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New Zealand's longest-running online daily news and commentary publication, now in its 24th year. The opinion pieces presented here are not purported to be fact but reasonable effort is made to ensure accuracy.

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Above the law

15 December 2017

As long-time readers will know, I've had dealings with the SIS.

I found them to be an affable, well informed organisation with a good finger on the pulse of what's happening inside and out side the country.

However, I was also made very much aware that they don't always play within the rules that are laid out for them by government and the laws that have been created.

What surprised me is that the SIS chappies I spoke to were quite open about this -- almost proud of it you might say.

Regardless of whether this is a good thing, you can't help but admire their pragmatism.

Unfortunately though, this really raises the question of whether *anyone* should be above the law, especially a government organisation or one authorised by government.

I ask this because we've already seen that the SIS has engaged in "unlawful" activities in the past.

What's the difference between "unlawful" and "illegal"?

Well when you or I break the law we are deemed to be acting illegally and are likely to feel the full weight of the justice system. The results can be stiff fines or even periods of imprisonment.

However, when a government agency or authorised body breaks the law, it's considered to merely be "unlawful" and those responsible seldom (if ever) suffer any consequences other than a stiff telling off.

So you see that here in NZ we already have a two-tier justice system that effectively grants immunity to those who are working in the employ or interests of government.

Is that really good enough?

Shouldn't those who hold us to account be held to even higher account themselves?

Ought not such organisations and agencies lead by example... demonstrating the levels of compliance with the law that they demand from the people of NZ?

Do we not need to axe the whole concept of defacto immunity that seems to be granted to the people working in these places because clearly, without suitable sanction, there is little incentive for them to be compliant with the laws meant to authorise, control and limit their actions?

The reason I ask is because I see that, yet again, the SIS has been caught acting "unlawfully".

Now think about this for a moment... what do you think would happen to the poor hapless hacker who might gain access to the NZ Customs computer system and collect data for no malevolent reason other than curiosity?

Of course *s/he* would be hung, drawn and quartered. Likely receiving some form of custodial sentence and perhaps prohibited from access to the Net for a significant period of time.

So why aren't the persons responsible for the SIS's breach of the law being dealt to in a similar way?

Someone, somewhere along the food chain must have given the order and therefore *they* should be facing charges, prosecution and punishment for breaking the law; surely?

But no, that's not how it works.

As is so often the case, the laws were simply changed to make the action legal.

You might think "so what, nobody was hurt, it was a pragmatic approach".

But what happens when the level of unlawful behaviour escalates?

And why even have laws to control agencies like the SIS if they can break them whenever they choose without censure?

I wonder what happens if the SIS order a hit on someone without authority.

Would that also be deemed simply to be "unlawful" and thus those responsible would be left unpunished for their crime? Or would we change the law to allow the SIS to kill anyone they want, whenever they want -- so long as it was in the public interest?

The SIS performs a very important role but it seems that we are increasingly saying that the ends justifies the means.

I'm not comfortable with that... are you?

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