Counter-Terrorism Bill

I have a few amendments under this part. The first is an amendment to a section of the Misuse of Drugs Amendment Act 1978. It is similar to an amendment I moved concerning the Crimes Act, in the debate on Part 1. I was worried about the fishing expeditions that could be launched by the police; that they could get a warrant—in this case, under the Misuse of Drugs Amendment Act—and use it for fishing expeditions in relation to a number of other offences. I will not go over that whole argumentation, because it is basically the same as I used on an amendment to Part 1.

The next amendment I have is to clause 33, which drew considerable discussion by very reputable people in the community, including lawyers and lecturers, etc., who were against this provision. They saw it as affecting a common-law right against self-incrimination. Several people submitted to the Foreign Affairs, Defence and Trade Committee on this clause. The problem is that a search warrant can be gained by the police, under the inserted section, for any offence at all—even the smallest of offences. The constable can enter the home of the person or tenant, and if he or she owns or has a computer—as most people do these days—that police officer can demand to be given access to it and everything on it. The problem with that is that the person has to give encryption devices, passwords, ways to get around firewalls, etc., in order that the entire contents of that computer are made available to the constable, even if the warrant is for the most minimal of crimes.

I do not know about other members of Parliament, but I know that most of us have a lot of our lives on a computer. It can have our very intimate correspondence, and often our files go back years. There are hundreds and thousands of communications and all kinds of things on our computers, and a humble police officer going into our places for a small offence could have access to them and force us to incriminate ourselves, which is against that common law.

Again, there is a safety provision. We have talked about these comfort provisions. New subsection (2A) of section 198B, inserted by clause 33, states: “A person may not be required under subsection (1) to give any information tending to incriminate the person.”, but the next two subsections go on to state that if information tending to incriminate the person is on the computer, it has to be provided by that person, who has to give those encryption devices. If general information elsewhere in the apartment, let us say, tends to incriminate the person, he or she does not need to give it. So there seems to be a bit of a contradiction in this provision, and I think it is wisest to abide by the wisdom of the many legal people who submitted to our select committee, and to eliminate this provision.

My next three amendments relate to the tracking provisions in clause 34. I was a bit concerned that the tracking provisions available to the police could be used for virtually any offence, so I wanted the word “serious” to be put before the word “offence”, in the new subsection 200B(2)(a). The two really substantive amendments that I want to move came from the Privacy Commissioner, who made a substantial submission to the select committee. He put forward two ideas, one of which relates to these warrants. In particular, when an interception device is put on a person, or vehicle, or whatever it is—interception devices are very tiny things, and can be put on people quite easily—prior to the gaining of a warrant, then there should be some report as to why that happened, because we do not want the police to get into the habit of putting tracking devices on a person prior to a warrant being issued.

Part 3 of this legislation perhaps caused the Foreign Affairs, Defence and Trade Committee the most difficulty. The reason—as has been explained in the second reading speeches, and in other speeches—is that this bill goes much broader than just terrorism offences. The three powers relating to the interception of private communications, the use of tracking devices, and the requiring of people with knowledge of computer systems to assist with access to them relate not just to terrorist offences but to other offences, as well.

Mr Locke would have one believe that those powers relate to virtually all offences. I say that that is not correct, and he would need only to look at clause 26 to see that it is not the case. The provisions relate specifically to serious, violent offences. Many of those offences—as, no doubt, the Minister will say shortly—relate to terrorism, but they are not related only to terrorism. They relate to other criminal and drug offences of a serious kind, including the full range of cannabis offences. So the term “specified offence” is not the broad category that Mr Locke would have us believe. It applies to the serious end of offences. That is why National, after carefully considering the issues, decided it should support those provisions. In the fight against crime, and particularly against serious crime, the police obviously have to have the appropriate powers. That does not apply just to terrorist offences but also to other serious crimes.

National’s concern related to introducing those general powers through a Counter-Terrorism Bill. We believed, initially, that it would be better to split the bill into two parts and refer the general provisions to the Justice and Electoral Committee, or possibly to the Law and Order Committee. The Minister and his officials made submissions to the select committee as to why that could not be the case. The essence of the argument turned on the fact that these powers were necessary now to deal with terrorist offences, and the fact that other offences were included was a matter the select committee had to be able to take into account. The Minister’s staff was sufficiently flattering to suggest that the select committee, amongst its personnel, had sufficient expertise to be able to make a fair and proper assessment of the provisions. Indeed, on either side of the table at the select committee there were people skilled in legal issues who were able to make those determinations. So the argument was made and was accepted by the Opposition, and therefore we are supporting those provisions.

However, I would re-state to the Minister our concerns about the titles of bills, so that people are properly informed as to the full extent of bills. I would not like to see a bill presented to Parliament again under the label of “counter-terrorism”, or under some such other label—perhaps on a completely different issue, for that matter—that covered not just the things that the title obviously implied but also much broader issues. We would like to think, as a select committee—and we did make reference to this in our report—that the Government has taken that particular issue on board.

I want to close by saying that Mr Locke, once again, grossly overstated his case. It is one of those situations where he has produced somewhat far-fetched scenarios, cast doubt on the general integrity of our democratic society and the institutions therein—Parliament, the judges, and the police—and would have us believe that we live in some sort of totalitarian State, or at least if we do not live in a totalitarian State, then all the machinery is there and the agencies of State are just waiting to seize the opportunity to grossly infringe the liberty of New Zealanders. I say that, ultimately, the sense of liberty of a people does not depend on the law but depends on the hearts of the people.

Part 3 is the part that really speaks to me of Government incompetence. After all the time the Government has had to get this bill right, it is appalling that the bill is now so technically deficient. This is the part about which the Foreign Affairs, Defence and Trade Committee, in its report, made it plain that it thought that tracking devices are used by only the police and the Customs Service, and therefore it had created a code to govern the use of tracking devices in New Zealand.

When I look at the definition of “tracking device”—and I have drawn this to the attention of the Minister, but have received no explanation worthy of that description—I see the definition is that it is a device that: “may be used to help ascertain, by electronic or other means, either or both of the following: (a) the location of a thing or person:”. That could be a pair of binoculars. A pair of binoculars is a tracking device, as is a telescope, a public surveillance camera, and, probably, a flag attached to a bicycle if it helps one to locate a person or thing. It probably also applies to a sticker put on a suitcase so that one can identify it on a baggage carousel. What a stupid piece of law it is when all those things can be tracking devices and, suddenly, according to the select committee, the only people who use them are the police and customs agencies, and the committee then makes a set of rules that requires them to apply to a High Court or District Court judge for a warrant.

This is the type of law we get when we rush through—under cover of a great need, anti-terrorism—a complete new code to cover something that should be completely lawful. There is no reason on earth why ordinary citizens cannot decide to put surveillance cameras on their own properties to locate things or people entering their properties. There is no reason why people should have to apply to the police or customs to install global positioning system trackers in their trucks, to see whether those trucks are going to unlawful locations. What about the expectation that an employer will keep his or her employees safe and free from harm, and, for example, prevent the use of company vehicles for transporting drugs? There is no reason why a tracking device should not be used by any individual in relation to his or her own property. But this part does not cover that. I have talked to members of the select committee. Dr Mapp has offered no reason, other than that it had not been thought of, to explain why a police flag on a bicycle, a sticker on a suitcase, or a pair of binoculars should now require, as the law provides for, a warrant from a judge.

When the select committee members said they thought that only the police and the Customs Service used tracking devices, they were clearly wrong. When the select committee members thought they were rejecting the Privacy Commissioner’s nonsense—because the Privacy Commissioner did come up with his typical nonsense about another set of rules on tracking devices—they did not achieve that. The select committee may have thought it was leaving ordinary citizens and the police free to track their own property and to use surveillance cameras if they wished in their own stores or houses. But it appears to me that they have not done so. The commentary on the bill makes the situation worse.

I have put forward a simple amendment. It is hastily drafted, but I believe that it deals with 90 percent—not all, but 90 percent—of the error in this part. The amendment simply provides that this part does not apply in a way that would restrict the owner or the user of a property from consenting to a tracking device on his or her own property. That should be absolutely self-evident. We have the Minister in the chair when the House is in Committee so that the Minister can respond to this kind of thing at the last minute. We have that precisely so that the Minister can apply common sense and the judgment of reality to law, and Parliament can amend bills before it is too late.

I rise to confirm that New Zealand First will be voting for Part 3. But in recognition of the concerns raised by the honourable Stephen Franks, specifically in respect of the definition of “tracking devices”, and after giving his thoughts some consideration, I would actually like—and I know that the Minister has been in a deep discussion with officials—to hear an explanation as to why we should not vote for Mr Franks’ amendment. I have some concerns about tracking devices. I think that television cameras are actually tracking devices, as well, and I am not sure that I would like to see them specifically excluded. But no doubt there will be some explanation as to why we are where we are.

As I go back through the Foreign Affairs, Defence and Trade Committee’s report on the bill, I think there was some concern—and Mr Franks was quite correct; there was quite some considerable discussion—about the use of tracking devices. We did discuss the practicalities of preventing customs officers and the police from immediately placing tracking devices on baggage and on goods that were coming in through our international airports. We accepted that it is not always possible to seek warrants and to gain judicial approval in time to allow us to slap devices on some people—or on their property—as they enter our country. We hear time and time again that the funds for terrorist operations come from anywhere possible, and that drug-running, gunrunning, and those sorts of illicit activities are always a good source of revenue for terrorists. The movement of recreational drugs—which I understand the Greens are not averse to—such as copious quantities of marijuana and other recreational drugs across our borders is of concern to New Zealand First, and specifically if the profits gained from that go towards funding terrorist activities. There have been occasions where such goods have arrived in the country to be picked up—bags and suchlike. We have seen the Minister of Customs announce some rather hefty drug busts in the last month or so, and I give full credit to the Customs Service for those busts. I think we need to be very aware that customs officers need to be able to react promptly, but lawfully, in such instances, in order that we are able to track the movement of goods, and thereby detain and arrest the people involved in those activities.

But, again, noting Mr Franks’ concerns, I think the definition of “tracking devices” probably does need a little further explanation. If we need to include television cameras, then maybe we should do that. I really would defer to the Minister, so that he can offer some explanation as to why his officials do not think we need to amend that definition, or amend that clause, as recommended by Mr Franks. I look forward to an explanation of that from the Minister.

I move, That the question be now put.

When I finished speaking earlier in the debate I was halfway through explaining my amendments, and the amendments proposed by the Privacy Commissioner to the select committee. The first amendment related to the reporting procedure prior to the gaining of a warrant.

The other thing that the Privacy Commissioner was worried about was that there was nothing in the bill that made it illegal for ordinary members of the public to track other members of the public, virtually wherever they wanted. He proposed an amendment, which I have listed here, that does make it illegal to do that, except in certain circumstances. Essentially, the amendment to clause 34, to add a new section 200P, states that a person commits an offence who knowingly installs, uses, or maintains a tracking device to determine the geographical location of a person or an object, and, in the case of a device, to determine the location of a person without the express or implied consent of that person, or to determine the location of an object without the express or implied consent of a person in lawful possession or having lawful control of that object. So that would allow, for instance, for taxi companies to use tracking devices. Every taxi-driver who is employed by a company like Co-op Taxis in Auckland or Wellington Combined Taxis knows that those companies have a global positioning system, a tracking device. It is all done with the consent of the drivers. They know when they drive taxis that it is part of their job. So that would allow for legitimate tracking devices, with consent.

But what the Privacy Commissioner wanted to stop was the proliferation of ordinary citizens tracking other people. It can be done with very tiny, micro devices these days—and they will get smaller and smaller. A person can attach it to another’s jacket, and he or she can track that person for months. One can track which room in a house a person is in, and all kinds of things. That invasion of privacy was what the Privacy Commissioner was trying to get at. He said there should be this general provision. He made the effort to word an amendment, which I am putting forward here today. I think it is important, because this section does involve privacy.

The other provision I referred to was a police constable who is holding a search warrant for even the most minimal offence, being able to force access to a person’s computer and being able to force that person to give over encryption devices and passwords.

There were quite substantial submissions to the select committee. One was from Alex Conte, a lecturer in law, I think, at Victoria University.

He was very concerned. He went right through all the common law, and how this was an invasion of the person’s privacy and countered their right to avoid self-incrimination. If one is forced to give someone free access to one’s computer, one might incriminate oneself. He did believe that there might be an extreme category of people who are terrorists, and we might need to get into their computers. He did have an amendment that allowed access to computers in that particular case. He was very worried about it, as were many other members of the legal profession.

I think it is important, and people are saying it more and more in the international debate on terrorism, not to get carried away and bring in all sorts of laws that seriously intrude on people’s privacy or, the other edge of it, to try to protect privacy more. Of course, this section does not amend the Terrorism Suppression Act. It amends the Crimes Act, the Summary Proceedings Act, and the Misuse of Drugs Act. But it does have provisions, like the two provisions that affect our privacy very much. I think we should respect the good work of the previous Privacy Commissioner, Bruce Slane. He was an expert in the field.

I think most New Zealanders want society to be free of that sort of tracking device. People are worried that, in this modern age, there are systems whereby little devices can be put on someone’s person and from some distance away the person and his or her movements can be monitored. I think New Zealanders want tracking devices to be used only in particular cases—for example, serious drug crimes and such things that require the police to use an array of investigative weapons.

I shall answer a couple of points made by members, and will start with a concern raised by Keith Locke. He said this legislation empowers the police to require assistance from a person, where necessary—such as providing the password to access a computer. I put it to Mr Locke that this provision no more infringes upon a person’s rights—for example, the right to silence, or the right not to self-incriminate—than it does to require a person, when the police appear with a search warrant, to actually open the door. This provision is not a dangerous breach of rights. It simply applies the law to meet the needs of modern technology

A recent case, about 3 years ago, involved the police physically picking up the computer of a lawyer and taking the entire machine, etc., out of the office block. It would be much more satisfactory if the police, when exercising a search warrant under the law, to access a property to look for a particular product, can access the material on the computer. It is warranted; it is protected.

Mr Locke also raised a concern about tracking devices. I am not sure why he is so concerned about this legislation, because at the moment it is not unlawful to put a tracking device on a vehicle; not at all. It is unlawful, if the police have to enter on to premises or if they have to break, or open, or interfere with something to do that. That constitutes trespass. If anything, this change in law places limits and clear safeguards on the police’s exercise of their authority. So this is hardly a matter of great moment for civil liberties, either. In fact, it goes some way towards protecting civil liberties in a reasonable way.

With regard to Mr Franks’ proposed amendment, I am sure he is sincere in what he is trying to achieve. I have consulted on his amendment. I have talked to parliamentary counsel and I have talked to the Ministry of Justice. Neither the Police nor theCustoms Service raised any of the concerns that the member has. I am advised that this legislation would not require any special act on the part of the police with regard to surveillance cameras. The cameras are not covert. They are there; they are open. Everybody knows they are there. The police do not have to enter on to premises that do not belong to them. They do not have to break and enter to put them up. I am told there is not a problem; that the definition is deliberately kept reasonably broad to take into account technological changes in the future, and that this is modelled on international law—specifically, Canadian law. No concern has been expressed by any of the parties that have some expertise in the matter that the implications of the legislation, as it is worded, and as tracking devices are defined, would be problematic for the Police or the Customs Service.

The CHAIRPERSON (Ann Hartley): I call Jill Pettis.

I am concerned the Minister has simply relied—

The CHAIRPERSON (Ann Hartley): I am sorry—

💬 Jill Pettis: Let him go.

The CHAIRPERSON (Ann Hartley): I apologise.

💬 Jill Pettis: He’s like a child.

💬 Dr Wayne Mapp: I raise a point of order, Madam Chairperson. I believe that the comment made by the junior Government whip in relation to a colleague was unparliamentary, and she should be asked to withdraw and apologise.

💬 Jill Pettis: I never thought that being a mother was objectionable but if it offends the member, I withdraw and apologise.

The Hon Phil Goff does the Committee the courtesy of explaining or responding to points raised in this debate, and I appreciate that. However, I am concerned that he has misled himself, or has allowed himself to rely on the officials, who are simply saying that because surveillance cameras generally are not covert, then there is not a problem with the definition of “tracking device”.

There is nothing in this legislation that states that this applies only to covert devices. If this tracking device definition stated “covert”, then that might have been a relevant point. But it seems to apply to all tracking devices, whether covert or overt. Indeed, as I said, in its terms it probably applies to officers who put a sticker on their suitcase, so they can follow it on the baggage carousel. The select committee took the view that only the Police and the Customs Service seem to use tracking devices, and the committee urged the Government to look at legislation to cover private use of tracking devices. Officials appear to have justified this weird definition solely on the grounds that it is done in Canada. This is hardly an encouragement to New Zealanders, who look at the hoops that Canadians are now being put through by their weird Supreme Court. This is not a comfort to those who believe that people should be empowered to decide what they do with their own property and assets, and how they track their own property.

To be sure, it is helpful to stop the police and others from inserting tracking devices that are not wanted. It is quite appropriate that the bill states what it does to govern the use of covert devices by the authorities. But it does not deal with the implication that there now is that if the police, for example, want to put one of their tracking devices—at the request of the owner of a vehicle or a shop—in that shop or vehicle, then the police have to get a warrant. The police should not be under that burden. It is quite clear there is no exception in the legislation. There is nothing that states that the provision applies only where the tracking device is inserted where someone does not know, or where someone does not approve.

It is a shame the Minister is signalling that he is going to vote against an amendment that would have saved him from this difficulty. As I said to the Minister, when someone has gone through $50,000 worth of cost in trying to get the court to say what the officials say is common sense, I hope the Minister will have the grace to feel embarrassed.

I move, That the question be now put.

Motion agreed to.

The question was put that the amendments set out on Supplementary Order Paper 164 in the name of the Hon Phil Goff to Part 3 be agreed to.

Amendments agreed to.

The amendment in the name of Keith Locke to clause 26 is out of order because it is inconsistent with a previous decision of the Committee.

The question was put that the following amendment in the name of Keith Locke to clause 33 be agreed to:

to omit this clause.