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New Zealand Security Intelligence Service Amendment Bill

Second Reading

Tuesday 14 June 2011 Hansard source (external site)

FinlaysonHon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I move, That the New Zealand Security Intelligence Service Amendment Bill be now read a second time. This bill updates the New Zealand Security Intelligence Service Act 1969 to reflect new technologies. The Act’s warrant framework was designed in 1977, before technologies such as mobile phones and the internet became common. Technological changes have now overtaken the warrant framework, so the bill addresses, first, the prevalent use of computer, mobile phone, and internet technologies, and, second, new surveillance technologies available to the SIS. The bill also clarifies protections from liability for persons acting under warrants, and provides for delegation powers.

During the first reading the House referred the bill to the Intelligence and Security Committee for its consideration. That committee, comprising the leaders of the National, Māori, ACT, Labour, and Green parties, received and considered 23 written submissions on the bill. The committee heard from those submitters who wanted to be heard in person. I am advised the committee appreciates the efforts of all the submitters. Those submitters raised matters covering three general themes within the scope of the amendments: the surveillance powers of the SIS, the framework protecting employees and persons assisting the SIS when exercising intelligence warrants, and delegation powers. Submitters had concerns about extensions to the surveillance powers in respect of new technologies. There were also calls for any modernisation of surveillance powers to be accompanied by additional legislative safeguards. A number of submitters were concerned that the proposed delegation framework in the bill could undermine the existing accountability framework in the substantive Act. The Act currently requires each interception warrant to specify, in advance, the persons who may assist in the execution of the warrant.

The committee has recommended four changes to the bill, all of which either improve or add to the existing safeguards in the legislation. First, the committee recommends including a specific reference to human rights in the Act, requiring the intelligence service to perform its functions in accordance with a comprehensive set of principles, which include human rights. Secondly, the committee recommends applying an additional safeguard by requiring the warrant issuers to consider specifically whether mistaken identities or other third parties could be affected, and, if so, what conditions should be imposed on the exercise of the warrant. Thirdly, the committee recommends requiring any irrelevant electronic tracking records to be destroyed as soon as practicable after the warrant expires. Finally, the committee recommends requiring the director to maintain a register of delegations relating to the execution of warrants. The warrant issuers and the Inspector-General of Intelligence and Security will be able to inspect this register at any time, which will enable effective oversight of the delegations.

I now turn to the need for this legislation and the balance that has to be struck between preserving the privacy of New Zealanders and maintaining the security of New Zealand. Inevitably there are costs associated with conferring surveillance powers on any State agency. Surveillance activities by their very nature intrude into personal privacy. However, these costs must also be weighed against the benefits of maintaining the security of New Zealand. Personal privacy is a basic human right and a central value of our democracy. All New Zealanders have reasonable expectations of privacy, including being protected from any unreasonable or disproportionate use of surveillance. As such it is significant that the SIS will be able to use electronic tracking or undertake computer-based surveillance activities only under a warrant. Additional safeguards introduced by the bill, including a requirement that the SIS perform its functions in accordance with a set of principles, which include human rights, will complement existing protections in the Act. Providing for specific protection against the surveillance of mistaken identities is new. It will apply across the board, not just to the limited circumstance of an alias as requested by submitters.

More generally, it is commendable that this bill seeks to clarify the law in respect of modern electronic surveillance techniques. The Act’s current warrant framework was designed to cover only those surveillance activities that were unlawful in 1977. The drafters could not have contemplated new electronic tracking or computer surveillance technologies, nor could they have anticipated the prevalent use of mobile phones and the internet and the ability to hide behind cyber-identities. The proposed amendments will ensure that the law clearly identifies the types of surveillance practices that may be used by the SIS and the authorisations that are required.

National security privacy and other fundamental civil liberties are complementary rather than conflicting values. Sir Geoffrey Palmer, the recently retired president of the Law Commission and also a former Minister in charge of the SIS, has said “To a very significant extent, ‘national security’ means just this—freedom from interference; freedom from terrorist attack, freedom from deliberately incited racial violence, freedom from espionage which itself threatens basic freedoms such as privacy, freedom from the kind of genuinely subversive activity that is aimed—not just in theory but in fact—at destabilising or overthrowing the very democratic system upon which the exercise of civil liberties depends.” With those thoughts in mind, Parliament must strike a balance allowing for effective national security measures on the one hand and protecting reasonable expectations of privacy on the other. Surveillance powers do have an impact on privacy; that must be acknowledged. But those same measures help the Government to uphold the security values that support all New Zealanders’ privacy and other basic human rights.

The bill includes measures to maintain an appropriate balance between these privacy and security values. It places clear limits on the issue of warrants, which must be approved before exercising intrusive surveillance powers. In the case of New Zealanders, this approval must be given both by the Prime Minister and by the Commissioner of Security Warrants. They must both be satisfied that any interception, seizure, or electronic tracking is necessary, that the value of the information justifies the surveillance, and that the information is unlikely to be obtained by any other means.

To summarise, the bill does contain measures that impact on aspects of personal privacy, but, as I have said, these intrusions are balanced against clear benefits to New Zealand’s security. The measure will mean that the SIS can continue to use effective methods to investigate threats to New Zealand security. The existing warrant scheme already includes important tests that have to be met before any intelligence warrant is issued. The exercise of these powers is also subject to effective, independent oversight. The existing protections contained in the warrants framework, the additional protections recommended by the committee, and the effective existing oversight will continue to ensure that impacts on privacy are indeed minimised. I commend the bill to the House.

GoffHon PHIL GOFF (Leader of the Opposition) Link to this

Labour will support the second reading of the New Zealand Security Intelligence Service Amendment Bill, but in a moment I will come to the concerns that both Labour and the Green Party had about the way this bill was introduced and then considered by the Intelligence and Security Committee.

What we know about security intelligence is that it is inherently controversial. It involves intrusion into the privacy of individuals, and therefore involves the question of human rights. Those issues, however, need to be weighed against issues of national security, and in today’s world that means, obviously, international terrorism and the need to safeguard against it. It also means breaches of cyber-security. That is becoming a bigger thing in the world and it threatens the commercial interests of New Zealand. It is real, it is happening, and we need a Security Intelligence Service and relevant legislation in order to protect ourselves against it. National security involves issues such as drugs, arms, and people-trafficking. It involves nuclear proliferation and a range of threats to our national security and the well-being of our personnel—police and defence forces—deployed overseas. Security intelligence is a critical part of the protection against those threats.

This bill, in essence, takes an original Act that is now 42 years old, updates it, and explicitly authorises modern technological methods of surveillance. The original Act came in an era when nobody had heard of electronic communications such as cellphones, laptop computers, the internet, and social networks. The bill explicitly provides for the SIS to undertake the tracking of subjects by electronic means; it confirms that facilities such as cellphone numbers and internet protocol addresses can be the subject of warrant applications; it allows, under warrant, access to computer systems; it provides protection from liability to those persons exercising SIS entry powers when they are seeking to obtain or facilitate entry; and it provides for the delegation of responsibilities where that is necessary to improve efficiency and to enable the SIS to react more quickly during operations. In Labour’s view each of those changes is justifiable in that they make explicit or update mechanisms used by the SIS. It really updates rather than extends those existing powers.

But, naturally, this was an area that was going to be very controversial publicly. That is why, first of all, I believe that it was both unnecessary and stupid of the Government to introduce this legislation under urgency. That simply created suspicion that this was a Government that had something to hide. On top of that, we then had a situation where it was deemed necessary that submissions made to the committee be held behind closed doors. Both I and Russel Norman from the Green Party opposed the hearing of submissions in secrecy. There was no reason for it. The public should be able to have their voices heard on any piece of legislation in an arena where the media and the public are there to observe and to follow what is happening. Nothing that I heard through the entire process of submissions needed to be heard in secret. The hearings could have been held in public. That sort of transparency and openness would have encouraged the public to look on this legislation as necessary and as something that the Government was being quite upfront about. Instead, the way in which it was handled led people to suspect the worst of what the Government was trying to do. I regret that the Government made those decisions in the way that it did.

Although the process was marred in that way, in another sense, having heard the submissions, and particularly with the proposals put forward by Labour and the Green Party, I think we made some worthwhile changes to this bill that improve the nature of it. I acknowledge, in particular, three sets of submissions. One was made by the Human Rights Commission. I thought it was a very appropriate submission that led us to include in the bill a section that sets out the rights that should be observed by the SIS. Likewise I acknowledge the thoughtful contributions made by Hazel Armstrong and also by the Council of Trade Unions. Although at least two of those bodies opposed the legislation, they put forward their ideas in a very constructive and thoughtful manner that I thought was very helpful to the bill we have ended up with. We have put a clause in the bill that includes reference to human rights, democratic oversight, and the impartiality and the professionalism expected of the Security Intelligence Service. It is the first time we have those principles enshrined in the legislation, and I believe that they strengthen it.

A further safeguard was added to help prevent people from becoming subject to surveillance because of mistaken identity. That was a real risk. The provision we added to the bill will help prevent that. Another requirement was added to the effect that non-relevant records obtained by electronic tracking must be destroyed as soon as practicable after the expiry of the intelligence warrant. The final safeguard that I think was necessary, given the move to delegate power from the Director of Security to people who are named subsequent to the warrant being issued, is that there will be periodic reporting of those delegations to the Inspector-General of Intelligence and Security. I think that is important in terms of the inspector-general and the functions that he carries out in that regard.

In support of the bill, I note that the Ministry of Justice evaluated it and found that in terms of the Human Rights Act and the New Zealand Bill of Rights Act it was consistent with the rights and the protections enshrined in that legislation. Likewise, the bill received consideration from the Law Commission, by its deputy president, Dr Warren Young, a person who is, I think, widely respected across the House. 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.” Last but not least, the Office of the Privacy Commissioner did not oppose the bill, and noted that the warrant proposals represent an extension “in application” of existing powers rather than an extension “in principle” of existing powers.

I think this legislation is appropriate to the needs of New Zealand at this time. It is essentially a modernisation of the legislation. It respects the balance that needs to be found between privacy and respect for human rights and the necessity for national intelligence to protect New Zealand against international threats. On that basis Labour supports the second reading of this bill.

Lotu-IigaPESETA SAM LOTU-IIGA (National—Maungakiekie) Link to this

I rise to support the second reading of the New Zealand Security Intelligence Service Amendment Bill. The bill, as has been explained by the two previous speakers, amends the New Zealand Security Intelligence Service Act 1969. As the Leader of the Opposition so clearly stated, that statute is outdated and needs further amendment. The bill is about allowing the Security Intelligence Service—or the SIS, as it has come to be known—to use electronic tracking devices to undertake its surveillance work and to intercept or collect a range of information. That includes email addresses, phone numbers, user account identifiers, and internet protocol addresses, as those have proliferated in recent times.

The issues canvassed by the Minister and the Leader of the Opposition are quite clear. They are issues around terrorism and cyber-security that we must deal with in these modern times. Of course, 9/11 was just one turning point in the fight, I suppose, against terrorists and the way that they operate in various cells using various technologies across the globe. But also there are issues about countering those who smuggle arms, those who smuggle drugs, money-launderers, and those who smuggle people across borders. These types of intelligence and communications, which the SIS uses, need to be incorporated into a modern bill.

The privacy and human rights of those who are under surveillance or being monitored certainly need to be respected and protected. To that end, the Intelligence and Security Committee inserted a clause to incorporate principles that would underpin the performance of the functions of the SIS so that those human rights would be protected. New section 4AAA, inserted by clause 5A, outlines some of those principles, and it refers to the contribution towards keeping New Zealand secure, independent, and a free and democratic society. New section 4AAA(1)(c) specifically refers to the actions of the SIS being “in accordance with New Zealand law and all human rights standards recognised by New Zealand law,”. Clearly, those human rights are protected under this legislation.

I support this bill, along with my colleagues. It modernises the New Zealand Security Intelligence Service Act, and it should be commended to the House.

ParkerHon DAVID PARKER (Labour) Link to this

As the Hon Phil Goff, Leader of the Opposition, has already said, Labour supports the New Zealand Security Intelligence Service Amendment Bill at second reading. I reinforce what Mr Goff has already said in relation to the process. We all know in this House that this is contentious legislation, because there are people who are always suspicious—and rightly so, to be honest—in their desire to protect civil liberties against unnecessary intrusions of the power of the State. The New Zealand Security Intelligence Service Amendment Bill sits right in that space. A wise Government that wanted to assuage concerns rather than make them worse would try to do as much as possible transparently and in the public arena, rather than give credence to those who suggest that what is being done is unnecessarily secretive and underhand, and confers wider powers than are necessary.

If the media had had the opportunity to consider the submissions that were made by the various 23 submitters on this legislation, the media would have been well able to make up their mind as to which of these submissions were wise, and which might have been fantastic submissions as to the ulterior motive of the Government. However, because the Government chose to use its power on the Intelligence and Security Committee to outvote the Greens and Labour and hold these hearings in secret, the media did not get the opportunity to hear from the range of submitters. Neither did the submitters have the ability to hear the full range of the explanations that might be given, or the contrary positions that might be put by other submitters. I think it is a great shame that the Government, instead of minimising the concerns of our citizens as to whether this is an appropriate use of powers, has in some ways amplified those concerns or given fuel to those who have a conspiratorial view as to what the Government is trying to achieve here. That is to be lamented.

For me, one of the most important aspects of the control of the New Zealand Security Intelligence Service lies in the role of the Commissioner of Security Warrants, who is by tradition, if not by statute, a retired High Court judge. I think it is always a retired High Court judge; someone can correct me in a later contribution. Mr Goff says that that is correct. We in New Zealand are fortunate: we are one of the least corrupt countries in the world. We have an independent judiciary we can be proud of. Our High Court judges, our Court of Appeal judges, our Supreme Court judges, and our lower court judges are free of corruption. The people we appoint as High Court judges in New Zealand are the crème de la crème of our legal fraternity. Our legal fraternity is imbued with generation upon generation of good values. Those values might not be expressed in a written constitution, as they have in the United States of America—although I note they have written constitutions in places like Zimbabwe and Libya, as well, and they are no guarantee of good conduct—but a better guarantee of good conduct is the traditions we have in New Zealand. They are embodied in our High Court judges. So the fact that we have a retired High Court judge as the person who, as the Commissioner of Security Warrants, conducts oversight of what is done through the New Zealand Security Intelligence Service under the warranted powers conferred by our existing legislation, and now as amended by this bill, should give New Zealanders comfort that we do have some proper oversight of the Security Intelligence Service.

The very fact that these services are somewhat secretive is necessary as a consequence of the role they perform. If they were advertising what they were doing, according to the Governments not just of New Zealand but really of every Western democracy, it would be impossible for them to properly go about their tasks. So we cannot have public scrutiny of their conduct in the normal way, and we have, effectively, to trust the delegation of that security to someone we trust. In New Zealand we choose to trust a retired High Court judge for that. This bill improves that, not just by updating the list of technologies that can be used in pursuance of the surveillance powers the Security Intelligence Service has in New Zealand. As Phil Goff has said, these amount to an extension of existing powers to new technologies rather than to a broad sweep of new powers.

One of the amendments that is recommended to this House by the select committee—with the support of everyone, but I think brought forward by Labour and Green members—is the insertion into the principal Act of some principles that underpin the performance of the Security Intelligence Service. These are the principles that the retired High Court judge, who is the Commissioner of Security Warrants, will have regard to when he or she conducts oversight of the Security Intelligence Service. I will read out those principles, which are found in new section 4AAA, inserted by clause 5A: “(1) In performing its functions under this Act, the Security Intelligence Service—(a) contributes to keeping New Zealand society secure, independent, and free and democratic: (b) contributes to the participation of New Zealand in the maintenance of international security: (c) acts—(i) in accordance with New Zealand law and all human rights standards recognised by New Zealand law, except to the extent that they are, in relation to national security, modified by an enactment: (ii) in the discharge of its operational functions, independently and impartially: (iii) with integrity and professionalism: (iv) in a manner that facilitates effective democratic oversight.” So for the first time those principles are found in the legislation. I am not quite sure I properly understand the wording of new subsection (2) of new section 4AAA, but we might in the Committee stage have an explanation from the Minister in charge of the NZ Security Intelligence Service, who will then be in the chair, about the effect of this new subsection (2). I am not quite sure we have the exact wording of that right, but the Minister then in the chair can no doubt advise us of that.

I take considerable heart from the fact that the Law Commission has agreed that this is wise legislation and an appropriate balance of the different interests to be balanced, that the suggestion of the Human Rights Commission that human rights be protected in the legislation has been brought forward and adopted by the select committee, that the Privacy Commissioner was involved in the development of the bill, as opposed to being a submitter to the bill, and that we in this Parliament have had advice that this bill infringes neither the New Zealand Bill of Rights Act nor the Human Rights Act. As a consequence, I am confident that this bill achieves the right balance between the interests of the State in being able to properly go about the security intelligence operations that, sadly, are necessary in any country, or that might be necessary in some situations in any country, and the rights of our citizens to be free from inappropriate levels of scrutiny and intrusions into their civil liberties—their right to go about their lives without the intrusion of the State.

I have read parts of the departmental report, including the reasons why it is necessary to update the legislation to have regard to new technologies, some of which lie within the warranted powers of other arms of the State, like the police, but at present have not been updated for the Security Intelligence Service because, as previous speakers have said, the legislation is so old it predates some of those newer electronic technologies. I also note that helpful submissions were made by the Council of Trade Unions and Hazel Armstrong. Hazel Armstrong is someone who is known to many people around this place as making wise contributions on quite a few areas of law, so I am sure the committee benefited from her advice. There was a total of 23 submitters, seven of whom, I think, were heard with oral submissions, and the outcome of that process is better legislation. But we would have greater public confidence in the process had it been more open.

LockeKEITH LOCKE (Green) Link to this

The major reason the Greens are not supporting the New Zealand Security Intelligence Service Amendment Bill is that we do not want to give more powers to such an unaccountable organisation as the Security Intelligence Service. The manner in which this bill came before the House and its treatment by the Intelligence and Security Committee reinforce our position.

Firstly, it is unclear why there needed to be such an amendment bill this year. The regulatory impact statement the Government produced on the bill proclaims “that a parallel policy review should be undertaken, aiming to achieve new security legislation by the end of 2012.” Is it not wasting this Parliament’s time to have one bill this year, then another, presumably more substantial, bill next year?

The Government trots out the Rugby World Cup as a reason for putting this particular bill through Parliament, when the regulatory impact statement actually says there is “a low probability” of any serious security breach during the Rugby World Cup games. In any case the police are preparing for all eventualities, and it is hard to argue a need to rush through more powers for the SIS.

Maybe, as is common with security institutions, the SIS would simply like more explicit surveillance powers. Perhaps—and this is a bit scary—the SIS is presently breaking the law in the manner in which it conducts some surveillance, such as the use of tracking devices, and needs this legislation to make legal what it is currently doing illegally. It is hard to be definitive about this, but some passages in the regulatory impact statement could imply that this is the case. For example, the regulatory impact statement says “the current framework does not specifically provide for the use of electronic tracking devices.” Has the SIS been using tracking devices when the law does not provide for it to use them?

Then there are the problems with the Intelligence and Security Committee’s consideration of the bill. The Prime Minister pronounced that all public submissions on the bill, including the Green Party one from me, would be held in private. Actually, the whole process was so secret that it was hard for the public to even find out how and when to make submissions. People were phoning me to find out because there was nothing about it on the parliamentary website, partly because the Intelligence and Security Committee is not a true select committee of this House and does not have a slot on the website. It is a statutory committee made up of appointees of the Prime Minister and the Labour leader, which runs by different rules and more secretly. So MPs like me and the media missed out on exchanges between other submitters and the committee because the doors were closed on us unnecessarily.

The exclusion of the media probably resulted in the bill being given less of a public hearing than it deserved. The committee was rightly under some fire for the secrecy around the public submissions, because there was no logical reason for it. Submitters like me were not going to disclose any classified SIS information, partly because we do not have any, and Phil Goff confirmed that none came out during the hearings. Under public pressure the committee did relent a bit. Initially it said that even the written copies of submissions would be kept secret, but it later reversed this decision and released copies.

Something positive did come out of the submission process: the Human Rights Commission had proposed that “Given the legitimate concerns about the breadth of the amendments and their possible impact, the Commission recommends including an explicit reference to human rights principles in the bill.” The Intelligence and Security Committee agreed to clause 5A, which adds after section 4 of the original New Zealand Security and Intelligence Service Act some principles underpinning performance of functions. The first of these, which will be section 4AAA(1)(a) of the Act, is for the SIS to contribute to “keeping New Zealand society secure, independent, and free and democratic:”—a very good aim. It will be a change if the SIS actually does that, because it seems to be going in the opposite direction. For example, in relation to independence it seems to be integrating more and more its operations with US intelligence, including more reliance on the US intelligence database to determine which political activists to watch. In the past the SIS has not particularly promoted a “free and democratic” New Zealand, otherwise why would it have kept a file on law-abiding people like me, whose only crime has been to criticise the policies of New Zealand Governments of the day? The existence of such files on dissenters has inhibited New Zealanders, particularly those working for the Public Service, from criticising Government policy for fear that they will be disadvantaged in the promotion stakes if the SIS is asked to vet them before promotion.

In practice, the SIS’s role over the years has been, rather than promote a free and democratic New Zealand, to make it easier for the Government to implement its own policies against domestic opposition. The SIS is aided in this by an existing clause in the New Zealand Security and Intelligence Service Act whereby it is tasked to combat influences detrimental to “New Zealand’s international well-being or economic well-being”. I doubt that means in practice that the SIS would be put the US embassy under surveillance for trying to subvert New Zealand’s cost-saving drug-buying agency Pharmac, which it is currently trying to do, thereby detrimentally affecting New Zealand’s economic well-being. Rather, it is the opposite: the SIS’s track record, as proved by the SIS files that have been released, is that it targets the very people who are protesting against free trade and investment agreements like the planned agreement with the US that threatens our treasured Pharmac.

The second part of the committee’s good amendment to the bill, which is in clause 5A—the addition of section 4AAA(1)(c)(i)—requires the SIS to act “in accordance with New Zealand law and all human rights standards recognised by New Zealand law, expect to the extent that they are, in relation to national security, modified by an enactment:”. This is a step forward, particularly in that our New Zealand Bill of Rights Act protects us, under section 21, from “unreasonable search and seizure, whether of the person, property, or correspondence, or otherwise.” Abiding by that has not always been the SIS’s practice. Unfortunately, however, we still have some provisions in our legislation that protect the SIS when it offends natural justice. For example, section 25 of the Human Rights Act allows the SIS to discriminate in employment on the grounds of politics, religion, disability, family status, or national origin. When citizens appeal to the Ombudsman for the SIS to release material, they will come up against the general exception from the Official Information Act on matters of national security.

The SIS is a pretty opaque organisation. Over the years, questions I have asked of the Ministers in charge of the SIS, either John Key or Helen Clark, have been met with “We don’t comment on matters of security.” Perhaps this will all change now we have a new section 4AAA(1)(c)(iv), which is being added so that the SIS will act “in a manner that facilitates effective democratic oversight.”, but I would not bank on it. MPs like me have been able to find out almost nothing about what the SIS does, so it is very hard for us to conduct any democratic oversight at the parliamentary level.

The SIS itself was not too keen on human rights principles being added to the Act, as they now have been. In its report, responding to public submissions to the bill, the SIS expressed concern that “to simply introduce a reference to human rights principles without considering a comprehensive set of principles for the SIS Act, might have unintended consequences.” What those unintended consequences could be were not spelt out. Why should the SIS be different from the police and other Government agencies that do have more explicit requirements to abide by national and international human rights standards? If there is to be a review of the SIS legislation next year, perhaps a major theme should be—

TischMr DEPUTY SPEAKER Link to this

I am sorry to interrupt the honourable member, but his time has expired.

HideHon RODNEY HIDE (ACT—Epsom) Link to this

On behalf of the ACT Party I rise to support the New Zealand Security Intelligence Service Amendment Bill, but first let me pick up on Mr Keith Locke’s presentation. There have been a lot of puzzles around Parliament in my time here, and one of the more pleasant puzzles has been Mr Keith Locke. He is a very reasonable man and quite sensible. He has spent his time here in Parliament, as we have just heard, being highly critical of the Security Intelligence Service and its intrusive powers over ordinary citizens. Yet Mr Locke, by his very politics, has supported and given succour to the most oppressive and repressive regimes known in the 20th century—regimes that ran complete police States. I just do not understand Mr Keith Locke. I could understand his having concerns about the SIS if he were an anarchist or a hard-core libertarian, but given Mr Locke’s politics, his ideology, and the regimes that he supported around the world, it is very, very tough to sit through one of these criticisms of our own SIS and suggest somehow that it is not given proper democratic oversight and does not operate within the rule of law.

I turn to the bill. The ACT Party supports it. It does not change the framework within which the SIS operates or the principles under which it does its business. What the bill does do is simply update the legislation—keeping those principles and maintaining that framework—for the modern world. This is a modern world where we have technology that can track people without having to follow them, a world where we have mobile phones, and a world where we have the internet, email, and cyber-crime. In fact, the current legislation, as I understand it, was designed and thought of when Get Smart was popular on TV. That is how out of date our current legislation is. So all this bill does is to bring our legislation up to date, whilst keeping the principles that have been tried and tested and found to be true. For those reasons this change has the wholehearted support of the ACT Party. I continue to wonder about the puzzle that is Mr Keith Locke. Thank you.

FlavellTE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Tēnā koe, Mr Deputy Speaker. Kia ora tātou katoa. I am taking a brief call tonight on the New Zealand Security Intelligence Service Amendment Bill, just to say that the Māori Party—as most will be aware, as it is expressed constantly—is founded on a kaupapa that expresses the importance we place on values that others would probably call transparency, accountability—

TischMr DEPUTY SPEAKER Link to this

I apologise to the member. I would like to hear what the member is saying.

FlavellTE URUROA FLAVELL Link to this

As I was saying, we place a lot of importance on the values that others might call transparency, integrity, accountability, respect, and confidentiality. We are not fundamentally opposed to the notion of checks and balances, to be confident in the security systems we have in place. We think it is right that the law keeps up with the technology, as Mr Hide just talked about, to safeguard our citizens. But we also want to ensure that the agencies that are in place have strong oversight over the security intelligence system. Our prevailing concern is that when the Prime Minister and the director of the Security Intelligence Service consider issuing warrants, their judgment must be objective and not clouded by the subject of the warrant. I say that because, for example, if the subject were Tame Iti, I might suggest that the SIS would have more of a preconceived perception than if the subject were, say, Bob Jones. The key question is how we ensure objectivity. That is the problem. Although the need to have two people in the chain is a positive move, I think more needs to be done. Perhaps the full Intelligence and Security Committee should make the decision. All members of the committee are already sworn to secrecy, so there are no problems with issues of confidentiality.

Finally, I want to share the experience of Professor Jane Kelsey when she went to Australia and what she had to endure with Australian immigration, as an example of how ordinary New Zealanders can see the power that this secretive agency, the SIS, has over their lives. On a recent visit to promote her new book, Professor Kelsey was detained by immigration at Sydney Airport. She was subsequently informed by a senior immigration official that she was not eligible for visa-free entry to Australia, on the grounds that she was not an “appropriate person” under Australia’s 1994 immigration laws. Although she was allowed to enter Australia at that point, Professor Kelsey was told she would need to apply formally for a visa for any future visits, and was advised to seek a waiver from the Australian High Commission. The irony in this situation was that just a month earlier Professor Kelsey had entered Australia with no bother at all. One wonders, of course, whether the new book she was promoting on trans-Pacific partnership negotiations had anything to do with the change in approach; or perhaps it was the fact that last year she raised concerns over the apparent surveillance by the SIS of her activities as a critic of neo-liberalism and free-trade agreements.

The Māori Party accepts the need to amend the law relating to the SIS by updating and clarifying the New Zealand Security Intelligence Service Act 1969. We also acknowledge, as with other legislation before the House, the importance of being able to address technological changes and to ensure consistency with other legislation—in particular, to update the interception warrant system. The bill also deals with protections and administrative inefficiencies. We support the intention to use modern technology in the performance of the SIS’s functions. We recognise also the opportunity for streamlining requirements for the issuing of warrants. The Māori Party will support this bill at this stage in terms of pure efficiency and administrative improvements, but I signal to the House that our final vote will be determined by what we hear as the debate continues. Kia ora tātou.

HayesJOHN HAYES (National—Wairarapa) Link to this

I will make a brief contribution on the New Zealand Security Intelligence Service Amendment Bill, as probably I am the only person in the House who has actually had a close working relationship with the Security Intelligence Service over a long period of time—but not as long as my friend Keith Locke, who has been on their books since age 11, and he is much older than me.

HayesJOHN HAYES Link to this

Never mind; at least he is polite, unlike his rude colleague in the front seat.

In my experience, the 200-odd people who have made up the Security Intelligence Service at any one time over the last 7 or 8 years—and the last 25 or 30 years—are actually a great bunch of people. They have been really well led by people such as Don McIver, Richard Woods more recently, and at the moment a constituent of mine, Warren Tucker. It is worth recalling, when we think about this legislation, that, in fact, up until 1956 in this country the police did the work of the Security Intelligence Service. Then, between 1956 and 1969, the Security Intelligence Service operated without any legislative base whatsoever. Since 1969 we have had legislation. It has been reviewed on a few occasions, and because technological change has outstripped the old law, we are in the process of revamping the legislation again.

I would just like to say to people like Keith Locke and to other colleagues in this House that the bread and butter of the Security Intelligence Service is in vetting public servants, which is quite important as we remember that a couple of years ago the Ministry of Defence’s chief scientist unfortunately slipped through the cracks. Why does the Security Intelligence Service vet public servants? Because we want to have a system that we know is operating with integrity, so that the community can have a certain amount of trust in it. People who are checked in this way include those who work in defence and foreign affairs, and senior public servants. The Security Intelligence Service runs three offices—in Auckland, Wellington, and Christchurch—and aside from the main bread and butter, the job is primarily collecting intelligence, working on threats to our community, and making sure that those threats are disrupted. When we have the Rugby World Cup, we do not want an event to cause us some concern or damage during that occasion.

One other point I would like to make is that the Minister in charge of the Security Intelligence Service cannot name somebody or direct the service to follow a particular person of the Minister’s choosing. The system has a great deal of integrity. We have the Inspector-General of Intelligence and Security and, from my experience over a long period of time, I can say we can be very comfortable with the work the service does. We can be very proud of the work it does, and we can see that it is a system with impartiality, integrity, and a great deal of thoroughness. Thank you.

AuchinvoleCHRIS AUCHINVOLE (National—West Coast - Tasman) Link to this

The New Zealand Security Intelligence Service Amendment Bill is a balanced, well-structured bill that, on the one hand, provides for protecting New Zealand security and, on the other, minimises the effect on privacy. It was a pleasure to hear the second reading motion moved by the Attorney-General, Chris Finlayson.

There is a need to update and incorporate new information technology systems and new surveillance techniques. One has only to consider the rapid changes that have come about to see the need for such change. Human rights also have to be protected in balance with security requirements. Again, I say that the bill is a balanced, well-structured bill that, on the one hand, provides for protecting New Zealand security and, on the other, minimises the effect on privacy. Thank you.

Link to this

A party vote was called for on the question,

That the New Zealand Security Intelligence Service Amendment Bill be now read a second time.

Ayes 110

Noes 10

Bill read a second time.


Jun 2011
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