligence Service Amendment Bill

    · Would increase the agency's ability to spy on New Zealanders.

    · Would allows the SIS to establish an army of informants who are immune from criminal or civil prosecution

    · Would remove removes SIS liability for breaches of an individuals rights such as under the Bill of Rights.

2011 Search and Surveillance Bill

    · Would dramatically extend spy powers to a wide range of state agencies besides the police or SIS. For example it would make a single search and on-going surveillance will become one and the same thing eg installing a video camera in your home for six months would be the same as searching your car once.

    · Would remove the right to silence for people accused of . Police would be able to obtain an "examination order" to force an individual to answer questions or a "production order" to force a person to provide documents. This would apply if police suspect two or more people are involved in planning a crime involving possible imprisonment. This could apply to disorderly behaviour or trespass which are typically part of civil disobedience protest.

    · Would allow a "warrant-less" search whereby police could automatically search your home or vehicle after an arrest.

For an indication of the end point of this process read George Orwell's book 1984.

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