Top Scoops

Book Reviews | Gordon Campbell | Scoop News | Wellington Scoop | Community Scoop | Search


Gordon Campbell on the dangers of the security review

Gordon Campbell on the dangers posed by the upcoming security services review

Could the June review of New Zealand’s security and intelligence be about to bestow on our spy agencies the express right to break the laws of other countries, if the SIS/GCSB feel inclined to do so? That’s possible, given that the Law Commission’s Geoff Mclay told RNZ yesterday that New Zealand’s legal position on security issues has fallen behind its 5 Eyes partners – at least one of whom seems very, very keen to go down that road. In the coming months, the Law Commission will be conducting its own review of how secret documents are handled in court cases, and will be timing its work on this subject to “ coalesce” with the government’s wider review of the powers of security agencies. As Mclay told RNZ yesterday:

“There have been similar reviews in the jurisdictions which we normally deal with : Australia, Canada, the United Kingdom. Our law is a little bit out of line with where those countries have got to…”

Right. Frankly, Canada would be a really dodgy model for either the Law Commission or the Key government to try and emulate. Last October, the Canadian government tabled the C- 51 “Protection of Canada from Terrorists Act”.

If passed into law – and in February, the leading Opposition party agreed to back it - this draconian bill will, among other things:

• Extend complete confidentiality to CSIS sources, informants or covert agents, creating a “class privilege” for their identity and forestalling most legal challenges to the use of their evidence in court.

• Explicitly confirm the legal authority of CSIS to conduct investigations within or outside Canada, something CSIS has claimed it has but which has been questioned in light of recent court rulings.

• Broaden the explicit authorization for CSIS to seek and use Federal Court warrants to authorize investigative activities — including electronic intercepts and other covert surveillance activities — outside Canada “without regard to any other law, including that of any foreign state.”

“What a federal court judge is now authorized to do,” says University of Ottawa law professor Craig Forcese, “is authorize a warrant . . . to engage in surveillance in a foreign country that presumably violates that foreign country’s privacy laws. So the Parliament of Canada is now saying, ‘We are prepared to allow our security intelligence service to violate state sovereignty.’ ” (Forcese is an expert in this field and was the co-author of a major review of how special advocates operate in security cases in Canada, Australia and New Zealand.)

Yet apparently, according to the Law Commission, this exercise in Canada is one of the precedents that’s driving its own review of how secret evidence is to be treated in court here in future – despite the fact that Canada is doing so by giving blanket anonymity to security service informants, thereby rendering their evidence virtually immune to legal challenge via cross examination by defence counsel, special advocates, or judges.

Instead of the usual reactive role in intercepting and frustrating existing threats to national security, the Canadian draft legislation also envisages a new, pro-active and “disruptive” role for the security services. This has obvious civil liberties implications:

Under Bill C-51, the Canadian Security and Intelligence Service (CSIS), the country’s premier spy agency, is to be empowered to use illegal means to “disrupt” purported threats to Canada’s national security, a major shift from its current role as an intelligence-gathering agency. “Disruption” techniques could include breaking into homes, interfering with bank accounts and other personal data, and intercepting mail and other packages.

If we look closely at the Canadian draft legislation it is possible to make a reasoned guess at the overall thrust of our review. The Canadian legislation expressly allows Canada’s equivalent of the SIS – the CSIS – to enlist the technical support of CSEC (its equivalent of the GCSB) and its counterparts among the 5 Eyes partners, to spy on its own nationals or foreigners abroad. To that extent, the Canadian legislation will help to create a virtual free trade zone in security intelligence data gathering and information sharing, and will deliberately place that zone beyond the meaningful oversight of either the courts or of sovereign Parliaments. The CSEC/GCSB may already have an informal mandate to lend technical and operational support to CSIS/SIS, but the review process being carried out in both countries will ratify the scope of its outreach.

To repeat : these processes are being put in place without (a) any moves to bring the operations of the security agencies under any meaningful, ongoing Parliamentary oversight and (b) with the apparent collusion of the establishment Opposition parties. Over the past week, we have seen Labour ensure the exclusion of the Greens from the committee that will supposedly monitoring the government review. Similarly in Canada, the Liberals have acquiesced to the legislation.

Thankfully the New Democratic Party signalled yesterday that it will oppose it.

Back in New Zealand, the Law Commission will be rushing – “We’re on a bit of a tight time frame” – Mclay told RNZ - to put out an “issues” draft paper in May for public comment, and then expects to “coalesce” with the wider government review in time to deliver its findings by October. Just what we want from our independent Law Commission. A rushed job, driven by political imperatives.

Watching Me, Watching You, Uh-Huh

Fifteen years ago, well before we realised the security services had become a virtual law unto themselves, Jill Scott released a niftily paranoid track called “Watching Me….”

Yet when it comes down to naming and shaming The Man who has his android eyes on us all, you can’t beat the likes of Judas Priest

© Scoop Media

Top Scoops Headlines


Dunne Speaks: Can ACT's Dream Run Continue?

By most reckonings the ACT Party has had a very successful political year. Not only has its expanded Parliamentary team settled in well to its work, without controversy or scandal, but its leader has gained in community respect, and the party’s support, at least according to the public opinion polls, has increased sharply... More>>

Keith Rankin: Basic Universal Income And Economic Rights
"Broad growth is only going to come when you put money in the hands of people, and that's why we talk about a Universal Basic Income". [Ritu Dewan, Indian Society of Labour Economics]. (From How long before India's economy recovers, 'Context India', Al Jazeera, 31 Oct 2021.) India may be to the 'Revolution of the twenty-first century' that Russia was to the 'Revolution of the twentieth century'... More>>

Binoy Kampmark: Foreseeable Risk: Omicron Makes Its Viral Debut
It has been written about more times than any care to remember. Pliny the Elder, that old cheek, told us that Africa always tended to bring forth something new: Semper aliquid novi Africam adferre. The suggestion was directed to hybrid animals, but in the weird pandemic wonderland that is COVID-19, all continents now find themselves bringing forth their types, making their contributions. It just so happens that it’s southern Africa’s turn... More>>

Gasbagging In Glasgow: COP26 And Phasing Down Coal

Words can provide sharp traps, fettering language and caging definitions. They can also speak to freedom of action and permissiveness. At COP26, that permissiveness was all the more present in the haggling ahead of what would become the Glasgow Climate Pact... More>>

Globetrotter: Why Julian Assange’s Inhumane Prosecution Imperils Justice For Us All

When I first saw Julian Assange in Belmarsh prison, in 2019, shortly after he had been dragged from his refuge in the Ecuadorean embassy, he said, “I think I am losing my mind.”
He was gaunt and emaciated, his eyes hollow and the thinness of his arms was emphasized by a yellow identifying cloth tied around his left arm... More>>

Dunne Speaks: Labour's High Water Mark
If I were still a member of the Labour Party I would be feeling a little concerned after this week’s Colmar Brunton public opinion poll. Not because the poll suggested Labour is going to lose office any time soon – it did not – nor because it showed other parties doing better – they are not... More>>