David Rutherford: Terrorists win if our privacy is lost

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The inquiry will ascertain whether oversight of the GCSB, which is in this building,  is adequate to ensure it acts within the law. Photo / Getty Images
The inquiry will ascertain whether oversight of the GCSB, which is in this building, is adequate to ensure it acts within the law. Photo / Getty Images

The Independent Review of Intelligence and Security Services is due to deliver its recommendations to the Government on Monday.

The questions Sir Michael Cullen and Dame Patsy Reddy have been tasked with reviewing sit at the heart of the Human Rights Commission's remit so we await the review's findings and the Government's response with immense interest.

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In the frame is whether the Government Communications Security Bureau (GCSB) and the Security Intelligence Service (SIS) are well placed to protect New Zealand's national security needs, while protecting individual rights, and whether the current oversight arrangements are sufficiently robust to ensure they act within the law.

In particular, the reviewers must consider whether the powers conferred by the anti-terrorism legislation brought in on December 12, 2014, as part of the UN-co-ordinated reply to the Isis (Islamic State) threat should be extended beyond their expiry date of April 1, 2017. They include:

* Allowing the SIS to conduct emergency surveillance for up to 24 hours without a warrant

* Allowing the SIS to undertake visual surveillance in a private setting or one that would involve trespass on to private property

* Increasing from one year to three years the period for which passports can be cancelled for reasons of national security

* Empowering the Government to suspend a passport or travel document for up to 10 working days where urgent action is required but there's no time to prepare the paperwork needed for a full cancellation.

Also up for review is the definition of "private communication" in the 2013 GCSB Amendment Act which permits the GCSB to access the content of New Zealanders' private communications for cyber-security purposes (previously the GCSB had no mandate to spy on New Zealand citizens or permanent residents).

We would have liked the information-collecting and surveillance functions of the police to have been included in the inquiry but note that this gap may now be filled as Justice Minister Amy Adams has asked the Law Commission to examine the Search and Surveillance Act 2012, including the impact of modern technology on the ability of the police and other authorities to prevent and investigate crime.

The commission's central recommendation to the Cullen/Reddy Review is that a stand-alone right to privacy be included in the New Zealand Bill of Rights. Beyond that, we have emphasised the importance in system design of clarity, transparency, human rights compliance and limitation of agency powers to the maintenance of public trust and confidence in the role and operations of the intelligence and security framework.

Intelligence gathering has always been and will always be crucial to protecting life, liberty, independence, freedom of belief, human rights and justice. We do not live in a safe world and it would be dangerous to assume we did. But the response must be proportionate.

Maintaining freedom and peace requires us to stand firm on both feet and reassert the values our people have fought and died for in two world wars.

We let the terrorists win if in the interests of supposed self-defence we abandon our rights to privacy and the importance our small, open and democratic society assigns to freedom of speech and freedom of association.

As Lord Hoffman put it in the UK House of Lords in rejecting the Blair Government's argument that internment without trial of non-national terror suspects was a necessary precaution in the post 9/11 environment:

"Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community ... The real threat to the life of the nation, in the sense of a people living in accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. It is for Parliament to decide whether to give the terrorists such a victory."

New Zealand is now committed to reviewing its surveillance network at least every five to seven years.

This is a positive initiative which will enable us to monitor the complex relationship between national and personal safety and security and individual rights of privacy and of free association and expression.

David Rutherford is Chief Human Rights Commissioner.

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- NZ Herald

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