[asia-apec 962] More on the SIS and APEC

[Gatt Watchdog]

Who Spies on the spy-masters?

(New Zealand Herald, Friday, December 11, 1998)

The cloak-and-dagger brigade is under scrutiny after a Court of Appeal ruling.
NICK SMITH reports on the issue of national security and justice.

Espionage, sabotage, terrorism - these are the threats that traditionally
trouble the country's spy-masters, the Security Intelligence Service.

But two years ago the meaning of national security was broadened by Parliament
to include the "international well-being or economic well-being" of New
Zealand.

It is the multiple meanings behind the phrase "national security" that
troubles judges at the Court of Appeal, who ruled that the SIS did not have
the authority to break into the Christchurch home of political activist Abdul
Aziz Choudry in 1996.

The agency is still refusing to hand over 71 SIS documents relating to the
illegal breakin or "Choudrygate" as some call it, with the Prime Minister
claiming "public interest immunity".

To hand over the documents could prejudice national security, said Jenny
Shipley in her application to the court to keep the papers secret.

The five judges - Justice Sir Ivor Richardson, Justice Thomas, Justice Sir
Kenneth Keith, Justice Blanchard and Justice Tipping - say they have the
authority to compel the service to provide the documents to the court but have
given the Crown until February to explain how national security is prejudiced.

As Justice Thomas said in his separate judgement: "The courts today are not
prepared to be awe-struck by the mantra of national security."

The judges say they must balance the public interests of national security
against those of justice.

Justice Thomas said some SIS spies might be "overzealous in their perception
of the secrecy which is required."

Furthermore, the spy-masters are "unlikely" to have a complete understanding
of the competing public interests which the law seeks to protect," he said.

Implicit in the judge's comments is the contention that the cloak-and-dagger
brigade may not have the best interests of everyone at heart.

It was public pressure in 1996 that forced the government to amend legislation
to expressly forbid the SIS from covert operations purely for political
purposes.

So who is spying on the spies to ensure they abide by the rules?  And how
effective are they?

At a political level, there is the Intelligence and Security Committee, a
panel of MPs, which meets this week to discuss the Court of Appeal decision,
including deciding whether to ask Parliament to give the SIS the power to
break into homes in the name of national security. 

After all, Australian, Canadian and British spies have explicit powers to
enter private property but New Zealand spies, who appear to have been left out
in the legislative cold, do not.

The committee, established in 1996, has met twice this year and in its report
to Parliament it says it has nothing to report, despite a veritable forest
expended on the publication of articles in the press devoted to "Choudrygate".

"The Intelligence and Security Committee has conducted the financial reviews
of the 1997-98 performance and current operations of the GCSB (Government
Communications Security Bureau) and the SIS and has no matters to bring to
the attention of the House", it said.

The exact same words, apart from the date, appeared in the committee's first
report last year.

Besides the committee, there is the Inspector-General, Laurie Greig, a retired
High Court judge who investigates complaints against the SIS and has
wide-ranging powers to assess the service's compliance with the law and the
propriety of spies' actions.

He investigated Mr Choudry's complaint and decided that the SIS' actions were
"lawful, reasonable and justified".

The Court of Appeal has now ruled that the actions were unlawful because the
"power of entry or breaking and entering of private premises is not implicit"
in the warrant that was signed by Jim Bolger when he was Prime Minister
"authorizing the interception or seizure of any communication."

Alliance justice spokesperson Matt Robson said the case showed that SIS'
powers can be misused.

"Mr Choudry is not a terrorist", he said.  "[Mr Choudry] is in fact publicly
known for his opposition to free trade. 

"When opposing the extended definitions of security, we said it could be used
by the SIS to spy on those in the community opposed to the current Government
economic policies [and] we have been proved right."

The Privacy Commissioner, Bruce Slane, has called for rules governing the
reasons the SIS collects information, and guidelines on how the information
is stored and for how long.

Justice Thomas has expressly rejected the Crown contention that judges are
ill-equipped to "appreciate and evaluate the gravity and nature of risks to
national security, the nuances and intuitive deductions which are part and
parcel of intelligence work".

Judges knew the limits of their knowledge and would err on the side of
caution, said Justice Thomas.

"The court's responsibility cannot be performed and the community's
expectations fulfilled unless the court has a clear picture as to where along
the spectrum of national security concerns the various documents fall."




The New Zealand Herald Editorial    (11 December 1998)



Make SIS answer to court

An Appeal Court ruling this week that a Security Intelligence Service
interception warrant did not give agents power to enter a private residence
was dusted with a touch of spice.  Said Justice Thomas:  "Courts today are
not prepared to be awestruck by the mantra of national security".  That is
good to hear.

Sir Guy Powles, in his review of the service in 1976, acknowledged that the
law should allow the service to use otherwise illegal methods to obtain
essential information in the interests of the country's security. However, he
said that "the law should insist on strict criteria being satisfied and on
the decision being taken by the person who bears final responsibility, that is
the minister.

Should it be the minister?  The courts might not be "awestruck by the mantra
of national security" but the implication is that politicians are.  In August,
the Prime Minister claimed that producing documents about the case would be
prejudicial to defence and security.  A High Court judge ruled that was not
good enough, reserving the right to make a decision on his own inspection of
the documents.  Now comes the Appeal Court ruling on the limitations of an
interception warrant.

It does not take a big leap from such decisions to come to the conclusion that
courts should be the vehicle for issuing warrants to the security service.
Certainly, if the SIS is to receive legislative sanction for covert entry,
applications should be heard, in camera, before at least two High Court
judges.

The court has in effect, challenged the Prime Minister's oversight role
already.  That is healthy.  Let's keep the service in robust good health by
requiring it to seek prior sanction from the Judiciary for intrusive
activities.

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