On The Nation: Patrick Gower interviews Chris Finlayson

Patrick Gower interviews the Minister in charge of the SIS and GCSB Chris Finlayson

Headlines:

Admits some of those on the Government’s watch-list may be nothing more than “juvenile fantasists”, while others are alienated from society or have chip on their shoulder

Says he’s worried about the potential for an act of violence on NZ soil and the possibility of an IS-style beheading is “not entirely fanciful.”

Couldn’t give an example where changes to the passport laws would have been necessary.

“We’re doing what we’ve been asked to do: look at the legislation. We know there have been certain issues, and you’ve mentioned one yourself [Mark Taylor], to make sure that the legislation is effective so that cancellations can operate.”

For returning foreign fighters, there are existing criminal sanctions that could be looked at if someone was determined to cause mayhem and rehabilitation and reintegration was not an option.

“In the first instance I think you would take them to one side and ask very closely what he’d been doing and what his intentions were for the future, but that would be a matter for the authorities to determine whether such a person was an immediate risk to society.”

Says the same sanctions would apply to those fighting for the Kurds or other groups against the Islamic State. “They should stay put and leave it to ordinary forces to do what needs to be done.”

The 48-hour warrantless surveillance rule would be limited to “exceptional” circumstances.

Says the privacy contract currently in place is very important and “one of the great bullwhips against tyranny is the law as it applies to individuals”.

Lisa Owen: The GCSB and the SIS are New Zealand's spy agencies: just what they get up to has caused a lot of controversy for National. And that controversy is set to rear up again as the government moves to pass new laws allowing the SIS to spy without a warrant for 48 hours and place cameras on private property. It also wants the power to cancel the passports of alleged foreign fighters for three years. All of this is now in the lap of the new minister of spies, Chris Finlayson. 3News political editor Patrick Gower sat down with him and began by asking if murderer and paedophile Phillip John Smith can waltz out of the country so easily, what does that say about our passport controls and efforts to restrain Islamic State sympathisers.

Chris Finlayson: Well, I mean, that wasn’t a very impressive exercise. I don’t think anyone would deny otherwise. But what I think is important is that we’re dealing with stopping people from using New Zealand passports so that they can make their way to Syria and Iraq and join forces that will cause chaos there. So they’re really two different issues. The Police and the Corrections department can answer for Mr Smith in the fullness of time.

Patrick Gower: Yes, but they really are the same issue in that sense, and it doesn’t matter if you have all the new laws in the world if someone can just circumvent them the way we’ve seen Phillip John Smith this week. It’s a waste of time.

A very, very good point. It’s one thing to pass the law, it’s one thing to introduce new sorts of requirements, but if things aren’t done properly at the border, there will be a problem.

So can you give the public any guarantee that once you get these laws in that you will be able to stop these people from going? Or the laws will be there and people will just do a Phillip John Smith?

Well, I think in the light of Phillip John Smith, I can give you a pretty clear assurance that whatever failings there were will be addressed and that sort of thing will not happen again.

Sure. And on this law – I mean, let’s look at an example here of people that— like Mark John Taylor, the Kiwi jihadi who had his passport stripped in 2010, got it back in 2011 and in 2014 he’s gone to Indonesia, and he’s ended up fighting in Syria. Why wasn’t he stopped? Because you knew about him. You’d cancelled his passport before. Why did Mark John Taylor get over there?

Well, it was cancelled for a particular period, and then he went to Indonesia. Once someone goes to Indonesia and then moves into other areas, there’s very little the New Zealand authorities can do.

Yeah, but as a known jihadi, you could have cancelled it again, because it was obvious to anyone he wanted another go. He’d been to Yemen. He’d been to Pakistan.

That’s one of the reasons why we’re looking at the legislation relating to passports so exactly those sorts of issues can be properly addressed.

But what had stopped it? Because wasn’t it a monitoring issue? Shouldn’t the spies have been monitoring Mark John Taylor better to know that he was going to have another crack? I mean, this is a guy out in the wide open, a wannabe jihadi who had two goes. He was going to have another go. Isn’t it a failing of the spies?

No, I don’t think it’s a failing of the spies, as you call them, at all, but the legislation does need to be reviewed, and then the legislation needs to be properly implemented.

So did the legislation fail in terms of letting Mark John Taylor out?

Well, it’s not the legislation failed. It’s just that there are gaps in the legislation, and following on from, for example, the Security Council resolution of 24 September of this year, what it called on member countries to do was review their legislation to make sure that we stop people leaving our shores to go and fight, for example, for ISIS.

Because you can strip already, as we saw with Mark John Taylor – you’ve stripped 11 passports like that, two this year. Would you have done more if you had the laws in place? Are there people out there who would have had their passports stripped—?

It’s been a developing problem. You know, if you go back to 24 September of this year, the UN said, ‘Look, you guys, you’re really— all member states need to look at these issues,’ and that’s exactly what we’re doing. I can’t tell what would have been the case if certain things had happened in the past. We’re dealing with an emerging problem, and we have to address it, address the passports legislation as comprehensively as we can.

Sure, but are there examples? Have the spies come to you—?

Not that I’m aware of.

So there isn’t actually an example of this? You’re passing a law for a problem that you actually haven’t had?

No, we’re doing what we’ve been asked to do – look at the legislation. We know that there have been certain issues, and you’ve mentioned one yourself, to make sure that the legislation is effective so that cancellations can operate.

But you’re taking a lot more power at the same time, aren’t you?

Well, you may say so, but our first responsibility is to protect New Zealand citizens and to stop this sort of activity, and we have to act proportionately, but we have to act.

Yeah, so there’s five Kiwis in Syria at the moment. What happens if one of these guys walks off a plane at Auckland Airport today? What happens to that foreign fighter?

Well, we’ve got to both look at reintegrating these people back into the community if that’s possible, and, indeed, the UN says it’s not just a question of prosecution; it’s a question of reintegration and rehabilitation. If not, there are various—

So you don’t just lock them up?

There are criminal sanctions that could be looked at if the person came back here and was determined to cause mayhem.

Sorry, if someone got off the plane today, you wouldn’t just lock them up? You’d try and reintegrate?

Oh, I think in the first instance, you would take him to one side and ask very closely what he’d been doing and what his intentions were for the future. But that would be a matter for the authorities to determine whether such a person was an immediate risk to society.

The reality is there’s no powers to do anything about that person, is there?

Oh, I think there are powers. You’re dealing with a substantive criminal law that there could well be sanctions that could be used against such a person, depending on the particular circumstances. But that would be a matter for the police.

So how worried are you, as the minister, of one of these people coming back – one of these foreign fighters coming back – and committing an act of domestic violence, an act of domestic extremism? A beheading, for instance?

Well, there are the unknown unknowns, and so far as possible, one of the core responsibilities of government is to protect the security of its citizens and make sure that we’ve got the laws in place and the authorities to enforce them to make sure that sort of thing doesn’t happen. Can I say that that’s a possibility or a probability at the present time? I wouldn’t know.

Are you worried about a domestic beheading?

I’m worried about the potential at least – forget beheadings – for an act of violence against my fellow New Zealanders.

And that would include a beheading – an IS style, an Islamic State style beheading?

Well, it’s… To take your hypothetical, it’s not entirely fanciful, because of what happened, for example, to Lee Rigby. I mean, violence in whatever form – I’m not concentrating on the particular act, but I am concerned to make sure that acts of violence generically are stopped.

Sure. Looking at the counter argument here, what happens if a New Zealand-based Kurd decides to go and fight for Kurdish forces against the Islamic State?

Mm-hm.

And then comes back to New Zealand with that person—?

The same principles would apply.

So a Kurdish person who’s fighting essentially on the same side as what New Zealand is helping, against IS, would be prosecuted, would have their passport stripped?

Well, I’m sure this question’s arisen in the past, going way back to the Spanish Civil War, when people went off and fought on particular sides. We say it’s inadvisable for New Zealanders of their own volition to go and get involved in this kind of activity. They should stay put and leave it to ordinary forces to do what needs—

But some of those Spanish Civil War people were heroes.

Yeah, but in a world of complexity, like in the Middle East, what we don’t want are people getting on their steeds and riding off into the sunset to save populations. Leave it to conventional forces to deal with these matters.

Leave it to the West? Leave it to the United States? Don’t go and defend your fellow Kurds?

I don’t think I’m saying leave it to the West, because ultimately, as the Prime Minister said in his speech at Victoria University, it’s going to depend on Iraq looking after Iraq.

Let’s turn to the watch list – 30 to 40 you’re worried about in the hard core of wanting to fight for the Islamic State or fundraising for them, another 30 to 40 that you want further investigation on. How worried should Kiwis be about these 80 people? Describe one of them to us. What does one of those 80 people on your watch list look like?

I’m not going to start describing people who may be watching and say, ‘Oh, they got me.’

Yeah, but a rough description.

I can say to you that – how worried should people be? They should be mindful of the fact that an independent body – not politicians, an independent body – called CTAG has raised the threat of, tariff, from very low to low. So you just have to bear that in mind. That’s not a cause for community panic, but there are people out there that we are interested in, that we don’t want to give them any opportunity to undertake the sorts of criminal activity that would harm the security of New Zealanders.

What have they done, though, to get you interested in them? What have these 80 people actually done? You’re not giving away anything by saying that. You know, people want to know what they’ve actually done to get on this watch list.

Well, they might be hypothetically, for example, alienated from the rest of society, have a chip on their shoulder about a particular issue. They’re the sorts of— And maybe it’s religiously based, not necessarily. But they’re the sorts of people that can give rise to causes of concern.

And is something like watching an Islamic State video – is that the kind of thing? Or sharing it on Facebook? Is that the kind of thing that would get that person with a chip on their shoulder on to your watch list?

Well, we don’t— And I’ve got to emphasise this because it’s been said time and time again – we do not engage in mass surveillance, so a lot of the stuff you’ve talked about, we wouldn’t necessarily find out about, unless we were tipped off by a human source.

Yeah, if you were tipped off by a human source that someone’s watching an IS video, is that enough to get them on the watch list?

Well, it could be a cause for concern, because some of that stuff is pretty graphic and encourages people to undertake acts of violence. If they can’t be involved in jihad in the Middle East, I think it’s common knowledge – commit jihad at home.

Because the Islamic society says it’s actually about five to eight people that they’re worried about, whereas you’re worried about 80.

Oh, and I think that they have their particular concerns. There are people, as I understand it, who are alienated from their mosque and have left their mosque, and so they’re beyond the reach of the particular imam who may be there to counsel them.

Yeah, so the question is, though, you’ve got dozens of people on the watch list who are pretty minor. They may be at least just doing stuff on Facebook, isn’t it?

Well, they may be or they may not be, but we just have to, in accordance with our obligations to our citizens, keep an eye on things.

So what does that mean – they may be or they may not be?

Well, a lot of people may be, for example, nothing more than juvenile fantasists, but there may be others who go beyond that and are an actual threat to society.

And juvenile fantasists are on the watch list?

Well, I’m not saying who is or who is not on the watch list. I’m talking through the kinds of examples, teasing out some of the things that you have been raising with me.

Sure, because let’s look at that crowd sourcing and recruitment of terrorism. IS is on Twitter, Facebook, you name it. Robert Hannigan, who is the new spy chief of the GCHQ in the United Kingdom, says these are the new command and control centre for terrorism – Twitter and Facebook.

Well, I mean—

Are you worried about that?

It’s certainly a fact that you don’t need to go down to a particular centre and be inducted in the group. Given the power of the internet and the range of the internet, you can induct yourself.

Well, do you think that internet things like Facebook need to be reined in?

No. How can you? I mean, was it Mr Twyford who had that interesting debate a couple of years ago where he said, ‘Control the internet’? Well, you can’t control the internet.

Yeah, but you can control people’s privacy, though. Is that a way around it? Do we need to renegotiate the privacy contract in terms of the internet so that people can feel safer that you are watching what people like IS are doing on the internet?

No, I think that the privacy legislation, the privacy contract, as you call it, that is in place is very important for the benefit of our citizens, and you don’t start to— You can’t confront these sorts of things by creating what the East Germans had prior to the fall of the wall, some kind of Stasi operation that is sort of keeping an eye on everyone. You know, we know that when the wall fell and East Germany fell, citizens were lining up for block after block to get hold of their files. We’re not going anywhere near that.

Well, that’s interesting in terms of what Robert Hannigan has said or David Kilcullen, who’s on this programme later on, saying that in some senses, in terms of being safe from things like domestic beheadings, you may need to sacrifice privacy; you may need to say, ‘We need elements of a police state to stop one or two deaths.’

Well, I haven’t seen the interview in its context, but I think that one of the great bullwhips against tyranny is the law as it applies to individuals.

Sure.

And, I mean, that age-old debate was held in various ways during the Second World War. But I’m Attorney General, and I say to you the greatest protection for a society is the rule of law.

Well, that raises an interesting question about having the power to spy for 48 hours without a warrant. Why then do something like that which is essentially outside of the rule of law?

No, it’s not, because if you look at section – I think it’s 48 – of the Search and Surveillance Act, in exceptional circumstances, there is a similar power. What we’re talking about here, bearing in mind the bedrock principle that it’s I as the minister in conjunction with the Commissioner of Warrants who approves certain activity. If in very special circumstances – exceptional circumstances – I was unavailable immediately to deal with a matter and I couldn’t be spoken to about it on my cell phone, I could say to someone, ‘Right, you can do that. I’ll be back in Wellington in 15 hours, and I want to see the paperwork.’ And if having seen the paperwork I’m not satisfied, then the material is destroyed. I don’t think—

But the spying has happened, though. The privacy of someone has been intruded. It doesn’t matter whether the material is destroyed or not.

Well, that is why what we’re talking about is a truly exceptional circumstance. And as I say, I haven’t seen the actual form of the legislation just yet. That will be available in the next few days. But I will be interrogating those very questions very closely.

Minister, thank you very much for your time.

Thank you.

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ENDS

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