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Salient. Victoria University Students Newspaper. Volume 37, No 26. October 2, 1974

The official secrets act denies basic rights

page 15

The official secrets act denies basic rights

The following story, written by a lawyer, is entirely fictional. It is intended to illustrate a point about the Official Secrets Act which has recently been brought to the public's attention. Readers should draw no inferences or conclusions from it as to the past, present or future acts of any person. The incidents described here have been invented to show how the Act could be used to stifle the emergence of views effectively opposed to any current government policy.

J.B. is a keen sportsman who believes that politics and sport do not mix. As a result, about the time of the agitation by Hart and Care against the South African Rugby tours he felt that some action was needed to counter what he saw as their pernicious propaganda. He started an organisation to promote sporting links with South Africa after the Government, in line with UN resolutions on the subject, cancelled the All Black tour of South Africa and began actively discouraging sporting contacts with South Africa his organisation began to grow rapidly.

As a result of his work in this field he received an invitation from the South African Government to go to South Africa 'and view the country at first hand. He travelled there and made many contacts with South African sportsmen. At his own request he was invited to visit the Ministry of Sport and there he held discussions with an under secretary of the department. During the discussions he said that in line with his beliefs that sporting contacts with South Africa should not be broken he would be pleased to help in any way he could to boost contacts. The undersecretary told him that one area in which he could help was in providing information on general trends in thinking in New Zealand both among sportsmen, and as far as he could gather it from public statements and so on, among politicians of both parties. The under secretary said that it would be of great assistance to his ministry if J.B. would send reports of any trends to him at the ministry from time to time.

J.B. returned to New Zealand at the end of his tour and, in line with his friend's request, talked among his sporting contacts, checked the newspapers for reports on the subject, listened for gossip about government and opposition intentions, and every few weeks sent a brief and factual report with his assessment of the situation to South Africa. Anything he reported was information quite readily available to anyone in New Zealand who cared to look for it, but it was of great value to the South African Government in their endeavours to counter the anti sport lobby in New Zealand.

One morning at 3am J.B.'s home was raided by a large police party, he was arrested and charged with spying under Section 3 of the Official Secrets Act 1951. The Police searched his home, and found a few newspaper clippings and an address book with the address of his South African contact in it, but he hadn't copies of his reports, so that was about all there was. A police officer took him aside and asked him a few questions about what he had been doing corresponding with South Africa, but J.B. knew his rights and said he would not say anything until he had consulted his lawyer, and the policeman did not press him.

The next morning he appeared in Court and the charge was read out."J.B., you are charged that on April 28, and May 30, 1984, for a purpose prejudicial to the safety or interests of the State, you obtained information which is calculated to be, or might be, or is intended to be, directly or indirectly useful to an enemy." He did not enter a plea, and was remanded on bail for a fortnight to give him time to discuss the charge with his lawyer.

He had an appointment with his lawyer the next day, so in the meantime he had a bit of time to think over the charge. By the time he had looked into it fairly carefully, he felt quite confident that he could not be convicted. In fact he could not really understand how the Police even thought they might have enough information to sustain the charge. After all, for a start New Zealand doesn't have any enemies he thought, so it's going to be impossible for the police to prove that my South African friends are enemies, and if they aren't enemies, any information that I obtained could not possibly be of any use to any enemy, and in any case what has sport got to do with the safety or interests of the State. No jury of decent red-blooded Kiwi's could possibly find that that was the case, and even if it is, my purpose in gathering the information was not prejudicial to the safety or interests of the State. Thinking it over a bit further he decided that even if the Police could establish all those points — and he was quite sure they could not — they didn't really have enough evidence to convict him. After all he had refused to make a statement, and his friends who knew what he had been doing were smart enough not to incriminate him. Probably all they had apart from a lot of suspicions was the address book with the address of his contact in it, and the newspaper clippings.

J.B. was quite confident when he went to see his lawyer the next day. His confidence was quickly shattered.

"I might as well tell you now," said his lawyer, "I don't think you stand a dog's show of getting off this one."

J.B. interrupted and told the lawyer his thoughts of the night before. "Don't be too sure," said the lawyer, taking down a copy of the Official Secrets Act from his bookshelf. "They've sewn you up so tight, I don't think we can get you out. Take a look at Section 4 of the Act." J.B. took it and read it.

"In any proceedings against a person for an offence against section three of this Act, the fact that he has been in communication with or attempted to communicate with, a foreign agent, whether within or without New Zealand, shall be evidence that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be or is intended to be directly or indirectly useful to an enemy."

J.B. finished reading, and looked up at the lawyer. "Well that's it then, isn't it. If they prove I communicated with a foreign agent they've got me. Is that right?" "It's not quite as bad as that," the lawyer told him. "The fact that you communicated is only evidence of the charge; it isn't conclusive that you are a spy." This advice relieved J.B. a bit, and he remembered his other thoughts of the night before. "I don't think they can prove I communicated with the South Africans anyway." he said, "and who's to say the under secretary is a foreign agent." "They've got you on both those points," the law replied. "Read on in section 4." J.B. read on.

"A person shall, unless he proves to the contrary, be deemed to have been in communication with a foreign agent if — i) he has either within or outside New Zealand visited the address of a foreign agent; or ii) Either within or outside New Zealand, the name or address of or any other information regarding a foreign agent has been found in his possession, or has been supplied to him by any other person, or has been obtained by him, from any other person."

He looked up and the lawyer continued. "Not only do I think the information the Police have got is sufficient under that provision to prove that you did communicate, but the fact that you and your friends have kept your mouths shut and not given any information to the Police isn't going to help you. The Crown Prosecutor rang just before you arrived to say that the Attorney-General has given the Police power under s. 11 of the Act to require you and your associates to provide any information they request. The Police want to see you at Central tomorrow, and if you refuse to help you can be given seven years jail on top of the 14 you are up for now."

"But since when has a South African Government official been a foreign agent; surely a foreign agent must be someone working for an enemy, and South Africa isn't our enemy. I didn't think New. Zealand had any enemies." "Section 4 covers that too, "said the lawyer. J.B. read it.

"The expression "foreign agent" includes any person who is or has been, or is reasonably suspected of being or having been employed by a foreign power, either directly or indirectly, for the purpose of committing an Act, either within or outside New Zealand, prejudicial to the safety or interests of the State, or who has, or is reasonably suspected of having, either within or outside New Zealand, committed or attempted to commit such an act in the interests of a foreign power."

"As I see it," said the law/er, "all the prosecution need to do to prove that some person paid by a foreign government is a foreign agent as defined, is to produce some governmental spokesman to say that the government considers that to encourage sporting links with South Africa is prejudicial to the safety or interests of New Zealand. He will produce copies of the United Nations resolutions against sporting contacts with South Africa, and remind the jury of how strongly some friendly African and Asian countries feel about sport contacts with South Africa, and there won't be any doubt that your mate in the ministry is an agent."

"But that practically means that anyone who carries on political activities which are against government policy can be labelled a spy if his activity brings him in contact with foreigners who work for another government."

"That's right."

"But I support our system of government. I mean I don't support the government's policy on sport with South Africa, but I thought I had a democratic right to oppose it. I haven't got any purpose prejudicial to the safety or interests of the State; I thought my activities were in the best interests of New Zealand."

"Just remember the evidence that the prosecution will bring about the interests of the State and read Section 7."

"On a prosecution under this Act, if from the circumstances of the case, or the conduct of the accused person or his know character as proved it appears that his purpose was a purpose prejudicial to the safety or interests of the State, it shall be deemed that his purpose was such a purpose unless the contrary is proved, whether or not any particular act is proved against him."

"That means I am guilty until proved innocent. I've never made any secret of my opposition to Government policy on this issue. I can't prove myself innocent if government policy says I am guilty. I'd plead guilty and get it all over and done with if it wasn't for the fact that I think the public should hear all the evidence on which I will be convicted. At least there will be a public outcry and the Act might be repealed."

"I wouldn't count on that," said the lawyer. "Under section 15 of the Act the judge can hold the trial in secret. No one need ever know anything except the fact that you have been convicted and sentenced. But I won't let you plead guilty. One advantage of our jury system is that whatever the law says juries often acquit when they sympathise with the accused. I think no good Kiwi jury would convict you. It's lucky for you you're charged with being friendly to the South Africans. You wouldn't stand much of a chance if you were supporting the blacks."