Locke Keith: Customs and Excise Amendment Bill Immigration Amendment Bill (No 3) — Third Readings 
Locke Keith: Customs and Excise Amendment Bill Immigration Amendment Bill (No 3) — Third Readings 
[Volume:618;Page:13831] 
KEITH LOCKE (Green) 
: 
 The Green Party has been supporting the border security legislation and that legislation has now been divided into two bills. However we do have some serious concerns about the implications for civil liberties particularly in respect of some powers granted to the Customs Service and the Immigration Service. 
The positive aspect of the border security legislation is contained in Part 1 which is now a separate bill called the Customs and Excise Amendment Bill. It will enable tighter monitoring of containers and that could help improve biosecurity. The Greens are very keen about that because already too many unwanted and dangerous bugs and plants are coming into New Zealand. There has been some debate about which extra costs should be borne by exporters and which costs should be borne by the State because there is private and public benefit from having improved security monitoring of containers. We are glad there will be some transitional State subsidies to enable the new arrangement to carry us through to the review of what the cost sharing should be between exporters and the State. 
I will spend most of this speech discussing the serious privacy problems associated with the Advance Passenger Processing system which the bill introduces. A form of this system as implemented by the United States has already caused a conflict with European countries. Section 38E(3)(d) in new Part 3A inserted by clause 8 will give the Customs Service extensive powers to require airlines to hand over personal information on passengers. The information required is open-ended not limited to any particular list although there is a list that includes for example such things as place of birth—something the airlines were a bit upset about—that could lead to the targeting of people not just on grounds of their present nationality which may be a New Zealander but also the nationality of their parents. 
Given that the whole idea of this system is to exchange personal passenger information particularly with the US we could see some New Zealanders if born say in an Islamic country having trouble at the US border or not even being able to get on a plane from New Zealand to go to the US. The whole idea of this system is to stop people—that the Americans are suspicious of—from even getting on a plane in the first place. One of the passenger details listed in new Part 3A is “special conditions regarding travel”. The Americans have sometimes interpreted that as including special diets such as might count against passengers going to the US if they order a Muslim halal menu given the paranoia in the US towards migrants or visitors of Islamic origin. 
 The Immigration Amendment Bill (No 3) provides that airlines are required not just to give out details of people’s impending trips but to give details of other trips around that time over a 28-day period including trips without a New Zealand origin or destination and all without a warrant being necessary. 
The Customs Service will have the right to search airline records some time after travel takes place. The Immigration Service will be able to check who someone’s companions were during the travel. The Passenger Name Records system that the Minister referred to in his speech will enable the Customs Service and the Immigration Service to search frequent-flyer records which detail journeys over a long period of time—years in fact—and maybe even credit card details will be required later. This has been a major bone of contention between Europe and America. The US wanted the details and numbers of credit cards used to purchase tickets and the Europeans could not receive any guarantees that that information would not be spread through different American agencies and misused. 
The European Parliament has been quite upset about the passenger data exchange deal signed between the European Commission and the US Government. On 31 March this year the European Parliament passed a motion criticising the agreement and the issue may soon go to the Court of Justice of the European Communities. There is a whole set of data privacy issues involved. How much personal information is collected and is it excessive? It seems excessive in this bill. What purpose is the information used for which relates to what agencies and countries such as the United States it is passed on to and how they use it or misuse it? There is no control over this in the bill. If it is misused how can we find out about this misuse and have some right of appeal and redress? That is not contained in the bill. 
The next question is what right passengers have to see what is transmitted and to correct any errors. In the bill there are four sections of our Privacy Act that are explicitly overridden to prevent someone from finding out such information. 
There are not adequate rights of appeal if someone has been stopped from getting on a plane because of certain information about that person provided by airlines to the Government. The Law Society expressed concern about this in its submission to the Government Administration Committee. The matters relating to appeal rights or lack of them are contained in the last part of the border security legislation now called the Immigration Amendment Bill (No 3). We know from our Immigration Service that over the last little while 34 people have been stopped from getting on planes to New Zealand because of the Advance Passenger Processing system. If they were not New Zealand citizens or permanent residents under this legislation they would not have had any right to find out why. They have only the right to challenge the decision of the Immigration Service if they can prove they were confused with someone else who had an identical or similar name although I do not know how one will actually figure out that it was a name mix-up that was the cause of the problem if one is sitting at say Los Angeles airport. 
Under the bill immigration officers do not have to give any reasons for their decision and one cannot find out through the Official Information Act which is specifically excluded from operation by one clause in the bill. If people are prevented from travelling to the United States for example they will not necessarily get much joy from the Customs Service which may have stopped them from getting on the plane because of information coming through from the United States. The key information could be withheld from them if it would “prejudice the entrusting of information to the Government of New Zealand on the basis of confidence by the Government of another country”—that is the other country say the United States can say that it is a confidential matter and that in itself determines the result in the fact that one cannot have access to that information. But on the other hand ordinary people have to be very open and honest with Customs Service officers because under this bill they can be detained for 12 hours and sometimes more if the officer “is not satisfied that the person has correctly answered the question asked” by the officer. 
The airlines are not too happy about this bill and they are in a difficult situation with different countries bringing in different privacy guidelines. The guidelines at take-off might be different from the guidelines in the country the plane lands in. The new processes are making a lot of extra work for them and potentially getting them in trouble with some passengers—for example they do not like the question whereby they have to provide the information on the country of birth of the passengers. 
There were also problems that were brought out in the submissions made by the Law Society in relation to the increased detention powers of the Customs Service under this bill. Detention does involve the use of force and the Law Society wanted more accountability and reporting mechanisms for the use of such force than are contained in this bill. 
As I said at the beginning the Green Party was voting for the original Border Security Bill but with its division into two bills we will be voting differently on each one. We will vote for the Customs and Excise Amendment Bill to please Peter Brown and I am sure that that will enable it to get through. That bill does have some useful security measures that will help with biosecurity—namely to help overcome the greatest danger to our security from unwanted animals and plants that are brought into New Zealand and badly affect our ecosystem. We will be voting in favour of that bill with some serious regrets because of as I have explained provisions that are detrimental to our privacy and that can lead to injustice. 
We will be voting contrary to the vote of New Zealand First against the smaller second bill the Immigration Amendment Bill (No 3). This is because of all the information on people that is required from airlines and the provisions specifically stopping people affected from finding out why they were excluded under the Official Information Act and having some right of appeal of that decision.