Identity (Citizenship and Travel Documents) Bill

I have an amendment in relation to the powers of the Minister of Internal Affairs to take away a New Zealander’s passport. As I indicated in my second reading speech, the Green Party is opposed to that. The discussion so far has been interesting. So, typically, was the contribution made by Stephen Franks, who brought in the Zaoui case. Sometimes I describe the clause giving the Minister of Internal Affairs the power to take away a New Zealand passport as the “Zaoui clause”. That power was likewise applied in relation to the security risk certificate in the Zaoui case. We are giving the Minister—a political figure, not a judicial figure—the power to affect the future of a person detrimentally, in terms of whether he or she has the right to stay in a country, and, in this bill, the right to have a passport.

The issue is whether we should be governed by the rule of law and the judiciary, or whether we should give those powers to penalise people to a Minister. Sure, there are rights of appeal in both the security risk certificate procedure and this bill, but it is reversing the onus of proof where a person’s future is detrimentally affected. In Mr Zaoui’s case, he has had to wait well over 2 years now and has had to go through all sorts of hoops after the ministerial determination. The same would apply under this bill. If the Minister of Internal Affairs is given the right to take away a New Zealander’s passport, then the person whose passport is taken away will suffer all sorts of disadvantages and have to go through a complicated court process to get it back. It illustrates a point, following on from what Stephen Franks said, that if we start to treat foreigners—people who do not have New Zealand residency or citizenship—differently from New Zealanders, and think that the full rule of law can be applied to New Zealanders but does not need to be applied to foreigners, then we will actually undermine our own due process, our own rule of law, and it will come back to bite us in the end. That is why in this bill I call the clause the “Zaoui clause”.

The fact is that the New Zealand political system and the Government went weak on the security risk certificate procedure, even though there was Labour opposition to that procedure in 1999, when it came in. It was applied against Mr Zaoui, thereby undermining the due process of law and laying the groundwork for the “Zaoui clause” to come into the bill, giving unprecedented powers, as Matt Robson has explained, to take—and I quoted earlier from the Auckland Council for Civil Liberties and the Human Rights Foundation—away what is a fundamental and long-cherished right of a New Zealander to have a passport and not to have it taken away for political reasons. There is a history of other countries, such as Australia and America during the cold war, putting into their legislation the right of political discretion as to whether someone has a passport. It was applied in America against the well-known singer Paul Robeson because of his political views. His passport was taken away. In the case of Australia, a chap called Wilfred Burchett wrote on the Vietnam situation and was critical of the Australian Government’s position—the Menzies Government position. His passport was taken away.

New Zealand had enough of a democratic tradition not to go along with the Australians and the Americans in the depth of the cold war, but now, under the George Bush inspired “war on terrorism” that is undermining human rights across the world, the Labour Government has, unfortunately, caved in. It is bringing in a provision that gives a political figure the power to undermine a fundamental right and to take away a New Zealander’s passport. Although there are appeal processes, they are not adequate, and that was drawn out in the submissions to the select committee by the Auckland Council for Civil Liberties and the Human Rights Foundation. The problem is that some of the material is classified. Even the New Zealander whose passport is taken away might not be able to see all that material.

It is noteworthy, is it not, that we have had one call by the Green member who I guess would even be proud to be called a fellow-traveller of Mr Zaoui, and we saw another person in this Chamber, Mr Robson, seeking the call—also a fellow-traveller of Mr Zaoui.

I want to raise this issue; after all, Mr Locke put the issue into debate. This bill is about whether this nation is serious about dealing with terrorism. I know that Mr Franks, for instance, would say that his concern about the bill is that it is actually too weak on terrorism. He raises something that somewhat troubles me about the ACT approach, which is their constant criticism of the UN. In the area of terrorism, UN conventions are a part of the process of countries working together to deal with the issues.

This bill does give powers to the Minister to revoke or withdraw the passports of those people who are a threat to national security. Essentially, that can be done in two ways; firstly, to stop a person from travelling overseas simply by the withdrawing of a passport; and, secondly, perhaps somewhat more broadly, to revoke the granting of a passport gained through fraud.

It is very important that we have those powers. We are in dangerous times. One has only to see that trial in Britain, where a murderer was convicted of numerous terrorist offences, of putting not just the one person whom a murderer would normally assail—a family member, or someone—but the whole community at risk. That person wanted to kill hundreds of people—poisoning them by smearing door handles, and the like—on a completely terroristic basis. He was indifferent as to who would be caught by that; he wanted people to die. That is the definition of terrorism. Surely it is right that this country takes serious action to stop that sort of thing. That is why National is supporting this part of the bill. We are determined to show we are serious about standing up for our freedoms and our values alongside other countries that will do likewise.

The members who are voting against this seem to be completely unaware of the democratic and judicial protections built within the legislation. A lot of work was put into this. This is not a situation where the Minister has absolute control. There is the ability to appeal to the High Court. That is legitimate and proper. In the traditions of democracy—of a country that does respect the law—we do provide those protections. But as a nation we are also determined—and National always stands very proudly for this—to protect our freedoms, our heritage, and our nation against those who would wreak havoc against them. Mr Locke and Mr Robson, by their votes, would seem to be heedless and careless of this. They would give succour and comfort to the terrorist. They will get up and deny that, but the reality is that that is exactly what they do by opposing these provisions.

I just want to say this about Mr Zaoui: he is a man who was found guilty by the court of appeal in Belgium, a democratic country, of aiding and abetting terrorists—people who had bombs, guns, money, and passports, which are the very things one expects to find terrorists with. That is the kind of person whom Mr Zaoui associates with. The judge said that Mr Zaoui was a person who led an unacceptably clandestine life. What do terrorists do? That is the kind of life they lead. The judge also said that he provided moral succour to those terrorists. We do not want people like that—[Interruption] I want to complete this point. It is important because basic values of our country are at stake.

From time to time in our nation, we are called on to be judged. Are we prepared to stand up against tyranny? Are we prepared to stand up against threats to our livelihood and threats to our way of life? People are judged. The public judge members of this Parliament by the way they act on those fundamental issues. I believe that the vast majority of members will vote for Part 2. They will do so irrespective of what their party identification might be, because there are some foundation principles in our country; they are a respect for freedom and democracy, and a stand against those who would attack those values.

We do have to give our Government the powers to deal with those people. I am appalled to hear people say they would not do that and who cannot even recognise the protections that are built into the legislation, such as the independent review from the High Court. There will be an election in a few months’ time. Members will be judged by their actions. They will be judged as to whether they stood up for our country when there was a clear and present danger to it.

Patrick Henry did say that patriotism is the last refuge of scoundrels. I would never say that Dr Mapp is a scoundrel, but I think he should read Patrick Henry.

I have always found it strange that those who say they are against what terrorists may stand for—the undermining of democracy and liberties—themselves will advocate measures that are anti-democratic. The question here about whether the High Court has the right to review is not the fundamental question because, in our law, one cannot take the right of review away from the court, although it must be said that under legislation mentioned in relation to Mr Ahmed Zaoui, which was passed by the National Government, an attempt was made to take the right of review away from the High Court. But the High Court, the Court of Appeal, and the Supreme Court in New Zealand have rejected that attempt and say that they have not lost that right of review of executive actions.

What is actually at stake here are some fundamental questions. Where there has been terrorist action in New Zealand, for example, the terrorism of the French Government, we used the existing law to charge those people and convict them. No new law was rushed through. The law we had at that time was adequate to combat the terrorism. When Israeli Government spies forged papers to get New Zealand passports, we used the existing law at the time. Where in this legislation is there a recognition of the fundamental principle that, with regard to those who have opposed terrorism and the imposition terrorism has fought for, it is the State’s responsibility to prove beyond reasonable doubt that it believes someone is committing a crime or is about to commit a crime? Where is that in this bill? It is not in the bill and it does not exist.

More the pity that there has not been an analysis of this issue in any caucus. There are lawyers in the National Party caucus who have, presumably, done some constitutional law. There are lawyers in all parties in this House, but I am sure that in none of those caucuses—apart from the Progressive caucus, where I put up this issue for discussion, and the Green caucus—has there been an analysis of those fundamental questions.

I know that this bill will go through because, the pity is, there has been little thought given to it. People are saying to themselves that it will not apply to them. Fortunately, there is precedent in our country that when we have passed anti-democratic legislation, eventually wisdom comes through and we return to democracy. The Public Safety Conservation Act, which removed fundamental rights from New Zealand and was used in the waterfront lockout against the very people who voted for and supported Labour, was finally withdrawn.

💬 Gerry Brownlee: What’s this got to do with passports?

I do not expect from Mr Brownlee any deep thought on a matter like this, whatsoever.

However, I do suggest it is important that, where the aspect of a person’s passport and freedom to travel is concerned, we look at what is happening around the world. Legislatures and judicial bodies are saying—as our own Justice Glazebrook has said—that we should not throw security issues as a blanket over fundamental issues.

My amendments recognise that this legislation will be passed; what they do is to put stricter reporting requirements on the Minister who brings a passport back to this House. Keith Locke used a very good example of when the US Government took Paul Robeson’s passport from him during the cold war in America. The American judicial system has since come to realise that that was a mistake.

Thank you—[Interruption]

The CHAIRPERSON (H V Ross Robertson): I say to the member that good order is the foundation of all things. I ask for good order.

💬 Simon Power: I raise a point of order, Mr Chairperson. I ask for a point of clarification: which things?

The CHAIRPERSON (H V Ross Robertson): I am quoting Edmund Burke.

💬 Gerry Brownlee: I raise a point of order, Mr Chairperson. Who is this Edmund Burke, and why should members in this Chamber be extolled to take on board that nondescript person’s theories of life?

The CHAIRPERSON (H V Ross Robertson): I ask the member to be seated. That is not a point of order.

The member who just preceded me said that this is an undemocratic bill. He said that this is undemocratic legislation.

💬 Hon Member: Who said that? Edmund Burke?

No, Matt Robson said that. I remind Matt Robson—

💬 Gerry Brownlee: He’s just a berk!

Point of order, Mr Chairperson.

The CHAIRPERSON (H V Ross Robertson): Yes, I know what the member is going to say. I would like members to look at Speakers’ rulings 56/1. Interjections are to be rare, reasonable, and relevant. I was going to say that they are to be witty, but I have given up on that.

Those interjections were not even relevant to what I was speaking about.

Matt Robson said that this is an undemocratic bill. I remind the Committee, and Mr Robson specifically, that the European Convention on Human Rights recognises national security as a ground for restricting the right to freedom of movement. A lot of countries that are encompassed by the European Convention on Human Rights are left-leaning countries that Mr Robson would fit into quite easily.

I want to stay on this subject of national security. New section 4A(1), inserted by clause 23, specifically provides for the Minister of Internal Affairs to cancel or refuse to issue a New Zealand travel document on grounds of national security. When I saw that I wanted to look at other jurisdictions to see what they thought and what their rules were on the issue. I looked at Australia. Australia has a provision for the refusal and cancellation of passports when the Australian Minister for Foreign Affairs is satisfied that a person may prejudice the security of Australia. The UK is covered under the European Convention on Human Rights. In the US, the discretionary power of the Secretary of State to issue passports has been construed generally to authorise—

💬 Dr Richard Worth: Tell us about Angola.

I do not know what the member is trying to allude to in interjecting about Angola, but maybe if he takes a call in this Committee stage he can tell us.

The US has similar rules and, as I said, the UK is covered by the European Convention on Human Rights. Other provisions in the bill provide for a court to make an order forbidding the issue of a passport when sentencing a person for a terrorism-related offence, and for the disclosure of New Zealand travel document information for the purpose of aiding border security, facilitating the processing of passengers, or verifying the identity of a travel document holder.

When we look at the important issues relating to national security, at what has happened in the last 4 or 5 years as far as terrorism-related issues are concerned, at the 9/11 Commission Report, and at all the issues raised from that and a lot of other reports regarding national security in different countries—not that I have read many others apart from the one I have just mentioned—we start to realise the need for legislation such as this. I believe that it is unpatriotic when particular parties in this Parliament vote against legislation like this. It is not patriotic. For members to support and vote for legislation like this, which will protect our national security, all New Zealanders, and cities like Wellington, our capital city, like Auckland, our major city, like the beautiful city of Christchurch, and other cities, is patriotic.

I believe that this legislation supports and protects all New Zealanders. That is what it is all about. That is why New Zealand First has put pressure on this Government for the last 6 years, even though the Government has been reluctant to pass legislation and even though it has had a couple of factions fighting each other. John Tamihere’s faction may be saying no and the other softie faction may be saying yes. Actually, John Tamihere’s faction is probably saying yes and the other faction is saying no. Ten members would back John Tamihere to the hilt, and 15 others would back him on a good day. They are probably saying that this legislation is good.

I will finish the point I was making in my last speech: the Greens are opposed to giving the Minister of Internal Affairs the power to take away a passport—even though we know that George Hawkins would apply it very fairly—because we believe we should not give a politician such a power; we should be governed by judicial processes. Even if that power were passed tonight, the Green Party would like it restrained as much as possible, and we support Matt Robson’s amendment in that respect.

The question of how to apply any subsequent appeal processes after the Minister’s decision was brought up in the Government Administration Committee by the Human Rights Commission, the Auckland Council for Civil Liberties, and the Human Rights Foundation. The joint submission by the Auckland Council for Civil Liberties and the Human Rights Foundation stated, particularly in relation to New Zealand citizens: “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?”. The Human Rights Commission took a different tack in that judicial debate, which is a debate going on around the world as to how to deal with classified security information. The commission suggested a process of allowing security-cleared legal representatives to hear all classified security information.

The problem that that submission addressed is that if some information is hidden away from the person accused, we get into a problem—the sort of problem that Ahmed Zaoui is in at the present time. He still does not know what the Security Intelligence Service has against him—in fact, if it does have anything further against him other than the generalities offered so far.

One reason why we have to be scared of giving politicians the right to affect our future, such as by taking away the passport of a New Zealander, comes out of what Stephen Franks said earlier. He said that when we are dealing with non - New Zealand citizens, in relation to people coming here, suspicion is enough. I think that that is the problem. If we give a case to a politician—and politicians have all sorts of political agendas, and there are good politicians and very bad politicians; we see them around the world—we believe that suspicion is not enough.

We have to stick, in all cases, to due process—to the people accused being properly provided with the information against them and having the full right to defend themselves—and independent judicial decisions. If we depart from those in any sense, and I think this bill does to some extent, then we are in trouble.

I have been looking in vain for provisions that deal with the question Mr Locke has just raised. The procedures set out in new sections 29AA and 29AB, inserted by clause 40, to my alarm treat all three categories of restricted or withdrawn travel document the same. I believed, and I fully expected, that there would be a distinction. I consider the withdrawing of a New Zealander’s freedom of travel, the passport—thereby turning New Zealand into a little personal Berlin for a New Zealander—as a very different matter from withdrawing the right of a privileged foreigner to live here or to demand a New Zealand travel document.

So I am very concerned when I look at the amendments proposed by Mr Locke and Mr Robson. As far as I can see, they have not dealt with the extraordinary powers that are given in new sections 29AA and 29AB. I am not sure that I have time to try to draft an amendment, but it seems to me a very bad principle indeed that a New Zealander could effectively be locked behind our borders on the basis of information that not even the person’s own lawyers, let alone the person, could see, and that the summary prepared by the court is of that untested information. If I am reading the amendments correctly, we will not even know how many times that has happened.

There is one safeguard, I guess. The threshold standard that the Minister must satisfy is very high indeed. The test of risk to national security is, I think, of an extraordinarily high standard. I am really puzzled as to why this legislation is not crafted in a way that makes the standard for a New Zealander—the right to leave and re-enter one’s own country—very, very strictly protected. But why should someone who has a privilege in coming here, who does not have the rights of a New Zealander, have the same kind of protection in the first place? When it gets to procedure and the processes a court follows—the requirement on the court that it not disclose the classified security information supplied by the Attorney-General—why should the New Zealander suffer the same kind of offensive process? I am really astounded that this provision got through the Government Administration Committee without the committee saying: “Hang on a minute. It is OK if some foreigner has come here and perhaps abused our hospitality, but it is certainly not OK for a New Zealander to face secret evidence that not even his or her own lawyers can see, to never get access to it, and to be trapped in New Zealand on the whim of a politician.”

I have to agree with Mr Locke, in so far as the legislation extends to a New Zealand citizen. I think it is poor that we are treating all three categories the same. It is poor that they are all being treated the same in terms of the test for the national security breach, and it is even poorer that they are all being treated the same in terms of a very offensive procedure. Although I had thought that this was something we ought to be voting for, having been through the legislation and heard this part of the debate in this Committee stage, I now believe that we should be considering voting against this one.

The reasons for that are very different from those of Mr Robson and Mr Locke in most respects, but are similar in one respect. The freedoms of New Zealand citizens should not be infringed upon simply because we have a Government that is too wimpish and too scared of international opinion to draw a proper distinction between the rights and privileges of a New Zealand citizen and the privileges of people who come here as guests and should recognise that they are here on sufferance until they become New Zealand citizens themselves, after which time they must be treated in every respect the same as every other New Zealand citizen. I think it is a disappointment that there is not a set of amendments. I do not know whether I will get a chance, but I will try to draft some.

The ACT member has made a point, but from New Zealand First’s reading of the bill I think he has tended to overstate it quite considerably. But one concern that New Zealand First has, and I do not think anybody thus far has raised it, relates to clause 24, “Life of passport”. That concerns us quite considerably. This bill will halve the life of a passport. I think everybody in this House knows, and I think every New Zealander knows, that a passport lasts for 10 years. But this bill halves its life to 5 years.

I understand that the new passport, when it comes in, will embrace new technology, such as photographs of eyes, and so on, so that people will be identified very positively and there cannot be any mistake about it. But I think it is a burden on people to cut the life of a passport from 10 years to 5 years. New Zealand First is quite disappointed by that, unless, of course, the Government intends to halve the fee. Maybe the Minister can explain to us what the fee will be when the life of a passport becomes 5 years instead of 10 years. He surely is not contemplating increasing the fee; I know that he is a man of honour and he would not dare increase the fee. We think that if he is going to halve the life of a passport, he should halve the fee.

A second concern I have, and my colleague Craig McNair illustrated it considerably, is that I cannot understand the Progressive Party voting against this. I will read only the headings of some of the new sections, because the sections are too long to read out. New section 8A, inserted by clause 27, is headed: “Cancellation of passport on grounds of national security”. That gives the Minister the ability to cancel a passport on the grounds of national security. The Progressive Party will vote against that, as will the Greens, but I think that the country expects the Greens to vote against it. New section 20A, inserted by clause 31, is headed: “Cancellation of certificate of identity on grounds of national security”. That gives the Minister the right to: “… recall any certificate of identity issued to any person by or on behalf of the New Zealand Government,”. The Government’s coalition partner, the Progressive Party, is going to vote against that. [Interruption] I heard the Labour Minister say that it is terrible. They are selling this country short, big time.

But that is not all. New section 25A, inserted by clause 35, is headed: “Cancellation of emergency travel document on grounds of national security”. That gives the Minister the right—and he has to put it in writing—to recall any emergency travel document. But the Progressives are going to vote against that. They do not believe in that. We know that the Greens would want to make this an open-door country to all and sundry. At least they are consistent. But I thought that the Progressives, particularly Jim Anderton, were much more aware of the problems this country is facing. I am amazed that the Progressive Party is going to vote against that.

Here is another one. New section 27B, inserted by clause 37, is headed: “Refusal to issue refugee travel document on grounds of national security”. That gives the Minister the ability to: “… refuse to issue a New Zealand refugee travel document to a person if the Minister believes on reasonable grounds …”, and the provision goes on to outline the grounds that concern national security. The Progressives are going to vote against that.

I ask Mr Robson where his loyalty to this country is. Where is his loyalty to New Zealand? He is going to vote against those very, very important sections. Those sections are so important that New Zealand First is going to vote for this part, even though we disagree with the clause dealing with the life of a passport. That overrides our concern on that clause by 1,000 percent. I am actually appalled that members of Parliament in this country would vote against this sort of legislation. Frankly, in this volatile world, we need to tighten up. As Pansy Wong said right at the beginning of this debate, this bill will make us the toughest of five nations. She is not still here, is she?

💬 Pansy Wong: I am.

I am delighted, along with others in New Zealand First, to be one of the toughest nations.

I realise that people are restless and that they want to move away from this debate, but I do now know how many people realise the seriousness of the issue. We are facing a fundamental issue of whether we reverse the State’s ability to take a passport away from somebody, and return to the established rules of natural justice—that is, that the State has to prove its assertion beyond reasonable doubt. If members had had any debate in their caucuses on this issue, and if anyone had had the courage to stand up and say that this is a fundamental issue that was won by a battle for democratic rights—particularly in the Labour Party—they would know they are giving away those rights. Those members who were in the union movement should realise that the right to picket, the right to free speech, the right not to be red-baited, the right not to have regulations passed, as in the waterfront legislation, are rights that were won through legislation—and they are giving that away.

According to this legislation the Minister can take a passport away if a “person intends to engage in, or facilitate,—(i) a terrorist act …; or (ii) the proliferation of weapons of mass destruction; or (iii) any unlawful activity designed or likely to cause devastating or serious economic damage …”. Would one not think there was room there to charge somebody under our criminal legislation? Does anyone think there is not? Then, those are very serious actions. What is wrong with using the established procedure, which is that the State must prove beyond reasonable doubt? That is what is at stake here.

In this Parliament, when such legislation was brought in, and I was sitting there on the Opposition benches, it was Labour Party members who got up and said: “This reverses the onus of proof. This is a dangerous precedent.” That is what we had with the Immigration Act. I stood alongside Lianne Dalziel when she warned the then National Government of the dangers that changes to the immigration procedure brought to the Immigration Act. Those changes meant that the State could detain somebody on national security grounds without giving the reasons. She stood there, and the Labour Party voted against it.

When this type of measure was brought in by a conservative Government, Labour people recognised the danger. This too is dangerous legislation. This is a move away from democratic rights that were won.

Members want to go home. They want to get the bill through under urgency, and more the pity, because, just like the Public Safety Conservation Act of 1932, which was used in the 1951 waterfront lockout, against the working people of New Zealand and against democratic rights, this bill will sit waiting to be used, just as all the legislation brought in in many countries during the cold war was used in the same way.

Peter Brown talks about loyalty. Have we not heard that before—when there is an anti-democratic measure, those who speak out against anti-democratic measures are then slandered? I ask members to give due consideration to the amendments, because I recognise that members have not thought about or analysed this, and they are going to vote for this repressive legislation. But I ask them, for goodness’ sake, to put some controls on a Minister of Internal Affairs who will be able to use this legislation to withdraw one’s democratic right to be able to defend oneself and have the State justify what it does, rather than the individual having to go to the High Court in an atmosphere of repression, and under a set of procedures where one cannot get to the reasons because they are hidden under the blanket of security concerns.

I ask members to think about Justice Glazebrook in the Court of Appeal. She stated in the Zaoui case, when the court was being asked by the Crown to deny human rights, that security concerns are not a blanket to deny human rights. I ask members to consider putting at least one halter on this particular set of procedures, and at least require the Minister to have more strict reporting procedures for this House.

The question was put that the following amendment in the name of the Hon Matt Robson to clause 23 be agreed to:

to add to section 4A, the following new subsections:

(5) The Minister must prepare in respect of each calendar year a report (including, if appropriate, a nil report) setting out—

(a) The number of cases in which the Minister refuses to issue a passport; and

(b) The number of cases where the Minister revokes a decision; and

(c) The number of cases in which the Minister applies to a Judge of the High Court for an order to extend the period during which the person is not entitled to obtain a New Zealand passport; and

(d) The outcomes of the applications, if any, made by the Minister to a Judge of the High Court.

(6) The Minister must present a copy of the report to the House of Representatives not later than 20 sitting days after the end of the calendar year to which the report relates.

Amendment not agreed to.

The question was put that the following amendment in the name of the Hon Matt Robson to clause 27 be agreed to:

to add to section 8A, the following new subsections:

(5) The Minister must prepare in respect of each calendar year a report (including, if appropriate, a nil report) setting out—

(a) The number of cases in which the Minister recalls cancels or retains any New Zealand passport; and

(b) The number of cases where the Minister revokes a decision; and

(c) The number of cases in which the Minister applies to a Judge of the High Court for an order to extend the period during which the person is not entitled to obtain a New Zealand passport; and

(d) The outcomes of the applications, if any, made by the Minister to a Judge of the High Court.

(6) The Minister must present a copy of the report to the House of Representatives not later than 20 sitting days after the end of the calendar year to which the report relates.

Amendment not agreed to.

The question was put that the following amendment in the name of Keith Locke to clause 27 be agreed to:

to omit this clause.