21.
As regards the Review’s matters of particular focus, the Commission has previously
stated its position on the Countering Foreign Terrorist Fighters legislation sunset
clause and the definition of “private communications” under the GCSB Act in its
submissions on those pieces of legislation. These positions are referenced in the
annexure to the submission. The Commission does not intend to expand on those
positions further in this submission.
PART A: The legislative framework
22.
The legislative framework governing New Zealand’s intelligence and security sector is
complex and spread over a number of relatively obscure legislative instruments. The
statutory structures and terminology used are, for the most part, highly technical
and lack unifying guidelines or a code of practice. As a result, the legislative
framework is relatively impenetrable and inaccessible to members of the public.
23.
This is perhaps reflective of the ad hoc way in which the legislature has responded to
the intelligence and security sector’s evolving policy and operational objectives over
the years. While this is not unique to New Zealand, this is not a desirable situation. In
his analysis of the UK legislative framework, Anderson notes:
“Obscure laws – and there are few more impenetrable than RIPA and its satellites
[the UK equivalents] corrode democracy because neither the public…nor the
legislators…truly understand what they mean.”17
24.
The Commission considers Anderson’s five inter-related principles – minimising nogo areas, limiting powers, rights compliance, clarity and transparency and a unified
approach - provide invaluable guidance when approaching the complex and
competing sets of interests that must be taken into account when contemplating the
design and utility of intelligence and security legislation.
Minimising no-go areas and limiting powers
25.
17
Anderson characterises the above two principles as follows:
In order for a system to be trusted, it must be fair and effective. No-go areas
should be minimised as much as possible, whether in the physical or digital
world.
That intelligence and security powers are limited in the interests of privacy.
A Question of Trust p 253
Page 83 of 93
Human Rights Commission submission to the Human Rights Committee in relation to New Zealand’s 6th periodic review under the ICCPR