Spy catcher's move cast doubt on SIS's authority to burgle

By Eugene Bingham

The man who collared two spies breaking into a Christchurch house has cast doubt on where the Security Intelligence Service ever got the authority to break into private property.

Senior politicians, including the Prime Minister and the Leader of the Opposition, have said that the SIS had been acting on advice from Crown lawyers since 1977.

But in answer to a question from Dr David Small, the Crown Law Office has revealed that the earliest advice was issued in September, 1996, two months after Dr Small caught SIS agents breaking into the home of free-trade activist Aziz Choudry.

"So where did they get the idea that they could enter homes, and who said they could?" said Dr Small.

Last year, the Court of Appeal ruled that the agents were acting illegally when they broke into Mr Choudry's house, prompting the Government to draft legislation giving the SIS the explicit right to enter private property.

The bill is currently under consideration by a committee consisting of the Prime Minister, Jenny Shipley, Labour leader Helen Clark, and three other senior MPs.

It is due back before the House in a fortnight.

When the bill was introduced in December, Mrs Shipley and Helen Clark told the House that the SIS had assumed it was entitled to break into homes since 1977, when Parliament granted agents the right to apply for interception warrants.

Mrs Shipley said that had been the interpretation of the Crown's legal advisers and successive Governments.

Helen Clark told Parliament: "[The SIS] has acted according to the law as it understood it to be, backed by legal opinion from time to time."

But Dr Small's inquiry to the Crown Law Office under the Official Information Act has put a question mark over that assumption.

Dr Small asked for the earliest dated legal opinion that a warrant empowered agents to break into private homes.

The deputy Solicitor General, Ellen France, refused to release the legal opinion because of legal professional privilege and the security of New Zealand.
However, in her reply, she said the advice was dated September 18, 1996.

"I have checked our records to try to ensure that there is no earlier formal written advice, but, even so, it may be possible that something has been overlooked."
Dr Small said it was "extraordinary" that the SIS had assumed the power.

"I find it incredible that the SIS could seriously claim that it thought that the 1977 SIS Amendment Act gave it this right of covert entry.

"Other comparable countries have all had specific powers written in, but that all happened after 1977."

Australia (1977), Canada (1984), and Britain (1985) have each made law changes granting explicit rights to enter homes.