Spy surveillance laws: not listening to Kiwis

Today, it looks most likely that Parliament is going to pass into law the Countering Terrorist Fighters Legislation Bill.

Last week, following the reporting back of the Foreign Affairs, Defence and Trade Committee, the Law Society commented that it “[…] remains deeply concerned at the parliamentary procedure used to progress this bill. The unnecessary rush has impaired the scrutiny given to this bill. This is a bad way to make law”.

Use of urgency by Parliament to speed up law-making has been a serious concern for some time now. The Law Society was so concerned about it by June 2013, that it reported its concerns to the United Nations (refer to Report, paragraphs 17 and 18, here, and analysis by Dame Anne Salmond’s article, here). At paragraph 17 of that Report, the Law Society explained:

“[…] New Zealand makes far greater use of urgency than other Westminster system democracies. Misuse of urgency, particularly where it is used to bypass the select committee process, offends against principles of democratic legitimacy. Select committee scrutiny and the opportunity for public submissions are essential in discharging Parliament's constitutional deliberative and scrutiny functions and ensuring legislation is of high quality and consistent with human rights standards. Use of urgency to limit or bypass select committee scrutiny should be rare and justified by a genuine need for haste in relation to the particular measure. It should not be resorted to where the bill in question raises constitutional or human rights matters.”

Speaking about the speed of the process for this bill, 3 News reported Prime Minister John Key as saying: "Of course there are people that are opposed, but those are the people that don't like any encroachment on civil liberties – goodness knows what they'll actually say if there was a domestic terror attack. They'd probably run for the hills, frankly, but I don't have that luxury of sitting around and saying 'it'll all be okay, I'll turn a blind eye to the advice I get'."

Even taking account of the recent raising of the terrorism threat from “very low” to “low” and recognising what a tough issue this is, taking time over the laws that we pass in New Zealand should not be regarded as a luxury. If New Zealanders do really value their democratic freedoms, it is more natural to characterise consideration of civil liberties as being a responsibility and a necessity. Meaningful public consultation via the select committee process is an opportunity for New Zealanders, who are often reticent to speak in public, to contribute valuable ideas and analysis. Reality is that in this case there simply has not been time to take the questions and suggestions on board in the drafting of this legislation. Submitters could have helped much more with more time. The Committee could have drafted better legislation with more time.

Recently elected to the United Nations Security Council, New Zealand declared that it was going to be a “small country with a loud voice”. This week might leave us wondering what that is going to mean, given the seeming unwillingness to provide a forum to the voices of New Zealanders in adapting a United Nations’ resolution into domestic law in a way suitable to our small and unique nation, without such a risky diversion from the normal law-making process.

References:
Law Society on this bill: www.lawsociety.org.nz/news-and-communications/news/november-2014/law-society-welcomes-changes-to-terrorist-fighters-bill
Law Society, January 2014: www.lawsociety.org.nz/news-and-communications/news/january-2014/some-new-zealand-human-rights-issues-not-addressed-in-un-process
Dame Anne Salmond article: www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10897497
BBC article: www.bbc.co.uk/news/world-asia-29654980
3 News: www.3news.co.nz/nznews/key-repeats-gcsb-lines-over-anti-terror-bill-2014120210#ixzz3LElZQOcr

Lana Doyle is a lawyer from Wellington.

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