Locke Keith: Border Security Bill — First Reading 
Locke Keith: Border Security Bill — First Reading 
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KEITH LOCKE (Green) 
: This bill causes the Greens serious concern but we will support its referral to the select committee. For a start we should be upfront about why this bill is before us. It is because the United States has demanded that we pass such legislation. The United States Customs and Border Protection Commissioner Robert Bonner was in New Zealand recently and was quoted in the June issue of the New Zealand Customs Service magazine   
Contraband 
 as stating that progress on security arrangements with the US in the customs area relied on two things: “Part is contingent on legislation”—the Border Security Bill—“and part is making sure that there is participation on a whole-of-Government basis.” The problem that New Zealand and other countries face is that the United States is so powerful as a trading partner and politically that countries are being blackmailed into abiding by American-dictated freight security and immigration systems. For example the measures laid down in this bill are dictated by the US Container Security Initiative launched in January 2002 as a response to September 11. The Container Security Initiative allows for US customs personnel to be stationed in foreign ports to ensure compliance with US dictates. 
The US-driven container monitoring measures in this bill do have certain advantages in terms of monitoring for safety purposes including monitoring for biosecurity internationally. The Greens are very keen on biosecurity and say we have to follow that up as a nation with a better monitoring system and by searching any containers arriving here that are identified as presenting a biosecurity threat. In the freight area there is also a potential human rights problem with the bill’s provisions for security checks on people who work in the areas of packing containers trucking them and loading them on to ships. It would be worrying if that led to subtle discrimination in a way that would be hard to prove. For example employers in companies subject to security checks may start to act on the safe side when hiring people so that people from say Islamic countries do not get to the top of the queue. 
The greatest concern for the Greens is in the area of the civil liberties implications of the immigration provisions in this bill. Stopping potential terrorists from getting on and off planes flying in and out of New Zealand can all sound very nice but how many innocent people will be caught up and prevented from travelling without any right of appeal? The fact is that the United States whose databases will be used to identify many of the people to be stopped has a very broad definition of who constitutes a risk. After September 11 for example the United States detained up to 2000 people and held them for long periods on the basis that they may have something to do with terrorism. In fact virtually none of them had and only one court case has ensued. 
It is in the spirit of international human rights conventions for the right of travel to be governed by the rule of law but the provisions in this bill undermine that. There is no effective legal redress if a person is prevented from getting on a plane. Under the provisions of the bill people will be notified about a decision against their travel but that notification can be “in any form he or she”—that is the Immigration Service officer—“thinks appropriate”. There is no requirement to give a reason nor is there any right of appeal to “any court the Tribunal the Minister or any other body or person” if the Immigration Service prevents anyone from hopping on a plane to New Zealand. Of course there is the added practical barrier to trying to address one’s effective exclusion from New Zealand if one is sitting in an airport thousands of miles away from New Zealand—or vice versa if one is a New Zealander who is waiting in a New Zealand airport after having been stopped from getting on a plane to the United States. 
Members should make no mistake about this: the international systems that are being set up here and elsewhere under US auspices will affect New Zealanders. Even if one was say in Los Angeles and phoned up a lawyer in New Zealand and asked him or her to get to the bottom of one’s exclusion from a plane that lawyer would be handicapped by a provision inserted by clause 8 stating that the evidence can be kept secret by the Immigration Service under broad provisions such as that it might “prejudice the security or defence of New Zealand.” Evidence from overseas agencies like the Central Intelligence Agency will almost always be kept confidential because of a clause allowing those agencies to determine its confidentiality. Under the provisions inserted by clause 8 the information is secret if the overseas agency “will not consent to the disclosure”. 
Evidence from such overseas agencies is the very information that the Greens would be most suspicious about on two grounds. One is its accuracy—and we know clearly from the current debate over the failure to discover weapons of mass destruction in Iraq that we cannot rely on the information provided by the US intelligence agencies. It is often inaccurate and manipulated by politicians. The second and associated reason for being suspicious is that the American intelligence and police agencies often serve agendas that are different to ours here in New Zealand. The US agencies would be prejudiced against anti-nuclear anti-war anti - genetic engineering or anti - corporate globalisation activists travelling into and out of the United States or moving around the world in general. The US agencies could be inclined to provide damaging information on such individuals to New Zealand immigration or customs services under the exchange arrangements. It is a very easy way for such agencies to harass such political activists because if the activists have a tight travel schedule then stopping them from getting on a plane for a day or two can make a speaking trip or a trip to an anti-globalisation protest unviable. 
I am are not talking hypothetically here; I have an example of that from my own family. My late mother Elsie Locke was travelling as the official New Zealand representative to a children’s literature conference in Vancouver when she was hauled  off the plane at Honolulu by the US authorities and was not allowed to continue on the plane to Vancouver purely and simply because they disliked her radical activist political background. In that case she did eventually get to the conference but she was not able to come back to New Zealand from Vancouver on her scheduled route via Honolulu. 
The Greens also have considerable privacy concerns about the information that the airlines are supposed to give to the customs and immigration services the information that the customs and immigration services will share with agencies overseas and the possible misuse of that information. Under the bill virtually anything can be asked for. The non-exclusive list of information to be given to the Customs Service includes such things as one’s email address and the information can include all sorts of details about one’s travel history. There has been a debate in Europe over the details that European-based airlines are providing US authorities with which include credit card numbers if the ticket is purchased with a credit card particularly as there are inadequate privacy protections in American law about the subsequent use of credit card numbers by the US agencies. 
We do know that under the homeland security system that is being built up by the Bush administration information is freely shared across Government agencies and there has been considerable public outrage about intrusions on privacy. For example American librarians are currently up in arms about requirements that they hand over to the police the borrowing records of their library users. There are very few real controls on the information that New Zealand’s immigration and customs services may provide to homeland security agencies in the United States. There is provision in this bill for written agreements between New Zealand and overseas agencies about the information that we give them but there is also a provision for the Customs Service to provide information without a written agreement as long as a record is kept of the information that has been passed on. 
Finally the New Zealand Customs Service’s power to detain is expanded in this bill with little legal constraint on the abuse of that provision. For example under new section 148A(5) inserted by clause 16 a customs officer “may continue to detain a person” if the officer “is not satisfied that the person has correctly answered a question asked”. That is a pretty arbitrary and open-ended power to give to an officer. Of course the Green Party does want the customs and immigration services to have the ability to detect serious criminals and to stop the smuggling of arms through New Zealand. We are in favour of improving the systems in order to achieve that but we are far from satisfied that the bill as it is now drafted really controls the possible abuses of power and that it does not catch up innocent parties both by the customs and immigration services in New Zealand and by the overseas agencies that we may share information with.