Privacy Commission fails to stem SIS attack on academic dissent

Media Release: Jane Kelsey
Sunday August 9 2009

The Privacy Commission has made itself complicit in the surveillance of lawful dissent by the Security Intelligence Service, with chilling implications for academic freedom and critical debate, a university law Professor warns.

“Both agencies have clearly over-stepped any reasonable interpretation of the ‘national security’ grounds for refusing to disclose documents, opening them to legal challenge. That is under active consideration”, said Dr Jane Kelsey, a Professor of Law at the University of Auckland.

“My experience since applying for my SIS file last November reveals two things: there is still no accountability for SIS actions in gathering intelligence on lawful dissent; and the SIS is apparently targeting academic critics of failed free market policies at a time when debate is needed most.”

“The SIS initially refused to confirm or deny whether they held any information on me, claiming that answering that question was itself likely to prejudice national security. They later conceded a file existed, when they realized there were references to me in three pages of the file released on Keith Locke MP.”

“When I complained to the Privacy Commission, they upheld the SIS position. This is utter nonsense. Documents released to other people include information on me and contain innocuous documents similar to those that must appear on my file. None of these could conceivably threaten national security.”

“When the SIS got new powers in the 1990s I warned that they would be used against critics of the free market policies and free trade agreements. This has now proved true.”

“This isn’t about me”, says Professor Kelsey. “The chilling effect of this kind of ‘intelligence’ is likely to intimidate young academics, students and public intellectuals from contributing to critical debate about the discredited ‘neoliberal orthodoxy’. Who wants to be spied on for doing their job?”

“The new culture of openness under SIS director Warren Tucker may have begun with good intentions, but it has now become a sham,” Kelsey said.


A background note follows.


The grounds cited by the SIS and Privacy Commission to withhold the file:

The SIS initially refused to confirm or deny whether it held any information on me, claiming disclosing that fact was likely to prejudice national security. The Privacy Commission notes that it would likely have supported that position, had the SIS not discovered that it had released to Keith Locke three pages that referred to me and thereby revealed that I had a file.

Subsequently, the Privacy Commission upheld the decision of the SIS not to release any further documents from my file, because ‘there is a real or substantial risk that the release of the information would disclose knowledge about NZSIS’ operations or capabilities or modus operandi and to do so would have the effect of a prejudice to the endeavours of NZSIS’.

A number of other people engaged in similar activities to my own have been told the dates of the first and last entries, and how many pages or folders there are in their file. This information on my file is being withheld because its release could, in itself, expose or prejudice the reason the information is being withheld. That suggests there is something unique about the size or format of the information in my file.

Elsewhere in our lengthy correspondence the Privacy Commission said the information held may not be sensitive, but the strategies for collecting it may be.

Further, SIS interest in an individual will vary over time and context, suggesting that surveillance focused on certain activities or events.

The Privacy Commission volunteered that it would have endorsed withholding the information by the SIS on another ground, being ‘maintenance of the law, in this case the Service’s ability to ensure the security of New Zealand was not compromised or breached’. It is a reasonable inference from the Privacy Commission’s correspondence that the ‘maintenance of the law’ is code for protecting SIS surveillance techniques and activities.

Information revealed in other people’s files that cannot be considered a threat to national security or disclosing particular modus operandi:

A review of material released to other people reveals five innocuous documents that are presumably also on my file, given the SIS meticulous system of cross-referencing:
- November 1981 ‘MOST’ legal aid workshop run by Jane Kelsey for people arrested in Auckland during the Springbok tour.
- a (wrong) note that Keith Locke was accompanied on a visit to the Philippines in 1988 by two people, one possibly being Jane Kelsey who was the leader of an Asian Human Rights Centre (sic) investigation in 1988.
- a transcript of a Checkpoint item on the Asian Development Bank meeting in Auckland in 1996, where Jane Kelsey is extensively quoted in the capacity of ‘the NZ liaison person for some 30 overseas non-Government organizations concerned about Asian Development Bank policies’.
- an article from Political Review that names Jane Kelsey, Law Faculty, Auckland University as the contact point for information on the APEC Forum and Parallel Programme for the Asian Development Bank meeting.
- an advertisement for a Global Peace and Justice Auckland public forum where Jane Kelsey would speak on ‘Privatisation and Globalisation’.

Other people’s files are said to contain media clippings, although these have generally not been included in documents released because they are publicly available. It is obvious that media articles must also be on my file. Given that they are already in the public domain, releasing them or at least acknowledging they are on the file cannot be ‘likely to prejudice national security’.

Initially, where the SIS was not prepared to release actual documents to people, they provided a summary of the subject matter and reference to the person that was contained in each document. These documents record people’s attendance at various activities, such as Waitangi protests in the 1980s, meetings related to the Springbok tour, Philippines Solidarity and APEC organizing meetings. Other files that have been released include fuller documentation of who attended various political meetings. The SIS stopped providing this information as requests for files increased. Again, it is clear that this kind of information was not considered ‘likely to prejudice national security’ when it was released to others who have engaged in similar activities to me.

SIS activity

The SIS has been especially interested in activities that challenge its own powers. Many people’s files contain a list of people and organizations who made submissions on an amendment to SIS legislation in 1999. I have regularly made submissions on SIS and security legislation in my academic capacity.

Another document notes that Jane Kelsey, associate professor of law at Auckland University spoke to a public meeting in Christchurch on recent expansion of SIS powers, in the context of the SIS break-in to Aziz Choudry’s home in 1996.

The release of neither document can be ‘likely to prejudice national security’.

Academic freedom

The SIS has a long history of spying on academics. The file of economist Wolfgang Rosenberg dates back 50 years, and includes comments he made in the common room and his applications for academic jobs. Recent files of several other academics focus on lawful activities undertaken in the course of their employment as academics, such as giving lectures, participating in conferences and convening meetings on university campuses. Various Students Association groups and activities have also been monitored.

The Education Act confers statutory protection on academic freedom, defined as the ‘freedom of academic staff and students, within the law, to question and test received wisdom, to put forward new ideas and to state controversial or unpopular opinions’, and a responsibility to act as ‘critic and conscience’ of society. Moreover, there is an obligation on all government agencies to preserve and enhance academic freedom.

The potential chilling effect of the SIS maintaining files on academics fulfilling their employment and statutory responsibilities extends beyond the individuals concerned to their engagement with students in lectures or undertaking research, academic colleagues, research funding, advisory work and consultancy. It also sends a message that they may be spied on for simply doing their job.

Critics of economic policies

In the 1996 the SIS powers were amended by defining security to include ‘New Zealand’s economic wellbeing’:
"Security means the making of a contribution to New Zealand's international well-being or economic well-being; and the protection of New Zealand from acts of espionage, sabotage, terrorism, and subversion, whether or not it is directed from or intended to be committed within New Zealand."

Many people, including myself, warned that they would be used against critics of the free market policies and free trade agreements. It became clear from the Choudry case, when Aziz Choudry successfully sued the SIS over the break in to his house during the APEC Finance Ministers’ meeting in Christchurch in 1996, that the SIS was already using interception warrants to monitor APEC protests at least from September 1995.

It also became clear at that time that the SIS held a Personal File on me. As an initiator and spokesperson for the APEC Monitoring Group, it is certain that my activities regarding APEC were being monitored and highly likely my communications were also intercepted, especially during the APEC Leaders meeting in Auckland in 1999.

After extensive submissions from many people, including myself, the Act was amended in 1999 to apply to ‘the identification of foreign capabilities, intentions, or activities within or relating to New Zealand that impact on New Zealand's international well-being or economic well-being’.

Various files contain documents that relate to different aspects of neoliberal economic negotiations, organizations and meetings, such as opposition to the Multilateral Agreement on Investment (MAI), the Asian Development Bank and APEC meetings in Auckland, and a public meeting of Global Peace and Justice Auckland on globalisation. It seems obvious that the SIS has invoked the ‘economic wellbeing’ definition of ‘security’ on numerous occasions, before and after 1999, in ways that far exceed its powers.

As a prominent academic critic of these and similar neoliberal initiatives, I must assume that the SIS has been monitoring my lawful criticism of global free market policies and treaties, possibly through the periodic use of interception warrants. It also once again raises the question of why such information can be released to others, but would its release to me become ‘likely to prejudice national security’?

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