The New Zealand Law Society believes there should be a comprehensive review of all security and intelligence legislation with a view to replacing it with a single act. The importance of the subject matter means the review should start from first principles and be a public inquiry conducted under the Inquiries Act 2013, the Law Society says.
In a submission to the Ministry of Justice on the Independent Review of Intelligence and Security, the Law Society says the difficult balance to be struck between protecting national security and protecting individual rights should be supported by a clear and coherent legislative framework “which provides strong protection of individual rights and limits intrusions so far as possible”.
It says there is ample justification for a review of all relevant legislation with a view to replacing it with a single coherent piece of legislation developed from first principles. “A single act would have many advantages, including enabling consistency with fundamental principles, avoiding inconsistency with and gaps between various statutes, and minimising the need for piecemeal amendment of different pieces of legislation.”
Crystallising the principles is a matter for public debate and inquiry, the submission says, noting that the terms of reference of the current review are too limited. “The information provided to submitters is ... limited to a brief description of the legislation governing the activities of the agencies, and oversight mechanisms. It will not sufficiently foster informed public participation. The current review falls short of what is required.”
The Law Society suggests widening the terms of reference, gaining a comprehensive understanding of how agencies operate, introducing an independent advisor with expertise in human rights, and development of a “proper discussion paper”. The current review and subsequent periodic reviews should be reconstituted as public inquiries.
Considering the current legislation against a suggested set of principles, the Law Society says while it contains some of these, the present checks and balances fall short of those that are required. “At present control and oversight is concentrated in the hands of the Executive. There is insufficient Parliamentary oversight.”