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