New Zealand Security Intelligence Service Amendment Bill

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I move, That the New Zealand Security Intelligence Service Amendment Bill be now read a first time. At the appropriate time I intend to move that the bill be considered by the Intelligence and Security Committee, and that the committee have the authority to meet at any time while the House is sitting except during oral questions, and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).

This bill focuses on amendments that will allow the New Zealand Security Intelligence Service to operate more effectively. It has three objectives. First, the provisions will maintain the operational effectiveness of the Security Intelligence Service by updating the warrant scheme to continue to allow for the use of modern technical methods of surveillance. Secondly, the provisions will maintain protections for those acting under warrant, including those exercising entry powers. Thirdly, the provisions will also improve operational efficiency by allowing a more flexible process for persons assisting under warrant.

The principal Act currently enables the Director of Security to apply for warrants to undertake certain surveillance activities. Surveillance activities encroach on personal privacy rights. As such, surveillance of this nature is not lightly authorised. Foreign warrants require the Prime Minister’s authorisation. In cases where any New Zealander is the subject of a warrant, such warrants are required by the principal Act to be issued jointly by the Minister in charge of the New Zealand Security Intelligence Service and by the Commissioner of Security Warrants. The warrants framework provides for the interception or seizure of documents, communications, and other things that could not otherwise be lawfully obtained by the Security Intelligence Service. The warrants also provide the powers that are necessary to give effect to the authorised interception or seizure, such as entry powers and search powers. Stringent conditions must be met before any warrant is issued. The Director of Security must demonstrate both to the Minister in charge of the New Zealand Security Intelligence Service and to the commissioner, in the case of domestic warrants, that the interception or seizure is necessary, either to detect activities prejudicial to security or to gather foreign intelligence information essential to security. Additionally, the value of the information must justify the interception or seizure, and the director must attest that the information being sought is unlikely to be obtained by any other means.

Notably, the proposals in the bill are restricted to powers that are subject to authorisation under warrant. As I have explained, the threshold to be met to issue these warrants is very high. The bill should not be seen as providing the service with unique powers; it should be seen as a bill that seeks to clarify and update the application of existing powers, particularly in areas where current legislation has been overtaken by developments in technology. The current warrant framework in the principal Act has become outdated. It addresses only those activities that would otherwise have been lawful at the time that the provisions were enacted, which in 1977 was interception and seizure, and in 1999 was entry. The underlying premise of the framework is that activities that were lawful at the time that the legislation was developed did not need authorisation by warrant, regardless of the extent of intrusion.

Changes in technology have also had an impact. In particular, the frameworks are not expressly configured to support the use of electronic tracking and some computer-based techniques used to collect information. The first change covers electronic tracking devices. The current Act does not expressly provide for the Security Intelligence Service to undertake the tracking of subjects by electronic means, so the bill will clarify that the warrant framework does cover the use of electronic tracking devices. Clauses 6 and 7 amend sections 4A and 4B of the principal Act to enable the Minister and the Commissioner of Security Warrants, in the case of domestic intelligence warrants, to issue intelligence warrants that authorise electronic tracking. The existing oversights scheme will be applied to these electronic tracking activities. The process of applying for warrants to authorise electronic tracking will be the same as that for warrants covering interception or seizure. So high thresholds, including tests of necessity and value and that the information cannot be obtained by other means, will need to be satisfied before any warrant can be issued. The House should note that the needs of New Zealand law enforcement agencies have previously been catered for in this area with the development of a tracking warrants framework in the Summary Proceedings Act 1957.

The next change made by the bill is to update the principal Act to provide a clear framework for facilities that are to be the subject of surveillance. Facilities include identifiers such as telephone numbers and Internet protocol addresses. The objective is to provide for the specification of cyber-identities in warrant applications. The amendment will allow warrants to be granted when specific facilities can be identified, but the name or the physical location of a subject is not known. This is a very necessary update in an age where the use of unattributable mobile phones and cyber-identities is common. The matter is one that has been specifically raised as a matter for legislative amendment by the Inspector-General of Intelligence and Security. The term “facility” will be defined in the interpretations section of the principal Act. The bill also introduces a definition of “identity”, which includes an alias adopted by, or assigned to, a person. Clause 7 amends section 4B of the principal Act to enable intelligence warrants to make facilities the subject of intelligence warrants.

Clause 5 amends the principal Act to rename interception warrants as intelligence warrants. The name “interception warrants” has never been representative of the range of surveillance activities. At present those warrants cover interception and the seizure of documents or things. With the amendment, they will also cover electronic tracking. Renaming them as intelligence warrants supports transparency by better reflecting the scope of warranted surveillance activity.

The authorities provided to the Security Intelligence Service require clarification in the area of computer-based surveillance. Section 253 of the Crimes Act 1961 already provides a qualified exemption to the access without authorisation offence for the service. The current approach of providing a qualified exemption for some activities relating to computers but not for others creates uncertainty for the intelligence agencies, as well as for other agencies acting under warrant. The current exemption may be insufficient to cover modern surveillance methods that may interfere with a computer system in a temporary or minor way, and the current arrangements do not recognise the merging of technologies, particularly in terms of phones and computers. Clause 17 therefore amends section 248 of the Crimes Act, which sets out definitions relating to computer-related offences. It inserts a new definition of “authorisation”, and this amendment will clarify that a lawfully issued warrant will constitute an authorisation for the purposes of the computer-related provisions in the Crimes Act.

The bill clarifies the protections in the principal Act for persons acting in accordance with a warrant. These amendments focus on two issues. First, the principal Act does not adequately protect from liability those persons exercising Security Intelligence Service entry powers when they are seeking to obtain or facilitate entry. Minor property interference is sometimes necessary in order to obtain entry and better protect the safety of persons exercising those warrants. Clause 8 will replace section 4E of the principal Act. It will clarify that those persons exercising Security Intelligence Service powers will be protected from liability when they are seeking to obtain or facilitate entry. Second, the Act will be amended to provide consistent protection to all persons acting under Security Intelligence Service warrants from liability, regardless of the foreign or domestic status of the warrant. Currently, protection applies only to domestic warrants, so it applies only when the subject of a warrant is a New Zealand citizen or resident.

A number of other changes will be made to the substantive legislation in order to improve practice.

Because of the operational sensitivity of the matters covered by the bill, public consultation was not undertaken during the policy development stage. Instead, in order to address the public interest in the area of privacy and to ensure the proposals were calibrated against appropriate oversight arrangements, the Office of the Privacy Commissioner, the Office of the Ombudsmen, the Commissioner of Security Warrants, and the inspector-general were consulted on the development of the bill. To enable members of the public to contribute, it will be recommended to the members of the Intelligence and Security Committee that public submissions on the bill should be invited and arrangements made to hear submitters who wish to appear before the committee. I commend the bill to the House.

Hon ANNETTE KING (Deputy Leader—Labour) Link to this

I rise to speak to the New Zealand Security Intelligence Service Amendment Bill in its first reading. I have to say that the Opposition is very disappointed that the Government has decided to include this bill in the urgency motion. We were led to understand, right up to question time today, that this bill would not be part of the urgency motion and that it would be taken first for its first reading, then urgency would be taken. I think it was important that it was outside the urgency motion, because the optics of it are not good. I do not believe that the public will like the optics of putting this bill in an urgency motion very much, at all. It is a very, very serious bill about human rights, and a serious bill that deserves to be taken in the ordinary time of this House. There was no need to include it in the urgency motion, which means that something must be done urgently at this moment.

I have to say that this shows me that the Government is in a shambles over its legislative programme. It has no idea what it wants to do. Gerry Brownlee told this House about 2 weeks ago that we would not be having any more urgency, and now we are having urgency on this very important bill and on many, many others. I have to say that the Labour Opposition will be here for as long as it takes to debate every one of them. But to tell Parliament and the people of New Zealand that one is finished with urgency, and one’s programme is up to date, and to then decide that one is to have some urgency, shows that the left hand does not know what the right hand is doing. We will debate this bill and other bills, including the very many that have been put down in the urgency motion.

The Government has indicated that this bill is needed ahead of the Rugby World Cup, and it is one that amends the principal Act, the New Zealand Security Intelligence Service Act, to implement the Government’s policy decision to update the interception warrant framework. This bill takes account of technological changes, developments in human rights case law, and the modern requirements of intelligence acquisitions. We believe that a number of issues need to be considered with this bill. First of all, we need to weigh matters of national security with issues of human rights. Secondly, a citizen’s rights to privacy and to be secure from unreasonable search and seizure are fundamental rights, and we must always take great care when defining State powers that impact upon these rights. Thirdly, the task of balancing the State’s surveillance powers with the protection of fundamental human rights is a complex one. The Labour Opposition welcomes the input of the Privacy Commissioner, the Ombudsman, and the Inspector-General of Intelligence and Security to the development of the policy, and, of course, we also look forward to hearing submissions at the select committee.

We also note the comments made in the regulatory impact statement by Dr Warren Young of the Law Commission. In my experience, the Law Commission has been an organisation that has provided extremely good advice to Governments over many years, and so, particularly, has Dr Warren Young. He independently reviewed the regulatory impact analysis prepared by the New Zealand Security Intelligence Service and also the associated supporting material. Dr Young said that he was satisfied that “the information and analysis met all of the quality assurance criteria. He noted that the updating and clarifying issues arising from the current legislation were clearly identified; the policy options addressing these issues were adequately canvassed; and the need for the preferred policy option was demonstrated.”

Dr Young noted: “While there are some impacts on privacy, this is clearly justified by the associated benefits. In particular, updating the warrant framework is a recognition of technological changes in the storage of and communication of information, and is essential in order to enable the NZSIS to continue to effectively undertake its statutory functions.” I think those words are reassuring to those who might be doubting the changes that are being made in this legislation. We will be supporting this bill.

The principal Act was first enacted in 1969. Now it is 41 years old. When we think about that time span, an awful lot has changed. Man went to the moon and landed on the moon in May of that very year. The first supersonic jet with passengers flew in 1976. No one had heard of Twitter, Facebook, social networks, and so on, and certainly most people were still using the telephone that was connected to wires. Over the past 40 years communication and data storage technology has changed significantly.

Areas of interest and activity for the Security Intelligence Service now include things as simple as email—things that we take for granted that we have on our BlackBerries every day. This legislation now takes account of those changes with regard to our email, Internet accounts, mobile phones, and social networking facilities such as Facebook and Twitter.

In the past 20 years there have also been developments in New Zealand’s human rights law. Section 21 of the New Zealand Bill of Rights Act guarantees the right of everyone to be secure against unreasonable search or seizure, and modern case law increasingly expects that security services will rely on specific rather than generalised legislative provisions to undertake their work. The bill amends the warrant framework that takes account of the contemporary legal and technological environment.

The issues raised in the bill are important, because they involve the balancing of personal privacy and property rights with matters of national security. The principal Act allows the Director of Security to apply for warrants to intercept or seize documents, communications, or things that cannot otherwise be lawfully obtained. There are also currently powers that enable these tasks to be performed in fields such as powers of entry and search. The principal Act contains a range of safeguards in terms of both procedure and oversight. For example, the current warrant framework requires evidence that an interception is necessary to detect activities that might upset security. Other requirements are that the value of the information must justify its seizure, the information is not likely to be obtained by other means, and the information is not privileged.

This bill addresses a number of very important issues that have not been looked at for over 41 years. When we look at such things as tracking devices, we find that organisations like the New Zealand Police and the Customs Service have already had the law updated in their areas of work, but the tracking warrant regime for the New Zealand Security Intelligence Service has not been reviewed. So there are many parts of this bill that bring the organisation into the modern era to take account of the technology that we now have available to us.

There is also one important point to make, which is that we are calling on the Government and the Prime Minister to allow submissions to the proposed changes on the SIS legislation to be held in open session. First, this bill is being brought in under urgency; secondly, it is of interest to the public; and, thirdly, it can be held in open session because a select committee has the ability to hold submissions in private when it wants to. If the select committee deems that a submission ought to be heard in private, then it can do that. The rule and principle set down by the then Prime Minister Jenny Shipley is that unless there are extraordinary circumstances that require a closed hearing for any particular submission, then they ought to be heard in public. We urge the Prime Minister, John Key, to hear as many of those submissions in public as possible. There is no reason to be secretive or inflexible on this matter. I think it is important for the confidence of New Zealanders in this legislation that as much information as possible is made available to them and that as many people as possible can hear what is said on this bill.

CRAIG FOSS (National—Tukituki) Link to this

I commend the New Zealand Security Intelligence Service Amendment Bill to the House.

Hon DAVID PARKER (Labour) Link to this

The New Zealand Security Intelligence Service Amendment Bill is an important bill, notwithstanding the fact that the previous speaker, Craig Foss, stood up and made just a 5-second speech on it. Any bill that affects the civil liberties of New Zealanders and gives powers of surveillance to an arm of the State is worthy of proper consideration by this House, whether it is the police, the Customs Service, the Ministry of Transport, or the New Zealand Security Intelligence Service.

This bill affects the powers of the New Zealand Security Intelligence Service. The powers of the Security Intelligence Service have not been updated for some years now. Indeed, the principal Act, the New Zealand Security Intelligence Service Act, was enacted in 1969, which is 41 years ago. In the time since then, technological changes have meant there have been significant changes in surveillance techniques. This Parliament has been addressing the consequences of those changes in surveillance techniques in a range of legislation recently, notably the Search and Surveillance Bill, which deals with police powers and the powers of non-State agencies. We have touched upon the changes in respect of private security personnel, although that is an area of law that still needs a bit of a tidy-up. Now Parliament is looking at them in respect of the Security Intelligence Service.

It is a sad fact that one thing that has happened as a consequence of change in technology is that there are methods of surveillance in New Zealand currently able to be used by arms of the State that are largely unregulated because they were not thought of when the original legislation controlling State activities was passed by this Parliament. Rather than legislation necessarily always conferring additional powers on State agencies, in some ways it limits the powers of State agencies to use new technologies in a way that is currently unconstrained. Labour agrees that there is a need to tidy up those new technologies and make some other changes in respect of the Security Intelligence Service, just as we agreed that some changes were necessary in respect of the police and other State agencies in the search and surveillance legislation.

I am pleased to talk also about the principles that should underlie our consideration of issues such as these. When we give powers to the State, we should always be aware that they can be abused. Therefore, although it is appropriate that the arms of the State have more powers than ordinary people to conduct surveillance operations and to check on illegal activity, on plans that could cause physical harm to people’s bodies, or, on occasion, on a level of involvement in criminal activities or activities that threaten the security of our country, we must always be aware that giving unconstrained powers to State agencies should be avoided, because those powers can be abused.

We see that not just in New Zealand but in other countries. It is entirely appropriate that we in this Parliament put limits around the exercise by State agencies of the powers that they need on occasions to maintain surveillance operations on other people that go further than the powers that I or anyone else in this House has. We do not have those rights as private citizens, generally. There are some holes in that law at the moment, but generally we do not have those powers. When we give those powers to State agencies, we ought to be sure that they are appropriately constrained.

We have different sorts of constraints in respect of the police compared with those that we give to the Security Intelligence Service, which has different methods of oversight. The oversight in respect of security warrants is provided by the Commissioner of Security Warrants, who is a retired High Court judge. That person is of higher standing than the person to whom one would normally apply for warrants in respect of police matters. Police can get warrants from registrars of the court and from justices of the peace, but the level of disclosure to what we would describe as lower-level functionaries in the State bureaucracy is not always appropriate in matters of State security. For that reason, the person who oversees the issue of warrants in respect of the Security Intelligence Service is a retired High Court judge.

The changes proposed to the Act have been advised by the Government to the Opposition, and we thank the Government for the briefing it provided to the Opposition in respect of the reasons for the changes. That briefing follows on a longstanding tradition in New Zealand, and is to be applauded, because those things ought to be done with cross-party support, if at all possible.

We have already made the point through the Hon Annette King in this debate that we think there should be a public process for hearing submissions. When we confer rights on State agencies, we ought not to be scared to hear from people who might be critical of those decisions, as they could be right. We ought to hear their submissions and take them into account before we in this Parliament decide to change the powers of the Security Intelligence Service.

There will be times when the justification for powers such as those that are sought might include instances where those powers have been used previously. The Security Intelligence Service might think it appropriate that members of Parliament learn about them, but not appropriate for those powers to be advertised through the newspapers, effectively, if there was public reporting. That is a delicate balance for Parliament to tread. We want to maintain as much openness as possible, but at the same time we do not want to be so open that we inhibit the fair operation of the Security Intelligence Service or make it more likely that it will not be as open with the Intelligence and Security Committee as we hope it would be.

That balance is to be struck by the committee, which is in charge of its own processes. The chair and the members of that committee have an important task to consider whether some or all of the submissions should be heard in public, or whether selected submissions should appropriately be heard in private or in secret. Again, there are precedents for this. The Rt Hon Jenny Shipley previously said, under the National-led Government in 1999, which considered Security Intelligence Service matters, that these hearings should be open to the public unless there are extraordinary circumstances that require a closed hearing for any particular submission. I suggest to this House that that remain the position. Just because we have had at one level a rise of terrorism internationally since that period, it does not change the underlying principle that there should be something extraordinary to justify a committee conducting its business in anything other than a public way.

I think some countries in other parts of the world have gone wrong. Some of the additional powers that have been conferred upon State agencies in terms of surveillance powers in the United Kingdom have, in my view, gone too far. There is considerable backlash against those powers in those countries. Of course, if there is a backlash against arms of the State, it undermines public confidence in the rule of law. A governing body actually wants to carry people with it when it comes to the laws that govern search and surveillance. A governing body wants people to think that the system overall is fair, so that the people cooperate with it rather than work against it.

We do not want to make the mistake made in Great Britain, where the search and surveillance powers of State agencies have gone too far. We want to maintain the civil liberties that we have in order to have freedom from inappropriate intrusion by State agencies into our lives, whilst not being so naive as to deny the reality that there are occasions when we want an arm of the State, the Security Intelligence Service, to actually be checking whether people are doing things that could be damaging to our country’s interests.

Labour supports this bill going to the committee, but we will be keeping a weather eye on the process of that committee to make sure that all that can appropriately be done in public in respect of this legislation is done in public. Thank you.

KEITH LOCKE (Green) Link to this

The Green Party will be voting against the New Zealand Security Intelligence Service Amendment Bill, but before I explain why, I wish to register a protest about the way the bill is being rushed through the parliamentary process.

The passage of the bill is accompanied by an unnecessary level of secrecy. There was no advance publicity about the bill before it was tabled in the House, nor any public consultations as to its contents, unlike other bills. The regulatory impact statement accompanying the bill says that “Because of the operational sensitivity of the proposals, public consultation on the proposals was not undertaken.” That is simply not a valid excuse. There is nothing in the bill that is of an operationally sensitive nature. It is all about the powers that the SIS is to be given and the processes it has to conform to.

After this first reading in Parliament, the bill will go to the secret Intelligence and Security Committee for consideration. As things stand, the public and the media will not be allowed into that committee to hear the exchanges between submitters and committee members. Hopefully that will change. On Tuesday, the Prime Minister ruled out any open hearings, but yesterday he responded positively to my question and said he was taking further advice. I suggest that he learn from former Prime Minister Shipley, who in 1999 allowed public hearings on the last SIS amendment bill. In the view of the Green Party, the people and the media have the right to be present during submissions on the bill.

Submitters are the people most likely to spot weaknesses in the bill, because unlike select committees, the Intelligence and Security Committee is chaired by the Minister in charge of the bill, the Minister in charge of the NZ Security Intelligence Service, who is also the Prime Minister. He is unlikely to be particularly critical of his own bill. By having the Prime Minister as the committee chairperson it also means that the Intelligence and Security Committee is a hopeless oversight body for the intelligence services. The Minister in charge of the NZ Security Intelligence Service is hardly the person to lead an oversight body, particularly one to which he appoints most of the members. The result is that the SIS is the most unaccountable State agency we have, which is a key reason why the Green Party is voting against this bill.

Essentially we do not want to give the SIS greater powers to invade our privacy when it is such an unaccountable organisation with a history of being used against political dissenters. The Green Party can testify to that because three of our MPs, Catherine Delahunty, Sue Bradford, and I, have been provided with our SIS files, showing that our activities for greater social justice in this country drew the attention of the SIS, in my own case for several decades.

The spying on dissenters has not ended. More recent cases, such as the Ahmed Zaoui case, have not shown the SIS in a good light. Ahmed Zaoui, a democratic politician who had fallen foul of the Algerian military dictatorship, was persecuted by the SIS for years until the agency admitted in legal proceedings that it did not really have a case. It was clear that the main concern of the SIS was to please what it called likeminded countries, like France, which backed the Algerian dictatorship in its own interests. The rights of Mr Zaoui, who now runs a kebab stall in Palmerston North Square, were very much secondary.

One reason why political dissenters can be, and have been, targeted by the SIS is that its legislated political mandate is very vague. For example, it is able to spy on those who prejudice “the international relations of the Government of New Zealand”. That is something that the Green Party could be guilty of each week in Parliament, if one listened to National MPs. They think that the Green Party’s current opposition to the Trans-Pacific Partnership trade and investment agreement, and our request that the Government’s negotiating position be made public, prejudices the international relations of the New Zealand Government.

The SIS operates in such great secrecy that it can spy on critics of Government policy with relative impunity. It is hard to argue for more intrusive powers for such an agency, which has clearly transgressed people’s human rights but cannot demonstrate to have done much to improve our safety as a people. That contrasts with the police, which is considerably more open in, and accountable for, its activities. The police also have a mandate to detect politically motivated crime such as terrorism, and it is hard to see an additional and separate role for the SIS other than to spy on those who are actively opposed to the current policies of the Government of the day.

These changes to the powers of the SIS are being rushed through in unseemly haste, using the spectre of terrorism at next year’s Rugby World Cup as an excuse. Of course, New Zealand does need to have good security at the cup, but I think the police are perfectly capable of handling that. The limiting of alcohol would provide better security at the Rugby World Cup than limiting our civil liberties through granting spooks extra powers. I think it is unlikely that we will be overrun by terrorists at the World Cup. It should be noted that rugby-playing nations are remarkably free of terrorism, and perhaps that says something about rugby as a sport. Mind you, if we are talking about the danger of terrorism it might be more on the field than off the field. Players like Richie McCaw, and now Sonny Bill Williams, could well terrorise their opponents.

One of the problems with granting the SIS extra powers in the modern digital technology age is that it enables them to be used in a more intrusive manner than in the past. For example, this bill enables spooks to put tracking devices, under warrant, on a whole grouping of people and track them everywhere they go using global positioning system technology. Also, the bill gives the SIS an extra explicit power to “monitor” an audiovisual or electronic interception device covertly placed in someone’s home. The increased sophistication and miniaturisation of such devices allows for more widespread monitoring of people’s private activities.

The legislation also makes it easier for warrants to be changed or expanded on authority delegated from the Director of Security so that extra phone companies or Internet service providers can be roped in to help intercept the communications of a particular person or group of people. The range of information that the SIS can intercept or collect is explicitly expanded in the bill so that warrants now contain such details as email addresses, user account identifiers, Internet protocol addresses, and Internet storage accounts. Basically, whatever a person does on a computer can now be accessed.

This bill takes us one more step down the road to a surveillance State, where more and more of our private activities can be monitored. This spying will almost always take place without us knowing, which accounts for the lack of complaints about SIS surveillance to the Inspector-General of Intelligence and Security. Public reporting by the SIS tells us almost nothing about the spying going on. We do get annual statistics on the number of warrants issued but we have no idea how many people are covered by each warrant.

The secretive nature of the SIS and the lack of accountability to Parliament and the people means that it can be more easily harnessed to serve the interests of other States, as I have already explained in the Ahmed Zaoui case. Our Government’s recent defence white paper described the United States as our “stalwart partner”, so it is probably the American intelligence agencies we have to worry about in terms of bending the SIS towards their interests.

In summary, I think that we have to have great suspicions about this agency, particularly about extending its powers. It operates in an unaccountable way. It operates in a secret way with very little oversight from Parliament and the people, and it has a history of spying on political dissenters. In fact, it may be being used by other powers. In the recent case exposed by WikiLeaks of the United States spying on United Nations officials, including former Prime Minister Helen Clark, it may well be that the Waihopai spy station was used, even inadvertently from a New Zealand Government position, because Waihopai is integrated into the United States intelligence apparatus. The Green Party will oppose this bill, as it is contrary to New Zealand’s interests and the interests of the privacy of New Zealanders.

HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this

Kia ora, Mr Deputy Speaker. Kia ora tātou katoa e te Whare. First of all, let me say that the Māori Party is not fundamentally opposed to the Government taking steps to ensure the security of our country, nor are we opposed to the use of technology to enhance that security. Furthermore, the Māori Party supports the principles of transparency, accountability, integrity, respect, and confidentiality. But in terms of this bill’s proposal to widen the powers of the SIS, I have to express grave doubts about the way in which a secret organisation goes about snooping on ordinary, law-abiding citizens in this country. I express particular concern on behalf of the many Māori in this country who are actively campaigning for recognition of tino rangatiratanga, as well as those citizens who care about the integrity of this nation, for the very reason that they have been the improper targets of the SIS in the past, and will undoubtedly attract further attention from the pie in the briefcase brigade in the future.

For those with a short memory, I will recall just a few of the following incidents for the edification of the members of this House: the SIS publicly releasing a list of so-called radicals and subversives during the 1981 Springbok Tour to try to hamstring the anti-tour movement—what a complete waste of time that was—SIS agents caught in an illegal search of the house of Christchurch anti-globalisation activist Aziz Choudry; the SIS issuing a security risk certificate against Ahmed Zaoui, and having the poor bugger held in jail without trial, until it was forced to withdraw the certificate when it could not substantiate its claims; SIS involvement in gathering the information that led to the botched terrorism raids on the nation of Tūhoe, and the laying of terrorism charges against Tūhoe citizens, which have since been thrown out; and just last month, for some unknown reason, Professor Jane Kelsey, a vocal critic of the SIS’s role in New Zealand politics, all of a sudden is stopped at the airport when trying to get into Australia to promote a book challenging the credibility of the Trans-Pacific Partnership.

Given the public embarrassment that the SIS has subjected this nation to over the last 20 years with some of its Keystone Copsroutines and its harassment of law-abiding citizens, I would have thought Parliament would be wanting greater scrutiny over the SIS rather than simply rubberstamping its cellphone snoopery. But here we are considering giving these guys even greater powers? When I think of who is actually watching the watchers, I am mindful that although there is a committee set up to oversee the SIS, the operations are not themselves subject to public scrutiny.

The Māori Party is happy to support this bill at first reading if it will be brought before a committee for public debate and scrutiny, because we want people who have concerns about the SIS’s past and current activities to tell the committee so that the Government can hear exactly what it is its precious SIS gets up to. But we are not keen to support it if those submissions are all going to be held behind closed doors. Thank you very much.

LOUISE UPSTON (National—Taupō) Link to this

I commend the New Zealand Security Intelligence Service Amendment Bill to the House.

DAVID SHEARER (Labour—Mt Albert) Link to this

It is my pleasure to speak on the New Zealand Security Intelligence Service Amendment Bill. I will speak on the bill in detail because it is an extremely important bill for New Zealand, as many of the speakers on this side of the House and from the Greens and the Māori Party have suggested.

We are sitting under urgency to look at this bill. Two weeks ago we were told by the Leader of the House that the House would not need to go into urgency, because the legislative planning was well under control. We would not need to sit here until probably the weekend. None of us on this side of the House have any problem with being here until the weekend, but what I do have a problem with is that while we are sitting here under urgency listening to speeches on highly important legislation for New Zealand such as this bill, the Government member Louise Upston stood up to take a 2-second call on something that will affect and impinge upon the human rights of every New Zealander in this country. She took a 2-second call. How cynical is that? The Government is putting this bill through the House under urgency, yet one of its members stood up to take a 2-second call. And then the Government has insisted on hearing submissions on this bill in secret. How cynical is that?

This bill is very important. It updates the New Zealand Security Intelligence Service. It brings it in line with changes in modern technology. It amends the principal Act, the New Zealand Security Intelligence Service Act, to take account of technological changes, developments in human rights and case law, and the modern requirements of intelligence acquisition. Those have all changed in the last 41 years since the principal Act was put in place. The objectives of the bill are to maintain the SIS’s effectiveness by updating warrants to clarify that modern technical methods of surveillance can be used now. The Internet, cellphones, and a whole range of different methods are available now that were not even dreamt about 41 years ago. The second objective is to maintain protections of those acting under warrant, including exercising entry powers. The third is to improve operational efficiency by allowing a more flexible process for people assisting under warrant.

That is all very good, but there are some fundamental issues with the bill. As my colleague from the Māori Party Hone Harawira just pointed out, we need to weigh up matters of national security with issues of human rights and the protection of human rights, which we in this modern democracy grow up with and probably take for granted. We need to weigh up national security with human rights. A citizen’s right to privacy and to be secure from unreasonable search and seizure are fundamental rights that we take for granted in this country; we have grown up with them and they are part of our whole being as New Zealanders. We must take care when defining State powers that impact upon those rights.

Secondly, the task of balancing the State’s surveillance powers with the protection of human rights is complex. It is not an easy thing. It comes into conflict often with many, many different operational situations. We need, therefore, the widest range of opinion and advice in hearing this legislation. So I think the input of the Privacy Commissioner, the Ombudsman, and the Inspector-General of Intelligence and Security into the development of policy in the committee process will be extremely, extremely important.

Labour, as earlier speakers have said, will support this bill being referred to the Intelligence and Security Committee. The principal Act is now, as I said before, 41 years old. It was brought in in 1969, the year we landed on the moon for the first time. The issues that are raised in the bill are important because they involve, as I said before, balancing privacy and property rights with national security.

The principal Act contains a range of safeguards in both procedure and oversight. For example, the current warrant requires evidence that an interception is necessary to detect activities prejudicial to security, that the value of the information justifies any seizure or any sort of activity along those lines, that the information is not likely to be obtained by any other less obtrusive or less extreme means, and, finally, that the information is not privileged. We have oversight by the Commissioner of Security Warrants, who is a retired High Court judge, and the Prime Minister. So this legislation is at the highest levels of our Government system. Therefore it needs and demands to be treated seriously with the respect it deserves. I do not believe that that is the case with regard to the way it is being rammed through the House under urgency, and to the trivial call of 1½ seconds from a member on the Government side.

I will mention a couple of things the bill addresses. When I refer to updating the technology, I mean tracking devices and global positioning systems, which did not exist 41 years’ ago. The New Zealand Police and New Zealand Customs have already had the law defining their activities changed, but the SIS has yet to be properly reviewed. As I have said, we have the Internet, cellphones, satellite telephones, and a whole range of different technologies that demand that the legislation is brought into the 21st century. But we must ensure that the legislation has the right checks and balances, and that as it goes forward it is heard in a public forum. Many members speaking on this bill—those who have deigned to speak for more than 1½ seconds—have spoken about the need for the hearings to be held in public. The Prime Minister came out and said they would be held in private. The Labour Party has said that the hearings need to be held in open session. Lo and behold, just yesterday the Prime Minister came out and said he will have a rethink on this policy. That attitude is the Government’s plan and strategy for the future: kick the tyres, check the pulse, do the polling, and change one’s mind. That is what the Prime Minister did. He went away, checked the polling, and felt that maybe he had overextended the secrecy element and needed to make the hearings more open.

His predecessor Jenny Shipley had already done that. She said that Security Intelligence Service legislation needs to be heard in secret only where that is warranted; other than that, we should hear it in public. This bill is of such importance that it definitely needs to be heard in public. It needs to have a good hearing. It should be talked about and discussed openly right across the country. People should realise that the technological changes, which are needed, must be balanced with, and matched by, the ability to protect our human rights and our right not to have our privacy transgressed.

The Labour Party will support the bill being referred to the committee but we will be listening very carefully to the submissions. I say finally that it would be a really good idea for members of the Government to stand up, take a decent call, and attribute to the bill the importance that it deserves. The Government is being cynical in rushing the bill through the House under urgency.

TODD McCLAY (National—Rotorua) Link to this

I rise to the challenge presented by the previous speaker and in so doing support the New Zealand Security Intelligence Service Amendment Bill. I too commend it to the House.

Hon PETE HODGSON (Labour—Dunedin North) Link to this

I am sorry that National is not choosing to contribute to the debate on a piece of legislation that matters.

Hon JOHN BOSCAWEN (Deputy Leader—ACT) Link to this

I rise on behalf of the ACT Party to speak on the first reading of the New Zealand Security Intelligence Service Amendment Bill, which makes five main changes to update and clarify existing legislation to take into account advances in technology.

The New Zealand Security Intelligence Service Act was passed more than 40 years ago, and I think it is safe to say that at that time Parliament would not have been able to consider the way in which technological advances would affect the role of our security services. As such, the Act does not recognise the electronic and digital methods that the SIS uses in its investigations today or the methods used by those whom the SIS investigates. No longer are those being investigated exclusively tracked and followed by agents. Although such methods are undoubtedly still utilised, the vast majority of surveillance is now done by remote and electronic means.

Current legislation should reflect current practice, and bringing this law into the 21st century is long overdue. The bill will do that by making it clear that the warrant framework set out in the Act includes electronic tracking. The bill updates the means by which the subject of the surveillance can be monitored. Sadly, for those of us who are old spy movie buffs, the days of secret agents breaking into a home and attaching a bugging device to a landline phone are probably long over.

The bill will update and expand the scope of the Act to include 21st century technology such as mobile phones and other digital communication devices. With the expansion of computers in our everyday lives, the ability for individuals or organisations to misuse such technology to aid their lawbreaking has risen dramatically. The bill will provide an explicit focus on those using new technologies, and clarifies that computer-based surveillance is a permitted activity for the intelligence services by ensuring a clearer exemption from that aspect of the Crimes Act. The security service requires and deserves clear direction in order to remove any uncertainty over the legality of its actions.

This bill will enable the SIS to work more effectively within the New Zealand Police and other enforcement agencies. It will modernise the current Act and the activities of the SIS to bring them into line with our overseas partners and with technological advances over the last four decades. It will provide our security services with a clear and modern mandate to keep our country and our people safe. I commend the bill to the House.

CHRIS TREMAIN (National—Napier) Link to this

I rise to take a “whip’s call”—

Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I move, That the Intelligence and Security Committee consider the New Zealand Security Intelligence Service Amendment Bill, and that the committee have authority to meet at any time while the House is sitting (except during oral questions), and during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).