Enhancing Identity Verification and Border Processes Legislation Bill

Thank you for the opportunity to make some comments in this stage of the Enhancing Identity Verification and Border Processes Legislation Bill. As this House has heard many times, this bill has its background in the unfortunate events of the prisoner Phillip Traynor, as he was originally known as a young child. He later became known as Phillip Smith and he absconded from New Zealand.

A review of that incident led to the conclusion that although there were some simple preventative steps that could have been taken—such as a phone call to the person who was sponsoring his weekend release, which might have prevented that absconding event—there is some benefit in changing the laws so that the authorities that are there managing prisoners or, for that matter, other people who are detained by the State in other circumstances have better access to information so as to better manage either their detention, their temporary release, or their post-release conditions. So for that reason we have long supported this bill. So, hopefully, this stage of the legislative procedure need not detain this Committee for too long.

I did, however, want to draw attention to just one or two aspects of it. Part 1 of the bill makes changes to the Privacy Act. It is a very important piece of legislation. It is a fundamental right that every citizen has—that information collected and gathered by the State and other authorities is used for the purpose for which it is collected, and that it is properly protected. But getting the balance between the safety and security of the community, particularly when it comes to prisoners, and the fundamental right to privacy is important. When it comes to the safety and security of the community and the management of prisoners and those who are at risk of absconding, then it is right that the threshold against which we typically regard good privacy measures is somewhat lowered or somewhat relaxed.

These changes allow the collection of information that presently is not mandated or authorised and also allow access to that information by agencies that presently do not have access to it. It is important when we are looking at lowering the threshold and the protections of fundamental rights like privacy that there are appropriate safeguards. It is important to see that in this case the access to information, this new extra information, must be tied to a specified purpose and that agencies that have access to information and do get access to that information then report on it in their annual reporting to this House.

I do query new section 109F, in clause 6, which allows, through an Order in Council, the change to an entire schedule to the Privacy Act, which seems to me to be going beyond a desirable exercise of that power by the executive. If Parliament approved the schedule, then Parliament should be the one that amends it or repeals it or otherwise changes it. I simply draw the Committee’s attention to that.

In Part 2 there are amendments to a whole slew of pieces of legislation, largely dealing with either the collection of information—and therefore the access to it—or dealing with the agencies that will have access to the new types of information, the biometric information, to be gathered under this legislation. It is right that those agencies should have access to it, that their power should be clearly spelt out, and that there should be appropriate safeguards to it.

And then, finally, there is the change in Part 2 to the Victims’ Rights Act, which creates an expediency for victims of crime who have registered a representative to take information about the perpetrator of crimes against that victim, in that there may be circumstances where it is not expedient for the authorities to go to the representative, and where it is important for the safety and security of that victim for the authorities to go directly to the victim to let them know there has been an escape, or that there is a person who has been released to the community, or has absconded and therefore poses a risk to that victim.

So that is all agreed. That is understood, and it is for that reason that we will continue to support this bill.

I stand in support of this bill today, the Enhancing Identity Verification and Border Processes Legislation Bill. We have heard today that this bill is in the name of the Hon Amy Adams and is a result of the Government inquiry into the matters that relate to the escape of Phillip John Smith/Traynor, who did manage to acquire a passport and leave New Zealand and end up in Brazil while he was on temporary release from prison. The inquiry found that it was through inadequate sharing of information between some agencies that this was actually possible. So this bill sets out to close those loopholes that found Mr Smith, or Traynor, able to abscond from New Zealand.

Part 1 of this bill is the part that amends the Privacy Act, which is the principal part of this bill. It relates to identity information and the accessing of that information. Attached to the bill is new schedule 4A, inserted by clause 8. Schedule 4A sets out the list of agencies that are able to access information. They include the Department of Corrections, the Department of Internal Affairs, the Ministry of Business, Innovation and Employment, Immigration New Zealand, the Ministry of Health and district health boards, the New Zealand Customs Service, and the New Zealand Police. The holder agencies of that information includes those agencies I have just listed and also includes the New Zealand Transport Agency.

Included in the information that is able to be accessed is the information that is known as biographical details and they include the name, the address, the date of birth, and the gender of the person. The biometric information includes things like a photograph or facial recognition or iris photography. The details that are expected to be accessed would include things like the person’s travel documents, their certificates of identity, and distinguishing physical features such as amputations, tattoos, or birthmarks.

The reporting of this information that is being shared as part of the accountability to this bill requires that the chief executives of the holder agencies must also report, in every annual report, on the details of the operation of this part of the bill and also in terms of new schedule 4A.

There was a great deal of consideration given to the Privacy Commissioner’s response and, in relation to the Orders in Council, the Minister, in making any adjustment to the schedule, must be satisfied that this relates to the specific function of the legislation’s accessing agency and the identity information must actually be reasonable to the purpose for which it is being sought. That is my contribution today, and I thank you.

Thank you for the opportunity to speak, Mr Chairperson. I joined the Law and Order Committee in the latter part of it, when this bill was coming to the latter part of the select committee’s consideration. Generally speaking, I thought that, in the main, the key parts of the bill are common-sense changes that allow the Government departments to better share information, in order to avoid a similar case to the one mentioned by the previous speaker, Maureen Pugh, with regard to Phillip John Smith. The only point that we raised then, and will continue to raise, is that it is a shame it took something like the Phillip John Smith case to highlight the gaps.

There is another point that I want to make to this Committee, which was raised by many of the submitters. It has to do with the information sharing between agencies. There were many submitters who submitted that in terms of Part 10A in new schedule 4A, information sharing was unnecessary as there were already approved information-sharing agreements between agencies, and that was already available. Therefore, those submitters felt that by legislating for this, it actually gave much broader powers and broader potential, I suspect, for corrupt practices to occur if we did not have sufficient controls around the way that that information was shared.

I point that out because from time to time I get complaints, mainly from the Muslim community who travel overseas, in particular when somebody in the family has died. You see, at our borders we sort of collect that information, and when we see that somebody has paid for an airfare the day before, and with cash, that person becomes sort of suspicious in terms of raising the antennae of border control, when in reality the reason why that would occur is, in accordance with the Muslim faith, that once somebody dies they have got to bury that person immediately, within a certain time frame, and therefore there is no planning for those travels. It must be immediate, and often it requires most families, instead of using a credit card, to use cash in order to be at the airport quickly, fly to the family, and bury their dead, before the time frame runs out for that to happen. When they return, they are then picked up at the border, and our border controls feel somewhat suspicious about the way that their travel was planned, or the lack of planning thereof.

I raise that as one of the issues where, when we give powers to Government agencies, particularly for collecting biometric information and for the controlling of travels for those who are on parole, often our systems seem to pick up people unnecessarily, simply because of a lack of information, or the information that has to do with their travel plans raises red flags at our borders.

But none the less there was general support, I would say, by the committee. I think many in the committee felt that the Act provided an existing legislative framework for those approved information-sharing agreements, and they believed that the matters listed in new schedule 4A could be achieved by having six approved information-sharing agreements covering the information exchanges between the accessing agency and the holder agency.

But notwithstanding that, I think, as we move forward and as we tend to give more powers to our Government agencies, we do need to ensure that we have oversight of that. We have got to protect our reputation, and so far we have an international reputation that is well formulated and one that establishes us as being very credible, establishes us as a country with high integrity, and so forth. I would hate for any Government, whether past or present, to move into an area where we simply give massive huge powers to Government agencies to do this kind of work without any oversight, particularly when it comes to the sharing of information, where we value our information—[Bell rung] thank you, Mr Chair; I do not have very long to go—where we value our own personal information, and it can get caught up in the whole scheme of things. It is not necessarily those people whom we are wanting to capture.

In the report, “Requirement to import and identify what information-sharing is occurring”—I think that that is important, that we agree that “a requirement to report on the operation of Schedule 4A would provide further accountability.” However, the Law and Order Committee did “not propose prescribing how reporting should take place; this would ensure that agencies have sufficient flexibility to incorporate this process into their existing annual reports.” None the less, the majority of the committee felt that agencies should have flexibility in reporting back. It is still important, I think, that we have that oversight and that this House in particular needs to keep track of those particular reports on how that information is shared and which agencies are sharing any feedback from the general public about how they are treated. That is all I wanted to share with the Committee at this point in time.

It is a privilege to stand on behalf of New Zealand First to speak to the Enhancing Identity Verification and Border Processes Legislation Bill. There is a lot of work that has gone on in the Law and Order Committee with regard to the tidying up of the processes in this bill. Particularly, with the queries that we had, we are quite satisfied that those queries have been answered. We had a query about privacy and the period of time that the information is held by various law enforcement agencies. This is actually a knee-jerk reaction to a knee-jerk reaction. However, we have decided to still support this bill because it will go a long way in removing those anomalies and fixing those communication gaps.

After this bill is passed the victims will stand to be safer, and that is because—we all remember the embarrassing incident where Phillip John Smith escaped all the way to Brazil. What was more embarrassing was that the law enforcement agencies did not know for the next 48 hours. Corrections came to know only 24 hours after he had escaped that he had actually failed to return to prison. It took them a further 24 hours to inform the police, and then the police acted. The police were not able to inform the victims of Phillip John Smith’s crimes about his escape. That is one situation that will probably be prevented in the future if we actually implement this bill effectively.

There were also concerns about the period of time that biometric information and other information about offenders is held by the law enforcement agencies. I know for a fact that Corrections stores or keeps the biometric information of an offender when the offender comes into its custody, and then, with this bill, Corrections will be able to share that information with the other border agencies such as Customs, Immigration, the New Zealand Police, and, to a certain extent, intelligence agencies.

So, that being the case, our hope is that future communication issues could be prevented. The offenders for whom there is an alert on the system for a ban on foreign travel will be stopped at the border because Customs and Immigration will have information on their system if an offender has been put on that list.

So these are the reasons why we have supported this bill in the past, and these are the reasons why we will continue to support this bill.

I will take a brief call on the Enhancing Identity Verification and Border Processes Legislation Bill. Firstly, can I begin by thanking the Law and Order Committee, which did work very well and very constructively on what is an important part of our law enforcement framework. I think the circumstances that led to this piece of work and the inquiry around the escape of Phillip John Smith are well known. It is a matter that certainly sticks out in my mind. I had been the Minister of Justice for just a few weeks and was immediately presented with this situation. Of course, your first instinct is to identify what has gone wrong in the system to allow it to happen and what needs to be put in place to stop it happening. What became clear very, very quickly was that there are a number of both practice and legislative barriers that stopped agencies working in the way we might expect would be the case.

When we found that, in fact, agencies like Corrections did not feel able to share information with border agencies around who should and who should not leave the country, when we found there was legal uncertainty about the ability to leave the country, and when we found that an offender—a manipulative offender—was able to manipulate our name register systems and our identity verification system to his own ends, it very quickly became clear that we had to look at our frameworks in New Zealand to ensure it did not happen again. That is why, of course, there was an inquiry instituted to look into these issues.

But I think it is worth making the point that this was not just an inquiry looking into a single escape and what needed to have happened to stop that particular set of circumstances. What that situation did was identify a need to look more broadly at how we thought about identity verification across our whole law enforcement and border systems and how information sharing needed to be set up to facilitate those systems working. That is what the inquiry was asked to look at, and it recommended to this House that the systems needed a “step change”, to use its words. It was not a question of some small, incremental tweaks; it was a recognition that our systems, from the Department of Internal Affairs, from Births, Deaths and Marriages, from the Police, through the courts, through Corrections, right through to our border agencies, needed to be comprehensively rethought and redesigned.

It also reflected a very prescient observation, which is that name records are not sufficient in the current environment to properly protect and understand who we are dealing with. I think it is the expectation of New Zealanders that the systems are able to know with a high degree of confidence who they are dealing with, and that that is not able to be defeated by something as simple as a name change or by using different legal names to carry out that behaviour. It should not be sufficient to enable offenders to have several identities that they can operate at their will. And, certainly, it is not sufficient that we can have a breakdown between law enforcement processes and our border agencies. That is what this bill is designed to do.

The inquiry came up with 39 substantive recommendations, and the Government accepted all of them. Twenty-two of those related, in the main, to Corrections operational practice, which have all been fully implemented and are now in place. But as I mentioned earlier, a number of them talked to the step change required between the ways we access things like the births, deaths, and marriages record, like the real-time ability for our law enforcement professionals to have access to identity verification, like the ability to be able to verify an offender at one stage in their life and have a single source of truth about who they are as they flow through the system. This bill will give effect to that. It is an important part of our framework, and I commend it to the House.

The question was put that the amendments set out on Supplementary Order Paper 344 in the name of the Hon Amy Adams be agreed to.

Amendments agreed to.

Parts 1 and 2, schedules 1 to 3, and clauses 1 and 2 as amended agreed to.

House resumed.

Bill reported with amendment.

Report adopted.