Introduction

1. This submission is from the Auckland Council for Civil Liberties (“ACCL”) and the Human Rights Foundation of Aotearoa New Zealand (“HRF”). Both organisations wish to have the opportunity to appear before the Select Committee, and would like to request that there is an Auckland hearing.

2. The Bill raises both substantive and procedural concerns, but we have also raised points about general policy and the underlying principles of parliamentary procedure. The Executive Summary outlines these and gives paragraph numbers in brackets that refer to the body of the submission.

Executive Summary

3. ACCL and HRF acknowledge and accept the overarching policy reasoning behind the Bill (to try to ensure that there are no preventable risks to national security). We also appreciate the need for domestic legislation to implement obligations to international Conventions relating to the suppression of terrorism and people smuggling (paras 8-11). However, the amendments proposed in the Bill are not confined to the purpose underlying their introduction and require further justification. Also, the Terrorism Suppression Act 2002 and the various Acts amended by the Counter-Terrorism Bill 2002 are acknowledged, even by the Government, to have already brought New Zealand into compliance with all 12 of the international conventions on terrorism [Hon Phil Goff (1 April 2003) NZPD, no 20, 4619]. We therefore question the need for any further legislation of this nature.

4. We have concerns with respect to powers conferred on the Minister, the Police, and specific agencies, and the use of classified information (paras 23-31 and 31-33). Legislative drafting should ensure that a particular provision is tailored to its purpose and is not overly broad. There must be measures to ensure that any powers are not disproportionate to any demonstrable need in a free and democratic society (para. 11). As The Law Commission Final Report on Emergencies noted over a decade ago, “The danger is that States will over-react… [I]t is possible to imagine government officials doing more to destroy democracy in the name of counter-terrorism than is presently likely to be achieved by terrorists themselves” [NZLC R22 Wellington 1991].

5. Omnibus bills are normally to allow the “fast-tracking” of legislation for technical or minor amendments. They should not be used to introduce substantive reforms [Report of the Standing Orders Committee on the Review of Standing Orders, AJHR, 1995].

6. The introduction of a major substantive amendment to the Citizenship Act 1977 via a Supplementary Order Paper is contrary to parliamentary convention [Philip Joseph, Constitutional and Administrative Law, Brookers, 2001]. The amendment dealing with citizenship by birth is only remotely connected to the bill’s purpose; the Minister himself stating that this is an issue separate to matters covered in the bill [www.beehive.govt.nz, 14 June 2004] (paras 13-19). It should be referred to a select committee for full public hearings [Report of the Standing Orders Committee on the Review of Standing Orders, AJHR, 1995, at 56].

7. ACCL and HRF recommend that the Bill is not proceeded with until there has been a review of the security-risk certificate process and the use of classified information. It may be that security legislation reform and a review of the SIS are needed before New Zealand can justify any more ‘national security’ provisions (paras 9, 10, 22, 33-36).

Comments on Policy and Parliamentary Process

8. The Bill’s general policy statement says that the increase in international terrorism and people smuggling has necessitated the review of the legislation. However, UNHCR figures released on 31 August show that the number of people seeking asylum in industrialized countries during the second quarter of 2004 was at its lowest level for 17 years [United Nations High Commissioner for Refugees Briefing Notes, 1 September 2004, UNHCR website]. A similar trend is discernable here. The UNHCR stresses that durable solutions for refugees and stateless persons are central to preventing people smuggling; yet New Zealand has not acceded to either the 1954 Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness.

9. Post “9/11” international pressure and “the war on terror” have asserted a significant influence on New Zealand policy making and legislation. Although measures to control terrorism are essential, so is the need to ensure that legislation is justified, necessary, and impinges to the minimum extent necessary on rights and freedoms. The unique post-9/11 war on terror is an open-ended “war” declared ostensibly on strategies and ideologies. Relevant legislation should be subjected to greater deliberation and restraint than normal if the rule of law is not to be sacrificed in the name of increased security. As UN Secretary-General Kofi Annan stated months after September 11: “We should all be clear that there is no trade-off between effective action against terrorism, and the protection of human rights. On the contrary, I believe that in the long term we shall find that human rights, along with democracy and social justice, are one of the best prophylactics against terrorism.” [UN Counter-Terrorism Committee “Terrorism and Human Rights”, located at www.un.org/Docs/sc/committees/1373/human_rights.html.]

10. Legislation is only one of the mechanisms available to deal effectively with national security issues. Worldwide domestic practices and procedures and government agency activity have been widely criticised since the “9/11” attacks for their methodology and for going far further than the circumstances require. Major reviews are necessary. New Zealand relies very heavily on foreign intelligence sources in its own efforts to combat terrorism. Amendments to the Passport Act continue the trend of increasing the powers of a variety of officials rather than reviewing existing measures. Procedural provisions dealing with national security and classified information are ominously similar to those at the heart of the Zaoui case, which have been criticised by the Committee against Torture [Thirty-second session, 3-12 May 2004] and which even the Prime Minister has acknowledged need to be reviewed [NZPD, Q7, 23 March 2004]. Until we can be sure that information gathered by our intelligence services is sufficient and appropriate, it should not be used as the basis for revoking or cancelling passports.

11. In fact, the number of New Zealand passports being falsified, forged and counterfeited is falling, despite recent high-profile incidents [Dept of Immigration Message Board, 25 June 2004].

Bill of Rights Issues

12. Legal advice to the Attorney-General from the Department of Justice in March 2003 acknowledges prima facie issues of inconsistency with the Bill of Rights Act, but application of S5 appears to do away with the need for a S7 report. However these prima facie issues must be examined since the Bill, as currently drafted, would override protected rights and freedoms (s18(3) The right to leave New Zealand, s22 Liberty of the person, s27 The right to justice). These have to be weighed against any potential threat to national security.

Supplementary Order Paper

13. The Minister has now indicated that he will include amendments to the Bill via a Supplementary Order Paper. One of the amendments will, we understand, ensure that changes to the criteria for citizenship will not apply to people who have already gained residence. A second amendment is apparently intended to stop automatic citizenship being granted to children born here to non-resident parents. Although we are unable to view this amendment and therefore do not have knowledge of its provisions or procedures, we have several concerns about both the subject matter of the SOP, and the circumstances under which it is being introduced.

14. We wonder what aspect of our national security could be so imperative that it demands a new law affecting long-established rights be introduced via a route that does not allow for public input via the select committee process. “Select committees are a crucial bastion of democracy in our legislative process” [J F Burrows and P A Joseph, “Parliamentary law making” [1990] NZLJ 306].

15. It is contrary to parliamentary convention for a Supplementary Order Paper to introduce major new substantive provisions to a Bill – to do so will alter the manner and form of parliamentary enactment [Constitutional and Administrative Law in New Zealand, Philip Joseph, 2001, p326]. ACCL and HRF strongly oppose the use of this device to circumvent legitimate scrutiny and discussion with regard to restricting citizenship by birth. In 1995 the Standing Orders Committee observed that SOPs should be used only with the general agreement of the House and where absolutely necessary or where they are of a technical or drafting nature [Report of the Standing Orders Committee on the Review of Standing Orders, AJHR, 1995]. The Committee recommended that SOPs containing substantive changes to the law should be referred to a select committee for full public hearings. According to the NZ Listener, [April 04 Big Brother is in the House] at least the provision which would remove the automatic right to citizenship of children born in New Zealand was in the Bill when it was considered by Cabinet several months ago. Apparently it was removed prior to introduction only to resurface in an SOP. In the view of both the ACCL and the HRF this amounts to an abuse of the democratic and parliamentary process.

16. Government figures demonstrate that about 1% of the 57,000 babies born in New Zealand each year are born to mothers on short-term visas, enabling the children to have citizenship and all the rights that entails (even though non-resident parents are not entitled to any special status). We have been unable to determine any policy imperatives for removing such a fundamental human right as citizenship, especially when in some cases it might result in statelessness.

Issue of Statelessness

17. The United Nations has repeatedly manifested profound concerns on the issue of statelessness and has called on the Commission on Human Rights to focus specific attention on the problem of disputed citizenship [60th Session of the UN Commission on Human Rights, Geneva, March 2004]. The Universal Declaration of Human Rights states clearly that everyone has the right to a nationality (Article 15), as does the Convention on the Rights of the Child (Article 7).

18. New Zealand has not ratified either the 1954 Convention Relating to the Status of Stateless Persons, or the 1961 Convention on the Reduction of Statelessness. Both of these provide that persons will not arbitrarily be deprived of nationality; that they will be granted nationality under certain circumstances in which they might otherwise be stateless; and that adequate protection will be available to those who, nonetheless, remain or become stateless [Information and Accession Package: 1954 Convention and 1961 Convention, UNHCR, revised January 1999]. New Zealand has, however, ratified the Convention on the Rights of the Child. It is not apparent that the provisions of the Convention were considered in the drafting of the present provisions.

19. New Zealand rightly prides itself on its human rights record – human rights are at the core of our foreign policy and programmes for international development assistance. Both will be undermined by the measures in this Bill that remove or limit fundamental human rights to an extent far greater than any demonstrable need.

Comments on Specific Provisions of the Bill Amendments to the Citizenship Act 1977

20. Clause 8: new s8 Citizenship by Grant This changes the criteria for a grant of citizenship from three years “ordinarily” resident to five years discounting temporary permits, and increases the reduced waiting time for spouses of New Zealand citizens from two to five years.

21. Comments and recommendations This provision prejudices people who arrive legitimately in New Zealand and work towards citizenship, as well as refugees with valid temporary permits but limited access to travel documents. We have been unable to find any justification for this provision in the New Zealand context, and understand that its inclusion is in response to international pressure (the USA and Australia in particular). In his first reading speech, the Minister indicated that the current qualifying period is short by international standards. Are we to lower our human rights standards simply because they are better than the citizens of other nations enjoy? We recommend that the qualifying time remains at three years if time in New Zealand under temporary visas is not included in the qualifying period.

Alternatively, if a five year qualifying period is to be introduced, it should include time spent while on temporary visas. A reduced period for spouses has the benefit of aiding settlement, but if either of the two suggestions above were adopted they would also provide a more realistic waiting time for spouses than the jump to five years (excluding temporary visas) proposed by the Bill.

22. Whether the qualifying period is set at three years or five years, the real challenge is to utilise resources and internal processes and procedures that can pinpoint security risks, and not assume that harsher legislation will do the job. Last year the then Immigration Minister said that the Immigration Service regarded it as “impractical” to track the movement between the various entry permits available to foreigners trying to gain residency, although this is perceived by the Service to be a likely and credible route that terrorists would take [parliamentary question 7094]. We agree with the observation of Professor Paul Buchanan it is time to revamp the methods of operation, training and organisation that govern intelligence gathering in New Zealand [An issue of trust: Notes on the revamping of foreign intelligence-gathering in Aotearoa, Paul G Buchanan, University of Auckland, Conferenz, Public Law Forum 2004, May 2004.]

Part 2 – Amendments to the Passports Act 1992

23. Clause 23: New s4A Refusal to issue passport on grounds of national security The main provisions in this new section are replicated in Clause 27 (new s8A Cancellation of passport on grounds of national security), Clause 31 (new s20A Cancellation of certificate of identity on grounds of national security), Clause 35 (new s25A Cancellation of emergency travel documents on grounds of national security), Clause 27 (new s27B Refusal to issue refugee travel document on grounds of national security and new s27E Cancellation of refugee travel document on grounds of national security)

24. Comments and recommendations The Terrorism Suppression Act 2002, and the various Acts amended by the Counter-Terrorism Bill 2002, were introduced to “close potential gaps that may be exploited by terrorists, and to provide supplementary powers in the form of new terrorism-related offences and penalties, and a range of investigative measures designed to combat terrorism and address miscellaneous problems encountered by agencies in the investigation and enforcement of offences.” [Hon Phil Goff (1 April 2003) NZPD, no 20, 4620.]

25. The Terrorism Suppression Act focussed on establishing a civil process to designate terrorists and criminal offences for supporting them. The Counter-Terrorism Bill broadened criminal penalties and investigative powers that could be applied to terrorist and non-terrorist acts alike. [New Zealand’s Anti-Terrorism Campaign: Balancing civil liberties, national security, and international responsibilities, John E Smith, Ian Axford Fellowship in Public Policy, December 2003.]

26. The amendments in the present Bill bring to mind the recent comments of Dr Rodney Harrison QC about the increase in this sort of legislation:

“…in many instances the legislation or proposed legislation is not aimed at combating terrorism, but at indiscriminately curtailing the freedom of everyone, New Zealand citizens included. What we are regularly seeing is omnibus Parliamentary Bills, amending a wide range of legislation and increasing the powers of a variety of officials: Police, the Security Intelligence Service, Immigration Officers, Customs Officers, Ministers of the Crown. The powers being sought and so readily conferred by Parliament in the name of the “war on terrorism” are quite frequently much broader than, and sometimes even unconnected with, any conceivable goal of fighting terrorism. They appear to stem from an unholy mix of Executive empire-building, and appeasement of the United States.” [Address to University of Waikato Law Graduates at the 20 April 2004 Graduation Ceremony]

So we ask, “How necessary or justified are these extra-ordinary provisions in the Bill?” They give the Minister extremely broad powers in the name of national security, without any obvious linkage to usual safeguards and procedures. The Passport Act 1992 already contains provisions enabling the Minister to refuse to issue a passport (s3). The Bill goes much further and effectively takes away the function of prosecution and punishment of passport holders from the criminal justice system and places it in the hands of the officials referred to by Dr Harrison. While there is a right of appeal to the High Court (or the Court of Appeal in certain cases) to try to discover the evidence supporting the Minister’s beliefs, these appeal rights are governed by special provisions dealing with national security and classified security information which severely, if not completely, undermine the ability to secure an outcome via the appeal.

27. Essentially, it will be possible for the authorities to cancel an existing passport or application and leave the onus on the citizen to approach the court to endeavour to discover the reason. Not only will the cost and time involved deter people from approaching the courts, but any information that is deemed to be ‘classified’ cannot be viewed by the applicant, their counsel, or members of the public. To quote Dr Harrison again, “The rights to a passport and to freedom of movement in and out of one’s own country are fundamental human rights, recognised in our Bill of Rights and at international law. Until very recently, citizens of this country have never been at risk of having these rights removed or curtailed. Such steps have rightly been seen as the mark of totalitarian regimes, not New Zealand.”

28. Since the circumstances in which the authorities may deem it necessary to challenge a citizen’s right to a passport are by definition extraordinary, we consider they should do so under the (as yet unused) anti-terrorism legislation introduced in the wake of the events of 11 September in New York. This would at least place the burden of proof where it belongs, on the state authorities. If it is established before the court that the passport holder is a “terrorist entity” under s 20 of the Suppression of Terrorism Act, cancellation of the individual’s passport or an application could be considered as part of this process. Clause 23: New s4A(1)(a)(i) et al – grounds for refusal to issue

29. A terrorist act is as defined by s5 of the Terrorism Suppression Act 2002. It is a wide definition and is reinforced by additional offences which were added to the Crimes Act.

Comments and recommendations

30. When the Counter-Terrorism Bill was under consideration, it was strongly suggested that Parliament should avoid creating a separate body of terrorism law and should endeavour, as much as possible, to ensure that terrorist acts are encompassed within the general criminal law, with its ordinary safeguards and procedures [Professor Matthew Palmer “Submission to the Foreign Affairs, Defence and Trade Committee on the Counter-Terrorism Bill”, also M Palmer “Counter-Terrorism Law” [2002] NZLJ 456].

31. The UN itself has cautioned against “ideological witch-hunts”: “Labelling opponents or adversaries as terrorists offers a time-tested technique to de-legitimize and demonize them. The United Nations should beware of offering, or be perceived to be offering, a blanket or automatic endorsement of all measures taken in the name of counter-terrorism” [Report of the Policy Working Group of the United Nations and Terrorism, 1 August 2002]

Clause 23: new s4A(4) et al and Clause 38: new s28 – appeals to the High Court and the Court of Appeal

32. When dealing with appeals, or applications by the Minister to extend the period of non-entitlement to travel documents, New Zealand’s reliance on classified foreign intelligence information has specific implications for the judicial process, particularly with regard to evidence. Judges are likely to be uncomfortable dealing with information not seen by the other party and not relating to any specific offence, particularly when having to decide whether it is ‘credible’ and supports the findings of the Minister.

Clause 40: new s29AA, s29AB, s29AC

33. These provisions detail proceedings and ancillary practices and procedures where national security and classified security information are involved. Similar procedures have been found wanting in the on-going case of Ahmed Zaoui. In our view, a review is required of the way intelligence is gathered and classified in New Zealand – it may be for example that it is no longer appropriate for the Security Intelligence Service to have responsibility for both domestic and international intelligence. “It is clear that something is amiss with the procedures and process by which national intelligence agencies gather, disseminate and are held accountable by the public for the classified information they hold to be vital to national security” [Paul G Buchanan, An issue of trust, p1].

34. The amendments would mean that if classified security information has been relied on, or is to be presented to the Court on an appeal against the refusal to issue or cancellation of a travel document, the person affected has no right to be present (nor does their legal representative) and thus to challenge the information. If the state proposes to take action against a person present within our borders – and all the more so, a New Zealand citizen – the information in which that action is to be based must surely be fully disclosed, and the case proved by admissible evidence to the necessary standard?

35. A summary of classified information must be provided, “except to the extent that a summary of any particular part of the information would itself involve disclosure that would be likely to prejudice the interests referred to…” (s29AB(2)(a)).

36. However, the Zaoui case has demonstrated the limited value of such a ‘summary’ and that it is no substitute for the ability to challenge the actual information at source, including through cross-examination. We have been unable to determine any justification for passing further anti-terrorism measures until a review of the comparable process being applied to Mr Zaoui. Doing so risks duplicating process problems that one UK journalist has termed “Kafkaesque farce” with “a touch of the keystone cops” [David Fickling, Not-so-nice New Zealand, Guardian Unlimited, 15 December 2003].

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